Golledge and Comcare
[2004] AATA 807
•3 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 807
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2002/289 & 470
GENERAL ADMINISTRATIVE DIVISION )
Re MAUREEN GOLLEDGE
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr G A Mowbray Date3 August 2004
PlaceCanberra
Decision
The Tribunal affirms the reviewable decisions of 24 June 2002 and 4 November 2002.
.............SGN GA Mowbray...........
Member
CATCHWORDS
COMPENSATION – RSI – upper limbs – spine – further or new impairment – chronic pain disorder – somatisation disorder – factitious disorder – impairment – permanent – household assistance – decisions affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4, 24, 28, 29, 124
Guide to the assessment of the degree of permanent impairment Tables 5.1, 9.4 and 9.6
Casarotto v Australian Postal Commission (1989) 86 ALR 399
Comcare v Moon (2003) 75 ALD 160
Re Frosch and Comcare (2003) 38 AAR 364
Comcare v Hill (1999) 56 ALD 487
Department of Defence v West (1998) 156 ALR 651
Re Trajanoski and Comcare [2003] AATA 385
Comcare v Nichols [1999] FCA 209
ReQuinn and Australian Postal Corporation (1992) 15 AAR 519
Re Chowdhary and Comcare [1998] AATA 448REASONS FOR DECISION
3 August 2004 Mr G A Mowbray Summary
1. Mrs Maureen Golledge was working as a typist in 1984 when she was diagnosed with “repetitive strain injury” (RSI) for which Comcare accepted liability in early 1985. She retired from her job on invalidity grounds later in 1985. Mrs Golledge has been receiving household support due to her condition for many years although in 2002 the level of support was reduced. In 2001 Mrs Golledge sought compensation for permanent impairment to her upper limbs, to her neck and for a number of psychological conditions related to her RSI. This decision covers both the level of household support and the claims for compensation for permanent impairment.
2. I have concluded that Mrs Golledge does have a five percent whole person permanent impairment to her neck due to her RSI. But I am not satisfied that she has a permanent impairment to her right arm. Nor am I satisfied that Mrs Golledge has a permanent impairment due to any psychological condition. As her total whole person permanent impairment is less than ten percent Mrs Golledge is not entitled to compensation.
3. Further I am satisfied that there has been a change in Mrs Golledge’s personal circumstances such that she requires no more than the three hours household assistance each week allowed by Comcare.
4. I have therefore affirmed both the reviewable decisions.
Background
5. Mrs Golledge was working as a stenographer with the Department of Resources and Energy when she was retired on 15 August 1985 on invalidity grounds. Mrs Golledge had complained of soreness in both arms as a result of her typing duties on or about 9 August 1984
· her condition was diagnosed as “repetitive strain injury” (RSI)
· on 21 August 1984 her treating physician, Dr Quay, certified her as unfit for work for two weeks
· when she returned after two weeks, she found that even light duties aggravated her condition
· in a medical report for Retirement on Invalidity Grounds dated 2 May 1985 a Commonwealth Medical Officer stated that Mrs Golledge continued to have pain and certified that she was unfit for continued employment.
6. Comcare has accepted Mrs Goleldge’s RSI as a compensable condition and Mrs Golledge has had many treatments for this condition. She has been on morphine for pain relief supplemented by other drugs. On 11 February 1992 Mrs Golledge had an intrathecal morphine infusion device inserted by Dr Andrew Lawson of the Royal North Shore Hospital to alleviate the pain of the RSI. This pump was removed on 1 April 1992 at Mrs Golledge’s request. On 5 July 1994 Dr Newcombe conducted anterior cervical surgery to assist with the RSI. He conducted a further posterior fusion surgery on 22 September 1994.
7. On 25 June 1990 Mrs Golledge started attending Professor Milton Cohen, a musculoskeletal and pain management specialist and rheumatologist. Professor Cohen was later furious that the two operations in 1994 had been carried out and thinks that they have caused deterioration in Mrs Golledge’s condition. Mrs Golledge attends Professor Cohen two or three times a year and also Dr Femi Idowu as her GP more frequently. She also attends Mr Jeff Parsons, a psychologist, for her psychological disorder.
8. Mrs Golledge also suffered neck pains related to her RSI. It was after the two operations in 1994, however, that her treating physicians noted that the pain in her neck was of major concern. Mrs Golledge also claims that she has constant pain in her upper right and left limbs and that she has difficulty using her right hand. It is contended that the pain has also caused Mrs Golledge to have a chronic pain disorder.
9. Mrs Golledge claims compensation for permanent impairment of her upper limbs to a level of 20 percent on the Guide to the assessment of the degree of permanent impairment (the Guide) table 9.4. She also claims compensation for permanent impairment of her cervical spine in relation to her neck to a level of ten percent under table 9.6. Finally she claims compensation for the major depression disorder and elevated anxiety and chronic pain disorder that she alleges she suffers as a result of the RSI under table 5.1.
10. This matter’s proceedings can be outlined as follows
·on 23 August 1984, Mrs Golledge lodged a claim for compensation in relation to her symptoms
·on 8 January 1985 Comcare accepted liability for Mrs Golledge’s RSI
·on 22 September 1988 Comcare determined that liability had ceased
·after review compensation was restored on 24 January 1991
·on 4 September 2000 Mrs Golledge lodged a claim for permanent impairment for constant neck, shoulder, right arm and hand pain to a level of 15 percent
·on 13 March 2001 Mrs Golledge lodged a claim for compensation for permanent impairment in relation to major depression disorder and elevated anxiety and chronic pain disorder
·on 15 June 2001 Comcare said it was unable to make a determination as Mrs Golledge had not been assessed under the Guide
·on 29 November 2001 Mrs Golledge lodged a further claim for permanent impairment and non-economic loss in respect of the compensable injury and its related chronic pain syndrome
·Professor Milton Cohen assessed Mrs Golledge’s whole person impairment to be 20 percent under Table 9.4 and Dr Femi Idowu assessed a 33 percent whole person impairment in total
·on 22 March 2002 Comcare rejected Ms Golledge’s claim for compensation for permanent impairment on the basis that the only compensable injury was the RSI and this made Mrs Golledge permanently incapacitated for work before 1988 when the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) commenced
·on 3 May 2002 Mrs Golledge requested a review of this decision
·on 24 June 2002 in a reviewable decision a Review and Instructing Officer for Comcare affirmed the primary decision
·on 25 July 2002 Mrs Golledge appealed to this Tribunal for review of that decision.
11. Mrs Golledge has also lodged a separate claim for further household support expenses
·on 19 November 1986 Comcare determined that there was no need for home help
·on 27 October 1992 Comcare agreed that home help was needed back dated to 7 April 1992
·a further application was made on 21 December 1994 and approved on 5 January 1995
·since then Mrs Golledge has received household assistance paid for by Comcare
·she has at times received 9 hours of home help a week for cleaning and ironing
·on 18 April 2002 Mrs Golledge made an application for further household assistance
·on 22 May 2002 Comcare accepted liability for certain aids in the house such as taps that were easier to turn on and ergonomic pegs
·on the 28 June 2002 Comcare reduced the hours of home help to three hours a week
·on 4 November 2002 an Independent Review Officer for Comcare affirmed this determination in a reviewable decision
·on 10 December 2002 Mrs Golledge appealed to this Tribunal.
12. This was a case involving evidence by ‘hot tub’ – that is concurrent evidence was given. Professor Cohen and Dr McGill, as consultant rheumatologists, and Dr Saboisky and Mr Parsons, as psychiatrist and psychologist respectively, discussed their views and then presented their findings and expert opinions in oral evidence.
Issues
13. The broad first issue before the Tribunal concerns Mrs Golledge’s entitlement to permanent impairment compensation under section 24 of the Act, as determined by the impairment indicators in the Guide which are binding on this Tribunal pursuant to section 28(4) of the Act. The second issue is Mrs Golledge’s entitlement to further household support assistance.
14. Both parties agree that
·Mrs Golledge was compensated and continues to be compensated for the work-related injury of RSI from 1984
·Dr Newcombe conducted surgery to Mrs Golledge’s spine on two occasions
·Mrs Golledge is currently taking 50mg of Kapanol (a morphine based pain reliever) four times a day
·Mrs Golledge needs some household assistance.
