Kylie Catterick and Comcare
[2013] AATA 21
[2013] AATA 21
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2011/2476, 2011/3719; 2012/0130, 2012/1845
Re
Kylie Catterick
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal PROFESSOR RM CREYKE, SENIOR MEMBER
DR P WILKINS, MEMBERDate 17 January 2013 Place Canberra The decisions under review are affirmed.
......................[sgd]..........................................
PROFESSOR RM CREYKE, SENIOR MEMBER
DR P WILKINS, MEMBER
Catchwords
COMPENSATION – Whether applicant continues to suffer effects of accepted conditions – Whether applicant reasonably requires household assistance – Whether applicant continued to require reasonable medical treatment – Whether applicant continued to suffer incapacity for employment
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5, 5A, 5B, 14, 16, 19, 29.
Cases
Comcare v Mooi [1996] 69 FCR 439
Comcare v Sahu-Khan (2007) 156 FCR 536Secondary materials
American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th edn, Text Revision, 2009) (DMS4 - TR)
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
DR P WILKINS, MEMBER
17 January 2013
Ms Kylie Catterick, born 1974, left school at the end of year 10. She worked in various jobs including in security, administration, data entry and as a checkout operator. On 24 April 2006, Ms Catterick commenced working under contract with the Defence Material Organisation (DMO) in Canberra.
She had a number of conditions which had been accepted for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). The injuries were neck sprain and thoracic sprain, with a date of injury of 1 March 2007, adjustment reaction with mixed emotional features, deemed to have occurred on 14 September 2007, and psychogenic pain, accepted on 23 June 2010. The reviews sought relate to the following reviewable decisions under the Act.
Claim 2011/2476
A reviewable decision dated 12 May 2011 to deny liability as from 23 June 2010 for physical therapies under section 16 for Ms Catterick’s neck sprain, thoracic sprain, and adjustment reaction with mixed emotional features (the accepted conditions), but to continue to accept liability for general practitioner consultations. On 23 June 2010, liability was accepted for a secondary condition of psychogenic pain – site unspecified.
Claim 2011/3719
A reviewable decision of 31 August 2011 accepting liability for payment of medical treatments under section 16 for Ms Catterick’s accepted conditions, including psychogenic pain, for general practitioner consultations until 26 September 2011, but not for physiotherapy and pain management. The decision also denied liability for household assistance under section 29.
Claim 2012/0130
A reviewable decision of 9 January 2012, denying liability as at 14 November 2011 for medical treatment under section 16 for Ms Catterick’s accepted conditions, including psychogenic pain, for incapacity payments under section 19, and denying liability for household services under section 29.
Claim 2012/1845
A reviewable decision of 4 May 2012, denying liability for medical treatment, incapacity payments, or household assistance under sections 16, 19 and 29 of the Act respectively for Ms Catterick’s adjustment reaction with mixed emotional features from 25 January 2010.
Background
Ms Catterick moved to Canberra in 2005. She was married to her present husband in 1998. She had a daughter, born 1992 by her first relationship, a son born in 1999, and another daughter born in 2004. In October 2007, her elder daughter, left home. Ms Catterick suffered from post-natal depression after the births of her children in 1999 and 2004. The clinical notes for the general practice which Ms Catterick attends notes she suffered generally from depression which it described as ‘endogenous’ and for which she was intermittently on anti-depressant medication.
Ms Catterick commenced employment with the DMO on contract on 24 April 2006. On 1 March 2007, she was injured in the course of her employment when she had to manoeuvre a heavy suitcase containing work papers into the boot of a vehicle on her return by air from the Royal Australian Air Force base at Laverton, Victoria. At the time she was carrying a handbag and had a laptop computer hanging across her shoulders. On her return flight to Canberra she noticed she was suffering a headache. She went to work next day, Friday, but the headache persisted and she left at lunchtime.
The headache worsened over the weekend and Ms Catterick attended her general practice on the Monday. Dr Wayne Pahn, her regular general practitioner, noted an incident five days earlier and that she had suffered a headache since and suggested she rest. She returned to the practice on 8 March 2007, again complaining about her headache, when she saw Dr Katy Lees who identified a problem with her neck. On 12 March 2007 Dr Pahn diagnosed ongoing neck and thoracic pain associated with headaches due to the injury. She was referred to Dr Speldewinde for pain management and he introduced a series of physical therapies, including physiotherapy, and she later had some injections in her upper back to attempt to relieve her pain.
Ms Catterick’s contract with the agency ceased on 30 March 2007. Despite that, a graduated return to work program was instituted in the Department of Defence. As part of that program on 16 August 2007, Ms Catterick recommenced work at DMO two hours a day, two days a week. On the first day she was required to undertake some filing for two hours. She did not have computer access and she claimed that the duties associated with her program caused her injuries to become worse. Accordingly, she ceased work under the program.
The agency contracted for Konekt, a rehabilitation organisation, to assist in returning Ms Catterick to work. Ms Catterick attended an initial assessment interview on 19 April 2007. Payments to Konekt commenced on 23 March 2007 and continued until 23 December 2010 when the program was ceased.
After her contract expired with DMO Ms Catterick has had a number of short-term jobs, generally obtained by her own efforts. The first, in July 2008, was at K-Mart as a checkout operator, working four hours per day, three days a week; the second, was as a sales assistant at Millers Fashions, a job which continued from 16 February 2009 until April 2009. From July 2009 until September 2009, she worked for 25 hours a week at Big W as a customer service and administration supervisor. Between October 2010 and February 2011, Ms Catterick had part time work with Target Australia. She commenced work as a part-time salesperson with Carpet One in October 2011 and remained in that employment in October 2012. While at Carpet One she has worked up to 30 hours for one week and 27.5 hours in subsequent weeks but is currently down to about 20 hours a week. Ms Catterick is expecting the birth of another child early in 2013.
