Kristo v The Australian Croatian “Cardinal Stepinac” Association Incorporated
[2010] NSWWCCPD 8
•19 January 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Kristo v The Australian Croatian “Cardinal Stepinac” Association Incorporated [2010] NSWWCCPD 8 | |||||
| APPELLANT: | Kata Kristo | |||||
| RESPONDENT: | The Australian Croatian “Cardinal Stepinac” Association Incorporated | |||||
| INSURER: | Catholic Church Insurances Limited | |||||
| FILE NUMBER: | A1-3025/08 | |||||
| ARBITRATOR: | Ms F Robinson | |||||
| DATE OF ARBITRATOR’S DECISION: | 29 July 2009 | |||||
| DATE OF APPEAL DECISION: | 19 January 2010 | |||||
| SUBJECT MATTER OF DECISION: | Injury and incapacity; weight of evidence; weekly payments and medical expenses. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Taylor & Scott | ||||
| Respondent: | Astridge & Murray | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 29 July 2009 is confirmed. | |||||
| No order as to costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
The Appellant, Kata Kristo, was employed by the Respondent, The Australian Croatian “Cardinal Stepinac” Association Incorporated as a nursing assistant at its geriatric nursing home. She sustained two injuries in the course of her employment. On 10 May 2005 she was struck on the head by some equipment, and on 14 August 2005 she injured her back whilst assisting a patient to bathe.
Following the first injury, she attended Fairfield Hospital where she was diagnosed with a closed head injury, prescribed Panadeine, and sent home after a few hours. She was off work for a period then certified fit to resume her normal duties by her general practitioner, Dr Mohan, on 9 June 2005.
Following the second injury, Ms Kristo ceased work and has remained off work since, save for a short period later in 2005 where she performed light duties.
Liability was initially accepted by the Respondent’s insurer, Catholic Church Insurances Limited (‘CCI’) but subsequently denied by section 74 notices dated 12 October 2005 in respect of the head injury, and 20 October 2005 in respect of the back injury.
In an ‘Application to Resolve a Dispute’ (‘the Application’) registered in the Commission on 23 April 2008, Ms Kristo claimed that she suffered “head and psychological sequelae” consequent upon the injury on 10 May 2005 and “back and psychological sequelae” following the injury on 14 August 2005, and sought weekly benefits from 12 November 2005, together with medical expenses and lump sum compensation.
The parties attended an arbitration hearing on 23 July 2008. A Certificate of Determination with an accompanying Statement of Reasons was issued on 3 September 2008. The Arbitrator found that Ms Kristo did not sustain any injury to her cervical spine on 14 August 2005. The claims in respect of the nervous system and lumbar spine were remitted to the Registrar for referral to Approved Medical Specialists (AMS). The claims for weekly benefits and medical expenses were adjourned pending the outcome of the AMS assessments.
The Registrar referred Ms Kristo to Dr McLeod, Neurologist, and Dr Peter Giblin, Orthopaedic Surgeon. Dr Giblin issued a Medical Assessment Certificate (‘MAC’) on 22 December 2008. The Respondent lodged an appeal against that certificate. The Medical Appeal Panel revoked the certificate issued by Dr.Giblin, and issued a new MAC. The assessment of Dr. McLeod was 0% and the certificate issued by the Medical Appeal Panel gave an assessment of 0%.
The other claims were scheduled for an arbitration hearing on 2 July 2009. On that occasion, no oral evidence was given, and submissions by Counsel for both parties are recorded in a transcript of that date
In a reserved decision delivered on 29 July 2009, the Arbitrator found in favour of the Respondent.
The Certificate of Determination dated 29 July 2009 with an accompanying Statement of Reasons (‘Reasons’) records the following formal orders:
“1. Award for the Respondent, in respect of the claim pursuant s66 of the 1987 Act, alleging permanent impairment of the cervical spine due to injury on 14 August 2008.
2.Award for the Respondent, in respect of the claim pursuant to s66 of the 1987 Act, alleging permanent impairment of the nervous system due to injury 10 May 2005.
3.Award for the Respondent, in respect of the claim pursuant to s66 of the 1987 Act, alleging permanent impairment of the lumbar spine due to injury on 14 August 2008.
4.Award for the Respondent in respect of the claim for weekly benefits.
5.Award for the Respondent in respect of the claim for payment of medical and related expenses incurred due to injury on 10 May 2005 and 14 August 2005 subsequent to 12 November 2005.
6.No order as to costs.”
It is from this decision that Ms Kristo seeks leave to appeal.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
At the time of filing the appeal, Ms Kristo was unrepresented. She has subsequently obtained legal representation. Her new solicitors arranged for service of the appeal in compliance with a direction issued by the Commission on 22 October 2009, but no further steps appear to have been taken or any additional submissions made.
Ms Kristo sought an oral hearing for the reasons that she wished “to submit additional information and to review proceedings.” She also claims that her previous solicitor “failed to submit relevant evidence” which she states is “significant in this case and will certainly make a difference when the matter has been considered properly.”
I will consider the issue of “fresh evidence” shortly, but having carefully read both parties’ submissions, the transcript, and all the documents that are before me, I am satisfied that, having regard to Practice Directions Numbers 1 and 6, I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The amount at issue on appeal satisfies the threshold requirements of section 352(2).
Leave to appeal is granted.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Ms Kristo does not make any specific reference to “fresh evidence”, however, attached to her appeal is a document described as a “Discharge Referral” from Fairfield Health Service Emergency Department dated 8 October 2008. Ms Kristo apparently presented on that date with acute back pain. The document states:
“The pain had been exacerbated while ascending a staircase 2 days prior. The same exacerbation of pain had occurred several times since the initial back injury 3 years prior. The history was difficult to obtain and at times inconsistent.”
It does not appear that this document was before the Arbitrator. Certainly, no specific reference was made by her to it. It appears to have been overlooked by the Respondent since its “Notice of Opposition’ states: “The Respondent notes that the Appellant has not made any application to adduce fresh evidence on the Appeal.”
