Gillett and Comcare
[2008] AATA 170
•28 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 170
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W200600389
GENERAL ADMINISTRATIVE DIVISION ) Re ELIZABETH GILLETT Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr D Weerasooriya, MemberDate28 February 2008
PlacePerth
Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that the respondent is liable to pay compensation to the applicant, in accordance with ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), the amount of such compensation to be assessed on the basis of the degrees of permanent impairment and the non-economic loss scores set out in paragraph 112 of the Reasons for Decision of the Tribunal herein.
The parties have leave to file submissions in relation to the costs of these proceedings within 14 days of the date of this decision. In the event that no such submissions are filed within that period, the Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.
...........[Sgd S D Hotop]..........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – permanent impairment – applicant sustained injuries to arm and lumbar spine and contracted psychiatric condition – respondent accepted liability to pay compensation to applicant in respect of physical injuries and psychiatric condition – applicant’s physical injuries and psychiatric condition have resulted in permanent impairment – Tables 5.1, 9.1, 9.4, 9.5 and 9.6 in approved Guide – compensation for permanent impairment and non-economic loss payable to applicant – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 14(1), s 24 and s 27
Guide to the Assessment of the Degree of Permanent Impairment (1st ed), Table 5.1, Table 9.1, Table 9.4, Table 9.5, Table 9.6 and Table 14.1
Comcare v Fiedler (2001) 115 FCR 328
Comcare v Moon (2003) 75 ALD 160
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
28 February 2008 Deputy President S D Hotop Dr D Weerasooriya, Member Introduction
1. On 6 August 1998 Elizabeth Gillett (“the applicant”) made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) for an injury described as “broken left arm” and said to have occurred on 3 July 1998 when, in the course of her employment as a housing officer with the Aboriginal and Torres Strait Islander Commission (“ATSIC”), she “tripped and fell down a half brick step on the front verandah” of a house in Kununurra, Western Australia.
2. On 20 September 1998 Comcare (“the respondent”) determined, in response to the applicant’s claim, that it was liable under the SRC Act to pay compensation to the applicant for injuries described as “fracture of shaft of radius & ulna, closed (Left)” and “radial collateral ligament strain (Left)” sustained on 3 July 1998.
3. The respondent subsequently determined that it was also liable under the SRC Act to pay compensation to the applicant for “adjustment reaction with depressive reaction” and “aggravation of spondylolysis lumbar L5/S1”.
4. On 15 February 2002 the respondent determined that it was no longer liable to pay compensation to the applicant for “aggravation of L5/S (sic) spondylolysis”. Following a reconsideration, however, the respondent revoked that determination on 24 June 2002.
5. On 18 February 2005 the applicant claimed compensation under the SRC Act for various permanent impairments and non-economic loss resulting from her abovementioned compensable injuries.
6. On 23 September 2005 the respondent determined that it was liable to pay compensation to the applicant for “a 10% whole person impairment relating to [her] spine function which is considered ‘permanent’.” Following a reconsideration, the respondent made a “reviewable decision”, dated 23 October 2006, affirming the determination that the applicant was entitled to compensation for “a 10% permanent impairment under Table 9.6 of the Comcare Guide in respect of [her] compensable condition for ‘aggravation of spondylosis (sic) lumbar L5/S1’.”
7. The applicant has applied to the Tribunal for review of that reviewable decision.
The Issues and the Tribunal’s Determination
8. The issue for the Tribunal’s determination is whether the respondent is liable under the SRC Act to pay compensation to the applicant for permanent impairment in respect of her:
· left upper limb;
· lumbar spine;
· left lower limb; and
· psychiatric condition;
resulting from her compensable injuries. In order to determine that issue, the Tribunal must also determine whether the applicant has suffered permanent impairment resulting from her compensable injuries, and, if so, the degree of such permanent impairment.
9. For the reasons which follow, the Tribunal has determined that the applicant, as a result of compensable injuries to her left upper limb, lumbar spine and psychiatric condition, has suffered permanent impairment as follows:
· left upper limb – 10% (whole person impairment);
· lumbar spine and left lower limb – 28% (whole person impairment); and
· psychiatric condition – 10% (whole person impairment);
and that the respondent is liable under the SRC Act to pay compensation to her on that basis.
The Relevant Legislation
10. The SRC Act relevantly provides:
“14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is
liable to pay compensation to the employee in respect of the injury.
(2) 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 rehabilitativetreatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is
such amount, as is assessed by Comcare under subsection (4), being an amount
not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
…
27 Compensation for non-economic loss
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
($15,000 x A) + ($15,000 x B)
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
… ”
Section 4(1) of the SRC Act, as in force at all material times, contained the following relevant definitions:
“…
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
approved Guide means:
(a) the document, prepared by Comcare in accordance with section 28 under the title ‘Guide to the Assessment of the Degree of Permanent Impairment’, that has been approved by the Minister and is for the time being in force; and
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
non-economic loss, in relation to an employee who has suffered an injury resulting in a permanent impairment, means loss or damage of a non-economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware.
…
permanent means likely to continue indefinitely.
…”
11. The 1st edition of the “approved Guide” (hereinafter also referred to as “Comcare Guide”), which is applicable in the present case, contains the following relevant impairment tables:
“5 PSYCHIATRIC CONDITIONS
TABLE 5.1
NOTE: Includes psychoses, neuroses, personality disorders and other diagnosable conditions. The assessment should be made on optimum medication at a stage where the condition is reasonably stable.
% DESCRIPTION OF LEVEL OF IMPAIRMENT
0Reactions to stressors of daily living WITHOUT loss of personal or social efficiency AND capable of performing activities of daily living without supervision or assistance.
5 Despite the presence of ONE of the following is capable of performing activities of daily living without supervision or assistance.
· reactions to stressors of daily living with minor loss of personal or social efficiency
· lack of conscience directed behaviour without harm to community or self
· minor distortions of thinking
10Despite the presence of MORE THAN ONE of the following is capable of performing activities of daily living without supervision or assistance.
· reactions to stressors of daily living with minor loss of personal or social efficiency
· lack of conscience directed behaviour without harm to community or self
· minor distortions of thinking
15ANY ONE of the following accompanied by a need for some supervision and direction in activities of daily living.
· reactions to stressors of daily living which cause
· modifications of daily patterns
· marked disturbances in thinking
· definite disturbance in behaviour (sic)
20 …
25 …
30 …
40 …
50 …
60 …
90 … ”
“9 MUSCULO-SKELETAL SYSTEM
TABLE 9.1
Upper Extremity
(Percentage Whole Person Impairment)
Introduction – These Tables are intended to be used to assess impairment arising from specific joint lesions or amputations. Where the joints function normally but the use of a limb is restricted for other reasons, eg soft tissue injury, nerve injury or bony injury not involving joints, Tables 9.4 or 9.5 should be used. These Tables can be used to assess the impairment of overall limb function from any cause. NOTE: either the musculo-skeletal table or Table 9.4 or 9.5 should be used – not both.
Assessment is in accordance with the range of joint movement. X-rays should not be taken solely for assessment purposes.
NOTE : Values are for one joint only. Where more than one joint is affected, values should be combined using the Combined Values Table (Table 14.1).
% DESCRIPTION OF LEVEL OF IMPAIRMENT
0 X-ray changes but no loss of function of shoulder, elbow or wrist
5 ANY ONE of the following:
· x-ray changes with minimal loss of function of shoulder, elbow or wrist
· ankylosis of any joint of fingers 4 and/or 5
10 ANY ONE of the following:
· loss of less than half normal range of movement of shoulder or elbow
· loss of half normal range of movement of wrist
· ankylosis of any joints of fingers 2 and/or 3
15 ANY ONE of the following:
· loss of more than half normal range of movement of wrist
· ankylosis of any joints of thumb
20 …
30 …
40 … ”
“9 MUSCULO-SKELETAL SYSTEM
TABLE 9.4
Limb Function – Upper Limb
(Percentage Whole Person Impairment)
% DESCRIPTION OF LEVEL OF IMPAIRMENT
10Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity
20Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding
30 …
40 … ”
“9 MUSCULO-SKELETAL SYSTEM
TABLE 9.5
Limb Function – Lower Limb
(Percentage Whole Person Impairment)
% DESCRIPTION OF LEVEL OF IMPAIRMENT
10Can rise to standing position and walk BUT has difficulty with grades and steps
20Can rise to standing position and walk but has difficulty with grades, steps and distances
30 …
50 …
65 … ”
“9 MUSCULO-SKELETAL SYSTEM
TABLE 9.6
Spine
(Percentage Whole Person Impairment)
Note: Lesions of the sacrum and coccyx should be assessed by using the table which most appropriately reflects the functional impairment. This will usually be Table 9.5.
Lesions of the spine are often accompanied by neurological consequences. These should be assessed using Table 9.4 or 9.5 and the results combined using the Combined Values Table.
DESCRIPTION OF LEVEL OF IMPAIRMENT
% CERVICAL SPINE THORACO-LUMBAR SPINE
0 X-ray changes only X-ray changes only
5 Minor restrictions of movement Minor restrictions of movement
OR
Crush fracture – compression
25-50 percent
10 Loss of half normal range of Loss of less than half normal
movement range of movement
OR
Crush fracture – compression
greater than 50 percent
15 … …
20 … …
30 … … ”
The phrase “activities of daily living” (referred to in Table 5.1) is defined in the “Glossary” in the approved Guide (1st ed) as follows:
“Activities of daily living are activities which an individual needs to perform to function in a non-specific environment ie: to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:
Ability to receive and respond to incoming stimuli
Standing
Moving
Feeding (includes eating but not the preparation of food)
Control of bladder and bowel
Self care (bathing, dressing etc)
Sexual function”.
The Evidence
12. The evidence before the Tribunal comprised:
· the “T Documents” (T1-T665, pp 1-1536) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1 - A13 tendered by the applicant;
· Exhibits R1 - R7 tendered by the respondent;
· the oral evidence of the applicant and of the following additional witnesses:
o Dr P Finch, Dr M Smeaton, Dr D Morkell, Mr G Guest, Mr D Gillett, Mr G Gillett (who were called by the applicant); and
o Dr G Edwards-Smith, Dr P Psaila-Savona, Mr P Hardcastle (who were called by the respondent).
The Applicant’s Evidence
13. In a written statement, dated 15 July 2006, to the respondent, the applicant described the circumstances in which she was relevantly injured on 3 July 1998, and the immediately resulting symptoms and medical treatment, as follows:
“On July 3rd 1998, I was involved in a workplace accident whilst working for the formally (sic) known Aboriginal and Torres Strait Islander Commission as an ASO3. I am tertiary educated, having completed BSc with first class honours in Chemistry and Biochemistry and a Diploma of Education. I had newly arrived in Kununurra in WA’s East Kimberley region and had taken the position whilst waiting for job to become available in a profession more suited to my educational background as a scientist or teacher. I was 31 years old and in good health. The accident occurred at approximately 9 am as I was inspecting one of the Commission’s staff houses in my position as Housing Officer,… I fell heavily from a poorly demarcated step onto my left outstretched hand and knees twisting sharply when I fell so that my left arm was outstretched and my right shoulder was touching the ground. I was still holding the documents I had taken to consult with the tradesman in my right hand. I required assistance from the carpenter … to move. Immediately after the accident, the tradesman had to leave to attend an urgent job so I drove back to the office with immense difficulty and was attended to by … the First Aid Officer and … [the] Safety Officer, the latter then taking me across to the hospital for treatment.