Ms Catterick's work schedule during this period has been interrupted by two pregnancies. The first pregnancy occurred in late July/early August 2009 and her second son was born towards the end of April 2010. Ms Catterick's latest pregnancy commenced in about May 2012, and the child is expected in February 2013. During her pregnancy Ms Catterick stops taking most medications, including anti-depressants, and pain killers. A week after her son was born in April 2010, Ms Catterick was hospitalised for appendicitis. An appendectomy was conducted on 30 April 2010.
Ms Catterick’s Defence Travel Card was misused to obtain cash between 22 October 2006 and 15 November 2006. Ms Catterick was first interviewed concerning this matter in April 2007, but subsequent investigations and a court hearing did not conclude until 12 September 2009. She ultimately pleaded guilty to the charge, but maintained that she was not responsible for the misuse of the card and had only pleaded guilty to protect the culprit. Ms Catterick said in evidence that the processes involved in this prosecution, which lasted some two and a half years, were stressful and that for a period in 2009 she was overusing alcohol. However, she stopped drinking when she fell pregnant with her son born in April 2010.
Ms Catterick’s evidence
Ms Catterick said that she became more depressed after her fifth attempt at work, that is, with Target. However, she acknowledged at the hearing, that she is enjoying the work at Carpet One and has remained there for longer than in her other positions. She says that the physical restrictions which have been the cause of her ceasing work in some of her jobs is not a problem with Carpet One as the lady she works with helps her if she is unable to manage.
Ms Catterick also said that she considers physiotherapy relieves her pain and enables her to do more. The exercises free up her stiffness and enable her to do activities she otherwise could not manage. She also said that the morphine patches she uses on occasions are beneficial as well. However, she does not use them during pregnancy and her doctor has advised her that she should not use them long term. Ms Catterick said the hormones that are released also assisted to reduce pain for the duration of her pregnancies.
She said her predominant pain is in the back. She is always aware of the pain, but the intensity of the pain varies. At its worst, the pain travels up her back into the top of her shoulders, neck and to the base of her skull. She also experiences tingling and numbness in her arms and fingers. The pain is relieved by physiotherapy, the morphine patches, and by Panafen, which she understands is a combination of Paracetamol, Ibuprofen and Codeine. Since Comcare rejected her claim for physical therapies she has on occasion been paying for physiotherapy herself but it is a struggle financially.
Although she is presently suffering depression, Ms Catterick said she hopes that if she gets her pain under control, her depression and anxiety will be alleviated. Her goal is to manage a sustainable return to work. Ms Catterick denied that the diagnosis of bruxism by Dr Navin was correct. She said when he first suggested this might be the problem she became excited to think that someone had found the cause of her continuing pain. But she said over the next few days, having reflected, she realised the suggestion was not the answer. She said she knows she grinds her teeth during the latter stages of labour, but not at other times, and her husband has confirmed this. Her dentist also disagrees with Dr Navin’s suggestion.
Ms Catterick strongly denied the statement in some medical reports that she was work-averse. She said ‘I am not a stay-at-home mum. I need to work to have contact with adults. … I don’t cope with being at home and being isolated’. She agreed that her husband and her son help her with the housework but she says she feels guilty about asking them to do too much. She said she used to enjoy mowing but knows that if she mows the lawn she will end up on painkillers that night and possibly the next day as well. However, she said ‘I can’t let everyone else do everything. When you end up in that situation it starts to snowball and you get depressed and start losing motivation and you start to spiral downhill’. Ms Catterick acknowledged that in 2009 her alcohol intake had increased significantly. She said she went through a phase of not wanting to take painkillers all the time and she was using alcohol as self-medication for the pain.
Medical evidence
Dr Pahn
On Monday, 5 March 2007 when Ms Catterick first consulted her doctor about her symptoms following the incidents of 1 March 2007, Dr Pahn’s clinical records noted ‘frontal and bitemp headache’ since ‘5 days ago’. He also noted ‘stress at work’. On 8 March 2007, Ms Catterick consulted Dr Katy Lees, a practitioner at the same practice, who identified neck problems ‘lifting a heavy suitcase’ and that Ms Catterick had been suffering headaches which she reported on 5 March 2007. Dr Lees’s diagnosis followed her touching Ms Catterick on the neck which caused Ms Catterick to 'yelp'. Dr Lees recommended neck stretches. She noted that Ms Catterick was currently off anti-depressant medication.
On 12 March 2007 Dr Pahn’s notes state ‘neck and thoracic back pain and headaches for 11 days with lifting heavy suit cases during work on 1/3/07 at airport >26kg bag’. He diagnosed ongoing neck and thoracic pain associated with headaches, which he said were secondary to the injury of 1 March 2007.
In a report of 5 April 2007, Dr Pahn diagnosed neck and thoracic back pain sustained on 1 March 2007 from lifting a heavy suitcase during work. In a report to Comcare on 1 September 2007, he noted that Ms Catterick’s neck and back conditions had worsened since her attempt to recommence work on 16 August 2007. He also noted that a CT scan of the neck was reported as normal. His report said:
This neck and back pain was constant and severe. The pain caused difficulty in sleeping. The pain was worse with sitting for more than 20 minutes or standing for more than 1 hour. She was unable to vacuum at home due to worsening pain. Ironing clothes was limited to 30 minutes at a time. She was required to take regular analgesia like codopane [sic] forte.