Practice Direction Number 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“FRESH EVIDENCE AND/OR ADDITIONAL EVIDENCE
Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).
In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, whether:
· it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;
· the evidence is credible;
· there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or
· it is just to admit the evidence in all the circumstances of the individual case.
Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.”
Ms Kristo has not addressed the matters set out in Practice Direction Number 6, but given that she was initially unrepresented on appeal, in the exercise of my discretion, I consider it fair and just to admit the document given the circumstances of this particular case.
I am also mindful of the fact that the Respondent quite properly has conceded that Ms Kristo did sustain a back injury on 14 August 2005. It is the consequences of that injury which remains the subject of dispute between the parties.
THE ISSUES IN DISPUTE
The thrust of Ms Kristo’s submissions is that the Arbitrator’s decision was “unjust” and did not take proper account of the evidence presented by her. In this regard, Ms Kristo states that much of the evidence in support of her claim was “disregarded” by the Arbitrator, and that her solicitor “did not run my case properly.”
The Respondent has usefully summarised the issues raised by Ms Kristo as follows:
“1. The Arbitrator should have preferred the medical evidence tendered on behalf of the Appellant;
2. The Appellant was entitled to a whole person impairment;
3. There was an ‘agreement’ in respect of the Appellant’s psychological condition;
4. The decision was not based on any documentary evidence;
5. The tests performed by Dr Teychenne and the treatment provided by her general practitioner was evidence supportive of the Appellant’s case;
6. The Appellant’s former legal representatives did not present evidence that may have assisted the Appellant’s case;
7. The Appellant had no history of depression prior to the work related incidences;
8. The Arbitrator had no regard to the reports of the Appellant’s treating specialist, Dr Mahony.”
Given the issues raised by Ms Kristo, careful consideration of all of the evidence is required.
THE EVIDENCE
Ms Kristo’s Evidence
In a handwritten statement dated 12 July 2007, Ms Kristo said that on 10 May 2005 she was hit on the forehead by the metal triangular holder on the patient’s support frame. She continued as follows:
“Immediately following the hit, I became disorientated. I felt dizzy and was in a state of shock. I also experienced an intense feeling of nausea- I felt like I was going to vomit.
I experienced a strong and painful headache that persisted for hours…After some time, I began to experience difficulties with my eyesight…I also felt faint and noticed I was becoming physically imbalanced.
[My husband] drove me to Fairfield Hospital…
On 12 May 2005 I went to my local GP. He sent me to have an x-ray of the head and prescribed me some pain killers. The headache and pressure persisted despite the medicine.
On 13 May 2005 I returned to work…however, the pain and pressure persisted.
On 14 May I made another attempt to return to work I entered the room in which the incident had occurred…I exited the room with headache feeling more intense.
As a result, I did not work the following 20-30 days as the pain intensified. Both day and night I felt pain and was unable to sleep properly.
I went back to my GP …but he had gone on holidays.
My husband and I went from doctor to doctor seeking treatment…
All of this time, I felt like I was in hell-the pain and pressure in my head made me feel like ending my life. None of the doctors I had seen wanted to help me.
During this time, the matron called me and asked me why I was not coming to work. I explained my situation and begged her for some help. The matron organised for me to see specialist Dr Harrison in Parramatta. The interpreter relayed to me Dr Harrison said I experienced [blank] and that the pain should cease in 3-4 weeks. After that I should be able to return to work. I asked him to prescribe some pain relief. He said I should ask my GP for this.
During this time I experienced the worst time. The pain was still persisting yet I had no pain relief…my doctor was still on holiday.”
Ms Kristo said that when her doctor returned from holidays, he gave her medication and put her off work for 3-4 weeks. The matron called her and asked her to return to work which she eventually did “because I felt depressed at home and needed the financial support work would generate.” Her return to work was “hard” because of persisting symptoms. She had difficulty walking, headaches and “strong pressure in the head” and felt “extremely dizzy and disorientated” and was walking with a list to the left “like a drunkard.” She ceased after a few days, then saw her doctor who put her off work for two days. She said that she looked at the doctor’s certificate which read “confused” which made her “deeply offended” so she ceased to consult with Dr Mohan.
She resumed work but with persisting symptoms. A few months later, apparently in July 2005, she was punched in the head by the same patient. She did not rely upon this incident in her claim. She said that following this incident she was able to continue work for a short period but had to again cease because of persistent headaches.
In a separate statement also dated 12 July 2007 Ms Kristo set out her “Recollection of Back Injuries.” She said that following the incident on 14 August 2005 she felt an “instant pain in my left hip” and her leg became “locked.” She said that the next day she saw her doctor who arranged x-rays. She attempted to resume work on 16 August 2005 but had increasing pain in her hip and left leg. She ceased early and said: “I realised then that this would be the end of my working career and I quickly experienced sadness and depression.” She continued:
“On my first appointment with the specialist I was unable to leave the car unassisted. I was dragged in by my husband and the interpreter.
The pain in the shoulders is great [and] the pain travels to my right arm causing the shoulders to become stiff.
I have pain in the middle of the back. As such, I am unable to lift up my arms…
Since the injury, I experienced at least 5 times [where] the pain was so intense that I was unable to walk or even move. I felt as though my legs had been cut off.
Almost every outing for me is painful whether it is shopping or to the doctor. Driving and crowds are a source of intense pressure.
I require assistance on occasions...”
Following the head injury on 10 May 2005, Ms Kristo attended Fairfield Hospital complaining of pain over the frontal and parietal skull. She was prescribed Panadeine and left the hospital after a few hours. The hospital records note “no vomiting, no obvious bruising, tender to palpitation, pupils equal/reactive”. There was a diagnosis of a closed head injury.