Initial diagnosis of the injury was a suspected scaphoid fracture of the left wrist. Two days later due to excessive swelling my arm was re-examined and a fracture of the radial head in my left elbow was found following consultation with the nearest radiologist, located in Port Hedland some 2000km away…
My injury was assessed and managed by my GP in Kununurra, Dr MacEvilly, and Orthopaedic Surgeon, Mr Tiller, 4 weeks after my injury as part of his biannual visit to the hospital. In week 12, I was still experiencing extreme pain, making work and life difficult. I could not dress myself or attend to personal grooming such as brushing and styling my hair, or basic domestic chores such as food preparation. I saw Dr Sugden (relieving GP) at the hospital and he expressed great concern at the condition of my arm and conferred with Mr Tiller. I travelled to Perth for MRI scans and review by Mr Tiller. I was told the results of the MRI scans showed extensive soft tissue damage of both the wrist and elbow, as well as the fracture of the radial head … Mr Tiller on 24/2/99 noted the injury to the ulnar nerve, numbness, pain and tingling in fingers.
Treatment included elevation and mobilisation of the injury in plaster from my fingers to my armpit, which was on for 6-8 weeks, followed by physiotherapy and a back-slab for the elbow and a rigid splint for the wrist, the latter I wore for over a year. This was replaced with a second skin splint that I wore for a further 18 months …
My back pain commenced in early October 1998 once I began reducing the quantities of anti-inflammatory and pain medication, as my stomach was no longer able to tolerate the medication. I noted the onset of symptoms in my diary so I can be quite sure of the date. Over the next few weeks, the back became acutely painful and swollen, I was having difficulty walking and by late November I was nearly bedridden. I received physiotherapy treatment in an attempt to alleviate the symptoms and chiropractic treatment in December when I flew home to Perth. The Chiropractor, Mr Adams, noted in his report on 18th Dec 98, ‘a poor range of movement with lumbar paraspinal muscle spasm and sacroiliac joint strain’ … Access to appropriate treatment and specialist opinion was difficult at that time as I was living in the Kimberley region of WA.
…
The deterioration of my psychological state began after my return to work due to treatment I was receiving in the office and the constant pain and resultant lack of sleep. I was not receiving any assistance in the office, despite having a full cast on my arm and was constantly being told to move desks … A Rehabilitation Provider was not appointed for 4 months and I was being harassed on a constant basis about my injury and the duties I could no longer perform, such as typing and driving a vehicle. This was exacerbated by my marital breakdown in 1999. My husband cited my injuries and high levels of pain, the resultant loss in our active lifestyle and the pressure placed on us due to my treatment at ATSIC whilst living in a very small remote community in the Kimberley of WA. In early 2000 I attempted suicide, due to pain, depression and a lack of clear diagnosis of my back condition. In addition a major contributor was the failure by Comcare to pay me for two months, rendering me unable to pay rent, bills and food. I again attempted suicide in 2001 following the cessation of liability for my back condition … ” (T635, pp 1358-1360).
14. In the applicant’s Outline of Evidence, dated 18 December 2007, she described her current symptoms and their impact on her as follows:
“Pain
1I currently suffer constant and severe pain in my low back, which radiates from the lower left side of my back down my left leg, across the hip girdle and around into the pubis bone in the front.
2I suffer numbness in my left foot.
3Bone scans and blood tests in Nov 02, showed bilateral sacroiliitis of a non-rheumatoid origin. Discogenic investigation in May 05 showed an anterior disc tear at L3/4. Due to the nature and position of this tear it is unable to be treated. As a consequence I have difficulty walking distances, using steps and walking up gradients and hills.
4I suffer pain from my left arm, which radiates from my elbow down into my ring and little finger and pain in left wrist. The pain is severe and usually is accompanied by some disco-ordination, tingling and numbness of my left hand particularly the ring and little fingers and loss of grip strength. My arm will become painful, this is usually following repetitive type tasks of relatively short duration, under 30 min, such as typing, chopping and preparing food and scrubbing. I trialled a Ketamine cream to assist with the neuropathic symptoms in my arm for over a year with some success but had to cease as it started causing my skin to break down.
5Both my arm and back pain have been resistant to treatment.
6I have participated in an integrated pain management program at the Perth Clinic in May 01. I currently participate in a pain management program devised by my Psychologist, GP, Physiotherapist and Pain Specialist and still require constant management using this approach.
7I require pain medication Panadeine Forte, 2-4 daily. I am trialling other methods of pain control such as acupuncture and therapeutic massage in an effort to reduce my intake of analgesia.
8Frequently, (at least once a fornight) the pain in my back exacerbates to the point where it is very painful to walk and sometimes I require bed rest. The duration of these exacerbations has varied greatly from 1 or 2 days to months.
9Normal activities are either very restricted or completely prevented due to pain. I receive home assistance of 3 hrs a week and often need help, at least fortnightly, with shopping and washing large items. Sometimes I am unable to drive my car and need assistance to attend medical appointments. I have an ACROD sticker on my car to assist with shopping etc as I am unable to walk long distances, especially with a shopping trolley. I am unable to walk my own dog due to pain and rely on my parents.
10Due to the nature and position of my back injury I suffer from associated problems: elevated and severe menstrual pain, some frequency in urinating symptoms and irritable bowel. These symptoms become elevated confluent with my back pain.
11I can’t sit, stand or walk for extended periods due to pain. I am no longer able to pursue my usual recreational activities or certain career options due to pain and impairment.
Suffering
12Due to the pain and restrictions I suffer I constantly have to focus on my injuries. I need to be aware of the way I move and carry out daily activities so as not to exacerbate my injury and pain. This can become very tiring.
13I battle with depression on a daily basis and become anxious or upset much more easily due to pain and the profound impact this injury has had on my life. The way I was treated at work after my accident still affects me.
14Lack of diagnosis of my low back condition for many years and suggestions of a pre-existing disorder had severe, negative impact both physically and psychologically.
15Certain life choices such as having children, travel and career have been restricted.
16My relationship of 10 years broke down due to this injury resulting in divorce.
17I am no longer confident or have self efficacy. Performing daily tasks is often difficult and I am constantly worried about my ability to cope with everyday life. I am often unable to cope with daily tasks at all due to pain or depression.
18I constantly worry about my job and career prospects as I worked hard to achieve academic success. I constantly worry about my financial situation.
19Focus now is on management of injury. I fear my impairment and pain levels have worsened and this makes me depressed and worried.
20Have put on a lot of weight due to physical inactivity. Very poor body image.
21My sleep patterns are very disturbed. I constantly feel tired and drained.
22I require psychological supervision on a regular basis to assist in modifying both my behavioural and negative thought patterns, such as short and long term goal setting, support by family, structuring of vocational activities and monitoring negative behavioural patterns such as excessive alcohol consumption and social withdrawal.
23Despite this support I am rarely free of psychological feelings of grief, pain, isolation and a sense of worthlessness. I have been suicidal.
Loss of amenities
24I am unable to walk for more than 10-15 minutes without elevation in the pain in my back, max 30 min at slow pace. Similarly I can’t sit or stand for extended periods.
25I have reduced mobility in left elbow and reduced grip strength and digital dexterity. I find tasks such as scrubbing, chopping, typing, holding/manipulating objects, difficult for more than a few minutes.
26Difficulty shopping, using shopping trolleys. Large shopping centres difficult to get around without frequent breaks and often avoid them. I have an ACROD sticker on my car to access disabled parking close to the entrance.
27I have to drive an automatic car as changing gears and engaging the clutch was difficult. I often have difficulty getting in and out of the car as well as loading items into the car.
28I frequently suffer exacerbation of my pain and then am unable to walk or drive a vehicle. At these times I am totally reliant on assistance from others.
29I am unable to drive long distances more than 1-2 hours and require frequent breaks. Arm painful from holding the steering wheel. Use of a special back support in the car.
30Difficulty using public transport such as bus or train. Restricted to short trips. I cannot stand if there is a lack of seating on public transport, such as happens at peak times. I have difficulty on aeroplanes, am restricted to short flights and must walk around frequently.
31Intense strain has been placed on my relationships due to pain and depression.
32I frequently have to turn down invitations from friends or family due to pain, depression or the nature of the activity. Frequently leave due to pain.
33I had a broad and eclectic set of friends. I no longer see many friends I used to play sport and recreate with, as I am unable to participate and feel ashamed. I feel cut off from society with nothing to contribute productively or in conversation. My relationships are now restricted to close family and friends.
34My marriage broke down due to this injury. My ex-husband felt unable to cope with my pain and impairment and the impact that had on our lifestyle.
35I find it difficult to socialise and make new friends because I do not work and am unable to participate in any of my normal recreational activities.
36I miss the mental and social stimulation of work; I lack a work identity and work colleagues.
37I am frequently distracted in conversation due to pain or an inability to concentrate due to depression.
38 Injury has impacted on intimate relations and relationships.
39I have suffered a great deal of prejudice and intolerance from both friends and some members of my family, who don’t understand the nature of long-term chronic pain.
40I am unable to recreate in any satisfying way due to my injury. Prior to my accident I was a very fit, active woman and had many and varied leisure pursuits.
These included: water-skiing, canoeing, hiking, rock climbing, scuba diving (I hold an open water dive ticket), dancing (to teaching certificate level) and aerobics, swimming (competitively, at state level for 15 years) and surfing. I was a member of Trigg Island Surf Life Saving Club for over 15 years and hold a Bronze medallion as well as senior first aid certificates.
41Immediately prior to my accident I was an active member of the Kununurra water ski club, bushwalking and rock climbing club, was a Volunteer Fisheries Officer doing weekly boating and 4WD patrols in rugged off-road terrain. I attended aerobics classes 4 times a week and played social volleyball once a week. I am unable to pursue any of these activities now.
42I am unable to walk my dog and rely on my parents to do so. I can’t walk on the beach for more than a few minutes without elevation in pain levels.
43I’m unable to perform more sedentary activities, for more than 30 min at a time, that I used to find enjoyable such as painting and sewing due to the limitations and pain from my arm and back injuries.
44 I can only drive an automatic car.
45I require the use of orthotics in my shoes and this severely restricts the shoes I am able to buy and wear. The price of this footwear is more expensive than normal footwear.
46I am required to use a back brace to perform certain activities such as walking for extended periods, very light gardening, shopping. The use of the brace severely restricts the type of clothes I can wear.” (Exhibit A6)
15. In her oral evidence-in-chief the applicant confirmed that she had never suffered from lower back pain before the work accident in July 1998. She said that she subsequently received physiotherapy treatment for her left arm and her back in Kununurra and that she continued to receive such treatment until she left Kununurra in September 1999.
16. The applicant said that, by the time she left Kununurra, her left arm condition had not improved very much and the pain in her left arm was “quite severe”, and her back was “very bad” and she was “in a lot of pain”. She said that her mental state “progressively got worse during the latter half of 1998” and that it “deteriorated during ’99 as well”.
17. As regards her mental state, the applicant said that, while in Kununurra, she was prescribed anti-depressant medication - namely, “Aropax” and “Prozac” - but that she experienced “some pretty nasty side effects” from them - “very bad migraines” and “very bad stomach pains” in the case of “Aropax”, and “shak(ing) really badly” and feeling “like [she] couldn’t breathe” and “like every nerve in [her] body was going off” in the case of “Prozac”. She added that she discontinued that medication after about 5 or 6 weeks.
18. The applicant said that, after she returned to Perth in September 1999, she was prescribed another anti-depressant – namely, “Zoloft – by her general practitioner, Dr Smeaton, but that that medication caused her to experience “double vision” and she discontinued it after 4 weeks. She said that, following a “suicide attempt” in March 2000, she was admitted to the Perth Clinic as an inpatient for almost one week and he then undertook a Cognitive Behavioural Therapy course which helped her to manage her pain levels but did not have any impact on her pain levels.