On 2 September 2009 Dr Pahn noted ‘neck pain worse with pregn; sitting for 45 min; standing 10 min… retail job standing all day’. On 25 November 2009, Dr Pahn reported:
I believe that Mrs Catterick initially suffered from low self-esteem and depression secondary to the work related injury of 1 March 2007. Mrs Catterick stated that she felt sadness, tearfulness, poor sleep, poor appetite, lethargy, helplessness and hopelessness with her inability to perform her previous work and household duties. Mrs Catterick stated that not only was she unable to work in the public service, but she could no longer do the washing, vacuuming and ironing at home.
Mrs Catterick was seen by Dr Bennett [a psychiatrist] and Mr Tom McHugh, a psychologist, at Dr Speldewinde’s rooms in 2007/2008. She was treated with antidepressant medication, Zoloft and psychological therapies, with benefit. Mrs Catterick stated that her symptoms resolved in about 6 weeks.
In August 2009, Mrs Catterick was noted to be pregnant and Prozac was ceased due to the pregnancy. Her symptoms, previously listed, have worsened since and she has been asked to see Dr Bennett and a Psychologist through Dr Speldewinde’s rooms. … I have no reason [to believe] that Mrs Catterick is prolonging this condition for the purpose of financial or other gain.
On 24 June 2011, Dr Pahn’s report to Comcare noted:
As a consequence of the cessation of her treatment, Mrs Catterick’s symptoms have worsened and stopped her from working. Currently, Mrs Catterick states that she suffers from constant pain in the neck and between the scapula radiating down the spine. She complains of headaches and depressed mood from continual pain and insomnia. The pain also reduces her ability to perform household tasks and affects her sex life and personal relationships. She can stand or sit maximally for about 30 minutes before the pain worsens. She takes about 3 to 4 panadeine extra daily and ibuprofen every 2 days.
In oral evidence Dr Pahn said his impression in March 2007 was that Ms Catterick was complaining of a physical injury with an organic basis. He said he only prescribes Panadeine forte, as he did on that occasion, for extreme pain. Subsequently he said she suffers from a pain syndrome. He acknowledged that the clinical notes for Ms Catterick indicate that she has been suffering from abdominal pain for a number of years, but said he would hesitate before describing that as a somatoform disorder. He did note that she had been under stress for periods particularly from April 2007 until 2009 and was suffering depression during that time and for that reason he had doubled her dose of anti-depressant.
In relation to her physiotherapy he said that for her it maintains her strength and results in improved pain control and enhances the prospects of her eventual recovery. At the same time, he also accepted that if she could to an exercise program at home, that would be just as effective.
Dr Speldewinde
Dr Geoffrey Speldewinde, pain specialist, provided a report on 1 July 2008 noting Ms Catterick was on an increased dosage of Prozac, an anti-depressant, that she was experiencing stress and pain ‘which makes life difficult for her to continue coping’, and that she was to see Mr McHugh, psychologist, and to undergo manual therapy in association with exercise, and targeted joint injections. On 6 May 2009, he reported that she had undergone ‘radio frequency neurotomy’.
In a report to Comcare dated 5 February 2010 Dr Speldewinde diagnosed: ‘right C2/3 zygapophysial joint arthropathy [disease of the joints located on the back of the spine on each side where two adjacent vertebrae meet] causing cervicogenic headache; right T6/7 and T7/8 zygapophysial joint arthropathy at T7/8 and T8/9 zygapophysial joint anthropathy causing mid thoracic pain; chronic lumbar strain; and pain related depression’. He believed her prognosis within a further two to four years was good and her treatment plan should involve ‘supportive physical therapies with episodic review of a self-managed spinal fitness program and appropriate pain coping strategies’. He ceased treating Ms Catterick in September 2010 when Comcare stopped payments for physical therapies.
In oral evidence he confirmed that the zygapophysial joints had become a focus of pain, possibly due to osteoarthritis, or trauma. He also confirmed that physical therapies have a recognised role in relation to reduction in pain and assistance with ability to function and that this helped Ms Catterick, as did the cortisone injections and the neurotomy process.
Dr Lethlean
Dr Keith Lethlean, consultant neurologist, provided a report to Comcare on 22 May 2009. He said he could not offer a diagnosis. As he said of Ms Catterick:
The history suggests that a mild strain was involved, but pain has worsened, been severe and has not settled with appropriate conservative treatment. Depression appears to be a secondary feature. … Her symptoms and course suggest more than a musculoligamentous strain injury. Zygapophysial joint injury may underlie her symptoms.
He noted that ‘[i]t is possible that the cervicothoracic spine was strained handling her luggage, although this was not reported at the time of handling, and may have been overlain by headache and other considerations’. He could identify no non-work factors as causal of the condition. He acknowledged that depression was a secondary condition, and said ‘it may be adding to pain and restriction’. He did not consider she was voluntarily exaggerating her symptoms.
Although he said ‘there has not been sustained benefits from the treatments’ in relation to Ms Catterick’s injuries, he found her medical treatment was ‘reasonable/orthodox’ and he considered the ‘treatment has been appropriate to her presenting symptoms’. He noted that she had initially found relief from injections but the remainder were not helpful. She had been prescribed Norspan patches once weekly, he said for the previous six months, which had been helpful.