On 13 May 2005 she consulted Dr Mohan complaining of headaches “on and off.” There was no report in evidence from Dr Mohan, but the Respondent tendered clinical notes extracted from documents produced by him in earlier proceedings WCC 5614- 2007. The Arbitrator noted at [13] of her Reasons:
“It is possible all notes produced by Dr. Mohan are not in evidence. Sections of the notes are illegible. Nevertheless it is apparent, from the notes, the Applicant:
· sometime prior to January 2004 was suffering from depression and anxiety and was prescribed anti depressant medication
· sometime prior to January 2004 complains of pain;
· on 29 April 2004 was complaining of pain in the chest and neck.
· on 13 May 2005 (subsequent to head injury on 10 May 2005) was complaining of headaches “on and off”
· on 7 June 2005 presented with multiple complaints including headaches, confusion, inability to concentrate, distressed, weepy and a feeling of being drunk all the time.
· may have attended on other occasions between 21 January 2004 and 17 August 2005 where the findings and management are not noted.”
A CT Scan of the brain carried out on 20 May 2005 concluded: “Normal examination”.
Dr Mohan certified Ms Kristo fit for normal duties on 9 June 2005.
Dr Mohan apparently first saw Ms Kristo following the back injury on 17 August 2005. He certified her unfit for work until 24 August 2005. In a subsequent certificate dated 29 August 2005, he described the injury as “back injury’, prescribed rest, analgesics and a specialist consultation. Ms Kristo was certified unfit for work up to 5 September 2005.
An x-ray of the left hip and MRI scan of the lumbar spine dated 6 September 2005 and addressed to Dr Matthew Giblin demonstrates “no bone or joint abnormality” in the left hip, and degenerative changes in the spine.
Ms Kristo was apparently unhappy with Dr Mohan and consulted Dr Pukanic. He says that she first saw him on 12 September 2005 in relation to her back injury. He arranged an x-ray of the cervical and thoracic spines on the same date which showed no abnormality in either region. He then referred her to Dr Mahony, orthopaedic surgeon.
Dr Pukanic first saw Ms Kristo in relation to her head injury on 23 September 2005. Dr Pukanic provided a Workcover Certificate marked “Initial” on 23 September 2005 and made a diagnosis of “ Head Injury, anxiety, depression”. The management plan was “Neurological assessment, psychological assessment and counselling”. He certified Ms Kristo as fit for suitable duties on reduced hours, and referred her to Dr Teychenne.
In a report dated 18 January 2006, Dr Pukanic took a history of the incident on 14 August 2005. He said:
“ The patient received no treatment at all, the patient was dissatisfied with the services provided by Dr Mohan and she sought an advice from my practice on 12 September 2005 for the first time. The patient was seen by Dr M Giblin…The patient has a history of a head injury on 10 May 2005 when a patient hit her on the head with a steel triangle. She still suffers from the effects of this accident.”
Dr Pukanic noted Ms Kristo’s complaints as:
“Pain in the lower back, left hip and left leg, pain in the neck radiating into both shoulders, anxiety and depression.”
Dr Pukanic concluded that:
“Mrs Kristo has sustained a musculo-ligamentous strain to her lumbosacral spine with symptoms of left sciatica, musculo-ligamentous strain to her cervical and thoracic spine. It is consistent that the accident at work on 14 August 2005 has produced the symptoms she described.
Dr Pukanic concluded that Ms Kristo was fit for light work “not more than four hours per day, three days per week.”
In a subsequent report dated 25 January 2006 in reference to the head injury, Dr Pukanic noted that “there were no signs of any neurological deficits” and that the CT scan of the brain was normal. He noted:
“She was off work for about three weeks and then returned to her job as an assistant nurse performing normal duties. The same patient hit her on the right side of the head in July 2005…she worked until she had a spinal injury…on 14 August 2005.”
Her complaints when Dr Pukanic first saw her for this injury on 23 September 2005 included:
“Frequent headaches, frontal and occipital, dizziness, anxiety, depression, sleeping problems, ringing in the ears.”
Dr Pukanic concluded that Ms Kristo had developed “severe anxiety and depression” as a result of the injuries on both 10 May 2005 and in July 2005. He added:
“The patient had to return to a light duty job…unfortunately, she could not go to work on many occasions due to severe headaches and dizziness…The patient suffers from persistent symptoms and needs further treatment by her psychologist. The patient still needs analgesics to alleviate the pain and is also treated with anti-depressants.”
Dr Pukanic did not comment upon her capacity for work as a consequence of these injuries.
In a report dated 29 September 2005, Dr Teychenne noted that symptoms since the head injury included severe headaches, dizziness and imbalance. Symptoms from the back injury were noted as “pain over the lumbar spine extending in the left leg…to the foot…” He found no abnormality on neurological examination and noted the CT brain scan was normal. EMG and nerve conduction studies of the lower limbs carried out on 7 October 2005 were also normal.
In a report dated 16 November 2006, Dr Teychenne diagnosed “a mild traumatic brain injury” and “a bilateral lumbosacral radiculopathy with wasting of the left and right EDB muscle…” and assessed the whole person impairment at 10%.
Dr Pukanic provided a series of certificates from 8 November 2005 certifying Ms Kristo as fit for suitable duties. The diagnosis on each certificate varied making reference to different injuries and symptoms including head injury, back injury, anxiety, depression, injury to thoracic spine, injury to cervical spine and sciatica.
Dr Pukanic had referred Ms Kristo to Dr Mahmoud Abu-Arab, psychologist who first saw her on 6 October 2005 and thereafter on many occasions according to his accounts. The final attendance, as disclosed by the account, was on 21 June 2006. No report from Dr. Abu-Arab was in evidence nor were his clinical notes.
Dr Mahony first saw Ms Kristo on 20 February 2006. In a report dated 26 February 2007 he noted her symptoms on presentation included low back pain radiating to the calves, pain in both legs with difficulty walking and numbness in her toes. He also added:
“About two months prior to this consultation whilst sitting in the car she noticed pain in the back of her neck radiating to the occipital area and to the shoulders and occasionally to the hands. She complained of occasional pins and needles and numbness in the arms.
