Jones and Telstra Corporation Ltd
[2001] AATA 298
•11 April 2001
DECISION AND REASONS FOR DECISION [2001] AATA 298
ADMINISTRATIVE APPEALS TRIBUNAL )
)Nos. Q2000/93 and Q2000/337
GENERAL ADMINISTRATIVE DIVISION )
Re RITA JONES
Applicant
And TELSTRA CORPORATION LTD
Respondent
DECISION
Tribunal Deputy President S P Estcourt Q.C., Miss A M Brennan A.M., (Member) Dr K P Kennedy O.B.E. (Member)
Date11 April 2001
PlaceBrisbane
Decision The decisions under review are affirmed.
..............................................
Deputy President
CATCHWORDS
Compensation – incapacity for work – permanent impairment – back injury – psychiatric disorder – whether employment by the Commonwealth a contributing factor.
Safety, Rehabilitation and Compensation Act 1988.
REASONS FOR DECISION
11 April 2001 Deputy President S P Estcourt Q.C.,
Miss A M Brennan A.M., (Member) Dr K P Kennedy O.B.E. (Member)
This matter involved two applications for review. Firstly of a decision that the respondent's liability to pay compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 in respect of a motor vehicle accident causing injury to the applicant on 6 February 1997, ceased on and from 20 December 1999 and secondly, of a decision that the respondent is not liable to pay compensation in respect of permanent impairment for a disc prolapse at the L5/S1 level claimed to have resulted from the motor vehicle accident.
The applicant, who was born on 20 August 1946 was, on 6 February 1997 employed by the respondent at River Quays in Townsville as a customer service representative. On that day she was driving to work when a vehicle entered the lane in which she was in and as a result she collided with a traffic island. There appears to be no dispute between the parties that the impact was a very severe one and as a result the applicant's vehicle was damaged beyond repair.
On the day of the accident the applicant attended her general practitioner Dr. Michael Hickey. Dr. Hickey's patient records in respect of Mrs. Jones were tendered in evidence and his notes confirm that she presented with complaint of headache, sore neck and painful hand and that the range of movement in her neck was decreased and she had pain into her shoulder on rotating her neck.
Mrs. Jones was referred by Dr. Hickey for physiotherapy to the North Queensland Physiotherapy Centre with the referral noting "cervical whiplash". It is of note that although Mrs. Jones claimed in her proof of evidence that immediately after the accident and at the time she was taken by her husband to Dr. Hickey she also had pain in her back all the way from the neck to the bottom of her spine, she made no complaint to Dr. Hickey of low back pain. (Nor did she mention back pain in her claim for compensation form or her Occupation Health and Safety Incident Notification Fax Sheet filled out and signed by her on 16 and 20 February 1997 respectively).
From the records of the North Queensland Physiotherapy Centre, which were tendered in evidence, it is apparent that Mrs. Jones presented for treatment on 10 February 1997 and on that day gave a history which did include a complaint of central-lumbro-sacral junction pain.
The applicant had 12 sessions of physiotherapy between 10 February 1997 and 15 April 1997 and although low back pain was noted on 14 and 24 February and a paravertebral spasm from T11 to L1 was noted on 24 February 1997, no treatment was given to the lumbar area until a visit on 15 April 1997, over two months after the accident.
Ms Helen Land the principal of North Queensland Physiotherapy Centre said in evidence that she believed this was because the original referral was for cervical whiplash and it was not until 15 April that her centre received approval from the respondent's insurer to investigate the low back complaint. Thereafter she said it took until August 1997 to get approval for further treatment of the lumbar area and that two sessions were devoted to such treatment on 5 and 8 August 1997.
Ms Hand was not however the treating physiotherapist and she agreed that the fact that no treatment was given for lumbar pain could well indicate that the only significant complaint from 10 February until 15 April was of cervical pain.
The applicant also attended Dr. Hickey's practice on some 10 or so occasions after 6 February 1997 and until she moved to Toowoomba in August 1997 and there is no record in the medical notes of any complaint by Mrs. Jones of significant low back pain, (much less of any request for referral to physiotherapy for low back).
