Knight and Military Rehabilitation and Compensation Commission
[2005] AATA 1281
•22 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1281
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/883-884
GENERAL ADMINISTRATIVE DIVISION ) Re MARILYN PATRICIA KNIGHT Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member B J McCabe
Dr G J Maynard, Member
Date 22 December 2005
Place Brisbane
Decision The decisions under review are affirmed.
........[Sgd]........
SENIOR EMEBER
CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – knee condition caused by employment with Commonwealth – applicant claims further injuries should be accepted as arising out of the original knee condition – further injuries not conditions in their own right but symptoms of accepted conditions – decision affirmed
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
22 December 2005 Senior Member B J McCabe
Dr G J Maynard, Member
1. Marilyn Knight sustained a left knee injury at work on 1 November 1992. The Commission accepted liability in respect of the knee condition and she was awarded a 10% impairment rating on 9 October 1995. The applicant has since made claims in respect of other conditions arising out of that accident. In the present proceedings, she argues the Commission should accept liability in respect of a tension headache condition and a psychiatric sleep disorder condition.
2. The respondent says the applicant suffers from migraine headaches that are unrelated to the applicant’s original injury. It says the sleep condition is merely a symptom of another accepted psychiatric condition rather than a condition that should be diagnosed in its own right and which might give rise to a fresh entitlement to compensation.
3. The original decision was made on 20 March 2003. The reviewable decision with respect to the tension headaches is dated 26 September 2003. The reviewable decision with respect to the sleep disturbance is dated 22 August 2003.
4. Ms Knight has asked the Tribunal to reconsider the Commission’s decisions. For reasons that we will explain, we have decided to affirm the decisions under review.
material before the tribunal
5. The Tribunal was provided with three volumes of the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. An additional 20 documents were also tendered in evidence.
6. The applicant gave evidence at the hearing. The following individuals also gave evidence:
·Dr Don Todman;
·Dr Axel Estensen;
·Dr Peter Landy;
·Dr John Cameron;
·Dr Michael Leong; and
·Dr Margaret Cotter.
7. The applicant was represented by Mr Hume of counsel. The respondent was represented by Mr Clark of counsel.
the factual background
8. The applicant was born on 11 March 1959. She enlisted in the Army Reserve in 1987. She was posted to the Royal Australian Transport Corps. She was medically discharged on 4 March 1990 as a result of a back injury sustained while attempting to shift a 44 gallon drum. Ms Knight re-enlisted in the regular Army on 1 October 1991. She returned to work in the Transport corps; she remained there until she was discharged in June 1995 as a result of a knee condition.
9. Ms Knight’s knee condition developed as a result of an accident in 1992. The injury occurred while she was climbing up into a truck. She had surgery to the left knee. The surgery is claimed to have been a failure with “grinding” in, and “giving way” of the knee post surgery. After discharge she developed a painful right knee accepted as a consequence of the initial injury to the left knee. She subsequently had surgery on the right knee. Other conditions began to emerge over time. She says she is in constant pain. She is currently being treated for:
·Both knees;
·Right ankle;
·A spinal condition;
·Right shoulder condition;
·Headaches;
·Sexual dysfunction; and
·Depression.
10. The applicant is currently unemployed. She is in receipt of incapacity benefits under the Safety Compensation and Rehabilitation Act 1988 (the SRCA).
the applicant’s description of her headaches
11. The applicant claims the headaches began after surgery to her right knee. They came on gradually. She said falls caused by “giving way” of the left knee seemed to trigger headaches. She now describes the headaches as being a dull ache at the base of her skull on the right side. They do not move, although they can be made worse by movement. She experiences nausea with the headaches. The applicant says that turning her head in traffic will also trigger headaches. They occur 2- 3 times per week and she has an emergency supply of medication to take when her head starts to pulsate at the onset of headache. She says she has had to go to a darkened room for several days on occasions. The last such episode occurred in 2004, and she has about one such episode per year. She suggested the headaches may be a little better since she got new spectacles about a year ago.
the applicant’s description of her sleep disturbances
12. The applicant says her sleep disorder also began after the right knee surgery. She says she does not want to go to sleep and cannot sleep at night. She described using a number of medications prescribed for sleep disorder. The problem is getting worse over time and now she cannot sleep when she is very tired and lethargic. The applicant says her sleep pattern is to fall asleep at 6.00 AM and awake without feeling refreshed at 1.00 or 2.00 PM. She claims to have gone up to three days without sleep on occasions; she says she often does not sleep for 48 hours at a time.
the medical background: what the medical records say
13. It is convenient to begin with the evidence of Dr Cotter, the applicant’s general practitioner. Dr Cotter has been the Applicant’s GP since the 1980s but her records do not extend earlier than June 1996 when she established her own practice. There are some earlier medical records produced which cover the period of the Applicant’s original back injury but the author is unknown.