15. Mr Bradfield, counsel for Mrs Golledge, also indicated that a claim for permanent impairment for the left arm was not being pressed because there was not sufficient medical evidence to support that finding. Similarly no argument or evidence was led to support the claim for major depression. Therefore the issue in relation to the psychological condition was solely chronic pain disorder.
16. Comcare disputed that Mrs Golledge continues to suffer from a compensable injury. It suggested that this Tribunal should review the entire proceedings since 1984 and come to a decision as to the whole matter, including whether Mrs Golledge continued to suffer from RSI, even though the reviewable decision only dealt with permanent impairment. Comcare cited Justice Hill’s statement in Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 402
once a matter properly before the original decision-maker comes to the tribunal for review the whole matter before the decision-maker is open to review and an applicant for review will not be confined by the submissions put to the original decision-maker but the tribunal must decide for itself whether the decision made by the administrator (in this case the disallowance altogether of the claim) was the right decision which ought to have been made in the circumstances …
17. In Comcare v Moon (2003) 75 ALD 160 at 167 Justice Mansfield reasoned that because Comcare had accepted in a previous decision that was not before the Tribunal that the conditions constituted compensable injuries under the Act, the Tribunal was not empowered to determine whether the injury was suffered. Following that reasoning there would be no need for me to determine whether Mrs Golledge actually suffers from the injury of RSI. Similarly there would be no need for me to address whether the conditions are work-related.
18. Senior Member Sassella in Re Frosch and Comcare (2003) 38 AAR 364 preferred the reasoning in Comcare v Hill (1999) 56 ALD 487 to that in Moon. In Hill the Federal Court held that it was necessary to determine whether the compensable injury had been suffered, even if the reviewable decision merely looked at whether the condition was permanent. Although the matter before him was not directly to point, Senior Member Sassella held in effect that the Tribunal could have regard to whether a compensable injury had been suffered in making a determination on permanent impairment.
19. In the present matter Comcare did not seek to deny the existence of the initial injury nor to agitate the issue of initial liability under section 14 of the Act. Rather section 24 requires there to be a finding on “an injury … [that] results in permanent impairment”. In my view it is therefore necessary to look at whether Mrs Golledge suffered RSI that resulted in permanent impairment. However, even if she does not continue to suffer from that condition, whether or not she had suffered from that condition and received compensation for that condition is relevant.
20. Further whether any current condition for which she claims permanent impairment compensation is related to the RSI will be relevant in the matter before me. This is because it is the RSI that was the accepted injury.
21. Comcare also disputes that Mrs Golledge has suffered a change in her condition such that she is entitled to compensation for permanent impairment for her injuries after 1988. Section 124(3) of the Act precludes a person from receiving compensation for a permanent impairment that occurred before 1988 if that person is not entitled to compensation for permanent impairment under the Compensation (Commonwealth Government Employees) Act 1971 (Cth). Mrs Golledge would not have been entitled to compensation under the repealed Act and thus Comcare argues that she is not entitled to permanent impairment compensation at all.
22. In Department of Defence v West (1998) 156 ALR 651 the Federal Court held that under section 124(3) of the Act a gradual worsening of a condition that was permanent before 1988 is not enough to entitle the person suffering the injury to compensation. But if there were a change such that quantitatively and qualitatively it could be characterised as a further or new impairment that person would be entitled to permanent impairment compensation. The issue is then whether there has been a further or new impairment. Comcare disputes such a change.
23. The specific issues in this case are therefore
·does Mrs Golledge suffer any impairment to her right arm which is related to her RSI and which constitutes a new or further impairment
·does Mrs Golledge suffer any impairment to her spine which is related to her RSI and which constitutes a new or further impairment
·does Mrs Golledge suffer any psychological impairment which is related to her RSI and which constitutes a new or further impairment
·if so is this impairment permanent for the purposes of section 24 of the Act
·if so what is the level of impairment according to the Guide
·additionally what is the level of household support to which Mrs Golledge is entitled.
The Burden of Persuasion
24. It is generally not appropriate to place a burden of proof on a particular party in an administrative proceeding. However, a burden of persuasion has been established by this Tribunal and the courts.
25. Where a reviewable decision suggests that there is no liability on the part of the respondent for a permanent impairment, the Tribunal must be satisfied on the balance of probabilities that the impairment exists (Re Trajanoski and Comcare [2003] AATA 385 at [16], Comcare v Nichols [1999] FCA 209 at [23]). An applicant asserting an entitlement to compensation for permanent impairment should produce material supporting that claim. In the current permanent impairment matter the Tribunal as an administrative decision-maker must be satisfied on a balance of probabilities that Mrs Golledge suffers from permanent impairment.
26. Where the reviewable decision is one reducing the level of compensation, as it is with the household support application, the Tribunal must be satisfied on the balance of probabilities that the reduction is justified. A respondent asserting such a change – here Comcare – must produce material to support the change (ReQuinn and Australian Postal Corporation (1992) 15 AAR 519 at 525).
Does Mrs Golledge Suffer Permanent Impairment to Her Right Upper Limb
27. Mrs Golledge is claiming 20 percent whole person impairment for the right arm under table 9.4 of the Guide. The basis for Mrs Golledge’s claim is that she continues to suffer pain to her right upper limb as a result of the RSI such that she has difficulties grasping and holding and with digital dexterity.
28. Section 4(1) of the Act provides
"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
…“permanent” means likely to continue indefinitely.
29. Section 24 of the Act provides
(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 rehabilitative treatment for the impairment; and
(d) any other relevant matters.
…
(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.
In this case the question is one of “loss of the use … or malfunction” of the right arm due to the RSI for a long period of time with not much hope of rehabilitation.
30. Table 9.4 of the Guide provides
% DESCRIPTION OF LEVEL OF IMPAIRMENT
10 Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity
20 Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding
30 Retains some use of limb BUT has difficulty with self care
40 Cannot use limb for self care
31. Mrs Golledge gave evidence that she cannot grasp or hold things successfully. She intimated that her digital dexterity was very bad in her right hand. She presented to doctors with a “clawed” hand; that is her hand was continuously flexed. She stated that she did not have feeling in three fingers.
32. She talked about the things that she can and cannot do
I can’t say I have a typical day because every day is different with the pain level, but on a day when I’m feeling partially better, I can wipe the furniture down, I can wipe my bathroom vanity area around, I can perhaps go into the garden and do a bit of planting or a little bit of weeding, I can prepare dinner … I might get up in the morning and see how the day is going, I might try to do a few things and then perhaps I’ve over-exerted myself and I’ll have to go back to bed.
…
I can still drive. I wouldn’t have – I would be able to drive normally, you know, sort of just the normal drive, but only for a short period of time. I wouldn’t be able to drive for any length of time…. I am taking strong medication … and on every label it’s got “caution when driving”, so unless it’s absolutely necessary, I don’t drive.
…
[On a typical day] I might tidy the pantry up … I just don’t seem to have a typical day. Each day revolves around what I can do and what I can’t do on that day.
…
And do you mean by that that each day revolves around your pain? --- Yes
…
Do you have restrictions in the way you can move your arm? --- Yes, … I can’t get my arm to the washing line to hang washing out.
33. However, later Mrs Golledge gave evidence that she can sometimes put the washing out and use the pegs to hold it. She sometimes cleans out the pantry and does some cooking. She said that she tries to live a normal life within the boundaries of her pain. Her doctors advised her that she should try and do as much as possible so as not to lose any capacity in her limbs. She said that she does go shopping, but that usually her husband, Mr Stewart Golledge, helps her with the shopping. On her evidence she can pick up packets of cereal, tea and sauce mixes.
34. Mrs Golledge had problems with her right arm as a result of the RSI which was diagnosed in 1984, but she had further problems after the two operations by Dr Newcombe
I have no feeling in the thumb and two fingers. Its just they’re numb. …
And that graduated, the next day, down to the full thumb and within the next few days it had gone to the two other fingers. …
I have trouble with anything that is hot. I have to be very careful to make sure I don’t burn myself and … I have to use my left hand a lot more than my right and I do drop a fair few things. …
[After the operation] the left shoulder became very, very, very sore and I had a series of massages and things like that to try and help relieve it. …
[The state of my left shoulder] is nowhere near as bad as the right shoulder, but it’s in a pain of 0 to 10, it’s – it’s usually about 5 all the time.