19. The applicant said that she was subsequently prescribed another anti-depressant – namely “Cipramil” – and that she was able to take that medication for about 3-4 months although she “didn’t notice a vast improvement in [her] mood” and, indeed, “attempted suicide again” during that period. She added, however, that she woke up one morning and found that she was “covered in bruises … lots of little spot bruises” and, on the advice of Dr Smeaton, she immediately discontinued that medication. She said that the last anti-depressant she had tried was “Efexor” in 2005 but that, during the period of 10 days in which she took it, she “started hearing voices” and “seeing things … out of the corner of [her] eyes” and she became “quite frightened and upset”. She then, in consultation with Dr Smeaton, discontinued that medication and found that those side effects subsided within a few days.
20. The applicant confirmed that, since returning to Perth, she has, from time to time, sought treatment from Dr Smeaton for depression and anxiety. She said that Dr Smeaton had referred her to Mr Guest, Clinical Psychologist, in 2000 and she has continued to see him on a regular basis since then. She said that Dr Smeaton had also referred her to Dr Morkell, Psychiatrist, in 2005 and that Dr Morkell had advised her to continue to see Mr Guest and to practise her pain management strategies.
21. The applicant confirmed that she was aware that Dr Edwards Smith, Psychiatrist, had suggested other medications that might assist in treating her depression. She said that she had discussed that suggestion with Dr Smeaton, Mr Guest and Dr Morkell and that they did not think that it was appropriate because of her previous experience with anti-depressants and because a side effect of the medication suggested by Dr Edwards-Smith is an increase in weight which would, in turn, cause her to feel more depressed and place greater pressure on her back.
22. In cross-examination the applicant reiterated that, following her fall in July 1998, she had first complained of back pain to her physiotherapist and to her general practitioner in Kununurra, Dr Sugden, in late September or October 1998. She added that Dr Sugden had then indicated to her that he would write a letter to Mr Tiller who was the visiting orthopaedic surgeon in Kununurra. She denied that she first saw Mr Tiller in relation to her back in April 1999, and said that she saw Mr Tiller regarding her back in February 1999.
23. The applicant said that she did not recall Dr Smeaton suggesting to her, in the period February 2000 – August 2005, that she should see a psychiatrist. As regards her earlier evidence that she had been referred to Dr Morkell, Psychiatrist, by Dr Smeaton, the applicant initially said that that was her “recollection” but she then explained that she had seen Dr Morkell for the purpose of obtaining a medico-legal report from him, and she added that Dr Morkell was not a “treating psychiatrist” in her case.
24. The applicant was referred to Mr Guest’s clinical notes, regarding her trip to India in December 2006/January 2007, in which reference is made to “walking” and “wearing hiking boots”. Her evidence was as follows:
“No, I was not wearing big hiking boots. I was wearing small, sort of, leather trainers. They were quite light and yes, I had done some walking. I am required to do walking. It is recommended that I do walking. Part of my physical rehabilitation …
Ms … ? … … treatment is to walk.
Ms Gillett, I am not asking you for an explanation. I am asking you whether you said … ? … I was doing some walking in India.
Yes, and did you say to him that you had been wearing hiking boots and your answer is no? Is that right? … Well, I guess what your definition of hiking boots are.
Well, I am just reading what your psychologist wrote down, which says, ‘Wearing hiking boots. Did you tell him or didn’t you tell him you were wearing … ? … Well, I …
… hiking boots? … They were walking boots. They were not hiking boots. Hiking boots are an entirely different thing but I am not responsible for Mr Guest’s turn of phrase either.
I am not suggesting you are … ? … Good.
… I am just asking you a very simple question which you seem to have a lot of difficulty answering? … I don’t have.
THE D. PRESIDENT: You didn’t use the phrase ‘hiking boots’? … No, no, walking boots. I purchased them especially before I went because they were quite light.” (Transcript, pp 225-226)
25. The applicant confirmed that she had started seeing her present boyfriend in October 2005 and that they had visited India in December 2006/January 2007. She denied that she had been trying to fall pregnant in 2007 or that she had told Mr Guest or Dr Smeaton that she was trying to fall pregnant. She acknowledged, however, that that was an “option” which she had “considered very seriously” and that she had had “conversations” with Mr Guest and Dr Smeaton about it, but that she had since rejected that option. She also denied that she and her present boyfriend were living together or had ever lived together.
26. The applicant was referred to Mr Guest’s clinical notes of 4 September 2006 in which it is stated that she had “stopped THC (marijuana) totally”. She said that she had “experimented with it” for “a very short time” in 2005 mainly because she was then experiencing nausea and also because of the pain she was then suffering. She initially said that she had used it for “a few weeks” but later she said that she had used it for “no more than a couple of months”. She added that it did not help her with her nausea or her pain. She agreed that the only health care professional person whom she told about her marijuana use was Mr Guest, whom she described as her “regular counsellor”.
The Evidence of the Medical Witnesses
Dr Michael Smeaton
27. Dr Smeaton said that he has been practising as a general practitioner since 1989, and that he commenced treating the applicant in the mid 1990s and has been treating her since her return to Perth from Kununurra in 1999. He confirmed that he had prepared numerous reports regarding the applicant’s compensation claim.
28. Dr Smeaton confirmed that he had prepared a report, dated 6 December 2004, in support of a claim by the applicant for compensation for permanent impairment as follows:
“Compensation Claim for Permanent Injury
Report on Elizabeth Gillett
Date of injury: 3/7/98
Condition 1:
Fractured left head of radius and soft tissue injury to the left wrist.
This is an accepted condition.
Impairments: Has persisting wrist pain, reduced grip strength and difficulty with digital dexterity, for example, unable to use a computer keyboard.
I consider that the impairments have stabilized at this level indefinitely.
Active treatment for this condition has been completed.
The Percentage of Whole Person Impairment according to Comcare’s ‘Guide to the Assessment of the Degree of Permanent Impairment’ is 10% (can use limb for self-care and grasping and holding, but has difficulty with digital dexterity).
Condition 2:
Bilateral traumatic sacroiliitis and left sacroiliac joint instability.
This is an accepted condition.
Impairments: Has constant low back pain requiring daily narcotic analgesia. Ambulation and mobility are significantly reduced.
I consider that the impairments have stabilized at this level indefinitely.
Active treatment has not been completed.
Analgesia is still required on a daily basis. Remains under the care of a Pain Management Consultant, although at this stage, no further interventional treatment is planned.
The Percentage of Whole Person Impairment according to the guidelines is 20% (Can rise to standing position and walk, but has difficulty with steps, grades and distances).
Condition 3:
Adjustment Disorder with Depression.
This is an accepted condition.
Impairments: The reaction to chronic pain has adversely affected relationships with family, friends and partners. Recreational interests have been abandoned. Has difficulty walking and travelling. Has suffered a major loss of career options. Requires significant support and assistance from family and Health Professionals to help deal with these losses.
I believe that this condition has stabilized at this level indefinitely.
Treatment has not been completed.
Continues to require support from Health Professionals, including Medical Practitioners and Clinical Psychologist.
Percentage Whole Person Impairment according to the guidelines is 15%.
… ” (T523, pp 1092-1093; T635, pp 1447-1448)
29. Dr Smeaton said that he did not examine the applicant for the purpose of preparing the abovementioned report, and he explained the basis on which he formed the opinions expressed in that report as follows:
“I prepared the report based on my knowledge of her condition gleaned over the previous consultations. I was aware that she was able to use the limb for gross motor tasks. She could hold a knife, a fork. She could dress herself. But she would have difficulty with fine motor tasks. She described difficulty fastening buttons. Certainly she couldn’t use a computer keyboard. In one of her work trials, I believe it was at the chemistry centre, she described difficulty in using pipettes and electronic machines, gadgets, that were necessary for her work. So in consideration of that knowledge, that was the criteria that fit best.
…
… I was aware that – and from my observations, even just coming into the consulting room, she would have difficulty getting out of a chair. She would walk rather slowly, clearly in some discomfort, moving around in the chair. If the consultation extended beyond 15, 20 minutes, she would be clearly uncomfortable and would have to move around and reposition herself. And I was certainly aware from discussions that she was limited in how far she could walk due to the pain.
…
… I was aware that she was suffering significant depressive symptoms. She was very negative in her thoughts and outlook, very frustrated, expressing a lot of grief as to loss of opportunities, loss of income, loss of career opportunities and also relationship difficulties that her injury – she attributed to her injuries”. (Transcript, pp 106, 107)
30. As regards the applicant’s lumbar spine, Dr Smeaton confirmed that he had prepared a report, dated 10 June 2006, in which he stated that his findings, on examination of the applicant, were that there was “a significant reduction to (sic) the normal range of movement” in respect of lumbar flexion, and “an approximate reduction by 30% of the expected normal range” in respect of lumbar extension and lateral flexion (T 635, pp 1444-1445). Dr Smeaton opined that, on the basis of those findings, the percentage of whole person impairment of the applicant’s lumbar spine, in accordance with the Comcare Guide, was 10%.
31. Dr Smeaton confirmed that he had prepared a report, dated 6 September 2007, regarding the applicant’s use of anti-depressant medication. That report, which was prepared at the request of the applicant’s solicitors in response to a report of Dr Edwards-Smith, Psychiatrist (see paragraph 55 below), states as follows:
“ …
I have read and duly noted the copy of Dr Edwards-Smith’s report dated 4th July 2007.
In answer to your specific questions:
1. Since the accident of 3rd July 1998, Ms Gillett has been prescribed the following
anti-depressants: Zoloft, Cipramil and Exefor. In addition, she has trialled St John’s Wort (a ‘natural’ anti-depressant).
I have noted Dr Edwards-Smith’s comments that Ms Gillett had previously also taken Aropax and Prozac.
I have reviewed my extensive medical files, and could find no reference to these latter 2 agents.
However, multiple medical practitioners, other than myself, have been involved in her care. It is possible that another practitioner may have prescribed these agents at some stage.…
2. Cipramil, prescribed for the first time by another General Practitioner, in October 1999, did produce a modest improvement in her depressive symptoms. This was discontinued after 3 months due to side effects. A second trial of this agent in 2005 was unhelpful.
Zoloft and Efexor were not tolerated for long enough to gauge their therapeutic effectiveness.
3. The side effects of the agents described above were as follows:
Zoloft: Headaches, diarrhoea, double vision.
Cipramil: Bruising
Efexor: Tremor, sweating, giddiness, lowered mood.
4. Mirtazepine, although generally well tolerated, has many potential side effects, the commonest being drowsiness/sedation and appetite stimulation/weight gain.
5. In answering this question, I must point out that I am a General Practitioner, not a Specialist Psychiatrist. I do not purport to have more expert knowledge of the management of Major Depression than my specialist colleague, Dr Edwards-Smith.
However, as Ms Gillett’s General Practitioner, I am in the privileged position of having being involved in her management since 1994. I believe that this gives me considerable advantage in making treatment decisions.
It is my belief that Mirtazepine is not an appropriate treatment for Ms Gillett at this time. My reasons for arriving at this conclusion are as follows:a) Ms Gillett has trialled several alternative anti-depressants as detailed previously. Trials were unsuccessful due to side effects and lack of response.
In addition, Ms Gillett has shown a sensitivity and intolerance to many other agents (not confined to psychoactive medications).
She does not have a great deal of enthusiasm or confidence to trial another drug.
Without her support and confidence, I think it is unlikely that another agent will be successful.
The therapeutic lag effect of all of the anti-depressants is also a factor in this consideration.
b) My personal observation during the time that I have been involved in her care, is that Ms Gillett’s mood and depression are reactive to her current situation.