Dr Navin
Dr Marcus Navin, occupational physician, provided a brief report on 16 December 2009. He concluded Ms Catterick was ‘no longer affected by her original injury’; that her symptoms were due to teeth-grinding (bruxism), which were in part due to factors other than her employment; that Ms Catterick exhibited ‘abnormal pain behaviours as well as evidence of muscular de-conditioning’; and that her ‘initial non-compliance with reasonable requests is noted’; and he recommended that ‘all passive therapies … should be ceased’.
In a follow-up medico-legal report of 13 January 2010, Dr Navin stated that Ms Catterick’s symptoms were due to her anxiety and fearfulness and that with treatment for her bruxism her symptoms should ‘completely resolve’. He noted that ‘Ms Catterick’s psychological orientation’ was due to ‘her uncertain diagnostic outcome that has directed her behaviour’ due, he said, to the diagnosis which had been missed by her treating general practitioners. As he said I consider Ms Catterick ‘has not been well served by the medical system’. However, he expressed confidence in her ‘personal ambition, her self-determination and her approach to self-care’. He recorded Ms Catterick as saying there was ‘significant benefit’ from her twice-weekly physiotherapy sessions as it ‘keeps the headaches at bay’.
Dr Navin also recorded Ms Catterick saying ‘she no longer needed the Norspan patches’ and that she had learned to do things in ‘bite-size pieces’. As a consequence she was then doing ‘the majority of the housework and cooking’. She was also ‘proactive in getting the physiotherapy increased to twice per week’ she was ‘doing exercises at home’ and ‘by listening to herself and the way her body feels … all of these things are helping to improve her general sense’. She had accepted what Dr Speldewinde had said that she would never again be ‘100%’ and it was up to her ‘to get on with it’.
In a supplementary report dated 18 September 2012, Dr Navin confirmed he had found ‘no evidence of any persistent physical signs in reference to the area of her initial complaint’ but that ‘there were physical findings consistent with bruxism, as a source of her head and neck discomfort’. He concluded ‘there was no evidence that there was an on-going physical condition related to her prior muscular sprain’.
In oral evidence, Dr Navin acknowledged that even a trivial injury can produce significant pain from a central source. He did not consider Ms Catterick was in that situation. She was functioning and was not in significant pain or needing lots of medication. In his view, her perception of her pain was higher than was evident from her need for treatment. In other words, there was a strong psychosocial element to her experience. Dr Navin conceded in cross-examination that his report was prepared as an assessment of capacity to undertake rehabilitation[1] and was not focused on the liability questions at issue in the present matter. Counsel for Ms Catterick contended this was an improper use of the power in the relevant section of the Act.
[1] Safety, Rehabilitation and Safety Act 1988 (Cth) (Act) s 36.
Dr Navin also conceded he had exceeded his role under that provision in noting that he did not consider Ms Catterick was entitled to ongoing entitlement to compensation; that it was inappropriate for him to comment in his report on her ethicality, based on a report he had received concerning the fraud matter; and that there was inconsistency in his opinions that Ms Catterick was actively engaged in seeking employment, but at the same time ‘had adopted the behaviour which might be considered factitious or even formal malingering’. Finally, he also agreed in cross-examination that his observation of Ms Catterick’s ability to move freely when crossing the road after the assessment in contrast to her behaviour when being assessed may have been reasonable in the circumstances of her needing to get out of the way of a car when she was crossing the road outside his rooms.
Dr Sheehan
Dr Anthony Sheehan, consultant psychiatrist, provided a report on 25 January 2010. He recorded her history including her mentioning the credit card prosecution, having to cease medication due to her pregnancy, and her intention to return to work in July 2010 after the birth of her child in April 2010. The symptoms she described as the worst were the daily pinching sensation in her back, the difficulty she had completing the six sessions with Dr Bennett, a psychiatrist, due to her child-care responsibilities, and the number of appointments with health professionals she was required to attend. She said she relied on Prozac and her consultations with Dr Pahn for health management. Dr Sheehan records her saying ‘some days she is able to do the housework and cooking’ but not at others. She also felt guilt about her husband having to shoulder the extra domestic burden.
He noted that as at January 2010 ‘Ms Catterick did not present as suffering a diagnosable psychiatric disorder or condition’, although it was probable she had earlier suffered an adjustment disorder with depressed and anxious mood secondary to the incident on 1 March 2007. Accordingly she did not need psychiatric or psychological treatment, nor did she have an incapacity for work and could do so full-time. He did not consider she was voluntarily exaggerating her symptoms.
Dr Cairns
Dr Anthony Cairns, orthopaedic surgeon, provided a report for Comcare on 5 March 2010. He recorded that since August 2009 Ms Catterick said she had only worked part-time for about four months over the last two years. He also recorded Ms Catterick saying she required assistance with kitchen cooking activities, was unable to vacuum, and sweeping was restricted to small areas and she was unable to clean the bathroom. She did small amounts of washing and staged her ironing activities. She shopped with the assistance of her son. She has ceased gardening and was unable to mow the lawns.
His conclusion was:
Ms Catterick suffered a soft tissue, musculoligamentous strain to her cervicothoracic area from which she could be reasonably expected to have recovered within 6-8 weeks of injury. However, there is a concomitant psychogenic potentiation derived from stress-related factors which I believe are the major contributing factors to the chronicity of her disability.