A month after the motor vehicle accident when Mrs. Jones was returning to work along the same route she travelled on the day of her accident, she said in evidence, she started shaking and sweating and had "a really bad reaction" when she passed the accident scene. The next day she had the misfortune to witness another motor vehicle accident and she said this made her anxiety levels rise significantly.
As a result Mrs. Jones was referred by the respondent to a psychologist for acute stress disorder. The psychologist, a Ms Trish Johnson of Employee Assistance North Queensland treated Mrs. Jones until 21 April 1997 and Mrs. Jones returned to work on 24 April 1997.
Ms Johnson noted when she saw Mrs. Jones on 21 April 1997 that Mrs. Jones was "feeling fine now, the best since the accident. Never thought I would feel like this again. Still tired at the end of the day, shoulder and elbow hurting".
On 22 April Mrs Johnson reported to the respondent in writing in relation to her treatment of Mrs Jones' acute stress disorder. She concluded:
"She has been motivated to return to full functioning and her post-trauma symptoms have gradually diminished".
Indeed Mrs. Jones in her proof of evidence stated as to this aspect of her claim:
"My employer made arrangements for me to see a psychologist and I received some treatment for this.
While my nervousness while driving in motor vehicles has decreased, I have developed depression as a result of my back injury and being unable to work as I used to".
On 29 August 1997, the applicant was transferred to Toowoomba by the respondent, the transfer being in the nature of a promotion and she claimed that she experienced increasing pain in her lower back.
On 2 September 1997 Mrs. Jones underwent an x-ray and a CT scan and this revealed a disc protrusion at the L5/S1 level with involvement of the right S1 nerve route.
On 19 September 1997 Dr. Wai Ki Pun, an orthopaedic surgeon operated on Mrs. Jones spine, performing a posterior discectomy at L5/S1 on the right side.
Following the surgery Mrs. Jones stated in her evidence, the pain from the right sciatic nerve lessened somewhat but she has had persistent low back pain ever since.
Mrs. Jones was referred on 8 June 1999 to Dr. Quentin Mungomery, psychiatrist who diagnosed her as having suffered a post-traumatic stress disorder, a major depressive episode and a pain disorder.
On 15 July 1998 Mrs. Jones ceased work and has not returned since. Her compensation was ceased on 20 December 1999, as previously stated, and her claim for permanent impairment was refused.
The evidence given on these applications does not support any incapacity for work or permanent impairment as a result of the injury to Mrs. Jones cervical spine and the applicant's counsel did not conduct her case on the basis that there was.
The question for the Tribunal is therefore whether Mrs. Jones has a compensable incapacity or a permanent impairment arising from the prolapse of her L5/S1 disc or from her diagnosed psychiatric disorder.
The applicant called her orthopaedic surgeons, Dr. Leo Zeller and Dr. Wai Ki Pun to prove that it was probable that the prolapse of Mrs. Jones L5/S1 disc was as a result of her motor vehicle accident and a psychiatrist Dr. Mungomery to prove that Mrs. Jones psychiatric condition is referrable both to the stress of the trauma suffered as a result of the accident and of her pain resulting from the prolapsed disc, the resultant surgery and their sequelae.
Dr. Zeller stated in a report of 21 February 2000 that in his opinion Mrs. Jones had a pre-existing degenerative disc at the L5/S1 level and that it was probable that at the time of the car accident a further injury to the L5/S1 disc occurred and that this resulted in a later protrusion of that disc. In a later report dated 18 July 2000 Dr. Zeller noted there was MRI evidence of a recent annular disc tear at L4/5.
In oral evidence Dr. Zeller again stated that it was probable that the disc protrusion was caused by the accident. He said:"Many people have age related disc degeneration. This was a high energy injury. This caused a further tear in a pre-existing degenerative disc which pre-disposed it to a prolapse later on."
Dr. Zeller said however that his opinion took account of Mrs. Jones reporting some back pain following the injury, but before the sciatic pain.
Dr. Wai Ki Pun in a report dated 6 February 1998, (only about four months after he operated on Mrs. Jones), stated:
"I believe the car accident which happened on 6 February 1997 caused significant damage to the L5/S1 disc. Eventually, the prolapsed disc which happened at the same level is an aggravation of the same condition."
