Gosain and Comcare
[2011] AATA 814
•16 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 814
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2010/3038
GENERAL ADMINISTRATIVE DIVISION ) Re Renu Gosain Applicant
And
Comcare
Respondent
DECISION
Tribunal Deputy President J W Constance
Dr K J Breen, Member
Date16 November 2011
PlaceMelbourne
Decision The decision under review, being the decision of the respondent made 28 May 2010 that there is no current liability to compensate the applicant under section 16 and section 19 of the Safety, Rehabilitation and Compensation Act 1988(Cth), is affirmed.
.......(sgd J W Constance).....
Deputy President
CATCHWORDS
COMPENSATION – loss of income - costs of medical treatment - whether the applicant continued to suffer from the injuries sustained - decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19
REASONS FOR DECISION
16 November 2011 Deputy President J W Constance Dr K. J. Breen, Member BACKGROUND
1. On 4 November 2005 Mrs Gosain fell as she was walking home from her work as an employee of Centrelink. She injured her back and knee in the fall.
2. Comcare has accepted liability to compensate Mrs Gosain in respect of the injuries as required by the Safety, Rehabilitation and Compensation Act 1988 (Cth). As part of the compensation Comcare made payments to Mrs Gosain to compensate her for her loss of income and the cost of medical treatment obtained by her in relation to the injuries. The liability to make these payments arose under sections 16 and 19 of the Act respectively.
3. On 4 December 2006 Comcare decided that Mrs Gosain was not then entitled to receive compensation for medical treatment and loss of income in respect of the injuries. It reached this conclusion on the basis that Mrs Gosain no longer suffered from the effects of the injuries. Comcare contends that this situation has continued since 4 December 2006. Mrs Gosain argues that she has suffered the effects of the injuries continuously since she fell and that she continues to be entitled to compensation in respect of her incapacity for work and the medical treatment she has obtained. She has applied for a review of Comcare’s decision.
4. For the reasons which follow the decision under review will be affirmed.
LEGISLATION
5. Section 19 of the Act provides, in part:
(1) This section applies to an employee who is incapacitated for work as a result of an injury …
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation … (emphasis added).
6. Subsection 16(1) of the Act provides:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment (emphasis added).
THE ISSUES FOR DETERMINATION
7. We have to decide whether, on the balance of probabilities, we are satisfied that:
1)at no time since 4 December 2006, has Mrs Gosain been incapacitated for work as a result of the injuries suffered by her on 4 November 2005; and
2)at no time since 4 December 2006, has Mrs Gosain incurred costs of medical treatment that was reasonable for her to obtain in relation to the injuries.
EVIDENCE AND FINDINGS OF FACT
8.Mrs Gosain gave evidence in relation to her injuries and her subsequent medical history. We also have before us the reports of various doctors who had treated or assessed Mrs Gosain and who have made records of what she told them. These various accounts are remarkably consistent and are consistent with Mrs Gosain’s evidence. We accept that Mrs Gosain was a credible witness who was not inclined to embellish her medical difficulties.
9.We are satisfied of the facts found on the balance of probabilities. Unless otherwise stated the findings of fact are based on the evidence of Mrs Gosain.
10.Mrs Gosain was born in 1961. In 2000 she commenced employment by Centrelink as a customer service officer.
11.On 4 November 2005, while walking home from work, Mrs Gosain stumbled and fell forwards on to her outstretched hands and both knees. She felt pain in her knees and stated that her hands were slightly bruised but she was able to slowly walk the remaining 400 metres home unaided. That evening she accompanied her husband in their car. As she was getting out of the car, she “felt a noise” in her back and then felt pain in her lower back. That night the pain in her back worsened and her knees were still sore.
12.The next day Mrs Gosain remained at home and took Panadol for her pain. On 7 November 2005 she attended a local doctor who she said advised her that she would take time to recover and that she could take a stronger analgesic if needed. She attended her local doctor again a couple of days later and was prescribed Voltaren which she felt gave some minor improvement. About a week after the fall, she attended a chiropractor who treated her for approximately the next four weeks.