She had a pressure feeling in the mid back.”
Her last consultation appears to have been on 13 December 2006. Dr Mahony concluded:
“Mrs Kristo does appear to have developed symptoms referable to lumbar disc lesions at the L2/3, L3/4 and L4/5 levels in association with degenerate changes with nerve root irritation affecting the lower limbs.
She has added symptoms referable to a cervical strain with nerve root irritation affecting the upper limbs as well as a thoracic strain which could be associated with altered spinal posture being indirectly related to her low back condition…
My own feeling at this stage is that she is unfit for work.”
Dr Mahony assessed 6% WPI in respect of the cervical spine and 11% WPI in respect of the lumbar spine.
Ms Kristo was referred by her solicitors to Dr John Taylor, psychiatrist, whom she saw on 27 March 2006. He obtained a history only of the head injury. In a report dated 10 May 2005 (sic-2006) he said:
“Since then she has noticed headache, photophobia, [and] a tendency to deviate to the left when she walks. She reports that she is afraid to drive a car because of her difficulties with coordination…She reports a feeling that she has lost control of herself. After about a month at home on sick leave she attempted a return to work and continued working until about August 2005. During this period however she was not working full time and eventually she decided the work was too difficult and she stopped.
Her current symptoms include headache, difficulty concentrating, restlessness, finding she cannot sit still for long, difficulty coping with any kind of strenuous exertion, particularly lifting, gardening and bending. She is reluctant to take part in social activities and does not go out much…She is reluctant to go outside the house. She finds she is forgetful. She reports episodes of difficulty with vision…poor concentration…”
Dr Taylor concluded:
“Mrs Kristo satisfied DSMIV criteria for a diagnosis of major depression…
There is some evidence of reasonably good pre-morbid function in that she worked for many years…This indicates that she has reached a reasonable level of competence in her pre-morbid function and that her present state is a distinct step down as she now needs assistance to cope with basic domestic duties. The timing indicates that this step down conincided with the blow to the head which suggested her depression and consequent deterioration in function are a direct consequence of the injury.”
He assessed 11% WPI.
In a subsequent report dated 10 December 2007, Dr Taylor was asked by Ms Kristo’s solicitors to clarify aspects of his earlier report. He saw her on 6 December 2007. He was provided with copies of reports from Drs Lowy, Mellick, Teychenne, Pukanic and Mahony. He thus said that there had been a “misunderstanding” at the first consultation as to the history of injuries, even though Ms Kristo had an interpreter. He noted that Ms Kristo now said that her mental state had “actually been worse since the back injury…because she then lost hope that she would be able to return to work and resume normal activities.” Dr Taylor concluded that her psychiatric symptoms were the same following the back injury but more severe such that “the degree of disability is unchanged…”
The Respondent’s Evidence
The Respondent arranged for Ms Kristo to be examined by Dr Mellick, consultant neurologist, on 30 June 2005. In a report dated 1 July 2005 he said:
“ The details of the incident do not draw attention to any features which indicate the head injury Ms Kristo suffered on 10/5/05 was a serious one involving disordered consciousness, amnesia or any other specific neurological symptom apart from the awareness of the impact.
The examination revealed no abnormal neurological signs.
On the basis of the information obtained from Ms Kristo and the examination I have conducted I would regard the blow to the head to have been of relatively small magnitude and to have resulted in no intracranial, spinal or neural abnormalities.
This is in keeping with the work history insofar as Ms Kristo has resumed her pre-incident work and has continued that work since resuming near to the end of May without any further absence.There is no indication of any Whole Person Impairment.
I would expect the pattern of improvement which Ms Kristo has described to continue to full normality.”
On the same date, Ms Kristo was also assessed by Dr Anthony Lowy, occupational physician. In a report dated 30 June 2005, he said:
“Ms Kristo recalls resting at home and feeling ‘I thought I might go crazy…lose my mind…panicky.’
‘I took tablets and didn’t help’ (Tramal 500mg according to [her son]). She has not taken any of these analgesics for the last few weeks.
Ms Kristo says that after three weeks she felt able to return to work, although she did not feel free of head symptoms , particularly headache and a certain dizziness; nevertheless, she has undertaken her pre-injury work duties with no lost time.
She takes no analgesics…
She has returned to her full domestic duties…”
Dr Lowy observed that Ms Kristo looked “pale and wan and depressed, not the picture of health (there is no information about her systemic health available)” but following examination, he concluded that:
“This blow to her forehead on 10/5/2005 is consistent with minor closed head injury, without any brain effect, and her symptom history was not consistent with any significant head injury, such as concussion or any other cerebral injury. She describes her symptoms as above, which do not include loss of balance or consciousness, true vertigo, she did not fall, stumble, vomit or have any visual symptoms.
Ms Kristo is specific in her early symptoms as ‘dark, dizzy, smoke, foggy’ and symptoms the next day as ‘saucepan stuck on my head,’ and over the next week or so, she thought ‘I would go crazy, lose my mind…panicky.’
These symptoms are of anxiety and nervous system symptoms, they are not symptoms of concussion or head injury…
Clinical examination of Ms Kristo today demonstrates a depressed woman of 50 with no abnormal symptoms or signs of head injury or brain disorder.
She has recovered from the blow to her head by the ‘monkey bar’ at work on 10/5/2005 and on her return to work after three weeks, any ill effects or injury ceased, and any condition became stable.”
Ms Kristo was referred for assessment to Dr Paul Hitchen, orthopaedic surgeon, on 16 September 2005 who prepared a report of the same date. No interpreter was available, and Dr Hitchen noted that her English was “extremely poor.” Ms Kristo related the events of 14 August 2005. He noted:
“ Ms Kristo has remained off work since [16 August 2005]. She believes she has seen Dr Giblin…on one occasion. She stated that an MRI was organised. She has not seen him for the results however I understand her GP who speaks her native tongue has interpreted on behalf of Dr Giblin no further treatment is planned.