35. Mrs Golledge went on to describe the pain further
Before the operation I hadn’t had too much problem with the left side but after the operation I experienced very bad muscle pain – well I didn’t know what it was, it was just pain as far as I was concerned – in my left shoulder and neck …
Mostly it radiated around my left shoulder and came down to my forearm … [mobility] is lessened with my hand. …
As I lift my arm up, the fingers start to – I don’t know, tingle and about [a level of adjacent to the left hip with the left hand out straight and a right angle at the elbow] is as far as I can [stretch my arm].
36. Mrs Golledge gave evidence of pain in her left upper limb, but there was much evidence against a finding that Mrs Golledge had any impairment in her left upper limb. Professor Milton Cohen, Mrs Golledge’s treating rheumatologist, conceded that she did not have impairment there, and Mr Golledge agreed that Mrs Golledge can lift items such as a ten litre water container with her left hand. Therefore no claim was pursued on this limb.
37. Mr Golledge gave evidence of the difficulty Mrs Golledge has with her right hand
She may be able to pick up the glass, but then by the same token two seconds later she may just drop it, because the fingers freeze or the arm locks or whatever it might be. So it doesn’t happen all the time but she does have trouble grasping things. Certainly with her right hand there is no grip there. She can pick up a cup, she can pick up a glass, she can’t … pick things up and stretch and put them in the cupboard. She puts them on the bench and I’ll put them in the cupboard, because she has trouble with that. The other – only this last week she dropped a cup of tea when she was in bed. She couldn’t – it just fell from her hands. And this happens on occasions.
… I would say, no probably 70, 80 percent of the time she can hold things, providing they’re not too heavy or, you know, she hasn’t got to grip something for any period of time. But if it was just a matter of picking up a cup of tea she can manage. If she can’t manage with her right hand she tries to manage with her left hand, although she finds that difficult because she’s very right handed.
38. Mr Golledge also gave evidence of how Mrs Golledge has suffered since the two operations
Prior to Dr Newcombe’s operation? --- Well, she seemed to be coping pretty well. She was – she had been referred at the time by Dr Turtle to see Professor Cohen and she had been attending [sic] to see him. … [S]he actually went to England … in late 1991 … and she seemed to be pretty good … until 1994 when she really started to deteriorate. The pain seemed to be getting a strong hold on her and I urged Dr Turtle to sort of have a serious look and see what could be done. And that’s when he referred her to Dr Newcombe in 1994.
…
[H]e did the second operation and he said you should be okay, but you know it wasn’t. It had just got progressively worse after that. … She complained after a while that she had loss of use in a couple, three fingers in her left hand – not loss of use, but numbness, and she had tingling of the whole hand. She didn’t seem to lose any appreciable strength of the arm, she seemed to be able to use it, but it’s just that it felt strange for her. But that didn’t – that hasn’t improved; that’s got progressively worse as well.
39. He went on to say
[A] good day for Maureen is nothing like a good day for me or for you or for anybody else. It’s just merely getting through the day without having to rest up for several hours or days even. And it gets to that point. And sometimes the shoulder – when she’s laying [sic] in bed it just simply locks up on her and she can’t move. …
I’ll have to go up and she’s locked up on her left side. She just cannot move. She can’t get her arm over to swing around. She can’t do anything. So I have to get under and lift her around.
40. Professor Cohen found that Mrs Golledge had impairment to a level of 20 percent in her right upper limb in a report dated 17 September 2001 on the basis of his examination of her. He said in 15 November 2002
In my view it would be fair to state that not only was Mrs Golledge’s condition not improved by the cervical spine operations but also that her condition has in fact deteriorated since then. One could argue that, had she not undergone anterior cervical fusion in July 1994 and a posterior fusion in September 1994, her condition would not be as bad as it is now. In a whole-person sense therefore, her level of impairment in July 1990 would have been of the order of 10%, so that it has in fact deteriorated since then (and my inference since 1988) by another 10%.
He had been seeing Mrs Golledge since 1990 for pain management and had documented her improvements over time. He stated in his reports to Mrs Golledge’s GP that her condition was deteriorating. He put her on to a higher dose of Kapanol to help the pain.
41. However, Dr McGill, a consultant rheumatologist, found that Mrs Golledge had an impairment rating of zero for her right upper limb. In his report dated 21 March 2003 he said
She slowly explained that she has pain in the neck, right shoulder and the entire right upper limb which she described as “intolerable pain all the time”. Despite my encouragement to try and describe her symptoms more fully, she could not think of anything further to say. I then asked her a series of specific questions. …
…
Reflexes in the upper limbs were normal and symmetrical.
…
Despite the profound weakness alleged during the formal examination, she was able to hold a bottle of water without difficulty and demonstrated normal dexterity when handling her clothes. The function of her right hand that she displayed during the formal examination was also inconsistent with her neat handwriting …
42. Dr Kenneth Muirden, a rheumatologist, examined Mrs Golledge in 2001 and noted that there was no evidence of muscle wasting although Mrs Golledge reported tenderness and restriction to her right upper limb.
43. During the course of the hearing Comcare produced a video of Mrs Gollegde performing various activities with her elderly mother over a two day period as evidence that Mrs Golledge does not have a problem with digital dexterity and grasping and holding. On 19 November 2003 Mrs Golledge was filmed in a coffee shop buttering a scone, lifting a knife and fork with no difficulty, opening a serviette, holding and opening a water bottle with a screw down lid, scratching her face, wiping her mouth with serviette. She demonstrated normal use of fingers and hand, and therefore seemed to have no problem with digital dexterity. She in fact demonstrated fine digital movements by brushing her t-shirt and picking something off it. She was seen helping her mother up and putting her arm around her mother’s shoulder. In the video she was observed to grasp and hold items including her handbag, a purse, a cup, some toast, a bottle and a box of tissues easily and freely.
44. Mrs Golledge was cross-examined about the video
Mr Soulio: Do you agree that there was a free and fluid movement of your neck shown on that film?
Mrs Golledge: Yes.
…
Mr Soulio: And do you agree that you’re shown lifting shopping bags from the bench into the trolley?
Mrs Golledge: Yes, very light shopping bags.
Mr Soulio: Right. I suggest that you’re also shown reaching on to the supermarket shelves easily and fluidly with your arm at a height greater than you suggested you could reach?
Mrs Golledge: As I said, that was a good day.
45. Mrs Golledge was then filmed in a supermarket, where she grasped a 10 litre bottle and lifted it into the trolley, she lifted shopping bags into a trolley, she reached above shoulder level, and she grasped her purse, opened it and held it. She managed to tuck in her t-shirt. Mrs Golledge had given contrary evidence to questions earlier about her shopping habits.
Mr Soulio: When you do go along do you participate in the shopping or are you simply there as company for your mother?
Mrs Golledge: No. No, I walk around with Stewart. He pushes the trolley and we – we just do the grocery shopping.
Mr Soulio: All right. Does he lift the shopping and so on?
Mrs Golledge: Yes.
Mr Soulio: And why is that?
Mrs Golledge: Well, I can get things off the shelf if they’re, you know, like packets of tea and biscuits and – but if it’s too high up or too heavy, well then he gets it.
Mr Soulio: Right and what would be something that’s too heavy?
Mrs Golledge: Well bottles of water and soft drinks, or potatoes …
Mr Soulio: And when you say soft drinks, what size of bottle are we talking about?
Mrs Golledge: The 1.25 litres and then we buy 10 litre containers of water, two or three of those a week, so I could never pick one of those up.
Mr Soulio: Right. And why is that?
Mrs Golledge: Well apart from the fact it’s too heavy, I would be in excruciating pain if I tried
…
Mr Soulio: And similarly shopping bags, does Stewart deal with those after groceries have been packed?
Mrs Golledge: Yes, we have those ergonomic bags. You know - the Hessian bags.
Mr Soulio: Do you mean environmental, sorry?
Mrs Golledge: Sorry yes, environmental bags. And we put the shopping up onto the belt and he puts all the heavy things up and leaves me to do the lighter things like the bread and biscuits and what have you and then the girl usually packs and Stewart puts it into the trolley and then into the boot and then carries them in from the garage and then puts them away.
46. After the video the following cross examination ensued
Mr Soulio: … Did you see yourself on that video film purchasing a 10 litre water container?
Mrs Golledge: No, not a 10 litre. A five litre. Five litre container.
Mr Soulio: You say that’s a five litre container, do you?
Mrs Golledge: Yes.
Mr Soulio: Right. How did that container get into the shopping trolley?
Mrs Golledge: I had to put it in myself. They – when you get to the counter there’s no way they will help you out with it. … So you have to do it yourself.