13.During the three to four weeks of attending the chiropractor she experienced additional pain that went down her left leg. By four weeks after the fall she was experiencing pain in her lower back and a sharp, burning pain going down into her left leg, present all day long. She sought assistance from a doctor of Chinese medicine whom provided acupuncture and further medication. She also attended a physiotherapist, initially experiencing some improvement. The physiotherapist advised that she should return to her local doctor and seek referral to a pain management clinic. This she did.
14.While on a waiting list to obtain treatment from the Pain Clinic at the Royal Melbourne Hospital, Mrs Gosain was referred by her local doctor to orthopaedic surgeon, Dr Peter Turner, who she consulted in March 2006. Dr Turner advised Mrs Gosain that surgery was not required and that she needed to exercise and become more active. At this time she was attending a swimming pool in St Albans for walking exercises but at home spent most of the day in bed because of knee pain and pain in her back when sitting.
15.In April 2006 (and on two or three occasions subsequently) Mrs Gosain consulted Dr Steven Jensen, a Consultant in Musculoskeletal Pain Medicine. Dr Jensen advised her to increase her exercising. She also was referred to another orthopaedic surgeon for advice about her right knee. Mrs Gosain was advised to do exercises to strengthen the muscles around her knee and to avoid stairs and squatting. She was sent for x-rays of her knee and while the x-rays were being taken she was asked to sit with her knees pulled up towards her chest. She then suddenly felt a sharp pain in her coccyx. This pain has been present ever since and she has had to use a special cushion when sitting.
16.Mrs Gosain also sought help from a former general practitioner, Dr Russo, who gave her Blomberg injections and prescribed Zoloft. Following this treatment, she slowly began to be able to sit for longer periods — up to fifteen minutes.
17.Following assessment at the Royal Melbourne Hospital Pain Clinic in about mid-2006, Mrs Gosain had two months of treatment that included walking in a pool, attending a gymnasium and seeing a psychologist. She described the treatment as being “of some help”.
18.In August 2006, under the guidance of Mr Kevan Walsh (rehabilitation provider), Mrs Gosain commenced a return to work program, attending work for 2‑3 hours one day and later two days per week.
19.In November 2006 Centerlink granted Mrs Gosain leave from work to enable her to travel overseas for family reasons. She remained overseas with her family for the next two years. She consulted a number of doctors in relation to her ongoing pain and sought a range of treatments, including physiotherapy. During this time she initially felt she was improving, “walking better and sitting better”. Her back pain then worsened and she experienced an episode when both knees became swollen. She described her state while overseas as continuing to fluctuate.
20.Mrs Gosain returned to Australia in October 2008. She said that since then her condition has progressively worsened. Presently, she spends most of her time resting flat on her back. She is now under the guidance of a Pain Clinic at the Western General Hospital and their staff (a physiotherapist, an occupational therapist and a psychologist) are making home visits. Mrs Gosain stated that she is improving and now stands up for eight minutes every 30 – 40 minutes. She can sit for six minutes five times a day. Her pain is controlled by a combination of Chinese medicines, Panadol and Arcoxia.
21.Under cross-examination, Mrs Gosain conceded that prior to her fall, she had received treatment from a chiropractor for back pain including her lower back. In March 2005, she had been referred for x-rays of her thoracic and lumbar spine. She stated that at that time she experienced some minor lower back ache after sitting for three to four hours.
MEDICAL EVIDENCE AND OPINION
Dr Harish Sood, General Practitioner
22.Dr Sood was involved in the care of Mrs Gosain soon after her fall. In December 2005, he referred Mrs Gosain for a CT scan of her lumbar spine which was done on 14 December 2005.[1] The conclusion of that report noted “transitional change with sacralisation of L5 on the right associated with moderate left L5/S1 facet joint degeneration. Mild L4/5 facet joint disease and a minimal L3/4 annular disc bulge but there are no canal or foraminal stenosis currently demonstrated in the lumbar spine”.
[1] Exhibit A1 [T5].
23.In a letter dated 7 February 2006,[2] Dr Sood referred Mrs Gosain to the Royal Melbourne Hospital because of “persistent lower back pain ... and is not improving”. The letter listed her current medications that included Di-Gesic tablets, Levlen ED tablets, Panadeine Forte tablets and Voltaren.