For example, when her pain levels are increased, or administrative difficulties in dealing with her Insurer are encountered, the depressive symptoms increase.
Conversely, when her rehabilitation is progressing positively, her depressive symptoms subside.
I do not believe that anti-depressive medication will significantly change her response to adversity.It would be more useful and effective, to reduce adversity wherever possible.
c) With respect to Mirtazepine in particular, Ms Gillett is already struggling to prevent weight gain, due to her inability to exercise optimally.
As it is her intention to start a family at the earliest opportunity, an increase in her weight would be detrimental to her chances of a successful outcome.
… ” (Exhibit A8)
As regards para 5(c) of that report, Dr Smeaton added that “excessive weight puts excessive strain on the lower back” and that it was “generally accepted that people with a back condition should maintain their ideal body weight” (Transcript, p108).
32. In cross-examination Dr Smeaton confirmed that, after the applicant’s fall on 3 July 1998, he saw her on 20 and 21 August 1998, 21 December 1998 and 29 September 1999 and that his clinical notes in respect of those consultations do not refer to back pain. He confirmed that the first date on which his clinical notes refer to the applicant’s back pain was 22 February 2000 when he noted that the applicant was “also complaining of an increase in usual chronic low back pain” and was seeking a referral to W. Adams, a chiropractor.
33. As regards the anti-depressant medication prescribed for the applicant, Dr Smeaton confirmed that his clinical notes record that she was prescribed “Cipramil” by another general practitioner in early October 1999 and that he (Dr Smeaton) continued to prescribe it for her until February 2000. He also confirmed that his clinical notes of 3 February 2000 record, in relation to her taking “Cipramil”, that bruising was a “minor problem”, and he further confirmed that he did not recommend to the applicant that he she cease taking “Cipramil”. Dr Smeaton also confirmed that in 2000 and 2004-2005 he recommended to the applicant that she see a psychiatrist but that on each occasion she refused to accept such a referral from him.
Dr Philip Finch
34. Dr Finch confirmed that he is a medical practitioner specialising in pain medicine and that he has practised in pain medicine for 30 years. He confirmed that the applicant was referred to him by Dr Smeaton in March 2005 for lower back pain and pain in the left upper limb and that he had since continued to review her on a reasonably regular basis, primarily in respect of her lower back problem.
35. As regards the applicant’s lower back condition, Dr Finch opined that the applicant, prior to the fall of 3 July 1998, had probably undergone some degenerative changes in her lower lumbar spine which were asymptomatic but that, as a result of that fall, her lower lumbar spine was disrupted – in particular, the L3/4 segment – and became symptomatic. In his most recent report of 18 October 2007 (Exhibit A2), Dr Finch stated:
“Ms Gillett has ongoing mechanical low back pain with radiation to the left buttock, posterior thigh and groin. This pattern of pain was reproduced exactly by injection of contrast into the L3/4 disc on 27 May 2005. An anterior disruption was seen in the disc ... There was pain from the L4/5 disc but this was only classed as similar and the L5/S1 disc was painless.
It can be concluded from this discography and also from multiple MRI studies of the lumbar spine that the L3/4 disc is at least partly responsible for her symptoms radiating into the left buttock and left lower limb. It is not necessary to have obvious nerve root compression to cause radiation into the lower limbs and indeed a common pattern of radiation is seen in the lower limbs following internal disruptions of the lower lumbar discs.
… ”
36. Dr Finch confirmed that, at the request of the applicant, he had prepared a report, dated 30 November 2005, in support of her claim for compensation for permanent impairment (T635, pp 1409-1410). In that report Dr Finch expressed his opinion regarding the degree of the applicant’s impairment in respect of the left upper limb, the lumbar spine and the left lower limb, having regard to the Comcare Guide, as follows:
· left upper limb – 15% impairment under Table 9.1;
· lumbar spine – 10% impairment under Table 9.6;
· left lower limb – 10% impairment under Table 9.5.
37. In a report, dated 14 May 2007, to the applicant’s solicitors, Dr Finch stated as follows:
“ …
1. I have seen table 9.4 of ‘the guides’ and I would suggest that your client’s level of disability in the left upper limb lies between 10% and 20%. For example she can use the limb for self care, has some digital dexterity but this is not totally lost as suggestive for 20%. She certainly has difficulties with grasping and holding. For example she has difficulties in supination of the left wrist, full flexion and extension of the left elbow. She also has sensory changes in the limb and evidence of hyperaesthesia and allodynia. Typical of Complex Regional Pain, she does not like the limb to be touched even in the lightest way.
Given these findings I would argue that the level of impairment lies between 10% and 20%.
2. The difficulty with the ability to grasp or hold is a clinical finding and can be easily determined by carrying out the examination techniques mentioned above. This includes motor function at the wrist and elbow and sensory changes in the limb as a whole.
3. Digital dexterity is reduced. For example your client can clearly demonstrate that typing is difficult. I have asked your client to type on my computer with the right hand and there was no hesitation or difficulties whereas with the left each individual letter had to be pressed with care and there was obvious discomfort.
4. Your client has been tested on a step and demonstrates considerable difficulty in getting on and off this step with either of her lower limbs, especially the left.
… ” (Exhibit A1)
38. In response to questions from the Tribunal regarding his abovementioned opinion regarding the degree of impairment of the applicant’s left upper limb under Table 9.4, Dr Finch gave the following evidence:
“THE WITNESS: In black and white terms I suppose it would come – it could be 20 per cent, but I’m probably thinking in reality terms it’s not that severe.
THE D.PRESIDENT: Well, yes, I know the problem, but we have to apply the table, whether we agree with it or not. So I think your position is, Dr Finch, that she can use the limb for self care? … Yes.
You would not say she has no digital dexterity, so you wouldn’t go that far?... No.
But you do think she has difficulties grasping and holding? … Yes, I’d agree with that”. (Transcript, p 51)
39. Dr Finch was also asked by the Tribunal to explain how he had arrived at his opinion, expressed in his abovementioned report of 30 November 2005, that the degree of impairment of the applicant’s left upper limb, under Table 9.1, was 15%. His explanation was as follows:
“I haven’t actually written it down in my handwriting here, the notes of 30 November ’05, which was when I did that report. I haven’t actually recorded any examination findings on that date. I must have looked at her range and decided it came under that item number”. (Transcript, p 50).
Dr Paul Psaila-Savona
40. Dr Psaila-Savona, Consultant Occupational Health Physician, examined the applicant, at the request of the respondent, on 17 May 2005 and 5 June 2007 and he prepared a report following each of those examinations.
41. In his first report, dated 24 May 2005 (T564), Dr Psaila-Savona, after setting out the applicant’s history and the results of his clinical examination of the applicant on 17 May 2005, answered questions asked of him by the respondent as follows:
“Question 1: What condition/s is the claimant currently suffering?
Answer: Ms Gillett is suffering from:
(a) Low back pain with radiation down to the left lower limb. The cause of this pain has been variously described as facetal joint degeneration, sacro-iliitis and recently the possibility of a discogenic cause has been raised.
(b) Pain in the left elbow with tingling sensation in the ulnar side of the forearm and ring and little fingers of the left hand.
(c) Painful left wrist.
…
Question 2: How is the current condition/s related to claimant’s injury sustained on 3 July 1998?
Answer:The current condition/s are described in the body of the report. I have no doubt that her elbow and wrist conditions are directly the consequence of the injury she suffered on 3 July 1998. There seemed to be some doubt about the relationship between her injury and her back condition. I understand that liability has been accepted for the back injury and would tend to support this. She did ballet for 15 years and has had some nebulous cervical spinal condition which required radiological investigation of her back and treatment by a chiropractor prior to the injury. It is difficult to assess with certainty the contribution of either of these to the present degenerative changes in the spine. It must be accepted, however, that she did not seem to have had any specific symptoms in her lower back prior to the July 98 injury. Even if one were to accept that the ballet or her neck condition had some part to play, the injury in 1998 aggravated any pre-existing but symptomless condition. It is therefore not unreasonable to accept that the present impairment to the spine is associated with her 1998 injury.
Question 3:What is the overall percentage whole person impairment resulting from the injury as assessed in accordance with Table 9.4 for her upper limb function, Table 9.5 for lower limb function and Table 9.6 for her spine function?
Answer:Under Table 9.4 of the Guide to the Assessment of the Degree of Permanent Impairment she has a 0% impairment. She can use the limb for self-care, grasp and hold and has no difficulty with digital dexterity. Although she complains of neuropathic symptoms in the forearm and ring and little fingers there is no evidence of any ulnar nerve pathology in the EMG. I note that you have not asked me to assess her upper limb condition under Table 9.1. I take it that this is unintended. As a result I have taken the liberty of assessing under this table and advise that there is 0 impairment since she has full functional use of her elbow and wrist as noted in her normal range of movements.
I do not think it is appropriate to assess Ms Gillett under Table 9.5. She has no gross pathology in her lower limbs and any complaints of difficulty with walking, standing or sitting are manifestations of her back condition. She does have a history of R knee trouble which from time to time requires debridement but she is satisfied that this gives her no impairment and I would tend to agree with this. There is no evidence of any neurological consequences from her spinal condition and as this condition will be assessed under Table 9.6, any further assessment under Table 9.5 would be considered double dipping for the same condition.
In spite of the above, even if I were to assess her under Table 9.5, I believe that such assessment would attract a 0 impairment. She has no demonstrable difficulty with rising to a standing position and she has no significant difficulty with grades and steps. A trial walk and going up and down a flight of 12 stairs showed her to be cautious in movement but still managed without difficulty. She said that she had to hold onto the railings when ascending the stairs. She initially walked with an antalgic gait but this disappeared with further walking.
Under Table 9.6 she has a 10% whole person impairment. She has loss of less than half normal range of movement. Independently of the cause of the back pain she is clearly impaired and her range of movement has suffered. ”
42. In his second report, dated 12 June 2007 (Exhibit R2), Dr Psaila-Savona described the applicant’s current symptoms as follows:
“Currently she continues to complain of:
1.Pain in the lower back referred to the left hip, groin, and the back of the left lower limb to above knee level. She says that she has numbness in the left big toe and in the web space between the big and 2nd toes. The pain in the back is constant. The quality of the pain changes. At times it is very sharp and seems to penetrate right through her back. At others it is of a dull nature. It is of an intensity of 6-7 on a Visual Analogue Scale of 1-10 (10 being the maximum) on a regular basis but climbing to 8-9 at which point she has to go and lie down on her back with a pillow under her knees.
She can tolerate standing for no more than 20-30 minutes and can sit (but in an uncomfortable position) on her right side for no more than ½ hour. She has great difficulty with bending and twisting. She walks on the treadmill a distance of about 700-800m at a slow pace. She uses the Fitball at physiotherapy. She has trouble with climbing up and down stairs and whenever possible she tries to avoid them. If she cannot she has to cling on to the handrails and brace her back accordingly. Similarly, she avoids gradients and uses the lift whenever possible. She drives an automatic vehicle. She can drive for no more than an hour because of the back pain and discomfort and her leg becomes numb. She has difficulty with pushing a shopping trolley. She shops almost every day because of the need to buy in small amounts as she has difficulty with carrying heavy weights. She has an ACROD sticker for parking close to the shopping centre.
2.Pain in the left elbow shooting down the medial side of the forearm to the little and ring fingers. She indicated that the pain is located over the radial head. This is very sensitive to touch. It tends to become worse with repetitive movements. She has difficulty chopping food items and typing. Her ability to grasp and hold diminishes after about an hour. She says she can pick things up but cannot hold them for a long time. She then tends to drop them. She had great problems with the Work Trial at the Chemistry Centre because she was prone to drop test tubes and chemical equipment.