Mr Soulio: So you put it into the … trolley yourself?
Mrs Golledge: Yes.
Mr Soulio: You lifted it on to the counter yourself?
Mrs Golledge: Yes.
Mr Soulio: And you lifted it into the car yourself?
Mrs Golledge: Yes.
Mr Soulio: Why did you tell the Tribunal that you had trouble with a 1.25 litre soft drink bottle?
Mrs Golledge: Because some days I do.
47. On 20 November 2003, Mrs Golledge was filmed holding her handbag normally, pouring hot water, dipping her teabag, lifting the teacup naturally and drinking from it, putting on her glasses, taking them off and putting them in her case. In a supermarket again she was seen picking up items off the shelves, lifting items above shoulder level, leaning down to pick up items from lower shelves, lifting items out of carrier bags and putting others in. There was no sign that she was doing this with difficulty.
48. Mrs Golledge was able to use a tissue and serviette and wipe her shirt down. I asked Mrs Golledge about her usual digital dexterity
Mr Mowbray: You didn’t seem to have any difficulty with the dexterity of your fingers even. At one stage I noticed that you actually were cleaning something off your shirt?
Mrs Golledge: It was probably crumbs.
Mr Mowbray : It may have been, but just in the finger movements and things like that – you see the test is can use limb for self care, but …either [has] no digital dexterity or has difficulty grasping and holding. And for two days in a row plus some earlier days where you were actually … with some mail walking back, grasping and holding the mail?
Mrs Golledge: Well they videoed me on two good days. That’s all I can say. As I say… I only usually go out now once a week, so for me to be out two days in a row was sort of like a bonus, I suppose. I do have times like that when I can … go out and go to friends or go to the shops or do normal things, otherwise I’m just going to sit at home and sit there and wait to die.
49. Before giving oral evidence Professor Cohen and Dr McGill had had a chance to watch the video and their conclusions at the concurrent evidence stage were based on that evidence as well as their own examinations and other doctors’ reports. Dr McGill remained of the view that there were no symptoms to the extent of permanent impairment in her right upper limb. He said “In terms of what we actually saw on the video, we were in agreement that her upper limb function looked normal.”
50. Professor Cohen conceded that there had been an improvement in Mrs Golledge’s upper right limb since 1997 and that her range of movements was broader. When I questioned him he said that after viewing the video he must revise his estimate of the degree of Mrs Golledge’s permanent impairment to the right upper limb to ten percent on table 9.4. In his view she still demonstrated difficulty with digital dexterity. On the video he said
It must be, I think, taken into account that these actions are being executed while she’s taking 200 milligrams a day of morphine which will ease symptoms to some extent, that we cannot infer that she has no difficulty with digital dexterity and there were, admittedly only on a couple of occasions in the video and this was the second point I was seeking to make, she can be seen rubbing her right arm with the left, carrying the right arm across her body in an antalgic position and on one occasion, lifting a cup of coffee with two hands. Now, that, to me, suggests that there was a degree of ongoing problem.
51. Comcare sought to question Mrs Golledge’s credibility and reliability by evidence of earlier medical conditions and treatment. In the 1970s there were intermittent occasions when she complained of abdominal pain and was cured with sterile water injections. In 1979 she was in hospital for a long time and talked of taking an overdose to end her life. She complained at that stage of numbness in her right arm from a blood pressure test. She has also developed a dependency on morphine since the early 1980s. She takes a high dosage every day and has additional top ups on certain occasions.
52. Mrs Golledge presented her diary as evidence of her credibility. In this she records during 2003 that she spent time in bed and had great pain. But she also mentions doing the ironing, gardening – “lifting pots around” – and doing the cooking. She also manages to get out of the house to take her mother shopping or to visit friends quite regularly. Another thing the diary does is show how neat Mrs Golledge’s writing is which would seem odd in someone who has no digital dexterity.
53. One feature of the diary is that Mrs Golledge has added entries to it apparently after the Tribunal mentioned it might want to see the diary. These additions are to 19, 20 and 28 November – the first two dates being the dates of the video. In a different pen Mrs Golledge has added statements about how she was “really enjoying these few good days”, how tired she was or how Stewart helped her with her mother and with the groceries.
54. Dr McGill talked about credibility too
I don’t believe that her history now can be accepted as a valid representation of what happened, because I believe that there is too many holes in her history, including the history provided to Professor Cohen, as her treating doctor, that she didn’t provide him with a past history. I think that’s true from our discussion outside, or certainly not a past history relevant to pain. She did mention some past history of a thyroid operation, I think, but not a past history of previously painful conditions, so I don’t believe we can rely on what she says.
… I assessed that she had 10 percent whole person impairment in regard to her cervical spine. I noted in my report that it was very difficult to make that assessment because of the inconsistency and the false behaviour which she demonstrated during the examination, but I thought that was a reasonable assessment.
Professor Cohen stated that he had seen Mrs Golledge since 1990 and never found that she was fabricating her symptoms. It was clear from the video that he had been deceived to some extent and by the fact that Mrs Golledge had not told him of previous incidents in her medical history, but he did not feel that she was lacking in credibility.
55. Having heard all the evidence, observed the video and noted the detailed views of both expert witnesses I am convinced that Dr McGill’s assessment of Mrs Golledge’s permanent impairment is correct, despite the concessions which Professor Cohen made and his very helpful and thoughtful testimony. I therefore find that
- Mrs Golledge is able to do many household and other activities particularly on a “good day”, such as washing, cooking, cleaning
- she is usually able to grasp and hold implements
- she has no problems with digital dexterity
- Mrs Golledge can write neatly
- she can wipe crumbs away, use a knife and fork with no evident problem
- she has no upper arm muscle wasting
·she does not have a restricted range of movements in the right upper limb.
56. I am therefore satisfied that there is no basis to support a rating on table 9.4 of the Guide for permanent impairment of the right upper limb. Accordingly I find that Mrs Golledge’s level of impairment under table 9.4 for her right upper limb is zero.
Does Mrs Golledge Suffer Permanent Impairment to her Cervical Spine
57. Mrs Golledge claims that she suffers from pain in her neck and spine as a result of her RSI. She first experienced symptoms in her neck in 1984. She said that she suffers from continuous pain in her neck and that this got worse in 1994. Mr Golledge also gave evidence of Mrs Golledge being in great pain.
58. Mrs Golledge is claiming ten percent impairment for her cervical spine under table 9.6 of the Guide. Table 9.6 relevantly provides
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 range of
movement movement
OR
Crush fracture - compression greater
than 50 percent
15 Loss of more than half normal Loss of half normal range of movement
range of movement
59. Mr Bradfield, counsel for Mrs Golledge, noted that the evidence was much stronger for the spine and neck than the right upper limb. He also said Comcare has accepted Mrs Golledge’s pain in her neck since she started receiving compensation before 1988. All doctors who examined her accepted that Mrs Golledge suffers from RSI, regional pain syndrome and cervical spondylosis, although the cervical spondylosis is constitutional. Comcare accepted that the RSI was work-related.
60. In order for Mrs Golledge to be entitled to permanent impairment compensation there must have been some further or new development after 1988. Mr Bradfield said that this was the two operations performed by Dr Newcombe combined. Professor Cohen gave evidence that Mrs Golledge’s neck could have improved considerably had it not been for the operations. As it was the neck was made worse by the operations. The operations were to improve Mrs Golledge’s RSI, but they had the opposite effect. The first operation was on 5 July 1994 for cervical fusion. The second was on 22 September 1994 for posterior fusion. According to Professor Cohen the result of the operations was directly linked to the work-related injury. As the operations and the sequelae arose after 1988 the condition was compensable.
61. Mr Bradfield said
[T]here was a qualitative and a quantitative change as well in the applicant’s condition directly arising from the intervention of Dr Newcombe. … [T]here was an increase in the chronicity, increase in the pain after Dr Newcombe’s operations. On the right side there was a right-sided shoulder injury as well. There was also a psychological injury which followed because of the promise that she had been given by Dr Newcombe of the success of that operation. …there was [also] a left hand and arm injury directly arising after the operation of Dr Newcombe.