Ms Kristo stated that she has ongoing constant severe pain in the left buttock region. There is slight lower back pain particularly localised around the sacrum. There have been no neurological symptoms in the lower limbs. She stated that she can only sit for up to ten minutes (but was able to travel by car today for 35 minutes).
Ms Kristo displayed clear signs of amplified or abnormal pain behaviour…
Ms Kristo has a minor musculoligamentous strain to the lumbar spine with possible aggravation of pre-existent lumbar degenerative disc disease and spondylosis.
Ms Krito’s recovery has been complicated by abnormal pain behaviour.
The investigations clearly reveal pre-existent pathology without any evidence of an acute injury…On the evidence at hand taking into account the investigations undertaken she is fit for pre-injury duties…”
In a supplementary report dated 18 October 2005, Dr Hitchen made reference to a factual investigation and a report from Dr Richard Cowdery, general surgeon, and stated that there appeared to be some discrepancy in the history of the circumstances of the injury on 14 August 2005. His opinion did not alter, but he did add that “the minor musculoligamentous strain has now resolved.”
Dr Cowdery also examined Ms Kristo at the request of the Respondent on 16 September 2005. In a report of the same date, he observed that Ms Kristo “suffers from lumbar spondylosis with the degeneration of the L2/3, L3/4 and L4/5 intervertebral discs.” He said:
“ The condition of which the claimant complains now represents an aggravation of a pre-existing condition. The aggravation is temporary and has now ceased.”
Dr Cowdery nonetheless considered that Ms Kristo was unfit for her pre-injury duties “by virtue of lower back pain” but that “there is a suspicion that the incapacity may have been exaggerated” and that she had not reached “maximum medical improvement.”
Observation carried out on 15 October 2005 showed Ms Kristo to walk around her yard conversing with a visitor. She was observed to “move her head quickly both left and right, bend her neck and upper back to lean into a car window.” Her movements were described as “quick, fluid and without any sign of restriction or disability.”
Ms Kristo was reviewed by Dr Mellick on 24 October 2007. In a report dated 25 October 2007 he obtained some “additional history” in relation to the injury on 10 May 2005. Ms Kristo said that she had severe pain in the occipital region which was provoked by prolonged sitting. She also complained of symptoms of pain between the shoulder blades. She said that the pain in her head was so bad that she “cant touch it.” Dr Mellick obtained a history of the injury in August 2005 wherby Ms Krito developed left buttock and low back pain. She said that all her symptoms had become “steadily worse and are continuing to become worse” since 2005.
Notwithstanding her description of pain, Dr Mellick observed that she delivered her history “in an unnecessarily loud voice and with excessive gesturing.” She was able to move without restriction although at one stage, she “exhibited a transient limp, which lasted for only a few minutes and came and went without apparent cause.”
In a lengthy and detailed report also commenting on the opinions of Ms Kristo’s doctors, Dr Mellick concluded:
“When one considers the history given to me and the other data, it is not reasonable to establish an aetiological connection between the complaint of headache and either of the traumatic events described.
The site of the back pain, described to me today, was not in the lumbar or lower posterior trunk but rather the lateral hip. The site of that pain is not consistent with an organically based spinal cause.
Ms Kristo exhibited intermittent ‘functional’ abnormalities during the course of history taking and the physical examination. When abnormalities were present they were not of a pattern in keeping with a spinal lesion.
The dominant aspect of the clinical presentation drew attention to marked psychologically based processes, with ‘acting out’ behaviour, without any evidence of an organically based process.”
Dr Mellick was of the opinion that “a pre-existing psychologically based mood disorder may have been present,” and that such psychologically based processes were the primary basis for her symptoms. He concluded that:
“The existing clinical picture and the symptoms described are not consistent with the injury.
The cause of the psychologically based processes which are clearly present arises through psychologically based mechanisms which have no aetiological connection to the two traumatic events described…”
He assessed 0% WPI.
Ms Kristo was also assessed by Dr Kim Edwards, surgeon, at the request of the Respondent. He first saw Ms Kristo on 21 February, 2007 in relation to her back injury. In a report of the same date, he concluded:
“The injury represents a soft tissue injury/musculoligamentous strain, or perhaps a temporary aggravation of a pre-existing underlying degenerative changes in the lumbar spine.
In my opinion, any aggravation would be of temporary duration, and has now ceased.
In my opinion, she is fit to resume her normal pre-injury duties…. There is no objective evidence of any organic disability.She has a 0% WPI.”
On review on 22 October 2007, his opinion remained the same. He added:
“I am unable to find any convincing physical disability related to her neck or head.
Her complaints are, in parts, bizarre, and suggest the possibility of a psychiatric condition.”
Ms Kristo was examined by Dr Roberts, psychiatrist, on 26 February, 2008. In a lengthy and detailed report dated 31 March 2008, also commenting on other medical opinions, Dr Roberts concluded that:
“In terms of my specialty there is no evidence of a reactive state. There is evidence of an act, since in terms of mental status Mrs Kristo presents as normal by the end of the interview but at the beginning of the interview presents with an affect consistent with depression.
The lack of maintained affect is inconsistent with a major depressive illness.
Her response to physical examination is consistent with malingering only.
To assert that minimal incidents of no objective significance namely a minimal knock to the head that produced no evidence whatsoever of any lesion could give rise to ongoing psychiatric incapacity is simply impossible on reasonable psychiatric grounds.
There appears in terms of majority opinion in terms of the reports forwarded by you to me, no evidence to support the presence of any significant physical disability. Aspects of the history given are peculiar since not only is the effects of alleged minimal incidents as is alleged, entirely disproportionate to the incidents under consideration and medically inconsistent with the expected sequelae to such minimal incidents, but aspects of the history given are peculiar.I refer especially to Mrs Kristo’s description as to how she embarrasses her son by her slow driving among other matters, and yet her son tells me she doesn’t drive.