In oral evidence Dr. Wai Ki Pun agreed with the following propositions put to him by the Tribunal as encapsulating his opinion, after material was put to him by counsel for the respondent suggesting that the history of the matter revealed no complaint by Mrs. Jones of significant low back pain prior to the development of her sciatic pain in the weeks before she consulted him in September 1997;
"I believe that the car accident did contribute to the problem with the disc. I find it curious that she did not complain of pain at that level after the accident, but then again, in medicine, anything is possible."
The respondent called Dr. Peter Boys, an orthopaedic surgeon to prove that Mrs. Jones lower back problems were not related to her motor vehicle accident.
In a report dated 29 May 2000 Dr. Boys stated:"OPINION
It is my opinion that Ms Jones suffered a musculoligamentous strain to the region of the right side of the neck and right shoulder in a motor vehicle accident on the 6.2.1997. I believe the effects of soft tissue injury in this region have resolved and I note full movements of the neck and shoulder and no clinical signs suggestive of ongoing organic pathology in this region.
This lady does however complain of persistent pain involving the right side of the neck and the right upper limb. This lady would appear to have a complex regional pain syndrome and examination findings would suggest no physical abnormality in this region. This lady's stated pattern of sensory loss is non dermatomal and non organic in origin.
I note this lady's complaints referable to the lower back. This lady has suffered a right sided L5/S1 discal derangement with a right S1 nerve compression requiring decompressive surgery (10.9.1997). She experiences persistent mechanical low back pain, restriction in the range of movement of the lumbar spine and sensory loss in the right S1 nerve root distribution. Her lower back condition restrictions her comfort and sitting, standing and walking capacities.
I note from file review initial general practitioner record, which would appear to suggest that symptoms were confined to the jaw, neck and right shoulder region. I note no initial reference to a lower back condition. This lady does describe discomfort in the lower back but no sciatic pain for a period of some four months thereafter. It would appear from this lady's history that she did suffer an L5/S1 discal derangement in approximately June of 1997 giving rise to the current incapacities evident on the lower back. I am unable to state that there was causal relationship between this lady's lower back condition and the motor vehicle accident on the 6.2.1997."In a second report dated 29 May 2000, Dr. Boys stated:
"The 1997 radiographs and subsequent myelogram films would show narrowing of the L5/S1 disc space reflecting degeneration at this disc which undoubtedly pre existed the events described. This lady's history would suggest a spontaneous discal disruption at the L5/S1 level occurring in approximately June of 1997 reflecting the natural progression of constitutional degenerative change in the lower back. It is probable that some unremembered incident at this point did give rise to a frank discal derangement."
In oral evidence Dr. Boys told the Tribunal that in his opinion, if the L5/S1 disc was damaged in the accident it would have been symptomatic from the time of injury. He said that there would not have been an absence of symptoms if the injury was significant enough to lead to a prolapse.
As to her psychiatric conditions the applicant called Dr. Mungomery to prove that her pain disorder was as a result of the prolapsed disc at L5/S1 and the procedures and problems associated with that prolapse and that her major depressive episode was related both to that problem and to a post-traumatic stress disorder which was caused by the motor vehicle accident.
Dr. Mungomery produced a graph which demonstrated the interrelationship of the problems and explained it thus:"Just finally, looking at the graph, I wonder if you might just explain please what the graph indicates? --- Sure. The graph is an attempt to explain Mrs. Jones' shifting in symptomatology over time, starting with the motor vehicle accident in 1997 where I feel that, from Mrs. Jones' reports of symptoms when I first saw her she described post-traumatic stress disorder symptoms starting fairly soon after the accident, which is the solid line starting at the top of the graph. It was my feeling as I treated her over the last 60 visits she presented with me that the post-traumatic stress disorder symptoms did abate quite markedly over the time we started active treatment, but that what became more evident during that time was the major depressive illness which she continues to suffer with, which is the line with the dots interspaced on it, and that continues to be the primary disabling illness that she presents with. The next part of the graph which is the crossed line was an attempt to document her physical expression or sensation of pain that she's experienced, and to correlate this with the surgical procedure. It appears to have had some response to the underlying physical illness and minimised it as an impact, despite the fact that Mrs. Jones has continued to describe ongoing pain which appear to be out of proportion to the physical pain or the physical symptoms that may be presenting it; and this is where the dotted line has come in as the possibility of her having a pain disorder where she is suffering – she's describing physical pain with no underlying physical cause. This pain disorder may also be assumed under what we call somatisation as well with her major depressive episodes." [Emphasis added]
Dr. Mungomery was cross-examined by reference to the notes of Ms Johnson, the psychologist, as to Mrs. Jones' symptoms of post-traumatic stress disorder (which he had said in evidence in chief were no longer present sufficient to fulfil the DSM-IV criteria for diagnosis and which he said had negligible effect):
"Following the accident, you treated her for some PTSD type of symptomatology? ---
Yes.