[2] Exhibit A1 [T6].
Dr Peter Turner, Orthopaedic Surgeon
24.Mrs Gosain was referred to Dr Peter Turner by Dr Sood.
25.By letter of 29 March 2006,[3] Dr Turner reported his findings based on examination and consideration of x-rays and MRI:
Renu has been having trouble with her lower back since she fell on a footpath five months ago. The pain has been ongoing and her activity levels have been quite limited. ... The pain is predominantly in the lower back and does tend to radiate upwards a little bit, but there has been no pain down into the legs since the early stage.
…
I think Renu has had some sort of jarring to her back and her symptoms are predominantly musculoligamentous in origin.
…
I have reassured Renu and her husband accordingly. She is spending a lot of time in bed and this needs to be strongly discouraged. She needs to be doing some more exercising. … I am sure her symptoms will tend to fluctuate in the weeks and months ahead, but overall I would be hopeful that things will gradually settle.
[3] Exhibit R3.
Dr Steven Jensen, Specialist in Musculoskeletal Pain Medicine
26.Dr Steven Jensen reported on Mrs Gosain’s condition in April 2006 as follows:
Despite what seems to be a fairly minor traumatic event Renu is still markedly disabled by pain involving her spinal column and both knees. … I feel the main thrust of her management needs to be to activate her into a more active lifestyle and to try to allay her numerous fears which clinically have no foundation.[4]
In a further letter dated 24 April 2006, he wrote:
I reviewed Renu again. She did confess that her main problem is her intense fear and catastrophysing as regards her chronic back and leg pain. Again I spent a good deal of time trying to reassure her there is no physical foundation for this level of catastrophysing. Today I treated her lumbar spine condition with an extension muscle energy manoeuvre and her range and cadence of movement was very much improved. ... I noted her knee x-rays showed mild degenerative patellofemoral and medial compartment OA but nothing else of significance. ... She is booked into see The Royal Melbourne Hospital’s pain clinic in a few weeks. Hopefully they will attend to the psychological issues which are paramount in Renu’s case.[5]
[4] Exhibit R5.
[5] Exhibit R6.
27.In a letter dated 10 May 2006,[6] Dr Jensen again wrote of encouraging her to be more active and added “at the same time we need to deal with the previously mentioned psychosocial issues…” In a letter dated 9 June 2006,[7] he reported “[a]gain I was unable to convince myself of any specific or serious underlying pathology despite a complex of widespread pain”.
[6] Exhibit R7.
[7] Exhibit R8.
Dr Miron Goldwasser, Orthopaedic Surgeon
28.Dr Goldwasser reviewed Mrs Gosain in July 2006 at the request of her General Practitioner. On 12 July 2006,[8] in a letter to Dr Hussain, he noted “chondral degeneration of the patellae, more so on the right knee than the left” and advised “conservative treatment including exercises...”
[8] Exhibit R9.
Dr David Macintosh, Orthopaedic Surgeon
29.Dr Macintosh assessed Mrs Gosain on 5 July 2006 at the request of Comcare. In his report of 18 July 2006[9] he stated:
[9] Exhibit A1 [T15], p.39.
On examination, she has a moderately good range of movement of the lumbar spine with marked tenderness in the coccygeal region. She has no neurological deficit and normal straight leg raising. Both knees have a good range of movement and muscle control and stability, but she is tender around the joint margins. X-rays and other investigations of the lumbar spine showed some mild degenerative changes consistent with her age. X-rays of both knees show mild degenerative change consistent with her age.
In my opinion Ms Gosain would have suffered soft tissue injuries to both knees and lumbar spine superimposed on early degenerative changes. She complains of persisting severe symptoms and she states she cannot work because she cannot sit down because of pain in her coccyx, which occurred after an x-ray.
In my opinion, whilst it would be expected at this stage she could still have some problems with her back and knee, I can see no reason why from a purely physical point of view she could not have returned to fulltime work, although she may have needed to rise from her desk at regular intervals. Continuing symptoms are therefore in my opinion mostly due to factors outside pure physical injury.