Even if a significant psychiatric condition is assumed to be present, it could not be causally related to the minimal incidents under consideration.”
Other Medical Evidence
Dr J G McLeod, neurologist, examined Ms Kristo on 10 December 2008 and issued a MAC on 22 December 2008. He said:
“SUMMARY
· summary of injuries and diagnoses:
Mild head injury without loss of consciousness.
· consistency of presentation:
There were inconsistencies in the examination. Her complaints were out of proportion to the severity of the injury. She appeared agitated throughout the examination. The normal findings are consistent with the neurological examinations performed by Dr Mellick and Dr Teychenne.”
Dr McLeod assessed 0% WPI. In setting out the basis for his assessment, he noted:
“I consider that she had a very minor injury on 10/05/2005 when she was hit by the triangular metal grip above the bed of the patient. There was no loss of consciousness, there was no external evidence of bruising or laceration and there were no abnormalities on examination by the staff at the nursing home or at Fairfield Hospital or by her general practitioner.
I can find no abnormality on neurological examination.
She made no complaints of impairment of memory to me or to Dr Mellick, Dr Rowan, {sic-Mohan} Fairfield Hospital or Dr Teychenne that have been recorded.
I do not consider that she has had a brain injury. In applying the Clinical Dementia Rating, AMA V, pages 319 and 320, I assess Memory as zero. She appears to be fully orientated. I consider that if her activities with Community Affairs, Home and Hobbies and Personal Care are impaired, this is a result of her back injury which appears to be her major complaint. I therefore rate the impairment of mental status (Tables 13-5 and 13-6) as 0% due to the head injury. I do not consider any emotional or behavioural impairment to be related to her minor head injury. I am not qualified to assess her psychiatric condition.
Dr Mellick examined Mrs Kristo on 30/06/2005. He noted that the impact was not associated with unconsciousness or amnesia and there was no bleeding. He found no abnormality on neurological examination. He did not consider that she had any incapacity related to the minor injury. In a subsequent report on 25/10/2007 he confirmed his previous opinion.
Dr Teychenne noted that she did not lose consciousness, although he stated that she was subsequently disorientated for the rest of the evening after the accident. She had persistent headache. He found no abnormality on neurological examination and he was aware that the CT brain scan was normal. It is not clear how he concluded that she had mild traumatic brain injury of which there is no objective evidence and he provides no supporting justification for his assessment of 10% WPI.
Dr John Taylor, psychiatrist, reported on 10/05/2005 that Mrs Kristo had suffered from Major Depression. He saw her again and reported on 10/12/2007 that she continued to be depressed. He makes no assessment of brain injury as a cause of her depression.
Dr John Roberts in his report of 31/03/2008 states that on his evaluation Mrs Kristo did not have any abnormality of mental status. He further states, “Her response to physical examination is consistent with malingering only”. He noted that there appeared to be no evidence to support the evidence of any significant physical disability. I agree with this opinion and I agree with the opinions of Dr Mellick. I have noted why my opinion differs from Dr Teychenne in terms of whole person impairment.”
Ms Kristo was also examined by AMS Dr Peter Giblin, orthopaedic surgeon, on 4 November 2008, and a MAC was issued on 22 December 2008. Dr Giblin said:
“SUMMARY
· summary of injuries and diagnoses:
This patient presents with a clear history of a specific focal incident involving her low back, the pattern of injury being similar to that occurring in other clinical instances. The diagnosis is that of discogenic mechanical back pain, soft tissue in origin, consequent upon the subject accident.
· consistency of presentation:
The presentation was wholly subject to gross illness behaviour pattern, severely distorting the assessment of clinical signs.”
Dr Giblin made the following observations:
“When distracted, her gait pattern was reasonable, and I did not observe any asymmetry in terms of active or passive range of motion of the large joints of the lower limbs.
There was diffuse tenderness in the lumbar spine especially in the lower lumber area and there was a degree of recurrent voluntary muscle spasm.”
The presentation was wholly subject to gross illness behaviour pattern severely distorting the assessment of clinical signs.
Notwithstanding a severe case of gross illness behaviour, buried in the depths, is a clinical history consistent with an acute incident, soft tissue in nature, and consistent with a material aggravation of pre-existing age related changes, as noted on the MRI scan of 2005.
That is to say, there was a specific incident, a relevant plausible clinical history and supportive appropriate imaging studies. The fly in the ointment is the physical examination, which, today, was largely inhibited owing to the abnormal behaviour.
I have broad agreement with the comments and opinions as expressed by Dr Hitchen in his report of the 16th September 2005 and 20th June 2008. My variance in terms of Whole Person Impairment percentage assessment, lies in the assumptive beneficial nature of the Workers Compensation legislation.”
Dr Giblin assessed 5% WPI.
The Respondent lodged an appeal against the MAC issued by Dr. Giblin. Dr Peter Burke, a member of the Medical Appeal Panel, was appointed to conduct a clinical examination of Ms Kristo. The examination took place on 24 March 2009. Dr Burke took comprehensive details of the medical history and a thorough history of her current symptoms and diagnosed “An apparent temporary aggravation of multi-level degenerative lumbar spondylosis, but no evidence of thecal or nerve root embarrassment.”
Dr Burke was not able to find any physical signs to support Ms Kristo’s numerous complaints. The Panel revoked the MAC of Dr Giblin dated 22 December 2008 and issued a new MAC certifying the impairment of the lumbar spine was 0% according to DRE Category 1.
THE ARBITRATOR’S FINDINGS AND REASONS
After setting out the background to the claim and the various steps taken since the current Application was filed, the Arbitrator summarised the reports and notes of the treating doctors. She then summarised the submissions from both parties noting at [20]:
“The Applicant relied solely on the report of Dr. Teychenne in respect of the head injury and conceded there was no link between injury and incapacity if that report was not accepted.”