… ”
He then set out the results of his examination of the applicant on 5 June 2007 and addressed matters specified by the respondent as follows:
“ …
3.4 Diagnosis:
3.4.1 In relation to the left upper limb – Ms Gillett is suffering from pain in the left elbow and left wrist with complaints of tingling sensation in the ulnar side of the forearm, ring and little fingers of the left hand. It is difficult to be specific about the cause of pain in both the left elbow and left wrist but this appears to be neurogenic in origin. Although a previous EMG was negative indicating that there does not appear to be any traumatic lesion to the left ulnar nerve, she has demonstrated some positive clinical signs of a compromise of this nerve with a definite weakness in the left hand. Her grip is considerably weakened by the probable wasting of the interossei muscles and the abductor muscle of the little finger.
3.4.2 In relation to the lower back she is suffering from low back pain which is referred to her left hip, groin and lower limb. She has a degenerated L3/4 disc as evidenced by discography and subsequent MRI. It is unclear whether the bilateral sacroiliitis, which has been demonstrated by clinical as well as bone scan imaging is primary or secondary to the disc disease. There is evidence of facetal degeneration as indicated by x-rays and CT scan although the last MRI, interestingly enough, did not identify such arthropathy.
…
3.5 CAUSATION:
3.5.1 In regard to the left upper limb, it is my opinion that her present condition is directly a consequence of the fall she had in July 1998.
3.5.2 In regard to the back, there is considerable doubt whether the present condition is completely the outcome of the injury sustained in July 1998. I am aware that liability for the back injury has already been accepted.
Ms Gillett states that she had no problem with her back prior to July 1998. However, by her own statement, it would appear that she had been seeing a Chiropractor since 1992 for her back. The reason for this is not clear but Ms Gillett indicated that this was for her to keep fit. In my experience I have never encountered a patient who goes to the Chiropractor to keep fit; they go for treatment.
Furthermore, I find it difficult to accept that her back condition which allegedly arose as a result of an injury sustained in July 1998 was symptomless (or at best symptoms were easily masked by the use of anti-inflammatories) at the time of the injury, then became symptomatic 3 months after the injury and thereafter became uncontrollable to an extent that various modalities of treatment have been unable to manage the symptoms complained of. As time went by, the symptoms became much worse.
This leads me to believe that Ms Gillett had already been suffering from some back pain and that her perception of the pain had substantially changed over time. In my opinion, although there is now ample evidence to show the cause of the pain (a degenerated disc disease + or – sacroiliitis), there is no clear proof that this was an outcome of the fall. Furthermore, some of the pain is psychologically induced. As indicated in my previous report this in no way is meant to be a reflection of Ms Gillett’s genuineness in her description of the intensity of the pain …
The discography has shown that she has pathology at L3/4 level in her disc and this has now also been confirmed by MRI (April 2007). The diagnosis of primary sacroiliitis (as distinct from that referred from the spine) dysfunction is less convincing. This is not surprising. The number of tests that have been devised to support this diagnosis is indicative of the unreliability of these tests. If there was one test that could clinch this diagnosis that would make the need of other tests obsolete. No one such test exists.
Furthermore, these tests in the main require a response from the patient. The response is subjective and depends on the level of tolerance to pain of the patient. However both from clinical examination as well as from a Bone Scan carried out in November 2002 there is some indication of dysfunction of both joints.
It must be emphasised that at no stage has there been any indication of impingement of nerves by the pathology in the back. The latest MRI confirms this. It is therefore difficult for me to conclude that symptoms attributable to the lower limbs are a direct consequence of the disc pathology. Sacroiliitis is known to cause referred pain to the buttocks and groin but not usually to the limbs. The unilateral wasting of the quadriceps muscle on the L is more suggestive of a local cause than from the degenerative disease of the spine. This picture is further complicated by the fact that Ms Gillett had prior pathology to the knees for which she had surgery (debridement).
The degenerative changes were suspected by Mr Tiller as far back as 1999. Dr Sullivan, the Sports Physician, also noted ‘low grade facet knee (sic) degeneration’ while the Bone Scan indicated ‘some very mild facet joint increased uptake’. I am aware that Ms Gillett has criticised these findings on the basis that the diagnosis of ‘spondylolysis’ was discredited. However it would appear that Ms Gillett is confusing degenerative changes in the facets with spondylolysis.
Professor B Galton-Fenzi, an Occupational Physician, felt in 2002 that Ms Gillett’s back condition was 50% due to degenerative disease and 50% to the consequence of the injury. I agree with this assessment.
…
3.6 IMPAIRMENT
(a) Under Table 9.1 she has a 10% impairment for the left elbow as she has loss of less than half normal range of movement of her elbow.
Under Table 9.4 she has a 10% impairment. She can use the limb for self-care. It is my opinion that Ms Gillett has reasonable digital dexterity on examination. She can grasp and hold for a while but because of a demonstrated weakened grip it is very likely that the digital dexterity diminishes with repetitive movements.
(b) Under Table 9.6 she has a 10% impairment since she has loss of less than half normal range of movement of the thoracolumbar spine (but see my comments at 3.5.2).
I do not think that it is appropriate to assess Ms Gillett under Table 9.5 for reasons already given in my last report. I am aware that she has criticised this in her critique to my previous report. Table 9.6 is the appropriate Table to assess her back condition since the primary pathology is at L3/4. There is no evidence of neurological compromise. Ms Gillett states that she had been advised by Comcare that Table 9.5 should have been used. If this is true then I take issue with this.
I am aware that the note in Table 9.6 states that ‘Lesions of the sacrum and coccyx should be assessed by using the Table which most appropriately reflects the functional impairment. This will usually be Table 9.5’ (my emphasis). This, however, must be considered in the light that the pathology, if any, is not in the sacrum or in the coccyx but in the joint. In the ‘Introduction’ at Table 9.1 it is made quite clear that ‘Where the joints function normally … but the use of a limb is restricted for other reasons, eg soft tissue injury, nerve injury or bony injury not involving joints, Tables 9.4 or 9.5 should be used’. It has been accepted that the sacroiliac joint is not here functionally normally. It is not part of the sacrum or coccyx and therefore the use of Table 9.5 is not appropriate.
If, in spite of my arguments above, it is accepted that Table 9.5 should have been used then I advise that she has a 10% impairment since she has no difficulty with rising to a standing position but has difficulty with grades and steps. I did not take her for a trial walk this time because it was clear from the clinical examination that such difficulty would be encountered. I therefore relied on this and the history she gave me. Consideration should also be given that some of this impairment is possibly also due to the pathology in her knee …
… ” (original emphasis)
43. In cross-examination Dr Psaila-Savona was questioned about his opinions (expressed in his report of 12 June 2007) regarding the degree of the applicant’s impairments.
44. As regards the applicant’s left upper limb, he said that there was not a loss of half the normal range of movement of the elbow; nor was there a loss of more than half the normal range of movement of the wrist. He reiterated his opinion that, under Table 9.1 in the Comcare Guide, the degree of impairment is 10%. As regards the degree of impairment under Table 9.4 his evidence was as follows:
“Okay, can I then move on to table 9.4? You have assessed that there has been a 10 per cent … ? … Yes.
… impairment and again it might be self-evident but what have you taken into account in arriving at that assessment? … Well, as I said there, she can use the limb for self-care. I never had any problems with that at all. She was able to look after herself. I did say that she had reasonable digital dexterity on examination. She can grasp and hold for a while but because of the demonstrated weakened grip it is very likely that the digital dexterity diminishes with the repetitive movement. So I have considered that the digital dexterity was sometimes good and sometimes bad.
…
Okay? … Yes, so I came to the conclusion that she did have some difficulty. I wouldn’t have said it was a gross difficulty of dexterity.
Did you consider she had difficulties grasping … ? … Yes.
… and holding? … Well, she definitely had a difficulty with her grip. I did not – it’s almost impossible in a clinic to assess how long she can grasp for because I am not going to stay waiting until she drops – from the history she gave me she did say that she could actually grasp but after a while her hands become weak and she lets go and therefore she can drop cups. So I had to go on the history she gave me.
And, accepting she had difficulty grasping and holding, why doesn’t that come within 20 per cent in table 9.4? … Because she does have digital dexterity. There it says:
But has no digital dexterity or has difficulties grasping and holding.
Yes, or has difficulties grasping or holding. That is an alternative? … Yes. Well, she was able to grasp and she was able to grip.
I think you accept she had difficulties with her grasping and holding. Doesn’t that bring her within the 20 per cent? … Only on the history she gave me.
Right, but again you accept she is genuine and you don’t really question that? … Well, I have no difficulty with accepting her genuineness.
I think you say at paragraph – at page 6 in the top paragraph that the tests you have done gives an indication that there is a genuine loss of grip? … Yes.
So that, with respect doctor, seems to me to suggest that more properly the assessment is 20 per cent rather than 10 per cent? … Well, I – it is very difficult to just go on one test only. You have to assess, in my opinion, on the full clinical examination. I, on the full clinical examination, on this test she obviously did show some evidence of a gripping difficulty but on other tests I could see that she did have reasonable mobility. She did grip my hand and shake my hand and I would say it is very difficult for me now to say exactly what I intended by that statement.
When you look at it given that you found she had a genuine loss of grip, it just fits more comfortably within the 20 per cent assessment rather than the 10 per cent assessment? … Possibly.” (Transcript, pp 199-200).
45. As regards his assessment of the degree of the applicant’s impairment under Table 9.5, Dr Psaila-Savona gave the following evidence:
“Can I ask you what you took into account in assessing it as falling under 10 per cent? What did you think indicated it fell within 10 per cent? … Well, I observed Ms Gillett in the clinic and I felt that she could rise to a standing position. I knew, because I saw her coming into the clinic, that she had difficulties with grades and steps, both on the history that she gave me that she was trying to avoid grades and steps, takes the lift as often as possible, and I did notice how she walked and to my own mind I accepted that she would have difficulties with grades and steps. Now, I presume that you’re asking me why doesn’t she fall under the 20 per cent?
I am coming to that, yes?‑‑‑Yes, and I would say that I was – I came to that conclusion because I believed that the history again showed that she was able to walk reasonable distances. She was able to go to work at various times and I know that she did say that she gave up the job because it was getting to be tiring. I know that she used the – because she told me so – that she uses the treadmill for about 700 metres at her own place (sic) and I would consider that to be a reasonable distance for someone with a pathology in the back.
…
So coming back to why you say it’s not to 20 per cent, you accept she has difficulty with the grades, accept she has difficulty with steps, but you don’t think she has difficulty with distances?‑‑‑I didn’t believe so.
And that’s the reason why you don’t think it’s 20 per cent?‑‑‑Yes.
In terms of distances you base that on the fact that she can walk on a treadmill for 700 metres?‑‑‑I didn’t – after the first examination I did take her out for a walk and I did assess her going up grades and steps. I felt that on the second occasion it would be futile to do so because she had already indicated to me that she would not be able to use grades and steps, she told me so.
Right?‑‑‑In regard to the distances the first time I did take her out for a walk and, yes, she did walk with a stick, but she did walk. The second time I didn’t, but I assessed that from - on clinical grounds that she would have been able to walk a reasonable distance, which I would assume to be round about 700 – 800 metres.
THE D.PRESIDENT: With a stick?‑‑‑With a stick.
Not without a stick?‑‑‑Well, you know, I mean I could walk with a stick, so you know I could show you that I can walk with a stick and with a limp.