62. In the present matter Mrs Golledge was found to be entitled to compensation for her injury in 1985 and has continued to require such compensation. She has now been rated by Professor Cohen as having ten percent impairment under table 9.6. Dr Newcombe who performed the operations in 1994 noted in letters to Mrs Golledge’s GP at the time, Dr Jonathon Turtle, that Mrs Golledge’s neck was still very painful and continued to be stiff, while he said that her right upper limb pain had resolved as a result of the operation. In September 1994, Dr John Sheehy, a neurosurgeon also reported to Dr Turtle that Mrs Golledge’s neck pain was a major problem.
63. A family friend, Mr Beattie, gave oral evidence that Mrs Golledge was suffering pain after 1984 and before 1994, but that she would go out and socialise and the pain did not show. He said that after the operations in 1994 Mrs Golledge seemed fragile. She would not like people to hug her because of the pain and she often collapsed at functions and had to be brought home. They could never plan what they were going to do together weeks in advance because they never knew if Mrs Golledge would be well enough.
64. In a letter to Comcare dated 14 January 1991 Professor Cohen said
The formulation of Mrs Golledge’s problem as pain of neuropathic aetiology implies that there has been a change in nervous system functioning. This and other changes are encompassed in the concept of plasticity of the central nervous system. … It is important to note in this context that Mrs Golledge’s initial complaints were of pain and stiffness of the neck, phenomena which have persisted since she ceased work duties.
He said that Mrs Golledge was “totally incapacitated for work… [i]ndefinitely.”
65. On 13 May 1997 Professor Cohen wrote to Dr Femi Idowu, Mrs Golledge’s current GP and noted that the neck condition had remained constant with considerable pain management. On 7 July 1998 he noted that Mrs Golledge was experiencing spasms in her neck and shoulder. And on 3 April 2001 he said
On this occasion examination of the left upper limb was associated with worsening neck pain. …
Mrs Golledge’s left upper limb pain has changed to some extent as there is now a more pronounced referred component from the neck in addition to the previous adhesive capsulosi) [sic] at the shoulder.
66. Dr McGill thought it probable that Mrs Golledge had whole person impairment in accordance with table 9.6 because she had less than half the normal range of spine movement. He rated her at ten percent on table 9.6. However, he added “[t]hat impairment is entirely related to constitutional cervical spondylosis with no contribution from her former work duties.”
67. In his report he went on to say
Low back movements were performed to about 70% of normal flexion. During the formal examination she performed restricted cervical spine movements (rotation 50% of normal and flexion/extension 30% of normal).
…
She reported tenderness down the entire spine, maximal in the low back and neck regions. She also reported marked tenderness of the entire right upper limb and right trapezius muscle. Light touch sensation was reported to be not unpleasant.
68. He further said
With respect to whether there has been a change in permanent impairment since 1 December 1988, I think it is probable that she does have greater genuine impairment of neck function than was the case in 1988. Her neck impairment relates to constitutional cervical spondylosis and that has not been influenced in regard to causation or progression of her work duties. As mentioned above I think it is very difficult to know to what degree the physical changes in her neck contributed to her symptoms but her overall pattern of behaviour and symptom reporting is not explicable on the basis of her cervical spine disease.
69. Professor Cohen, commenting on Dr McGill’s report, noted that
Dr McGill concedes that it is probable that she does have greater genuine impairment of neck function than was the case in 1988. … He goes on to say “[H]er overall pattern of behaviour and symptom reporting is not explicable on the basis of her cervical spine disease”. I agree.
70. Dr Kenneth Muirden, a rheumatologist, reported in 2001 that Mrs Golledge had great involuntary restriction of all movements of the cervical spine related to allodynia of the neck. He said that the spine showed a full range of movement that appeared to be “fairly painless”. He noted that “[t]here is some evidence of a mild degenerative cervical spondylosis but this is clearly not the major cause of the client’s pain syndrome.” He went on
Mrs Golledge suffers from a debilitating pain syndrome that is appropriately referred to as cervicobrachial regional pain syndrome. This syndrome appears to be initiated by a workplace occupational overuse syndrome referred to at the time as “Repetitive Strain Injury” that occurred in 1983/1984. The severity and persistence of the condition is related to pain amplification and there are signs such as the presence of allodynia that indicate a neuropathic problem has developed.
He agreed with Professor Cohen that Mrs Golledge’s condition was “still directly related to her employment in 1983/1984.” He said that he considered the work-related condition has not ceased, although there could be a range of factors which worsen the condition, some of which would be work-related and some environmental.
71. Dr McGill and Professor Cohen had the advantage of watching the video of Mrs Golledge’s natural movements. Dr McGill revised his opinion slightly
In regard to whether the impairment is permanent, I think her cervical spine impairment is permanent.
In regard to whether there are any changes post-December 1988, I would expect that her cervical spine mobility is less now than it was then, due to both the natural history of cervical spondylosis, which is one of slow progressive deterioration, in terms of mobility particularly, and also the surgery that she had performed, which, whether or not it helped her pain, would have been expected to cause some further restriction of movement. Although, even allowing for that deterioration, I think her current state is that she has five percent whole person impairment with respect to her neck.
72. Professor Cohen stated in oral evidence
Certainly in terms of Mrs Golledge herself, she reported worsening neck pain, no change in the status of her right arm, and she reported at least to me some altered function in her left hand. So the effect of Dr Newcombe’s operation certainly had no benefit and probably had some detriment.
… [T]he impairments which flow from the conditions … I think it boils down to impairments attributable to the neck and impairments attributable to the right arm. I believe that they are two interacting impairments, and they are both permanent. The level of impairment pursuant or as constrained by those Comcare tables in my view are of the neck 10 percent …
73. Indeed in examination in chief Professor Cohen made the following statements
Professor Cohen: There was a potential for reversibility of the neck pain component of her complaints prior to those fusions.
Mr Bradfield: So, is it right to say that, prior to the operations of Dr Newcombe, that her condition, of her neck, could have been rendered to being zero percent with proper treatment?
Professor Cohen: It’s possible.
Mr Bradfield: After the operations of Dr Newcombe, what can you say about her ability to have zero percent neck pain?
Professor Cohen: Well, her neck is now, at some levels, permanently changed, both in terms of movement and in terms of its sensitivity so there has been a material change in her neck arising out of these procedures.
74. On my own observation of the video and of Mrs Golledge in the witness box Mrs Golledge has essentially normal cervical movements for a person of her age. This was confirmed by Dr McGill who however found minor restrictions of neck movement due to her cervical fusion. Again I found Dr McGill’s evidence more persuasive than that of Professor Cohen on this point.
75. On all the evidence, including the video and that of the medical experts, I find that
·Mrs Golledge suffers from neck pain as a result of her RSI
·this neck pain was increased by the two operations performed in 1994
·her neck condition was partly due to Dr Newcombe’s operation and also partly due to cervical spondylosis
·Mrs Golledge’s neck injury has resulted in permanent impairment
·there was a further or new impairment – namely the impairment caused by the operations of Dr Newcombe
·Mrs Golledge suffers from only minor restriction to the neck.
76. These findings support a five percent rating for the period after 1988 under table 9.6. I find accordingly.
Does Mrs Golledge Suffer Permanent Impairment from a Psychological Condition
77. Mrs Golledge claims that she has a permanent impairment from her psychological condition of chronic pain disorder to a level of five percent under table 5.1 of the Guide. Initially Mrs Golledge claimed ten percent, but during oral submissions, and given the changing opinion of some of the expert witnesses, that claim was reduced to five percent whole person impairment.
78. In order for Mrs Golledge to receive compensation for permanent impairment for her chronic pain disorder that disorder must be shown to be linked to her work-related injury, namely the RSI. However, there is a question whether Mrs Golledge does in fact suffer from chronic pain disorder. I shall deal with this issue first, as it is relevant to whether any psychological permanent impairment is work-related and therefore to whether Mrs Golledge should receive compensation.
79. It was established by the expert witnesses that Mrs Golledge was suffering from a psychological condition. Indeed other physicians reported on this too. In 1988 Dr Colin Selby Brown said
As I indicated to Mrs Golledge I would strongly recommend that she proceed to psychological examination and assessment. I do not believe that any physical treatment has anything to offer Mrs Golledge.
80. Dr Kenneth Muirdan, a consultant rheumatologist, stated in December 2001
There are likely to be important psychological factors involved in the persistence and I have already mentioned one such factor, that is, the high level of anger directed at her employers. It is crucial in the treatment of such syndromes that a psychological pain management treatment program is actively pursued and other stressful circumstances within and outside the workplace are identified and as far as possible corrected.