She then set out in considerable detail the contents of the various MACs before concluding at [41] and [42]:
“41. Dr. Burke’s diagnosis of “ An apparent temporary aggravation of multi-level degenerative lumbar spondylosis….” is supported by the specialists qualified by the Respondent and also by Dr.[Peter] Giblin. There is no objective evidence to suggest the Applicant sustained, on 14 August 2005, anything more than a minor lumbar strain and the effects of that injury have since ceased. The opinions of these doctors are compelling and I am unable to accept the opinion of Dr. Mahony that the incident on 14 August 2005 produced “lumbar disc lesions at the L2/3, L3/4 and L4/5 levels” which, in his view, resulted in a whole person impairment of 11%.
42. The symptoms complained of, by the Applicant, to multiple body parts, including the lumbar spine, are not referable to the back injury on 14 August 2005. There is no incapacity for work due to the incident on 14 August 2005.”
The Arbitrator then turned to consider the “Psychological Injury” commencing at [43] as follows:
“43. The Applicant was suffering anxiety and depression prior to the head injury on 10 May 2005 and had been prescribed anti-depressant medication. Dr. Lowy at the time he examined the Applicant on 30 June 2005 commented M/s Kristo was “a depressed woman” and noted she was not taking any medication.
44. Dr. Taylor, Psychiatrist, was qualified by the Applicant and examined her on 27 March 2006. He provided a medico/legal report dated 10 May 2006. The interview was conducted with the assistance of the Applicant’s husband and a telephone interpreter. The history taken by Dr. Taylor was the Applicant “was struck in the forehead by a metal bar used to support a lifting handle over the bed”. He notes the multiple symptoms on page 1, at para. 3 of the report. Dr. Taylor opines the Applicant is suffering from major depression on and comments the “complaints of chronic pain are presumably psychogenic in origin as no significant abnormality on physical examination or investigation has evidently been identified.”
Paragraph (4) on page (2) is as follows:
Relationship of Disability to Injury
There is some evidence of reasonably good pre-morbid function in that she worked for many years before coming to Australia and has worked in a variety of jobs for periods of up to 4 years in the one job. This indicates that she has reached a reasonable level of competence in her pre-morbid function and that her present state is a distinct step down as she now needs assistance to cope with the basic domestic duties. The timing indicates that this step down coincided with the blow to the head which suggested her depression and consequent deterioration in function are a direct consequence of the injury.45. Mosby’s Medical Dictionary, 8th edition, defines premorbid personality as “a personality characterised by early signs or symptoms of a mental disorder. The specific defects may indicate whether the condition will progress to…………or another type of condition” I note Dr. Taylor’s comments in relation to the small dose of anti depressant being less than the usual prescribed dose and his suggestion of a trial of a different antidepressant drug at a therapeutic dose.
46. It is obvious, from the report, Dr. Taylor was qualified only in respect of the head injury. I note:
· an accredited interpreter was only available on the telephone
· the history is not in accordance with the evidence or the finding contained in the Statement of Reasons dated 3 September 2008;
· the Applicant did not disclose a prior diagnosis of depression and anxiety;
· the Applicant did not disclose anti depressant medication was prescribed prior to 10 May 2005
· the Applicant did not disclose complaints of pain in neck or chest prior to 10 May 2005
· the Applicant did not disclose she was a attending a psychologist.
47. Dr. Taylor re-examined the Applicant on 6 December 2007 and provided a medico/legal report dated 10 December 2007. The husband, and primarily the son, of the Applicant acted as interpreters. The second full paragraph of that report is as follows:
“Your letter specifically requests an opinion regarding the relationship between her depression and the second injury sustained on 14 August 2005. Since that time there has been some increase in pain but her psychiatric symptoms have not changed in nature. She reports essentially the same kinds of symptoms. There has, however, been a change in severity. Whereas previously she seemed to have some hope and expectation of improvement this now seems to have been lost and as a result her psychological symptoms have definitely had a step up in intensity. The degree of disability is unchanged but it is clear that the final level of disability was reached in two stages, with the first step following the assault and an increment following the back injury
48. Dr. Taylor diagnosed major depression. He opines the Applicant’s personality was premorbid; she was functioning reasonably well; there was a distinct step down coinciding with the blow to the head which suggested [my emphasis] the depression and consequent deterioration in function were a direct consequence of the injury on 10 May 2005. In his subsequent report Dr. Taylor opines that, following the back injury, the psychiatric symptoms have not changed in nature although the symptoms have stepped up in intensity
49. Dr. Roberts, Psychiatrist, was qualified by the Respondent. He opined the Applicant was malingering. A number of specialists, all of whom are highly qualified, have expressed concerns and/or reservations in respect of the Applicant’s mental state and abnormal behaviour.
50. Dr. Taylor’s suggestion of a premorbid personality and his diagnosis of major depression, on balance, seem to be a logical explanation for the mental state and abnormal behaviour of the Applicant. Dr. Taylor did not have crucial and/or correct and/or adequate information on a number of factual and medical issues. I therefore cannot accept his suggestion on causation.
51. The Applicant had been diagnosed with anxiety and depression. This is on a background of a premorbid personality. There is no evidence of any recovery. The steps down, and inability to function, referred to by Dr. Taylor are a natural progression of the Applicant’s medical condition prior to the 10 May 2005. Dr. Taylor and Dr. Roberts commented the medication for the depression was sub therapeutic. It is very possible, from comments contained in the medical reports, the Applicant was either not taking any medication or was taking less than prescribed. This may have accelerated the deterioration in the Applicant’s condition
52. Any perception, held by the Applicant, relating her symptoms to her injuries are not reasonable. The incidents were innocuous. The Applicant has not sustained a psychological injury as a consequence of a head injury on the 10 May 2005 or the back injury on 14 August 2005.”