14. One of the notes of the anonymous doctor was made on 25 September 1989, prior to the knee injury. The note says: “Headache one sided. Tired. Request certificate to stay away from army. Back pain worse.” There are no medical records available from that entry till the commencement of Dr Cotter’s notes in 1996.
15. Dr Cotter notes on 11 July 1996: “Headaches – trigger pt R occiput”. In cross examination Dr Cotter said she thought the note indicated a tension headache. Dr Cotter told the Tribunal she believed the applicant first presented with tension headaches in about 1994 at the Kedron Park Medical Centre, but the records are not available.
16. Dr Cotter’s notes from 16 August 1996 state: “1. R knee very painful. To see Dr Malisamo. 2. Relationship problems ++. 3. Sleep disturbances.” (Over the next few months there were other notes referring to domestic issues that were serious but do not need to be repeated here.) Another entry dated 2 April 1997 remarks “headaches again”; on 15 August 1997 the notes record “water hydro-> headaches”. “Trouble sleeping” is noted on 22 February 1999 as a result of hip pain. On 27 April 1999 Dr Cotter notes “migraines type headache”.
17. The next mention of headaches in Dr Cotter’s notes occurs three years later on 23 May 2002. The note reads “Tension headache physio”.
18. There are further references to domestic issues in the notes in late 2002 and into 2003.
19. These records cover a period of around 7 years during which the applicant appeared to consult Dr Cotter regularly. There are surprisingly few references to headaches and sleep disturbance in the circumstances. Dr Cotter insisted in her oral evidence that she only mentioned a condition in her notes if there was a change that made a note appropriate. We accept that is not unusual. Dr Cotter commented on the printout of drugs prescribed for the applicant over the period of time. There was a trend of increasing strength in medication which Dr Cotter indicated was a measure of the worsening of the applicant’s conditions. Not all changes in medication reflected in the prescription printout had a parallel entry in the clinical notes recording the changes.
20. Dr Cotter’s opinion was that cervical and thoracic spine degeneration is the cause of tension headaches and that depression and sleep disorder are caused by pain.
21. We turn now to the other medical evidence. Exhibit 12 is a report dated 8 August 1996 prepared by Dr Michael Coroneos, a neurosurgeon, who saw Ms Knight on referral from Dr Cotter. The report says on page 1: “She (the applicant) has a medical history of having had migraine headaches.”
22. There is also a reference to the applicant describing her headaches as migraines in the report of Dr Chalk (exhibit 14). That report is dated 28 March 1997. It was prepared by Dr John Chalk, a psychiatrist. On page 2 of the report, Dr Chalk notes: “She states that the pain spreads from her thoracic spine to her shoulder and then to her neck and causes migraines.”
23. If these histories are reported correctly they would suggest the applicant thought she suffered from migraine headaches from 1996.
the medical evidence about sleep disturbance
24. Dr Axel Estensen is the applicant’s treating psychiatrist. Dr Michael Leong, a psychiatrist, was called on behalf of the Respondent.
25. Dr Estensen diagnosed the applicant as suffering from an Adjustment Disorder with Depressed mood (chronic), a Pain Disorder with both a general medical condition and psychological factors, a Sleep Disorder (Insomnia) related to another mental condition and a tension headache condition. He says the primary precipitants for these conditions are a large number of orthopaedic injuries that cause physical impairment and pain.
26. Dr Leong explained in evidence and in his report (Exhibit 4) that the applicant’s sleep disturbance is adequately explained by her condition of chronic pain, Adjustment Disorder with depressed mood and Major Depressive Episode. Dr Leong gives a well reasoned analysis based on reference to appropriate chapters of the DSM-IV to support his view that the applicant does not warrant a separate diagnosis of insomnia related to another mental disorder. He makes reference to the issue of headaches but defers to the views of the neurologists.