Dr Macintosh reported his diagnosis as:
soft tissue injuries of the lumbar spine and both knees, diagnosed on history and physical examination. … In my opinion her continuing symptoms are a combination of some mild residual problems from the injury and the underlying degenerative changes and a non-physical degree of abnormal pain behaviour. … In my opinion there is no longer a direct relationship between her fall on 4 November 2005 and her present condition. I am not qualified to comment on the reasons for her abnormal pain behaviour.
Dr Ralph Poppenbeek, Consultant in Occupational Medicine
30.Dr Ralph Poppenbeek examined Ms Gosain on 26 July 2006[10] at the request of Centrelink. In his opinion her conditions were “basically constitutional”. He reported that:
[t]he chondral degeneration applies to both knees and in my opinion would probably not have resulted from the fall in November 2005. This condition would have been aggravated by that fall, but I think that the current structural problem with the right and left knee would be the same, regardless of that injury. There would thus have been work contribution in terms of a journey incident, but this aggravation should now have ceased.
…
In regard to the lower back, I believe this is also a constitutional problem which may have been aggravated by the fall in November 2005. By this stage however, 9 months after the fall, such aggravation should have ceased.
[10] Exhibit A1 [T17], p.50.
In his report Dr Poppenbeek expressed concern “that the vast majority of Ms Gosain’s treatment has been passive.”
Dr John Russo, General Practitioner
31.Mrs Gosain gave evidence that Dr Russo had been her general practitioner before she moved to live in Taylors Lakes and that when she was slow to recover from the effects of her fall she went back to consult him in 2006. In a letter to Comcare dated 14 November 2006,[11] Dr Russo wrote:
Mrs Gosain has continued to improve and should medically continue to obtain treatment for her work related injuries from 25th October 2006 to mid-February 2007. Ongoing weekly physiotherapy, massage and intermittent acupuncture will assist in her return of functional improvement and she should return to normal duties by mid to end of February 2007 if improvement continues as per her progress so far.
[11] Exhibit A1 [T29].
Dr Bernadette Trifiletti, Occupational Physician
32.Dr Trifiletti assessed Mrs Gosain on four occasions in the period November 2008 to February 2010.
33.On 14 November 2008 Dr Trifiletti reported:
Ms Gosain is a 47 year old woman who reports a history of a minor fall three years ago, following which she has complained of disabling bilateral knee and low back pain. With the exception of self-care she is capable of very little daily activity due to pain limitations. Despite a complete absence from the physical demands of all work for two years, suspension of the usual domestic tasks and with daily physical therapy treatment, she reports minimal change in her functional capacity. … In my opinion, using techniques for physical activity and routines taught to her over the past two years, it is anticipated she return to work in the next four weeks. [12]
[12] Exhibit R16.
34. Mrs Gosain was re-assessed by Dr Trifiletti on 19 November 2009. On 5 December 2009 she reported:
The underlying diagnosis is a degree of cervical spine degenerative disease as well as minor degenerative disease of the lumbar spine and right knee. These conditions are normally not associated with the level of disablement present in her case but effectively she has become completely disabled and entrenched in an invalid role such that she is bed-bound and has progressively declined in terms of activity since seen by me one year ago and since my assessment six months ago.[13]
[13] Exhibit R18.
Dr David Vivian, Pain Management Specialist
35. Mrs Gosain consulted Dr Vivian on 16 January 2009 and on 14 September 2009. She was referred by her general practitioner, Dr Salib. He diagnosed Mrs Gosain’s condition as “widespread neuropathic type pain without any features of significant joint disease”.[14] On 14 September 2009 he expressed the opinion that “the odds of the pain being derived from the cervical spine are minimal, and in any case I think the pain would not be fixed by any intervention in the cervical spine.” [15]
[14] Exhibit R13.
[15] Exhibit R15.
Dr Andrew Muir, Pain Management Consultant
36. Dr Muir of the Barbara Walker Centre for Pain Management reported on the multi-disciplinary assessment of Mrs Gosain in February 2010. By letter of 26 February 2010[16] he reported :
[16] Exhibit A1 [T33].