Her findings were summarised at [53] as follows:
“53. In summary I make findings as follows:
·The Applicant is neither partially nor totally incapacitated for work as a consequence of an injury on 10 May 2005;
·The Applicant is neither partially nor totally incapacitated for work as a consequence of an injury on 14 August 2005;
·The Applicant has not sustained a psychological injury or condition as a consequence of the injuries above;
·There Applicant is not entitled to the payment of weekly benefits subsequent to 12 November 2005
·The Respondent is not liable to pay any medical and related expenses due to any psychological injury or condition.
·The Respondent is not liable for the payment of any other medical and related expenses subsequent to 12 November 2005.”
THE SUBMISSIONS AND DISCUSSION
It is fair to say that Ms Kristo’s submissions that much of the evidence in her favour was “disregarded” by the Arbitrator demonstrates a fundamental lack of understanding of the practice and procedure in the Commission, particularly as it relates to medical assessments by AMS. This is perhaps understandable, since at the time of filing her appeal she was unrepresented. Hopefully these matters will be explained to her by her current solicitors.
Thus her submission that “I was entitled to 3% whole person impairment” is clearly incorrect. In accordance with section 326 of the 1998 Act, the assessments are conclusively presumed to be correct such that the Arbitrator was bound to enter an award in favour of the Respondent in respect of her claims for permanent impairment compensation. The Arbitrator’s task was then confined to the issue of incapacity and weekly benefits, and medical expenses.
The same observations may be made in relation to her complaints about the conduct of her solicitor. The Arbitrator was required to determine the matter in line with all the evidence before her. Ms Kristo’s complaint that her solicitor “did not run my case properly” is not a matter relevant to my consideration as to whether the Arbitrator’s decision represented the “true and correct view” of the case based on all the evidence. (State Transit Authority of New South Wales vFritzi Chemler [2007] NSWCA 249) (‘Chemler’).
I do not accept Ms Kristo’s submission that the Arbitrator should have accepted the medical evidence tendered on her behalf. There was certainly some evidence in support of her claim, for example that of Drs Pukanic, Mahony and Peter Giblin, but much of it was flawed for the reasons stated by the Arbitrator.
It is not true, as Ms Kristo submits, that the evidence of Dr Mahony was “not taken into consideration whatsoever.” At [32] the Arbitrator summarised the evidence of Dr Mahony noting that he “makes no comment in respect of incapacity.” I have already commented on the impact of the impairment assessments.
The notes of Dr Mohan clearly demonstrate that Ms Kristo was suffering from anxiety and depression prior to January 2004 and was prescribed anti-depressant medication. Her submission that prior to her injury she had only complained of chest pain to Dr Mohan prior to her injury and was diagnosed with “gastric acid” is simply not supported by the clinical notes. Similarly with her submission that: ”Prior to my injuries I never had any reason to be depressed.”
Having carefully considered all of the evidence, there are a number of other features in addition to the matters noted by the Arbitrator which in my view lend further support to her conclusions. These I have summarised as follows:
·Ms Kristo’s statements made in July 2007 as to the nature of her injuries, her symptoms and treatment are in stark contrast to the more contemporaneous evidence from Dr Mohan’s notes (she was certified fit to resume work on 9 June 2005) and the reports of Drs Mellick, Lowy and Hitchen.
·There was no evidence from Dr Matthew Giblin, Dr Harrison or Dr Abu-Arab.
·It is unclear if other doctors were consulted. Ms Kristo’s statement that “None of the doctors I had seen wanted to help me” suggests others may have been consulted.
·Her symptoms as described by Dr Pukanic cannot be explained by the radiological material.
·It is medically inconsistent that the pain in her left hip and leg she reported following the injury on 14 August 2005 would somehow travel to her thoracic and cervical spine, or that either that injury or the earlier blow to the head could produce the neck and arm symptoms she reported to Dr Mahony.
·Ms Kristo reported to Dr Taylor in March 2006 that she had severe ongoing symptoms after the May 2005 injury and ceased work in August because “the work was too difficult.” There was no reference to having been certified fit in June 2005 nor continuing in that work without apparent symptoms or treatment until the August injury.
·The reports relied upon by Ms Kristo were not only scant on details of treatment but they were not very current in terms of the issue of incapacity.
·The evidence was conflicting as to the nature and extent of any treatment.
·The overwhelming weight of evidence was to the effect that the incident in August 2005 was either a minor strain or a temporary aggravation of clear pre-existing lumbar pathology. The “fresh evidence” submitted by Ms Kristo from Fairfield Hospital further reinforces this conclusion.
·In those circumstances, the evidence in my view was insufficient to establish any ongoing incapacity since payments ceased in November 2005.
·Ms Kristo was certified fit for work following the head injury on 10 May 2005 on 9 June 2005. This is consistent with all the evidence, and there is insufficient evidence to support her claim that she was thereafter incapacitated by this injury.
Ms Kristo’s submission that: “During the proceedings an agreement was also reached concerning my depression” is simply unfounded.
The same must be said of her submission that: “The Arbitrator’s decision was reached purely upon the verbal evidence given by the Insurance [sic] Legal Representatives.” As the Respondent points out, it is clear from the Arbitrator’s decision that she had considerable documentary evidence before her and her decision was made “after a careful analysis of the evidence.”
Ms Kristo submits:
“When I was assessed by Dr Paul Teychenne, he performed his neurological examination with instruments by prodding needles into my legs. That was not evidence enough for you.”
Dr Teychenne’s “tests” alone did not support Ms Kristo’s claims when he acknowledged that there was no neurological abnormality and the brain scan was normal.
CONCLUSION
It is clear that Ms Kristo is unhappy with the Arbitrator’s decision, but in my view, it was thorough and well reasoned. Having conducted a “review on the merits” (per Spigelman CJ in Chemler) I conclude, for the reasons stated in this decision, that the Arbitrator’s determination was correct, and the appeal must fail.
DECISION
The decision of the Arbitrator dated 29 July 2009 is confirmed.
COSTS
I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
19 January 2010
I, EMMA LETHBRIDGE-GILL CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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