81. Another rheumatologist, Dr McGill, while commenting outside his area of expertise, pointed out
This 63 year old lady has a very long history of psychological disturbance characterised by prominent somatic symptoms in various areas. Although the history she provided was that her problems commenced as a result of her work duties in 1984, the documentation summarised above clearly indicates that she had previously reported a range of somatic symptoms including pain that were not explicable on the basis of organic disease or were markedly exaggerated in comparison with the degree of organic disease. In addition to her psychological problem, she also has cervical spondylosis which is constitutional in aetiology.
…
I think her symptoms are mainly non organic and a reflection of her emotional and psychological makeup. The diagnosis of depression and anxiety that has been provided (I think by her previous psychiatrist) I think is appropriate. … With the exception of the flexion deformities of both little fingers (constitutional) I think her upper limb symptoms are psychological/factitious.
82. Professor Cohen, while essentially disagreeing with Dr McGill’s opinion as to Mrs Golledge’s physical state did agree with him that “It is not contested that Mrs Golledge has significant psychological disturbance”. He went on to say in a letter to Mrs Golledge’s solicitors dated 20 June 2003 commenting on Dr McGill’s report that
Clearly at that time [of her first visit to me] Mrs Golledge did complain of problems in the right arm as well as the neck and suprascapular region, not surprisingly of course as they are connected. …
[I]t is important to recall my own disapproval of Mrs Golledge having undergone two operations on her neck in 1994 without my knowledge let alone consultation. Mrs Golledge’s detractors take that together with her insistence that the intrathecal morphine pump be removed (in 1991) as evidence of a psychological aetiology of her problem. However such an opinion would fail to distinguish between illness behaviour and the underlying somatic problem. Despite my disappointment that Mrs Golledge insisted on having the intrathecal pump removed and despite my strong disapproval that she had undergone two operations on her neck without my involvement, I do not conclude that she does not and did not have a somatically determined pain problem in her right upper limb. … It may well be that Mrs Golledge has always had a degree of “somatic preoccupation” or of “hypervigilance” with respect to her own bodily function. However that is not a sufficient explanation for the development and nature of her right upper limb symptoms. That she has undergone two unnecessary operations on her neck should, by contrast, be a matter of major concern and contributes in no small part to her current predicament.
83. There were three possible diagnoses of Mrs Golledge’s psychological condition – somatisation disorder, factitious disorder and chronic pain disorder. In oral evidence in the ‘hot tub’ Mr Parsons said
Mrs Golledge’s symptoms are consistent with a somatisation disorder. A somatisation disorder is a history of many physical complaints, onset before age 30, over a period of years, that result in treatment being sought and significant impairment in social and/or occupational functioning.
These symptoms cannot fully be explained by a medical condition. In a somatisation disorder they’re not intentionally feigned. In other words, there’s no conscious motivation there. And then one of the diagnostic criteria is at least four pain symptoms, two gastro symptoms, one sexual reproductive symptom, which is the hysterectomy that occurred … at age 27 and one pseudo-neurological symptom.
…
Consistent with somatisation disorder, subject is seen as inconsistent historian. So at one evaluation they report many symptoms, while at another evaluation they may present many less, therefore a different diagnosis being made. They often seek treatment from several physicians concurrently, therefore their treatment may be complicated and with hazardous combinations of treatments. Prominent anxiety and depressed mood, risk of substance related disorders and major depression is frequently associated with somatisation disorder.
84. Dr Saboisky agreed with Mr Parsons
it’s clear to say that, given all that information, that she does have a pre-existing condition which goes right back to the 1960s of recurrent depression related to psychological factors, I think. Her psychotherapist in Melbourne felt that she had significant dependency problems back then. And so it goes.
If you look through the various medical problems that she has had, psychological conflicts form a basis not only of dysphoria and emotional distress but also of the presentation with physical symptomatology. So I don’t have any basic argument with Dr Parsons about the fact that she probably has somatoform disorder.
85. Mrs Golledge has suffered from five miscarriages and had depression after these occasions. She had a hysterectomy at a young age. She also spent an extended period in hospital primarily for abdominal pains, but while she was there she was examined for pneumonia and goitre was found and removed. She also suffered fainting attacks while in hospital. In 1983 she was admitted to hospital again. Then in 1984 she suffered the RSI. This has involved many procedures including the two operations by Dr Newcombe in 1994. She had apparently been selective in reporting details such as this medical history to doctors who she has seen since 1984 in relation to her RSI.
86. In examination in chief Mrs Golledge was hesitant about her previous visits to psychologists
Mr Bradfield: … Prior to the operation with Dr Newcombe, had you received any psychological treatment?
Mrs Golledge: Yes.
Mr Bradfield: Had you received any psychological treatment in respect to your chronic pain condition?
Mrs Golledge: Yes
Mr Bradfield: And who did you receive that from?
Mrs Golledge: Tom Sutton … I don’t know the exact dates, it might have been after Dr Newcombe.
Mr Bradfield: … The indication is that you saw Dr Sutton on 9 September 1995. Would that be right?
Mrs Golledge: Yes. …
…
Mr Bradfield: … Apart from those two occasions [in the 1960s] had you received any other treatment before seeing Dr Sutton in 1995?
Mrs Golledge: No.
Mr Bradfield: Why did you go and see Dr Sutton then in 1995?
Mrs Golledge: My doctor just thought … I would get some help and … I went to see Dr Sutton and he decided to put me into group therapy, but after a couple of weeks, he changed that to one-on-one with a female doctor. …. I was just finding the pain was consuming me, consuming my life and I couldn’t see that I was going to get any better. And I just – the doctor thought I probably needed some help at that stage.
87. Mr Parson also commented on Mrs Golledge’s reticence in relation to past psychological conditions
Mrs Golledge denied having received psychological treatment prior to the onset of her work-related injury in 1983. She informed me of a history of being, “very shy” and that she, “never liked socialising” and that she could feel, “terrified” in some social situations. Furthermore, she reported that whilst she tended not to avoid social situations due to her anxiety she noted that her anxiety was more elevated than most other people’s. Her report of symptoms is consistent with a diagnosis of Social Phobia.
88. Dr Saboisky noted this too
I did not think that she was clinically depressed in my presence and gave me a reasonable account of her circumstances. She did not however go into any detail regarding her past psychiatric problems.
…
She demonstrated an unusual degree of concern about physical functioning and health matters and probable impairment arising from somatic complaints.
…
It is … relevant to note that Mrs Golledge does a lot of denying specifically about psychological problems. … Her hospitalisation for abdominal pain and constipation appears more related to the psychological factors than to any significant underlying pathology and this is well described by Dr Davis, her gastroenterologist at the time. There is therefore a pre-existing history of somatisation in the context of significant psychosocial stressors.
89. Both experts considered another condition which also possibly fitted Mrs Golledge’s case – a factitious disorder. Mr Parson said
Now, a factitious disorder is the conscious presentation of symptoms, that do not have a biological basis for gain, for secondary gains of care, attention, possibly medication and monetary gain. So that can’t be ruled out as a possibility as well.
And Dr Saboisky said
The psychological condition which she suffers from depends on whether she’s telling the truth or not basically. And I have my doubts, based on the video evidence, based on the history she’s provided medical experts, the denial of past history.
90. The third possible diagnosis was of chronic pain disorder. Mr Parsons said
The third possibility which may lie co-morbid with somatisation disorder is a pain disorder, a chronic pain disorder, due to a medical condition and psychological factors. Now the keen understanding of pain disorder is that this psychological disorder is based upon medical opinion, it can only stand if there is described a biological basis for the general medical condition.
91. In oral evidence Dr Saboisky said
Mr Mowbray: Now you accept the chronic pain disorder diagnosis of Mr Parsons as well?
Dr Saboisky: Well in DSM-IV, pain disorder comes under somatoform disorder … so I said that if she hasn’t got somatisation disorder which is these multiple symptoms … if she doesn’t get a guernsey there, she gets a guernsey for pain disorder. … [A pain disorder] is essentially a production – is a complaint of pain … – a complaint of pain … due to psychological factors.
92. Later Dr Saboisky said that having viewed the video he did not think that Mrs Golledge’s pain condition was constant. She was able to act normally on the video and therefore had her pain under control. He said that one of the factors for chronic pain disorder is that the pain appears to be constant.