He found that the condition ‘currently suffered by Ms Catterick relates to:
(a) her previous employment with Defence; (d) Other health issues, ie, stress related anxiety and depression; (g) Underlying degeneration as part of the natural ageing process ie, C3/4 intervertebral disc degeneration with bilateral mild facet joint arthropathy.
He went on ‘In my opinion, it is likely that the underlying cervical pathology was provoked and aggravated by the exertion undertaken on 1 March 2007 in the course of her employment, subsequently subject to a significant degree of psychogenic potentiation’. He concluded that her employment ‘continues to contribute to her condition in so far as the onset was provoked by the activity undertaken … on 1 March 2007’. He did not consider she had voluntarily exaggerated her symptoms. However, he noted ‘she did demonstrate a range of movement during passive observation which was not replicated during clinical examination’.
In a further report dated 4 July 2011, Dr Cairns confirmed his diagnosis and assessment from his previous report. He said her initial condition ‘has been superseded by a different condition, chronic non-specific regional pain syndrome, probably related to multiple psychosocial factors’. He believed ‘medical treatment undertaken so far has been reasonable for Ms Catterick to obtain in the circumstances’, although he noted it ‘has not been specifically focused on the nature of her ongoing complaint, namely chronic non-specific regional pain syndrome’. He considered she should be referred to a ‘dedicated spinal rehabilitation and pain management facility’ for ongoing treatment reinforced with counselling. He did not believe Ms Catterick required assistance with household activities due to her condition and that she was ‘medically fit to engage in work of a light manual nature’. His recommended restrictions were no lifting in excess of 10kg, nor prolonged sitting or standing.
In oral evidence Dr Cairns said he would have expected that Ms Catterick experienced pain close in time to the suitcase lifting incident. He also confirmed that Ms Catterick was not exaggerating her symptoms. He acknowledged in cross-examination that the experience of pain is a subtle matter and that there is an accepted postulate that the central nervous system may continue to indicate pain sensation after the organic cause of that pain has disappeared. It was not a view he shared. Nor did he accept the diagnosis of Dr Champion. In his opinion Ms Catterick’s physical injury had resolved, but her continuing experience of pain in his view was being perpetuated in some way by psychosocial factors such as depression and anxiety. He did not accept Dr Navin’s opinion about bruxism.
Mr Lyttleton, Dr Cotton
Mr John Lyttleton and Dr Peter Cotton, clinical psychologists, provided a report to DMO dated 5 August 2010 on Ms Catterick’s fitness for work. In other words, their report was not focused on liability issues. It was revealed at the hearing that they had had oral discussions with Dr Navin prior to finalising their report, as well as having access to his written report.
Their conclusions were that Ms Catterick was no longer suffering any ‘diagnosable mental health disorder’, she was fit to return to work for 25 hours a week, and that there were ‘major psychosocial (ie non clinical) factors’ for her symptoms and lack of engagement with employment. Specifically they listed these as:
·Work avoidance behaviour and desire to maintain the status quo;
·Low morale/low self-esteem;
·Exaggeration of symptom reporting;
·Anxiousness due to fear about future changes to her current situation;
·Personal stressors; and
·Reinforcement of learned illness behaviour through continuing medical total incapacity certification and pursuing further symptomatic based medical treatments.
In oral evidence Dr Cotton confirmed that psychosocial factors seemed to be significant in the case of Ms Catterick. He confirmed that in his opinion in July 2010 Ms Catterick was exhibiting work-avoidant behaviour and that at the time she had sought compensation for permanent incapacity. However, in cross-examination he acknowledged that the fact that as at July 2010 Ms Catterick had a three-month-old baby could also have been influential in her not wanting to work at the relevant time.
Dr Bertucen
Dr Jeffrey Bertucen, consultant psychiatrist, provided a report for Comcare on 4 July 2011. He recorded Ms Catterick as saying that she recalled being irritable and snappy with her family in early to mid-2007 and she had required extra help with household tasks. That was resented by her elder daughter and was one of the reasons her daughter left home in mid-2007. He also recorded her saying that she was more or less consistently depressed during 2007 and 2008 and had increased her smoking and her alcohol intake at that time. Ms Catterick had said that since 2009 with cortisone injections and her return to work her depression and pain symptoms remitted somewhat as her confidence and self-esteem increased. He said she believes her psychological symptoms have fluctuated since, depending on her pain levels and ability to work.
Dr Bertucen diagnosed chronic pain disorder, that is, 'a somatoform condition in which non-organic features ... manifest themselves as physical symptoms'. He noted that the condition is often aggravated and perpetuated by psychological symptoms. Dr Bertucen said 'I am convinced that Ms Catterick's current physical discomfort is being fuelled by non-organic factors'. He considered her prognosis was 'uncertain', but not pessimistic given the absence of prolonged psychological management of the condition. In his view, she had not experienced four years of debilitating pain related to the injury.
He considered she was not necessarily 'voluntarily exaggerating her symptoms' he said that 'in a somatoform disorder ... there is very frequently an unconscious exaggeration of somatic symptom particularly during periods of emotional stress or vulnerability'. In that context he noted she was moving more freely at the end of her interview with him as she relaxed, but at other times was quite guarded. In his opinion, the 'injury stated ... may well have been the catalyst or the pretext for the development of physical symptoms' since aggravated or perpetuated by her underlying psychological state and related stressors. He said ‘It is highly unlikely that Ms Catterick has experienced four years of debilitating pain related to [her initial injury]’ and that ‘it is highly unlikely that … employment (ie the injury of 1 March 2007) continues to contribute to her current condition’.