Since this time she has completed imaging of her spine and knee. There is no active spinal pathology demonstrated. The patient remains quite disabled by pain. I think she would be best served by an inpatient rehabilitation program with a pain emphasis.
The second letter covered the same material and added:
I think the only realistic solution for this lady is an inpatient rehabilitation program.[17]
[17] Exhibit R19.
Dr R Travers, Rheumatologist
37. Mrs Gosain consulted Dr Travers on referral from her general practitioner in September 2010. His relevant diagnosis was a “[p]uzzling syndrome of pain and unsubstantiated weakness in the legs since a fall on 4 November 2005”.[18] He reviewed various tests which had been carried out but was unable to explain the symptoms of which Mrs Gosain complained. He did not find her knees to be abnormal in any way, apart from the fact that they were sore.
[18] Exhibit R21.
Dr Peter Stevenson, Consultant Physician
38. Dr Peter Stevenson assessed Mrs Gosain at the request of Comcare in March 2011. He provided a report dated 30 March 2011[19] and gave evidence.
[19] Exhibit R23.
39. Dr Stevenson reported:
The actual work injury appears to have been of a very minor bruise to the knee. Back pain developed progressively thereafter and not in a time course or pattern which at all suggests physical injury to the back. A fall on the hands and knees would impose very minor, if any, force on the back.
The condition of this lady is probably most meaningfully described as by Dr Macintosh as ‘abnormal pain behaviour’. The nomenclature of this class of illness is mixed. Pilowski’s term ‘abnormal illness behaviour’ is perfectly applicable.
Chronic pain syndrome which is an alternative possible description indicates simply that the complaint of pain and behaviour of illness are persisting in the absence of any physical injury or physical pathology. Psychiatrists generally classify these illnesses as ‘somatoform’.
The process is somatisation – that is to say, the presentation of psychological distress in terms of physical symptoms and physical disability.
...
The cause of the ongoing illness is inevitably psychological. The cause is unclear.
40. In giving evidence, Dr Stephenson was of the opinion that the changes seen in Mrs Gosain’s knees and lumbar spine were age related, were “almost universal” and were most unlikely to be the cause of any pain she experiences. He disagreed with Dr Vivian’s suggested diagnosis of “neuropathic pain”.
Dr V Sammut, General Practitioner
41. We have considered the clinical records of Dr V Sammut.[20] These records do not assist us in reaching a decision in this matter. They indicate that Dr Sammut is still seeking a diagnosis of Mrs Gosain’s condition.
[20] Exhibit R20.
Ms Elizabeth Gavin, Physiotherapist
42.Ms Elizabeth Gavin provided Mrs Gosain with three sessions of treatment in 2010. These treatments were given at Mrs Gosain’s home. By letter of 8 November 2010 she expressed the following opinion:
It has been difficult to make any gains with Renu due to her pain issues. … I think she would be better treated as an in-patient where she is encouraged to become more independent, (rather than relying++ on her husband) and where she can be seen by a co-ordinated multi-disciplinary team.
Renu is very focussed on the fine details of her pain and becomes anxious when the pain is exacerbated or when she perceives that movement will cause pain. … I feel that she may benefit from some psychological intervention…[21]
[21] Exhibit R24.
Mr Kevan Walsh, Occupational Therapist and Ergonomist
43. Mr Kevan Walsh of Bridge Rehabilitation was engaged in 2006 to assist in Mrs Gosain’s return to work. Copies of his various reports are in evidence.[22]
[22] Exhibit A1 [T8, T9, T25, T28 and T30].
44. On 18 September, 2006 Mr Walsh reported:
Renu advises that the staff at Watergardens CSC have been very supportive of her return to work. She has been provided with duties which she is able to undertake in a self-paced manner. … we have agreed to maintain her current status for an additional one week prior to a proposed increase to 2 three hour days per week and then 3 three hour days per week...[23]
[23] Exhibit A1 [T25].
Further he reported on 18 October 2006 that:
I am pleased to advise that Renu has been able to maintain herself in the workplace since our last meeting. … Renu has applied for 2 & 1/2 months leave without pay to visit her parents in India...[24]
[24] Exhibit A1 [T28].