27. It follows the opinions on the important diagnosis of Sleep Disorder (Insomnia) related to another mental condition differ. We prefer the opinion of Dr Leong as it fits the history of the applicant more closely and shows a superior understanding of the complexities of the DSM-IV. Examination of Exhibit 15, a printout of Dr Estensen’s contemporaneous clinical notes, shows regular reference to sleep difficulties of the applicant but the notes do not give the impression that this is an escalating problem that warrants a diagnosis of its own.
the medical evidence about headaches
28. We have already observed that the applicant described her condition as a migraine when giving her history to a number of doctors prior to 1997. We note the first reference to a tension headache in the records of Dr Cotter did not occur until 23 May 2002 (although Dr Cotter is adamant that a reference on 11 July 1996 to a “trigger point in the neck” was code for a tension headache).
29. Dr Estensen keeps very good clinical notes. He rarely mentions headaches but does cover the other issues of pain, adjustment disorder, depression, disputes with MCRS and domestic issues. A note dated 10 May 2001 mentions an increase in headaches. Some of the notes are difficult to read but an entry dated 29 May 2003 states “migraine last week”. We could not find any reference to tension headaches in Dr Estensen’s clinical notes but in oral evidence he gave an opinion that the applicant has tension headaches.
30. Dr Landy was of the strong opinion that the applicant suffered from migraine headaches that were not related to her accepted disabilities. The applicant disputed the description of symptoms described in Dr Landy’s report but on examination Dr Landy was able to quote his contemporaneous notes to verify his report (Exhibit 2).
31. Dr Todman expressed an equally strong opinion that the applicant suffered from episodic tension headaches as a result of her accepted injuries. When challenged on the accuracy of his report (Exhibit 8) describing the characteristics of the headaches it was found that his contemporaneous notes differed from the report. Dr Todman disagrees with Dr Landy’s diagnosis because he believes Dr Landy places too much weight on symptoms which are minor and infrequently associated with the applicant’s headaches.
32. Dr Cameron in his report (Exhibit 5) said he believed the applicant suffered headaches that were a combination of migraine headaches and muscular contraction headaches. He said the tension component would appear secondary to her ongoing depression; an additional component could be attributed to her underlying cervical spondylosis. He identified a migraine component which he believed reflects a natural tendency to this condition and may also be aggravated by her underlying depression. It is his belief that the muscular contraction headache is largely a symptom of her adjustment disorder with depressed mood. There may be a small component coming from degenerative changes in her cervical spine. Dr Cameron agrees with Dr Landy that there is at least a component of the Applicant’s headache which represents migraine. He notes it is sometimes difficult to distinguish between muscular contraction headaches and the symptoms of common migraine.
33. Dr Cameron disagrees with Dr Todman’s conclusion (Exhibit 8) that the tension headaches are a separate condition. Dr Cameron’s opinion is based on the evidence that the headaches have only become apparent when the applicant is depressed. She remains depressed and the headaches persist. There is little in the history to suggest she suffered from a lot of headaches prior to the early 1990’s. Dr Cameron says the applicant’s headaches reflect a symptom of her underlying adjustment disorder and depression rather than a stand-alone condition.
34. Dr Leong in his report (Exhibit 4) also states that migraine headaches and tension headaches frequently coexist in one individual. He explained that tension headaches are often associated with life stressors, anxiety, depressive illness and musculoskeletal disorders affecting the head and neck region.
35. We have considered the reports and evidence of the medical experts very carefully. We are inclined to accept the weight of evidence that the applicant’s headaches are a mixture of migraine and tension types. As both types can be made worse by the applicant’s depression, we are of the opinion that the headaches are a symptom of an accepted disability. They do not merit a separate diagnosis.
conclusion
36. We accept the applicant suffers from disturbed sleep. That was obvious from her presentation at the hearing. We also accept she suffers from headaches. But in each case the conditions are symptoms of existing conditions. It is not appropriate to deal with them as sequelae of those conditions. It follows the reviewable decisions under review are affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe and Dr G J Maynard, Member.
Signed: .....................................................................................
Associate: Sam J AppletonDates of Hearing 1-2 June 2005, 5 October 2005
Date of Decision 22 December 2005
The applicant was represented by Mr Hume of counsel.
The respondent was represented by Mr Clark of counsel.
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