93. Mr Parsons added
I would just like to comment on Dr Saboisky’s comment about if she doesn’t fit the criteria for somatisation disorder, then she’d fit the criteria for pain disorder. I think what Dr Saboisky’s referring to there is simply pain disorder due to psychological factors. Whereas, in my report and what I was referring to, was the pain disorder associated with both psychological factors in a general medical condition which is a specific subset in the pain catalogue.
This subtype descriptor is used when both psychological factors and a general medical condition are judged to have important roles. That’s why I was saying that that diagnosis of mine would only stand on the basis that there is a general medical condition judged to have an important role in the onset, severity, exacerbation or maintenance of her pain.
But he did not definitively link the chronic pain disorder to the RSI, the compensable injury, because of the lack of an essential organic or physical element. He said
Question Three: what, if any, impairment flows from this condition? Well, it would only, in terms of the workplace, relate to if there is an organic basis to the problems with her right arm, then the pain disorder, with both medical and psychological factors, would be contributing problems with mood and elevated anxiety. Is this permanent impairment? Well, it would depend on her experience of pain.
94. Dr Saboisky took a similar approach and found that there was probably no permanent impairment based on the fact that her experience of pain does not seem to be constant or consistent
So I accept that she has pain disorder. She complains of pain. … What I’m saying is how much of that is genuine, how much of that is not genuine is difficult to know, but certainly I was very persuaded by the video to think that it was probably, at least a fair component of it was not genuine.
95. Dr Saboisky and particularly Mr Parsons’ final diagnoses of somatisation disorder were somewhat different from their original diagnoses when examining Mrs Golledge. Mr Parsons said on 26 May 2003
As a direct result of her pain, Mrs Golledge informed me that she suffered the following problems; disturbed sleep, problems with mood, episodes of tears, suicidal ideation without intent and elevated restlessness. Furthermore, she reported ruminating on her injuries and pain. …
…
Mrs Golledge appears to be suffering from a Pain Disorder Associated with both Psychological Factors and a General Medical Condition (DSMIV – 307.89). This sub-type descriptor is used when both psychological factors and a general medical condition are judged to have important roles in the onset, severity, exacerbation or maintenance of the pain.
Mrs Golledge’s report of her pre-injury history of suffering problems with elevated anxiety places her at greater risk of experiencing aggravated problems with anxiety post injury. … Thus, Mrs Golledge is best conceptualised as remaining in a loop in which her chronic pain aggravates her experience of anxiety, which in turn aggravates her chronic pain. Her problems with chronic pain and anxiety then contribute directly to her problems with mood.
…
… Given her report of pain and anxiety for a period of 20 years since the original injury, the prognosis for Mrs Golledge appears poor.
96. Dr Saboisky reported on 8 May 2003
She said she was a shy woman not given to socialising. She used to “hate meeting new people”. She copes by staying close to her husband Stuart.
…
The Illness Behaviour Questionnaire revealed high scores on disease conviction, affective disorder and denial, moderate scores on affective inhibition and low scores on two scores of hypochondriasis and irritability. A subsidiary scale for conscious exaggeration was not significant.
… In layman’s terms there was a suggestion of affective disorder. She is convinced that she has a physical problem and there is a likelihood that whatever physical symptoms she had were either created by emotional problems or the expression of them influenced by them.
…
She also reported a number of living difficulties consistent with significant depressive experience.
In respect of her self-concept she was likely to be self-critical, not handling setbacks very well and blaming herself for past failures and lost opportunities. She may be more troubled by self-doubt and misgivings about her adequacy than is apparent on the surface.
Her interpersonal style is characterised by being self-effacing, lacking in confidence in social interactions. She is likely to have difficulty in having her needs met in a personal relationship and instead will subordinate her own interests and those of others in a manner which may be self punitive.
The diagnostic possibilities generated by the PAI were generalised anxiety disorder, major depressive episode, conversion disorder and undifferentiated somatoform disorder.
97. However, critically after reviewing all the evidence prior to and at the hearing both Mr Parsons and Dr Saboisky were of the view that the most likely diagnosis was somatisation disorder.
98. Dr Saboisky and Mr Parsons agreed that of the three possible conditions only the chronic pain disorder could be work-related. The other two possible conditions are related to incidents further back in Mrs Golledge’s past prior to 1984.
99. Having regard to the evidence before me and noting in particular that both Mr Parsons and Dr Saboisky have essentially reached agreement on Mrs Golledge’s condition
·I can not be satisfied that Mrs Golledge suffers from a chronic pain disorder
·she probably suffers from a somatisation disorder
·she started suffering from such a disorder before 1984 – that is it pre-existed her work injury
·the condition is therefore unrelated to her work-related injury, RSI.
100. These findings support a determination that Mrs Golledge is not permanently impaired psychologically for the purposes of section 24 of the Act. For these reasons I find that Mrs Golledge suffers a zero percent whole person permanent impairment under table 5.1 and accordingly is not entitled to compensation under section 24.
Is Mrs Golledge Entitled to Household Support
101. In 1992 Comcare accepted liability to pay for household assistance for Mrs Golledge. At the time her husband was working full time and she was managing on her own, while she had an accepted compensable condition. The amount of household assistance was raised so that by 1999 Mrs Golledge was receiving six hours per week in cleaning and three hours per week in ironing assistance. On 28 June 2002 on the advice of an occupational therapist Comcare reduced the hours of assistance to three hours a week, including ironing. Mr Golledge was then working part time at 20 hours a week. Now he is retired, but Mrs Golledge is requesting review of Comcare’s decision to reduce the amount of household assistance that she receives.
102. Section 29 of the Act relevantly provides
Compensation for household services and attendant care
services(1) Subject to subsection (5), where, as a result of an injury to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.
(2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a) the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;
(b) the number of persons living with the employee as members of his or her household, their ages and their need for household services;
(c) the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;
(d) the extent to which the persons referred to in paragraph (b), or any other members of the employee's family, might reasonably be expected to provide household services for themselves and for the employee after the injury;
(e) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).
103. Mrs Golledge gave evidence that she could only do limited housework. She could not vacuum, nor perform any heavy housework. She had been paying for home assistance before 1992 – “three hours a week cleaning and two hours a week ironing” – and relied on “good days” for her and her husband to do the remaining work. In examination in chief Mrs Golledge said
Vacuuming was just out of the question … I couldn’t push the vacuum cleaner around … I can’t hang washing out. … I can do very limited gardening, just, you know, pull a few little weeds up now and again. … And, you know, plant little seedlings and things like that, I can do for short periods of time. But we have an … easy-care garden now, with mostly bushes and shrubs that don’t take a lot of time or looking after.
104. In cross examination Mrs Golledge talked about ironing
Mr Soulio:What sort of things might you try and then find you’ve over-exerted yourself?
Mrs Golledge: Well, Stewart might be ironing, for instance he might be doing some of the ironing and I’ll say to him, “I can do a couple of bits of that, a couple of easy things” and I’ll try and do that.
Mr Soulio: And then you’ll find that’s too much for you?
Mrs Golledge: Too much, yes.
Mr Soulio:Incidentally, that three hours of ironing you pay for, that includes some ironing of bed sheets and things, does it?
Mrs Golledge: Well, whatever it entails that week, you know.
Mr Soulio: So it might include bed sheets though?
Mrs Golledge: Yes, well, bed linen, you know.
Mr Soulio: Yes?
Mrs Golledge: But we now have – just have a doona and just a bottom sheet so the bottom sheet never gets ironed, it just gets folded up. So it’s mostly pillow cases.
105. Mrs Whittaker, a witness for the Applicant, gave evidence that she was not sure how much housework Mrs Golledge was able to do before her injury, but that she always got her ironing sent out privately. Mrs Golledge confirmed this “we have that done privately and Stewart does the rest. [We pay for] three hours.”
106. Mrs Golledge went on to say
I still do cook occasionally. I can’t chop up food … like meat or a lot of vegetables but I mean, I can still put a meal together, on a good day, if I’m feeling good you know. But Stewart does the majority of the cooking. … We’ve got an automatic front loader washing machine now, which we’ve only got to put the washing in. Stewart hangs it out. … [For shopping] Stewart comes with me and he pushes the trolley and I just tell him what to get off the shelves, or I, you know – but sometimes he’ll … go with my mother and I won’t go at all.
107. Mr Golledge also gave evidence about household assistance
[A] cleaner comes in on Thursdays but … the house we have that is not sufficient to keep the place up to scratch, so I usually do it on Monday mornings. If she’s feeling up to it, she will help out a bit. She will do a little bit of dusting or something. But I do the heavy work like the vacuuming and the heavy cleaning and washing floors etcetera.