He considered she was psychologically capable of 'meaningful employment', and could manage part time, non-manual administration or retail work. In his view ‘psychological factors were the principal reason for her incapacity for work (depression, anxiety, impaired confidence and low self-esteem)'. He said she had already obtained 'all reasonable medical treatment' with regard to the physical management of her neck/back pain, but inadequate psychological management. She should be referred to a suitably trained clinical psychologist, in conjunction with appropriate pharmacotherapy.
In a supplementary report dated 4 September 2012, Dr Bertucen confirmed his original diagnosis, and agreed on the causation issue with the statement of Dr Cairns that ‘there is a concomitant psychogenic potentiation derived from stress-related factors which [he believes] are the major contributing factors to the chronicity of her disability’.
Dr Knox
Dr William Knox, consultant psychiatrist, provided a report for Ms Catterick dated 13 June 2012. His history noted that since October 2011, she had been employed for between 27.5 and 30 hours a week. He described Ms Catterick as having accepted her condition and that its improvement had 'plateaued’. She said she now copes with the 'relatively low grade depressed mood and irritability' she experiences with her pain. Her headache, he said, was her most severe pain. However, in his opinion she had no 'diagnosable, clinical level of mental disorder', but she probably did have an adjustment disorder with mixed anxiety and depressed mood 'in earlier times', and that 'secondary mood disorder has played some part in the perpetuation of the pain'. In his view, the events in March 2007 were consistent with the onset of a soft-tissue injury to the upper spine and, as he said at the hearing, there was still a substantial organic component of her pain condition which was not a new condition. As he said, for someone with a spinal injury, the pain which Ms Catterick said she continues to experience, namely, between the shoulder blades, at the base of the skull and headaches, was not unusual and was organically based. He believed her experience of pain was genuine and was not just psychogenic, as evidenced by her successful return to work. That supported his belief that Ms Catterick had a genuine physical injury.
In his opinion, Ms Catterick was 'a sensible and honest woman who is not exaggerating her pain', and she 'does have a truly organic condition which causes pain and disability'. Nonetheless, he said there was no 'role for further psychological or psychiatric treatment'. She 'will however, likely continue to take analgesic medication and undergo some further physiotherapy treatment' and he said 'there may be other physical treatments which could be utilised for her pain' but these were beyond his experience. In his opinion she was fit to continue her present employment but should not be involved in work requiring 'excessive physical activity'. Her impairment for work and domestic activities, in his view, was due to the consequences of her injury on 1 March 2007. Her current symptoms were a secondary consequence of these activities. He said, contrary to the opinions of Dr Bertucen, that Ms Catterick's history of work countermanded any suggestion that she had a somatoform disorder which, in his view, would lead to deeper invalidism over time. He believed that her pain was 'genuinely organic' and 'although she can be said to suffer from a pain disorder, this is not entirely, or even predominantly psychological'.
Dr McAndrew
Dr Virginia McAndrew, consultant psychiatrist, provided a report at the request of Dr Pahn on 18 August 2010. She diagnosed:
...some personality vulnerabilities to anxiety and possibly also to depression. [H]er current presentation is consistent with a reactively depressed mood in the context of her experience of pain and psychological distress at not having her story believed. It is quite likely that anxiety and depression may exacerbate or exaggerate her experience of pain.
She recommended Ms Catterick stay on Fluoxetine (or Prozac, an anti-depressant) and see someone ‘regularly for psychotherapy to help her manage her experience of pain and the distress associated with it’.
Dr Champion
Dr David Champion, rheumatologist and Conjoint Associate Professor, University of NSW, provided his first report for Ms Catterick dated 7 November 2011. He diagnosed 'an injury-induced cervicothoracic spinal pain syndrome with cervicogenic headaches, without evidence of current radiculopathy, but with disordered somatosensory test findings'. His prognosis was that her symptoms would not completely resolve, but she could become more comfortable and capable of sustained part-time work. He attributed her symptoms to the injury on 1 March 2007; expressed the opinion that 'there is a reasonable and appropriate basis for continuing the domestic assistance', subject to six‑monthly review, which would improve Ms Catterick's prospects of return to work; and noted restrictions on persistent keyboard work, repetitive use of the arms, lifting, repeated neck movements and prolonged neck flexion. He suggested that 'a comprehensive multi-disciplinary chronic pain management programme might well be of further benefit'.
He recorded that Ms Catterick's daily headache symptoms following 1 March 2007 were finally alleviated by physiotherapy by about May 2007. However, he recorded that her neck and upper thoracic back pain 'was never effectively relieved by physiotherapy or any other treatment and was associated with brief, sharp, pinching types of pain at various levels'. He noted that in 2011, her main pain is an 'intermittent pinching in her back, some upper back pain, headaches, mainly when she gets "stressed out"'. Since mid-2011 she had also experienced numbness in the little, ring and middle fingers of her right hand. He said the imaging revealed no significant pathology in her thoracolumbar spine, and that the MRI showed no abnormalities in the C1-3 region, the area which was critical to cervicogenic headaches. Nonetheless, he said initially her headaches were cervicogenic, but later her cervical and thoracic spine became more symptomatic. He noted the 'wide divide between the generally accepting assessments of the treating doctors and the sceptical views of those reporting to Comcare'.
In a supplementary report dated 9 July 2012 he referred to Ms Catterick's treatment by Mr Jamie Boulding, physiotherapist, and went on: 'One would have hoped that she would have moved from any passive therapies to more active self-directed therapies, particularly an exercise regimen'. However, he also noted 'for patients with distressing chronic pain disorders the support and encouragement of a trusted physiotherapist ... can be very valuable'.