However, this produced only a limited reduction in her range of symptomatology. Now obviously you are basing that statement on what you have been told by Mrs. Jones? --- Correct.
Well, contrary to what you have been told, I would like you to assume for the purposes of my questioning, that the motor vehicle accident occurred on 6 February 1997? --- Okay.
She returned to work on 5 March? --- 5 March, yes.
Around there, it might have been the 6th? --- Mm.
And driving to work on her usual route when she passed where the accident occurred she found it quite upsetting? --- Mm.
And described it as a panic attack? --- Mm.
And the next day she drove to work again, and she saw a major accident, and again felt panicky. Now, could I just back track, in that month that she had off work, she was visiting the physiotherapist on seven occasions? --- Mm.
And she drove to and from the physiotherapist without reporting these panic attacks, but it was on the way to work passing the scene of the accident that she has one. She is treated by a psychologist, starting on 7 March '97. A number of anxieties are discussed with the psychologist over time. There is reference to her anxiety about being assessed at work over a nine hour period. There was some system of assessment that was coming in the future. She talked about her childhood, she talked about difficulties with her mother, and the decision not to send her a birthday card or to telephone? --- Mm.
There was discussions about her concerns over a no claim bonus. So apart from the driving to and from work which was a major focus there were other matters discussed. By 18 March she said that the tablets were helping? --- Mm.
And she didn't feel as half as nervous. And this morning she drove to work and she felt a lot better than when she did the drive on the Saturday. By the beginning of April she was describing having a good day until the supervisor asked here what she had done for that day, and it made her feel guilty? --- Yes.
Brought back memories of when she was a 5 or 6 year old child. And so there was some counselling in respect of handling guilt. By a few days later, still early April, she was looking lovely, very well groomed, feeling a lot better, still had some shoulder pain, it is quite bad. And by 8 April still feeling better, more comfortable, still pain in the shoulder. By 14 April she is feeling depressed again, and anxious and feeling like she is going backwards, and strategies for coping with depression are discussed. But by a week later, 21 April, she is now feeling fine. The best she has felt since the accident. And she says, "Never thought I would feel like this good again". She still feels a bit tired at the end of the day, her shoulder and her elbow are hurting her a bit. But the psychologist reports to Telstra that her post trauma symptoms have gradually diminished, and that is on 22 April that that report is written. She returns to full time work, as sick leave – she had been on a graduated return to full time work, as sick leave – she had been on a graduated return to work, doctor, since the beginning of March? --- Mm.
But by the end of April she was back into full swing. She continued to have two more consultations with the psychologist just to make sure that every was going well. She reported at the beginning of May that she is feeling okay, as well as I can be, in Telstra. She talks about having some problems with some of her colleagues at work. And then the last contact with the psychologist doctor is 22 May '97, where she reports:'Getting on very well, been meaning to ring. Telstra some complicated clients but managing okay. So busy – functioning even better? Been walking every morning, not over doing it, and the psychologist says that this was just a five minute chat, she wasn't going to charge for it, and that while there was still 30 minutes of consultation time that she could use, it is not needed at this point and there is no more contact.
Doctor, that would suggest that you were told, that she had fully recovered from any post trauma symptoms, would it not? --- It certainly supports that.
And I want you to assume that she had no more sick leave in respect of symptoms arising out of the motor vehicle accident? --- Yes.