What’s your assessment of her capability?‑‑‑Yes, I think given the examination that I’ve done she probably would have needed a stick.” (Transcript, pp 201-203).
In response to further questions from the Tribunal regarding the applicant’s ability to walk distances, Dr Psaila-Savona responded:
“ … I did actually indicate that she had to walk for about 15 to 20 minutes to go from one place to the other, I think for her place of work. If you allow me a few minutes I probably would be able to find that out. Yes, on the third page of my report under rehabilitation she said that to be able to do this job she had to take a train and walk for 15 to 20 minutes. Now, I do know that eventually she said that she could not cope, but she did this for some time before she gave up. So I came to the conclusion that as far as distances were concerned, if she can walk for 15 to 20 minutes, even with difficulty, that was quite appropriate.
…
Now, did she have a stick on the first occasion she saw you, can you remember?‑‑‑Going on memory, I don’t believe so.
You don’t believe so?‑‑‑Going on memory, going on visualising what I saw.
Right. But on the second occasion, definitely she had a ‑ ‑ ‑?‑‑‑On the second occasion she did have a stick.
… ” (Transcript, pp 206, 207)
Mr Philip Hardcastle
46. Mr Hardcastle, Consultant Orthopaedic Surgeon, examined the applicant on 31 August 2001 at the request of the respondent and subsequently provided a report dated 6 September 2001 (T278). In that report Mr Harcastle set out the applicant’s history (commencing with her fall on 3 July 1998), her current symptoms, and the results of his physical examination of her, and he expressed the following relevant opinion (inter alia):
“The low back symptoms, from Mr Tiller’s report (24 February 1999), commenced in November 1998, though Mr Duthie Mills reports them commencing earlier, approximately three months after the fall. I did not specifically inquire as to whether she had any previous symptoms in her back, but certainly on X-rays performed in 1993 and 1995, one would have to find out more about this particular aspect. The X-rays as reported show no abnormality in the lumbar spine, though I did not review these as they were not available. Mr Tiller has reported some changes at L5/S1 consistent with a spondylolysis. Therefore, without actually reviewing the radiological investigations, it is not possible to make a diagnosis, but certainly it does seem most unlikely that her low back symptoms are related to the fall.
…
I consider the fall has resulted in the symptoms complained of in her left elbow and wrist … but that the low back … symptoms are not related.
…”
47. Mr Hardcastle gave the following evidence-in-chief:
“MR DUBE: Can I just ask you one question, Mr Hardcastle? Can you explain to the tribunal the relevance, if any, between what can be considered a traumatic incident to the spine and the onset of symptoms at some time thereafter in terms of being satisfied one way or the other as to the relationship between the symptoms and the apparent trauma?‑‑‑Well, if we are looking at a single incident trauma such as a fall, if there is going to be a significant injury as a direct result of that fall and by that I am referring to a fracture - compression fracture is the usual one associated with a fall - or a significant injury to a disc or facet joint which are the other two structures that can be involved, then in the case of a fracture the symptoms are generally within an extremely short period of time probably within an hour to two hours at most. With a disc injury or facet injury there may be a short delay but generally the symptoms will appear within – roughly within a week. At the outside maybe a little bit longer, more significant symptoms but usually there will be some source of irritation or pain. Certainly within that early period with a significant injury.”
(Transcript, p244)
48. In cross-examination Mr Hardcastle confirmed that he had examined the applicant on only one occasion (namely, 31 August 2001) and that he had not seen any subsequent x-rays, CT scans or MRI scans of the applicant’s lumbar spine.
Dr Daniel Morkell
49. Dr Morkell, Consultant Psychiatrist, confirmed that he had examined the applicant on 2 occasions, namely, 9 November 2005 and 24 September 2007, and had prepared 2 reports – the first dated 11 November 2005, the second dated 5 October 2007 – in respect of those examinations.
50. In his report of 11 November 2005 (T635, pp 1422 – 1426), Dr Morkell set out the applicant’s history from her work-related fall on 3 July 1998 and expressed the following opinions (inter alia):
· the applicant was currently suffering from “a major depressive disorder of a chronic nature”;
· there was a “direct correlation” between the applicant’s major depressive disorder and the injuries sustained by her in the fall on 3 July 1998;
· the degree of her whole person impairment in relation to psychiatric illness was 15% under Table 5.1 in the Comcare Guide;
· it was “unlikely that her … impairment would be reduced by medical rehabilitative treatment in the foreseeable future”;
· there was “certainly a possibility … that her impairment could deteriorate” due to “the ongoing nature of her chronic pain” and “the gradual realisation of the impact it is having on her life”.
51. In his report of 5 October 2007 (Exhibit A9), Dr Morkell opined as follows:
“I have difficulty commenting on this matter in view of the absence of any radiological investigations for review.
It appears likely, however, from the historical view point, that [the applicant’s] back pain is directly related to the fall taking into account the fact that [she] first reported back pain three months following the incident of 3 July 1998” (T145);
·a report of Dr Brian Galton-Fenzi, Specialist Occupational Physician, dated 28 April 2002, in which, in response to the question whether, in his opinion, the applicant’s back pain was “related to the fall she sustained at work on 03/07/98”, he stated:
“The history of the incident when Ms Gillett fell forwards, landing on her outstretched left arm, her right shoulder, and rotated in an effort to protect the documents she was carrying at the time, resulted in low back pain, which became most evident once the other injuries had been managed. The symptoms of low back pain, became prominent some 2-3 months following the incident, and since that time, has continued by being constant in its presence, though quite variable in its intensity. It is now some 3½ years since the original incident, which will have caused an exacerbatory event of the underlying degenerative changes. As indicated above in my answer to question 1, determining just when an exacerbatory event ceases and the ongoing underlying condition (the osteoarthritis of the facet joint) continues is difficult to determine.
On the balance of probabilities, the ongoing back pain will be related to some degree, to the degenerative osteoarthritis of the left lumbo-sacral L5/S1 facet joint, and to a degree also, to the incident. In my opinion, each of these issues contributes some 50%” (T345, pp685-687);
·a report of Dr F B Webb, Consultant Orthopaedic Surgeon, dated 30 April 2003, in which he expressed the following opinion (inter alia) regarding the applicant:
“I do not consider that there is any evidence to suggest that her employment has caused a permanent or temporary aggravation or exacerbation of a pre-existing condition. I find it hard to accept that she is suffering significantly from a work related condition at the present time.” (T407)
The Evidence of the Lay Witnesses
Donald Gillett
65. Donald Gillett’s evidence, as set out in his witness statement dated 17 December 2007 (Exhibit A10), included the following:
“…
2 I am the father of Elizabeth (Libby) Patricia Gillett.
3 I am a retired Chartered Accountant.
…
17From the time Libby came to Perth after the accident, I have noticed she has definitely deteriorated physically. The pain in her back and arm have debilitated her. She can no longer sit down nor stand for too long and when she lies down she finds it difficult to get into a comfortable position. She cannot walk very far. She used to be able to shop regularly and for reasonable periods of time. My wife and I now do her heavy shopping for her. The injuries to her arm prevent her from doing small tasks such as sewing or using a computer keyboard for more than thirty minutes at one time.
…”
In his oral evidence Mr Gillett, when asked to elaborate on his statement that the applicant “cannot walk very far”, indicated that she is able to walk “around about 50 yards”. He also said that he and the applicant’s mother visit her 5 days per week (but not on weekends) and that they do her “heavy shopping” for her “once every week, once every 10 days” (Transcript, p235).
Graeme Gillett
66. Graeme Gillett’s evidence, as set out in his witness statement dated 20 December 2007 (Exhibit A11), included the following:
“…
2 I am the Brother of and have known Elizabeth (Libby) Patricia Gillett for 40 years.
…
14 The first time I saw Libby on her return from Kununurra she was fairly emotional and appeared to be in a lot of pain.
15 Libby’s physical ability was very limited, and she found it hard to move around. She had ongoing trouble with her left hand/arm and couldn’t lift/grasp things with her left hand/arm at all.
16 Libby is no longer as active to what she was prior to the accident (sic). She can’t sit or walk for long periods. She is unable to walk her German Shepherd dog…
17… I have seen her quite irrational and suicidal. On a number of occasions I have been worried about her mental state. I have known her to have tried 5-6 different types of anti-depressants and she has suffered side effects from all of them.
18Her physical deterioration is getting worse. Just recently I witnessed her bend down and cough and with this she put her back out. I can see on her face she is in a lot of pain, but suffers as silently as possible due to her condition being so long term.
…”
Analysis and Findings
The applicant’s left upper limb
67. It is common ground that the applicant’s compensable left upper limb injury has resulted in a “permanent impairment”, within the meaning of s 24 of the SRC Act, and, on the basis of the medical evidence before it, the Tribunal so finds.
68. The degree of the applicant’s permanent impairment resulting from her compensable left upper limb injury falls to be determined under Table 9.1 or Table 9.4 in the approved Guide.
Table 9.1
69. As regards the degree of the applicant’s permanent impairment under Table 9.1, there is a conflict between the evidence of Dr Finch and the evidence of Dr Psaila-Savona. Dr Finch’s assessment, as stated in his report of 30 November 2005, was 15%, whereas Dr Psaila-Savona’s initial assessment, as stated in his report of 24 May 2005, was 0%, and his more recent assessment, as stated in his report of 12 June 2007, was 10%. The Tribunal notes that Dr Finch’s report does not refer to any findings on clinical examination of the applicant’s left upper limb and that Dr Finch was unable to provide any specific information regarding the range of movement of the applicant’s left elbow and left wrist in his oral evidence. The Tribunal notes, by contrast, that both of Dr Psaila-Savona’s reports include detailed findings on clinical examination of the applicant’s left upper limb and he was able to elaborate on those findings in his oral evidence. In these circumstances, the Tribunal regards Dr Psaila-Savona’s evidence as more persuasive than that of Dr Finch, and, on the basis of Dr Psaila-Savona’s report of 12 June 2007 and his oral evidence, the Tribunal is satisfied that, in respect of the applicant’s left upper limb:
·there is a loss of less than half the normal range of movement of the elbow;
·there is not a loss of more than half the normal range of movement of the wrist.
70. The Tribunal finds, therefore, that the degree of the applicant’s permanent impairment under Table 9.1 in the approved Guide is 10%.
Table 9.4
71. As regards the degree of the applicant’s permanent impairment under Table 9.4, the assessments of the relevant medical witnesses were, having regard to the whole of their evidence, as follows:
·Dr Smeaton – 10%;
·Dr Finch – 10-20%;
·Dr Psaila-Savona – 10-20%.
72. In arriving at its finding in relation to this matter, the Tribunal attaches great weight to the evidence of Dr Smeaton who has been the applicant’s treating general practitioner since the mid 1990s. The evidence of Dr Finch and Dr Psaila-Savona in relation to this matter was, in the Tribunal’s opinion, somewhat equivocal and thus deserving of less weight. Accordingly, the Tribunal, having considered the whole of the evidence before it, accepts Dr Smeaton’s opinion that the applicant is able to use her left upper limb for self care and grasping and holding but that she has difficulty with digital dexterity.
73. The Tribunal finds, therefore, that the degree of the applicant’s permanent impairment under Table 9.4 in the approved Guide is 10%.
Finding
74. Given the abovementioned findings in accordance with Tables 9.1 and 9.4 in the approved Guide, it follows that the degree of the applicant’s permanent impairment resulting from her compensable left upper limb injury is 10%, and the Tribunal so finds.
The applicant’s lumbar spine
Has the applicant suffered a compensable “injury” in respect of her lumbar spine?