Ms Hughes
Ms Rhiannon Hughes, physiotherapist, reported on 24 August 2010. She recorded treatment for 'long standing cervical spine complaints'. In her view Ms Catterick suffered from ‘facet joint dysfunction with some neural compromise'. She noted paraesthesia in her left hand . She reported that she had provided Ms Catterick with a home exercise program which she understood she 'has not been compliant with'. She noted also 'significant physical and muscular deconditioning'.
Mr Baulding
Mr Jamie Baulding, physiotherapist, reported on 27 June 2012, that he had been treating Ms Catterick since 14 March 2007. In his view her symptoms indicated ‘C1-3 facet joint dysfunction'. He commenced a program including a structured home exercise program. However, he said 'Unfortunately, the benefits from physiotherapy treatment were of short term duration'. So she was discharged on 28 August 2007. Ms Catterick returned to the clinic on 1 June 2009 and treatment recommenced and included a home exercise program. The program was interrupted for three months after she had appendicitis. Again she was discharged on 28 April 2010. She returned to the clinic on 19 January 2012. Treatment, including a prescribed home exercise program, recommenced and is continuing. He said Ms Catterick is 'making steady progress'. In his view, her prognosis is 'fair' 'provided she implements the self-management strategies, her exercise program and stress management strategies. Overall she has attended three initial and 93 standard consultations.
MRI and other imaging
A CT scan of her cervical spine on 14 August 2007 recorded:
Clinical notes – neck and thoracic back pain. Tingling from neck to left middle forearm for one week. There are small ossicles related to the anterior inferior comers of C4, C5 and C6. No other abnormality reported.
An MRI on 5 January 2009 of Ms Catterick’s neck and thoracic spine was largely unremarkable. The report noted:
There is a mild thoracic scoliosis convex to the right centred at the T4/5 level…Disc desiccation is present at C3/4…[At] C3/4 level a small circumferential disc bulge with bilateral mild facet joint arthropathy…No abnormality is reported in the thoracic spine.
Other evidence
Konekt rehabilitation providers were engaged in March 2007. The Initial Assessment Report dated 4 April 2007, noted that Ms Catterick’s ‘current pain symptoms are a burning and tightness on the left side of her neck which spread down to her shoulder region’.
The report noted that during 2007 Ms Catterick was undergoing massage therapy, an exercise program, was having physiotherapy, seeing a psychologist and was on medication, including use of Norspan patches once a week. From September 2008, her use of patches was discontinued during her pregnancy and after her child was born in April 2010. There were sufficient improvements for her to be certified fit for work for a period from 27 July 2007, but after the return to work for a short period with the Department of Defence in August 2007, she was again certified unfit until September 2007. She was certified fit for work from November 2007, but then commenced Christmas leave and was caught up in the Brisbane floods and did not return to Canberra until mid-January 2008.
A report in September 2009 by Konekt noted that Ms Catterick was pregnant and since July 2009 she had gone off medication, when her pain levels again increased. However, she does take Panadol and Codeine when pregnant. She was again being certified as unfit for work. In a report of 12 March 2010, Konekt chronicled its frustration at lack of cooperation from Dr Pahn who refused to permit rehabilitation personnel to attend consultations with Ms Catterick and did not respond to communications from Konekt, and a similar lack of cooperation from other health professionals treating Ms Catterick. After the certification of Dr Navin, the rehabilitation program was temporarily closed for six weeks around the birth of her son in April 2010, to be reviewed in June 2010.
On 12 March 2010, Konekt provided a DMO Closure Report, on a temporary basis for six weeks due to the birth of her child. The report referred to a Functional Capacity Evaluation conducted on 25 September 2009 which had indicated that ‘pain reports were not consistent with observed pain behaviours … which indicated possible avoidant behaviour or an insincere effort’.
Evidence based on the Incapacity determination lists and the Claims invoice items lists, although possibly incomplete, indicates that Ms Catterick was paid incapacity payments until 27 October 2011, household assistance until 30 August 2011, and that certain medical payments other than pharmaceutical payments which ceased in September 2010, including GP payments, were reimbursed until November 2011.
Mr Dean Catterick, Ms Catterick’s husband, also gave evidence to the Tribunal, confirming her evidence.
Issues
The agreed issues are:
·Whether Ms Catterick continues to suffer the effects of the ‘neck and thoracic sprain’, an ‘adjustment reaction with mixed emotional features, site unspecified’, and ‘psychogenic pain’.
·Whether, in the period since 31 August 2011, Ms Catterick has continued to require household assistance as a result of her accepted injuries.
·Whether, in the period since 12 May 2011, Ms Catterick continues to require reasonable medical treatment including physical therapies in relation to the accepted injuries.
·Whether, in the period since 9 January 2011, Ms Catterick has continued to suffer incapacity for employment due to her accepted injuries.
Legislation
The legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Relevant provisions are sections 4, 5, 5A, 5B, 14, 16, 19, and 29 of the Act.