108. Mrs Golledge reported to Dr Kenneth Muirdan, consultant rheumatologist, about her home help requirements and what she can do around the house. In a report dated 3 December 2001 Dr Muirdan said
Mrs Golledge is able to drive her car short distances but her husband usually takes care of the driving. She indicated that she shares the cooking with her husband and sometimes is able to peel the vegetables. She tries to keep her house clean and tidy but is not able to vacuum. She occasionally hand washes and occasionally she can shop on her own. However, she receives home help from Comcare for six hours per week for cleaning and three hours per week for ironing.
For exercise she walks her dog for 20 to 30 minutes but not every day.
She has a small garden and enjoys weeding but is unable to cope with any heavy gardening.
109. Similarly Dr Saboisky, consultant psychiatrist, in his report dated 8 May 2003 noted that Mrs Golledge had said
she cooks about 50% of the time, does the washing – puts the washing in and out of the machine and sometimes hangs it out. She was incensed that the housekeeping, which Comcare had paid for, had been reduced to 3 hours per week after a visit from an occupational therapist recently.
110. Mrs Golledge’s treating GP, Dr Femi Idowu, has said to Comcare that Mrs Golledge needs at least six hours a week cleaning in two three-hour segments, as she used to receive. He stated in a letter dated 26 November 2001 that this was because of complications arising from her RSI. This reiterates what Dr Jonathon Turtle, Mrs Golledge’s former GP, said on 25 February 1991 and 11 May 1993. On the basis of these notes from Dr Turtle Comcare agreed to provide compensation for home help.
111. However, on the basis of an investigation and report by Ms Sally Treadwell, an occupational/physiotherapist with Incorporating Ergonomics whom Comcare had asked to review Mrs Golledge’s situation, the hours of home help to which Mrs Golledge was entitled were reduced to three hours a week. In her report dated 22 April 2002 Ms Treadwell noted
Cooking meal preparation
Mrs Golledge stated that she was able to prepare some meals although, she stated, that her husband performed most of the cooking duties
Home cleaning
Mrs Golledge stated that she currently receives home help of three hours twice a week from Absolute Domestics. She stated that the cleaner performs vacuuming, bathroom cleaning, floor washing, general dusting, cleaning windows, helping with washing.
…
Laundry
Mrs Golledge stated that she is able to put washing in the machine and on “good days” is able to hang it out on the line. She stated that she experiences difficulty opening pegs to peg out the washing. On a “bad day” Mrs Golledge stated that she has to wait for her husband to come home to hang out the washing.
Mrs Golledge stated that she has 3 hours of ironing help a week. She stated that she is occasionally able to iron a few small items such as handkerchiefs and pillowcases on a “good day”.
…
I have contacted four domestic cleaning services in the Canberra area; VIP Cleaning, Dial an Angel, Jims Cleaning and Molly Maid. All four companies were asked to estimate cleaning needs for a three-bedroom townhouse with two bathrooms and a downstairs toilet. Estimates ranged from 2-3 hours cleaning on a weekly basis. …
…
It is therefore my opinion that Mrs Golledge requires only three hours of domestic cleaning per week.
112. Dr Muirdan agreed
Mrs Golledge certainly requires persistent treatment for her pain syndrome and as her husband appears fit and caring and works only part-time, Comcare’s support by home help and gardening maintenance services needs only to be modest, in my opinion.
113. However, Dr Speldewinde, a consultant in rehabilitation, pain and musculoskeletal medicine, said in his report of 30 August 2002
Maureen Golledge has a persisting principally right cervico-brachialgic Chronic Pain Disorder which has had a substantial impact on her overall quality of life.
This has had significant ongoing and possibly increasing impact on her physical functional abilities, such as that she is unable to effectively live independently.
It is appropriate that she has intermittent assistance with personal self-care activities appropriately supplied by her husband.
However, she has an appropriate requirement for a substantial amount of assistance with domestic activities which she would normally otherwise carry out. Such activities include the heavier tasks of cooking, may include most aspects of domestic cleaning and other aspects of home care and maintenance which she would otherwise carry out. She is unable to shop substantially or effectively independently.
It would be appropriate that she be supplied with six to eight hours of assistance for these tasks per week on an ongoing basis despite the assessment of occupational therapist Sally Treadwell. With respect to specifics of each item, I would estimate three to four hours for domestic cleaning and other maintenance activities, two to three hours per week for ironing, and minimal assistance for personal care, the latter of which will be appropriately supplied intermittently by her husband.
114. Mr Golledge is now retired and stays at home most days helping his wife. He goes shopping maybe twice a week, attends classes at CIT and meets friends for lunch, but that is the extent of his excursions out of the house.
115. In another matter before the Tribunal in Re Chowdhary and Comcare [1998] AATA 448 at [60], Senior Member Bayne said
On the evidence before us … we find that it is reasonable to expect the other members of the household … to provide some household services for themselves and for the applicant, and that this will not cause substantial disruption to their employment or other activities. We accept that the applicant’s husband is a busy professional and that the son must study hard, but these maters do not justify a view that they cannot make up the deficiency in the extent to which the applicant cannot now perform her pre-injury household duties. In so finding we are of course making our own estimate of what is required in a household, but in the absence of much in the way of evidence we are required to decide on this basis.
In that matter the Applicant’s husband was working fulltime and her son was studying. Yet they were expected to help around the home to take over the tasks their mother was unable to do. Mr Golledge is retired and could do likewise, with three hours of outside help a week to assist him.
116. In summary I find
·Mrs Golledge lives in a three bedroom house with her husband and small dog
·Mrs Golledge is able to perform household tasks on a “good day”
·they have an “easy” garden to manage
·Mrs Golledge says that she is able to perform weeding and other light tasks
·Mrs Golledge does not require personal care
·Mr Golledge is retired and has demonstrated his willingness to perform household tasks already
·all the experts who prepared reports were satisfied that three hours was a reasonable amount of cleaning assistance
·Dr Speldewinde suggests that a further three hours for ironing would be appropriate, but one of the cleaning companies which Ms Treadwell contacted was certain that they could include some ironing within the three hours of cleaning
·Dr Muirdan said that a minimal amount of home help is required
·Dr Speldewinde accepted that Mr Golledge could be responsible for personal care and other duties.
117. Ms Treadwell is the relevant expert in this field. I see no reason to disagree with her findings notwithstanding the views of Dr Speldewinde.
118. On that basis I conclude that there is no need to alter the reviewable decision of 4 November 2002. Three hours home help with the additional ergonomic features that Ms Treadwell suggested will be sufficient under section 29. Therefore I affirm the reviewable decision.
Conclusions
119. In summary I conclude that
·Mrs Golledge suffered from ongoing RSI in 1984
·she can use her right arm for self-care
·she does not have difficulty with digital dexterity
·she can usually grasp and hold
·her level of impairment under Table 9.4 for her right upper limb is therefore zero.
120. In relation to her claim for her neck (cervical spine), I find that
- one of the consequences of the RSI were two operations which increased the pain in her neck
- she suffers pain in her neck and spine as a result of the operations
- she has minor restrictions in movement of her neck
- that condition is permanent
- her level of impairment for her neck is five percent under table 9.6 of the Guide.
121. In terms of Mrs Golledge’s claim for a psychological condition I find that
- she suffers from a psychological condition which is probably a somatisation disorder
·that condition is not work-related because the condition started prior to the 1984 on set of RSI
·Mrs Golledge is not entitled to compensation for that condition.
122. Mrs Golledge’s overall whole person permanent impairment therefore does not meet the ten percent threshold for compensation to be awarded under section 24.
123. Finally when considering the household assistance I find that
·Mrs Golledge requires some household assistance
·she receives assistance from her husband
·she is able to perform some tasks about the house herself
·three hours household assistance a week is adequate for her needs.
Decision
124. The Tribunal affirms the reviewable decisions of 24 June 2002 and 4 November 2002.
I certify that the 124 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray.
Signed: ...........Kelisiana Thynne........
AssociateDate of hearing 15-17 December 2003, 19-22 April 2004
Date of decision 3 August 2004
Counsel for the Applicant Ian Bradfield
Solicitor for the Applicant Kirsty Cleverley
Porters Lawyers
Counsel for the Respondent Rauf Soulio
Solicitor for the Respondent Madhu Dubey
Sparke Helmore
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