75. The respondent, relying on Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253, submitted that it was open to the Tribunal, notwithstanding the respondent’s ultimate acceptance (on 24 June 2002 – T351) of liability under the SRC Act to pay compensation to the applicant in respect of her lower lumbar spine condition, to consider and determine whether the applicant’s lower lumbar spine condition constitutes a compensable “injury” (as defined in s 4(1) of the SRC Act) for the purposes of the SRC Act. The applicant sought to distinguish Telstra Corporation Ltd v Hannaford and submitted that the matter of the causation of the applicant’s lower lumbar spine condition was not presently before the Tribunal and should not be considered by the Tribunal.
76. The Tribunal accepts the respondent’s submission. In the Tribunal’s opinion Telstra Corporation Ltd v Hannaford is not materially distinguishable from the present case and, on the basis of that authority, it is appropriate for the Tribunal in the present case to consider the respondent’s submission that the applicant’s lower lumbar spine condition is not causally related to her former employment with ATSIC and is therefore not a compensable “injury” for the purposes of the SRC Act, and to make a determination on that matter.
77. There is conflict in the medical evidence before the Tribunal as to whether the applicant’s lower lumbar spine condition is causally related to her former employment with ATSIC – in particular, to the fall which she sustained on 3 July 1998 in the course of such employment. Whereas Dr Smeaton, Dr Finch, Dr Galton-Fenzi, Dr Psaila-Savona and Mr Mills support the proposition that the applicant’s lower lumbar spine condition is, on the balance of probabilities, causally related to her fall on 3 July 1998, Mr Hardcastle and Dr Webb reject that proposition.
78. The Tribunal notes that, in the material before it, the earliest documentary reference to the applicant’s lower back pain is the “First Treatment Certificate” issued by Mr W Adams, Chiropractor, on 18 December 1998 (T62) in which it is recorded that the applicant stated that, following her accidental fall on 3 July 1998, her back “started to get sore in late October 1998”, and that the provisional diagnosis is “lumbo-sacral and left sacroiliac joint sprain/strain”. The Tribunal also notes that the applicant has subsequently given to medical practitioners a consistent history of the onset of lower back pain in October/November 1998 and the continuation of lower back pain since that time.
79. The Tribunal notes Mr Hardcastle’s evidence to the effect that, in the case of a significant injury to a disc or facet joint in the lumbar spine as a direct result of a single incident trauma such as a fall, pain symptoms generally appear within a short period of time, namely, one week or a little longer, whereas, in the present case, the applicant did not complain of lower back pain until 3-4 months after the fall of 3 July 1998. The Tribunal is nevertheless satisfied, on the balance of probabilities, and finds, on the basis of the preponderance of the abovementioned medical evidence, that, notwithstanding that the applicant did not experience pain symptoms in her lower back until 3-4 months after the fall she sustained on 3 July 1998, she suffered a lower lumbar spine injury as a direct result of that fall, and that, accordingly, that lower lumbar spine injury is causally related to her former employment with ATSIC and is therefore a compensable “injury” for the purposes of the SRC Act. The Tribunal is likewise satisfied, on the basis of the material before it, that the applicant has suffered chronic lower back pain symptoms in respect of that injury since that time and continues to suffer such symptoms.
The applicant’s lower lumbar spine injury has resulted in a permanent impairment
80. It is common ground that the applicant’s lower lumbar spine condition has resulted in an impairment which is “permanent” (as defined in s 4(1) of the SRC Act). Given the Tribunal’s abovementioned finding that the applicant’s lower lumbar spine condition is a compensable “injury” for the purposes of the SRC Act, the Tribunal also finds that the applicant has suffered a “permanent impairment” resulting from that “injury” within the meaning of s 24 of the SRC Act.
What is the degree of the applicant’s permanent impairment resulting from her lower lumbar spine injury?
81. The degree of the applicant’s permanent impairment resulting from her lower lumbar spine injury falls to be determined primarily under Table 9.6 in the approved Guide.
82. It is common ground that the degree of the applicant’s permanent impairment under Table 9.6 is 10% on the basis that there is a loss of less than half the normal range of movement in the thoraco-lumbar spine. On the basis of the medical evidence before it, the Tribunal finds that the degree of the applicant’s permanent impairment under Table 9.6 in the approved Guide is 10%.
83. The applicant submits, however, that she also has a permanent impairment of her left lower limb function as a result of her lower lumbar spine injury and that the degree of that permanent impairment falls to be determined under Table 9.5 in the approved Guide.
84. The prefatory Note in Table 9.6 relevantly states:
“…
Lesions of the spine are often accompanied by neurological consequences. These should be assessed using Table 9.4 or 9.5 and the results combined using the Combined Values Table.”
Thus, the question arises, for the purpose of determining whether it is appropriate to assess the degree of impairment of the applicant’s left lower limb under Table 9.5, whether that impairment is a “neurological consequence” of her lower lumbar spine injury.
85. In relation to the question whether the applicant’s lower lumbar spine injury has had a neurological effect on her left lower limb, the medical evidence before the Tribunal is, once again, in conflict. On the one hand, Dr Psaila-Savona commented, in his report of 12 June 2007:
“… at no stage has there been any indication of impingement of nerves by the pathology in the back”
and he added:
“It is therefore difficult for me to conclude that symptoms attributable to the lower limbs are a direct consequence of the disc pathology.”
On the other hand, however, Dr Finch, who has treated the applicant since March 2005, has opined that the applicant’s lower lumbar spine injury has resulted in discogenic pain which radiates into her left lower limb. In his initial report, dated 16 March 2005 (T535), Dr Finch noted that, on examination of the applicant, she had (inter alia):
·“a mild antalgic limp favouring the left lower limb”;
·“a positive left sciatic stretch test causing pain to radiate to the left thigh and calf”.
In his most recent report, dated 18 October 2007 (Exhibit A2), Dr Finch stated:
“Ms Gillett has ongoing mechanical low back pain with radiation to the left buttock, posterior thigh and groin. This pattern of pain was reproduced exactly by injection of contrast into the L3/4 disc on 27 May 2005. An anterior disruption was seen in the disc… There was pain from the L4/5 disc but this was only classed as similar and the L5/S1 disc was painless.
It can be concluded from this discography and also from multiple MRI studies of the lumbar spine that the L3/4 disc is at least partly responsible for her symptoms radiating into the left buttock and left lower limb. It is not necessary to have obvious nerve root compression to cause radiation into the lower limbs and indeed a common pattern of radiation is seen in the lower limbs following internal disruptions of the lower lumbar discs.
Multiple MRIs over the two years that I have observed of your client have shown increasing degenerative changes in this disc and I would be fairly confident that at least a significant portion of her low back symptoms originate in these changes.”
The Tribunal notes that, in MRI reports regarding the applicant’s lumbo-sacral spine dated 27 April 2005 (T551), 12 April 2007 (part of Exhibits A1 and R2) and 30 October 2007 (Exhibit A3), it is stated that no evidence of any “nerve root impingement“ or “nerve root compromise” was found. The Tribunal, however, also notes Dr Finch’s abovementioned statement (in his report of 18 October 2007):
“It is not necessary to have obvious nerve root compression to cause radiation into the lower limbs and indeed a common pattern of radiation is seen in the lower limbs following internal disruptions of the lower lumbar discs.”
86. Although the Tribunal has reservations about the existence of a neurological impact on the applicant’s left lower limb by reason of her low lumbar spine injury, having regard to the absence of any evidence of such an impact in the abovementioned MRI reports and to the opinion of Dr Psaila-Savona, the Tribunal accepts the evidence of Dr Finch and, on the basis of that evidence, is reasonably satisfied that the impairment of the applicant’s left lower limb, by reason of pain symptoms radiated from her lower lumbar spine, is a neurological consequence of her lower lumbar spine injury. It is therefore appropriate, in the Tribunal’s opinion, to assess the degree of impairment of the applicant’s left lower limb resulting from her lower lumbar spine injury under Table 9.5 in the approved Guide.
87. Before addressing the matter of the degree of impairment of the applicant’s left lower limb, the Tribunal notes that it is satisfied, on the basis of the medical evidence before it, that the impairment of the applicant’s left lower limb is “permanent” (as defined in s 4(1) of the SRC Act). The respondent has not disputed that proposition. Accordingly, the Tribunal finds that the applicant has suffered a “permanent impairment” of her left lower limb resulting from her compensable lower lumbar spine “injury” within the meaning of s 24 of the SRC Act.
88. As regards the degree of the applicant’s permanent impairment under Table 9.5, the assessments of the relevant medical witnesses were as follows:
·Dr Smeaton – 20%;
·Dr Finch – 10%;
·Dr Psaila-Savona – 10%.
89. In the Tribunal’s opinion, the medical evidence before it regarding the degree of the applicant’s impairment under Table 9.5 is unsatisfactory in that none of the abovementioned medical practitioners, it seems to the Tribunal, conducted sufficient objective testing of the applicant’s capacity to negotiate grades, steps and distances for the purpose of making an assessment in accordance with Table 9.5. In these circumstances the Tribunal is inclined to give particular weight to the evidence of Dr Smeaton who, as previously mentioned, has been the applicant’s treating general practitioner since the mid 1990s and who is thus likely to have a deeper understanding of the applicant’s capacity to perform the relevant activities specified in Table 9.5.
90. In Comcare v Moon (2003) 75 ALD 160 the Federal Court of Australia (Mansfield J) said (at 171):
“The term ‘difficulty’ in … table 9.5 is not a term of art, but carries its ordinary meaning: Comcare v Fiedler (2001) 115 FCR 328 at [22]; Whittaker v Comcare (1998) 86 FCR 532 at 538…”
In accordance with Comcare v Fiedler (2001) 115 FCR 328 at 334, it may be said that the applicant “has difficulty with” grades, steps or distances, within the meaning of Table 9.5 in the approved Guide, if she finds it “troublesome or not easy” to negotiate grades, steps or distances, provided that negotiating grades, steps or distances presents “something more than minimal problems” for her. The Tribunal accepts, furthermore, that, for the purpose of determining whether the applicant “has difficulty with” grades, steps or distances, within the meaning of Table 9.5, regard must be had to the degree of pain which is experienced by her in negotiating grades, steps or distances: Comcare v Moon (above) at 171.
91. All of the abovementioned medical practitioners expressed the opinion that the applicant has difficulty with grades and steps. Dr Smeaton’s evidence, based on his numerous observations of, and discussions with, the applicant, was consistent with the proposition that the applicant also has difficulty walking significant distances owing to pain. Dr Psaila-Savona, in his oral evidence, explained that he believed that the applicant’s history indicated that she was “able to walk reasonable distances”, namely:
·she walks for about 700 metres on a treadmill;
·during a recent work trial she was required to walk for 15-20 minutes in order to attend the workplace and she did so, albeit with apparent difficulty.
He also said that when the applicant attended him for examination she used a walking stick (although he appeared to be confused regarding which of his 2 examinations of her involved her using a walking stick), and he opined that the applicant would be able to walk a reasonable distance – namely, about 700-800 metres – but would probably need a walking stick to do so.
92. The applicant’s own evidence, as set out in her witness statement (Exhibit A6), was that:
·she has “difficulty walking distances, using steps and walking up gradients and hills” (para 3);
·she is “unable to walk long distances, especially with a shopping trolley” and is “unable to walk [her] own dog due to pain” (para 9);
·she “can’t sit, stand or walk for extended periods due to pain” (para 11);
·she is “unable to walk for more than 10-15 minutes without elevation in the pain in [her] back, max 30 min at slow pace” (para 24).