REASONING
45. The medical evidence supports the diagnosis of the original injuries being lumbar sprain and contused knee. These diagnoses were supported by the contemporary evidence of treating doctors Dr Sood, Dr Russo, Dr Turner, Dr Wong, Dr Goldwasser and Dr Jensen as well as by the medico-legal assessments of Dr Macintosh and Dr Poppenbeck made in 2006.
46. In March 2006, Orthopaedic Surgeon Dr Peter Turner reported “I think Renu has had some sort of jarring to her back and her symptoms are predominantly musculoligamentous in origin.”
47. Dr Stephen Jensen reported in April 2006 “I spent a good deal of time trying to reassure her there is no physical foundation for this level of catastrophysing. Today I treated her lumbar spine condition with an extension muscle energy manoeuvre and her range and cadence of movement was very much improved. ... I noted her knee x-rays showed mild degenerative patellofemoral and medial compartment OA but nothing else of significance.”
48. Dr David Macintosh reported in July 2006 “In my opinion, whilst it would be expected at this stage she could still have some problems with her back and knee, I can see no reason why from a purely physical point of view she could not have returned to fulltime work, although she may have needed to rise from her desk at regular intervals. Continuing symptoms are therefore in my opinion mostly due to factors outside pure physical injury.”
49. The present state of Mrs Gosain’s ill-health has been diagnosed by Dr Stevenson as “abnormal pain behaviour” (or alternately “abnormal illness behaviour” or “somatisation”). This diagnosis is alluded to either directly or indirectly by Drs Macintosh, Trifiletti, Russo and Sammut (although Dr Sammut appears to be quoting Dr Travers, Rheumatologist, who he had spoken to by telephone). Dr Stevenson noted the likely importance of psychosocial factors behind such an illness but was unable to explore these factors as part of his assessment.
50. We have taken into account that, although Mrs Gosain has been assessed at three specialist pain clinics and although several treating and assessing doctors have made reference to abnormal pain behaviour, no material was put before the Tribunal by way of reports from psychologists or psychiatrists. Mrs Gosain said that a psychologist was now attending to her at her home but it is unclear if she has ever seen a psychiatrist.
51. Mrs Gosain told us that the chiropractor she saw soon after her fall advised her that her back had received a “jolt”. It was also clear from her account that when she went to India (at a time when she was on a return to work program at Centrelink), her condition continued to improve for some time. Mrs Gosain stated that during her time in India she initially felt she was improving, “walking better and sitting better”.
52. Mr Walsh’s reports during the period February 2006 to October 2006 also indicate that he felt there was a gradual improvement. In September 2006 he reported that “She has been provided with duties which she is able to undertake in a self-paced manner. …. we have agreed to maintain her current status for an additional one week prior to a proposed increase to 2 three hour days per week and then 3 three hour days per week.”
53. Having considered all of the evidence before us we are satisfied on the balance of probabilities that from 4 December 2006 until the date of this decision Mrs Gosain did not suffer from the effects of the injuries she sustained on 4 November 2005. The overwhelming weight of the evidence is that the injuries suffered by Mrs Gosain when she fell were relatively minor and that she recovered from those injuries within 12 months. In reaching this conclusion it should be clearly understood that we have not decided that Mrs Gosain does not suffer the symptoms which she has described to us. We have found that Mrs Gosain is an honest witness, but we are not required to reach a conclusion as to the diagnosis of her current condition. It is sufficient that we are satisfied that Mrs Gosain no longer suffers from the effects of the injury suffered on 4 November 2005.
DECISION
54. The decision under review, being the decision of the respondent made 28 May 2010 that there is no current liability to compensate the applicant under section 16 and section 19 of the Safety, Rehabilitation and Compensation Act 1988(Cth), is affirmed.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President J W Constance andDr K J Breen, Member
Signed: …(sgd K Peterson)...........
K Peterson, Associate
Dates of Hearing 28 and 29 September 2011
Date of Decision 16 November 2011
For the Applicant self and Mr A Gosain
Counsel for the Respondent Ms C Dowsett
Solicitor for the Respondent Ms N Kelidis
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