For at least four months. There was some time for a respiratory infection. She was able to gain a promotion and be transferred to Toowoomba. There is no indication in any of the documentation, and I want you to assume this, of any further problems? --- Mm.
So could it be the case doctor, that when Mrs. Jones was describing to you the accident in mid 1999, that it sort of refreshed the memories and she started exhibiting some PTSD symptoms just because of – in the re-telling of the history? ---- Certainly the intensity with which you describe the symptoms when clarifying it, it didn't appear so. But that is a possibility that she was re-telling her symptoms that she remembers when immediately after the accident." [Emphasis added]
Mrs. Jones, in the Tribunal's view, has no incapacity for work and no permanent impairment as a result of her cervical spine.
As to the prolapsed disc suffered at the L5/S1 level, the Tribunal is of the view that the evidence does not establish a causal connection with the motor vehicle accident.
There is certainly no direct evidence that the disc was subjected to trauma in the accident, although it might be inferred that it was from the apparently severe nature of the impact.
It is not however, safe, in the Tribunal's judgment, to draw such an inference as:
(a)there is evidence that Mrs. Jones had radiological changes in her spine at the L5/S1 level well prior to the accident;
(c)there is evidence that Mrs. Jones did not make any complaint of significant low back pain prior to the development of sciatic pain in the weeks before her surgery.
(d)there is evidence that in recent times Mrs. Jones has developed an annular tear at the L4/5 disc level and there is no evidence of any trauma associated with that tear.
While the foregoing matters militate against the drawing of an inference in favour of a causal connection between the disc prolapse at L5/S1 and the motor vehicle accident, the Tribunal is positively persuaded that there is no such connection given the evidence of Dr. Boys which it prefers to Dr. Zeller and Dr. Wai Ki Pun.
Dr. Zeller was influenced in his opinion by his understanding as to the presence of reports of low back pain prior to the development of sciatic pain and Dr. Wai Ki Pun couldn't explain an absence of any reports of significant pain.
The Tribunal finds that there were no reports of significant low back pain by Mrs. Jones after the accident and accepts Dr. Boys opinion that if the L5/S1 disc were damaged in the accident it would have been symptomatic from the time of injury. Dr. Boys' opinion is preferable to Dr. Zeller's view, which the Tribunal finds was influenced by a false premise and to Dr. Wai Ki Pun's view, which had as pivotal to its formation the proposition that unexplained things can occur in medicine.
Mrs. Jones, present incapacity for work and permanent impairment resulting from her psychiatric disorders are caused by a major depressive episode and a pain disorder. There is insufficient evidence that she is incapacitated or impaired as a result of a post-traumatic stress disorder and presently her symptoms do not fulfil the requirements of a PTSD diagnosis.
It is argued however, that the applicant's present psychiatric ailments were contributed to in a material degree by her employment because the motor vehicle accident gave rise to a PTSD and that PTSD, although now of negligible import, was a major causal component of the major depressive episode from which she now suffers. Thus it is argued, the PTSD materially contributed to the development of the major depressive episode.
The Tribunal does not accept that argument as it is of the view that the evidence establishes that Mrs. Jones' PTSD was well resolved after she consulted Ms Johnson in respect of her symptoms, some 2 years before she developed her depressive illness for which she was referred to Dr. Mungomery.
The Tribunal is satisfied that the applicant's present psychiatric condition arose quite independently of her resolved PTSD and had its genesis much later, being caused by a number of stressors including the pain caused by the disc prolapse at L5/S1 and the subsequent discectomy at that level.
To the extent that Dr. Mungomery felt that Mrs. Jones had a PTSD at the time she saw him, which resolved quickly, the Tribunal is satisfied that Mrs. Jones was merely involved in the relating to Dr. Mungomery symptoms she had suffered in the past.
The decision of the Tribunal is that the two decisions under review are affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S P Estcourt Q.C., Miss A M Brennan (Member), Dr K P Kennedy (Member)
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 12, 13, 14 March 2001
Date of Decision 11 April 2001
Counsel for the Applicant Mr R Davey
Solicitor for the Applicant Wonderley and Hall
Counsel for the Respondent Ms H Ford
Solicitor for the Respondent Sparke Helmore
0
0
0