In her oral evidence, however, the applicant acknowledged that she had done “some walking” in India during her visit in December 2006/January 2007, but she was not asked, and did not indicate, the duration of such walking activities and the distances she walked. The evidence of Donald Gillett (the applicant’s father) was that the applicant “cannot walk very far” – “around about 50 yards” – and the evidence of Graeme Gillett (the applicant’s elder brother) was that the applicant “can’t…walk for long periods” and is “unable to walk her German Shepherd dog”.
93. On the basis of the whole of the evidence before it, the Tribunal, not without some reservations given the unsatisfactory nature of the abovementioned medical evidence, is reasonably satisfied that the applicant, primarily by reason of pain in her left lower limb radiated from her lower lumbar spine, finds it “troublesome or not easy” (Comcare v Fiedler, at 334) not only to negotiate grades and steps, but also to walk distances – that is, that she has “difficulty with grades, steps and distances” within the meaning of Table 9.5 in the approved Guide.
94. Accordingly, the Tribunal finds that the applicant satisfies the description of a level of impairment of 20% in Table 9.5. It is common ground that she does not satisfy any of the descriptions of levels of impairment beyond 20% in that table, and the Tribunal so finds. The Tribunal finds, therefore, that the degree of the applicant’s permanent impairment under Table 9.5 in the approved Guide is 20%.
Finding
95. The degrees of the applicant’s permanent impairments as found by the Tribunal under Table 9.6 (10%) and Table 9.5 (20%) must, in accordance with the abovementioned prefatory Note in Table 9.6, be combined using the Combined Values Table (Table 14.1) in the approved Guide. Accordingly, the Tribunal finds, in accordance with Table 14.1, that the degree of the applicant’s permanent impairment resulting from her compensable lower lumbar spine injury is 28%.
The applicant’s psychiatric condition
96. It is common ground that the applicant suffers from a psychiatric condition which has resulted in an “impairment” (as defined in s 4(1) of the SRC Act) and which constitutes a compensable “injury” for the purposes of the SRC Act, and the Tribunal so finds. The Tribunal also finds, on the basis of the medical evidence before it, that the appropriate diagnosis of the applicant’s compensable psychiatric “injury” is chronic major depressive disorder.
97. The respondent submits, however, that the impairment resulting from the applicant’s psychiatric injury is not, at the present time, a “permanent impairment”, within the meaning of s 24 of the SRC Act, and that, accordingly, the respondent is not presently liable, pursuant to s 24, to pay compensation to the applicant in respect of that injury.
98. The Tribunal notes that:
·the term “permanent” is defined in s 4(1) of the SRC Act to mean “likely to continue indefinitely”;
·pursuant to s 24(2) of the SRC Act, the Tribunal, for the purpose of determining whether an impairment is permanent, is obliged to have regard to the matters referred to in that subsection.
The Tribunal also notes that, in the Principles of Assessment in the approved Guide, it is stated (at p 4):
“An impairment will generally be regarded as permanent when the recovery process has been completed, ie when the full and final effects of convalescence, the natural healing process and active (as opposed to palliative) medical treatment has been achieved.”
99. It appears clearly from the evidence before the Tribunal – in particular, the evidence of Dr Morkell and of Mr Guest – that the applicant had developed a major depressive order by 2000 and that she has suffered from that condition (which is now chronic) and the resulting impairment since that time.
100. The questions whether the applicant has undertaken all reasonable rehabilitative treatment for her psychiatric impairment, and whether it is likely that her psychiatric condition will improve, are more problematic. As regards the former question, the Tribunal is satisfied, on the basis of evidence before it, that:
·between 1999 and 2005 the applicant was prescribed various anti-depressant medications, including “Zoloft”, “Cipramil” and “Efexor”, by general practitioners but that she subsequently ceased taking each of those medications – in the case of “Zoloft” and “Efexor”, after a short period – because of adverse side effects, and has not taken any anti-depressant medication since 2005;
·since 2000 the applicant has continued to see Mr Guest, Clinical Psychologist, on a regular, frequent basis and has received treatment by way of psychotherapy from him;
·the applicant has, at all material times, been unwilling to receive treatment from a psychiatrist, and, in 2000 and 2004-2005, despite a recommendation by Dr Smeaton, her treating general practitioner, that she see a psychiatrist, she refused to accept such a referral from him;
·the applicant has not, at any material time, received treatment from a psychiatrist, other than for a short period in 2000 when she received treatment from Dr Peter Morton at Perth Clinic.
101. Although it might be thought, having regard to the abovementioned summary of the treatment which the applicant has received for her psychiatric condition, that she has not, to date, undertaken all reasonable rehabilitative treatment for her psychiatric impairment, regard must also be had to the opinions expressed by Dr Morkell in his reports of 11 November 2005 and 5 October 2007, and reiterated in his oral evidence, that:
·in the light of the applicant’s history of experiencing significant adverse side effects from various anti-depressant medications, it is unlikely that any particular anti-depressant medication will have a beneficial effect on her psychiatric impairment;
·a likely side effect of her taking the anti-depressant “Mirtazapine” is a significant increase in weight which would in turn be likely to exacerbate her chronic back pain and adversely affect her mood;
·given the applicant’s history of treatment for her psychiatric condition, it is unlikely that forms of medical and rehabilitative treatment, other than those which she has been receiving and continues to receive, will have a beneficial effect on her psychiatric impairment;
·there is a possibility that her psychiatric impairment could deteriorate.
The Tribunal notes, on the other hand, the opinions expressed by Dr Edwards-Smith in her reports of 7 September 2005 and 4 July 2007, and reiterated in her oral evidence, that:
·the applicant’s psychiatric condition “may respond to further psychiatric outpatient treatment” by a Consultant Psychiatrist “experienced in the management of patients with co-morbid pain and psychiatric conditions”;
·such treatment should include anti-depressant medication – such as “Mirtazapine”, a sedative anti-depressant medication – at a therapeutic dose;
·the applicant’s psychiatric impairment “may be reduced to 5% by [such] further treatment”.
Dr Edwards-Smith, however, acknowledged in her oral evidence the possibility that such other treatment may not be successful and that the applicant’s psychiatric impairment could deteriorate.
102. Having regard to the abovementioned considerations, the Tribunal, while of the opinion that the treatment received by the applicant for her psychiatric impairment has not been optimal is nevertheless satisfied that, given the applicant’s history of experiencing significant adverse side effects of various anti-depressant medications and her apparent lack of confidence in psychiatrists, it may fairly be said that she has, in the circumstances, undertaken all reasonable rehabilitative treatment for her psychiatric impairment. The Tribunal is also satisfied that the applicant’s psychiatric impairment is likely to continue indefinitely at approximately the same level.
103. The Tribunal is satisfied, therefore, that the applicant’s impairment resulting from her psychiatric injury is a “permanent impairment” within the meaning of s 24 of the SRC Act.
What is the degree of the applicant’s permanent impairment resulting from her psychiatric injury?
104. The degree of the applicant’s permanent impairment resulting from her psychiatric injury falls to be determined under Table 5.1 in the approved Guide.
105. As regards the degree of the applicant’s permanent impairment under Table 5.1, the assessments of the relevant medical witnesses were as follows:
·Dr Morkell – 15%;
·Dr Edwards-Smith – 10%;
·Mr Guest – 15%.
The essential distinction between the opinions of Dr Morkell and Mr Guest, on the one hand, and the opinion of Dr Edwards-Smith on the other, is that whereas Dr Morkell and Mr Guest opined that the applicant has “a need for some supervision and direction in activities of daily living” (in terms of Table 5.1), Dr Edwards-Smith opined that the applicant has no such need by reason of her psychological symptoms.
106. The Tribunal notes that, when Mr Guest made his initial assessment of 15% under Table 5.1, he was unaware of the definition of the phrase “activities of daily living” in the Glossary in the approved Guide. When he was referred to that definition in the course of his oral evidence, he indicated that that was the first time that he had seen that definition, and, in the Tribunal’s opinion, his attempt to apply that definition in support of his assessment of a 15% degree of impairment was unconvincing.
107. Dr Morkell did have regard to the definition of the phrase “activities of daily living” in the approved Guide in arriving at his assessment of a 15% degree of impairment under Table 5.1. His stated opinion that the applicant needs “assistance and supervision in the activities of daily living” seems to the Tribunal, however, to have been based on the applicant’s having told him that she had such a need rather than on an objective assessment by him of the existence of such a need in her case. He referred specifically to the applicant’s parents as the providers of such ongoing assistance and support to the applicant. In this connection, the evidence of Donald Gillett, the applicant’s father, was that he and the applicant’s mother visit the applicant on 5 days (Monday to Friday) each week and that they help her by doing physical tasks for her, such as walking her dog each day and doing her “heavy shopping” for her approximately once every 7 - 10 days. The applicant’s mother was not called as a witness.
108. The Tribunal is not persuaded by the evidence of Dr Morkell and Mr Guest that the applicant has “a need for some supervision and direction in activities of daily living” within the meaning of Table 5.1 in the approved Guide. The Tribunal notes, furthermore, that the prefatory Note in Table 5.1 states:
“…The assessment should be made on optimum medication at a stage where the condition is reasonably stable.”
It is not apparent to the Tribunal that either Dr Morkell or Mr Guest arrived at his assessment of a 15% degree of impairment in accordance with that Note.
109. The Tribunal, having considered the whole of the evidence before it and having observed the applicant give her evidence, agrees with Dr Edwards-Smith that the applicant does not require, or have a need for, “some supervision and direction in activities of daily living” within the meaning of Table 5.1 in the approved Guide. Like Dr Edwards-Smith, the Tribunal is, instead, of the opinion that the applicant, at all material times, has been, and is, “capable of performing activities of daily living without supervision or assistance” within the meaning of Table 5.1. The Tribunal is, however, satisfied, on the basis of the evidence before it, that the applicant’s behaviour involves “reactions to stressors of daily living with minor loss of personal or social efficiency” and “minor distortions of thinking” within the meaning of Table 5.1.
Finding
110. Accordingly, the Tribunal finds that the degree of the applicant’s permanent impairment under Table 5.1 is 10%.
Non-economic loss
111. It is common ground that the respondent is also liable, under s 27 of the SRC Act, to pay compensation to the applicant for non-economic loss (as defined in s 4(1)) on the basis of the following agreed scores under Tables 1-4 in Part B of the approved Guide:
·pain 4
·suffering 4
·mobility 2
·social relationships 3
·recreation and leisure activities 4
·other loss 0
·loss of expectation of life 0.
The Tribunal, on the basis of the evidence before it, so finds.
Decision
112. For the above reasons, the Tribunal sets aside the decision under review and, in substitution therefor, decides as follows:
(a)the respondent is liable to pay compensation to the applicant, in accordance with s 24 of the SRC Act, in respect of the injuries specified below, the amount of such compensation to be assessed on the basis of the degree of whole person permanent impairment resulting from each of those injuries as follows:
· left upper limb injury 10%
· lumbar spine injury 28%
· psychiatric injury 10%; and
(b)the respondent is liable to pay compensation to the applicant, in accordance with s 27 of the SRC Act, for non-economic loss, the amount of such compensation to be assessed on the basis of the following scores for the kinds of non-economic loss suffered by the applicant:
·pain 4
·suffering 4
·mobility 2
·social relationships 3
·recreation and leisure activities 4
·other loss 0
·loss of expectation of life 0.
I certify that the 112 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr D Weerasooriya, Member
Signed: ...............[Sgd M Rosair].............
AssociateDate/s of Hearing 18-21 December 2007
Date of Decision 28 February 2008
Counsel for the Applicant Mr M Herron and Mr A Gill
Solicitor for the Applicant Gibson & Gibson
Counsel for the Respondent Mr B Dube
Solicitor for the Respondent Sparke Helmore
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