Consideration
Following its acceptance of liability for the initial thoracic and neck sprains (organic injuries) as from 1 March 2007, Comcare progressively accepted two further and consequential conditions, namely, an adjustment reaction with mixed emotional features (from 14 September 2007), and psychogenic pain (from 23 June 2010). These two conditions were accepted as secondary to the condition of neck and thoracic sprain. On the available evidence, payment of medical expenses under section 16 of the Act for physical therapies for Ms Catterick’s organic injuries and depression ceased on 17 May 2010; and for pharmaceutical purchases from September 2010. However, payment for general practitioner (GP) consultations continued to at least 7 November 2011. This was despite the decision that such payments cease on 26 September 2011 (Claim No 2011/3719). Compensation for household assistance payable under section 29 of the Act ceased on 30 August 2011. Incapacity payments under section 29 of the Act were apparently made until at least 27 October 2011.
Whether Ms Catterick continues to suffer the effects of the neck and thoracic sprain, an adjustment reaction with mixed emotional features, site unspecified, and psychogenic pain.
Counsel for Ms Catterick claimed that Ms Catterick had an organic problem which responded to treatment, but from that condition she developed psychological conditions which were triggered or initiated by her work-related organic injury and were consequently work-related. Counsel for Comcare argued that although Ms Catterick initially suffered from an organic problem, her organic condition had been entirely supplanted by her psychological conditions, but these were due principally to unspecified psychosocial factors unrelated to her work.
Neck and thoracic sprain
The predominant medical and other evidence establishes that the soft tissue injury (the neck and thoracic sprain), which it has been accepted Ms Catterick suffered in March 2007, has resolved. According to his report on 25 November 2009, Ms Catterick said to Dr Pahn that her symptoms had resolved in about six weeks. The Tribunal accepts its accuracy given that Dr Pahn has been her general practitioner throughout the relevant period of this claim, and he chose to report her words to Comcare.
The finding that her soft tissue injury would have resolved is consistent with the views of Dr Cairns, an orthopaedic surgeon, and a person whose opinion is accepted by the Tribunal since his specialty is appropriate for this opinion. Dr Bertucen, a psychiatrist, whose medical training would have equipped him to assign an average recovery time from a musculoligamentous injury, also maintained that it was highly unlikely that Ms Catterick was still suffering from her initial injury four years later.
Against these findings, there are medical opinions that Ms Catterick is still suffering from an organic condition. Dr Speldewinde diagnosed zygapophysial joint arthropathy (joint disease), a view tentatively supported by Dr Lethlean, and possibly by the physiotherapists who referred to her injuries as facet joint dysfunction, ‘facet joint’ being an alternative description for joint disease. This arthropathic condition. however, may be age-related, rather than due to the events of 1 March 2007. Dr Knox considered she had an organic injury, as too did Dr Champion. Dr Navin said that her pain was due to bruxism, that is, physical behaviour - grinding of her teeth - by Ms Catterick leading to the pain suffered.
The Tribunal accepts on the evidence that Ms Catterick continues to suffer pain, at fluctuating levels of intensity. The source of that pain is controversial. Dr Navin’s views that bruxism was the cause was not accepted by the majority of experts, by Ms Catterick, nor she said by her dentist. The Tribunal is not satisfied of the correctness of this view.
The Tribunal is not satisfied that the organic source accepted by Dr Lethlean and Dr Speldewinde is sustainable. The imaging studies of her neck and thoracic spine were largely ‘unremarkable’. She had also undergone treatment by an experienced pain specialist, Dr Speldewinde for a number of years without sustained benefit and even Mr Baulding, her psychologist, who treated her in 2007, and recommenced treating her in June 2009, and continues to do so, said that her prognosis was only ‘fair’. These views and this lengthy and largely unsuccessful treatment history tend to discount an organic source of Ms Catterick’s pain.
Even if account is taken of Dr Champion’s view that her pain is due to disordered somatosensory nervous system, and of Dr Knox’s view that ‘medical science appreciates that there are nervous system mechanisms that perpetuate pain in the longer term once direct injury pain would usually have resolved’, in light of no demonstrable evidence of radiculopathy, their opinions provide insufficient support at present for these opinions to be accepted as providing an explanation for the source of Ms Catterick’s pain. That conclusion is reinforced by the views of those, including Dr Cairns, who maintained that her pain was psychogenic.
As to the time from when the symptoms of her musculoligamentous injury resolved, Dr Pahn reported to Comcare that Ms Catterick said this occurred in about six weeks. Dr Cairns supported this as a reasonable period after which she should have recovered. Dr Navin said on 16 December 2009 that she was ‘no longer affected by her original injury’; Dr Champion said that Ms Catterick’s headache symptoms were ‘finally alleviated … by about May 2007’, although she continued to suffer from neck and upper thoracic back pain; and Dr Bertucen said it was highly unlikely there was any continuing connection with her initial injury four years later. The results of the CT scan on 14 August 2007 and the MRI of 5 January 2009 were ‘unremarkable’. This evidence satisfies the Tribunal that Ms Catterick probably no longer suffered the effects of her a musculoligamentous injury caused by employment as early as May 2007, and on the evidence was apparently symptom-free by 2009.
Adjustment disorder
The Tribunal notes that liability for Ms Catterick’s adjustment disorder was accepted from 14 September 2007, but that the reviewable decision denied liability under section 14 of the Act for the condition as from 26 January 2010 (Claim No 2012/1845). Adjustment disorder is a recognised psychiatric illness.[2]
[2] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th edn, Text Revision, 2009) (DMS4 - TR) 679 – 683 (adjustment disorder).
Dr Sheehan's and Dr Knox’s views were that Ms Catterick no longer suffered a diagnosable psychiatric illness; Dr McAndrew did not diagnose a recognisable psychiatric disorder, referring only to Ms Catterick’s reactively depressed mood. Dr Bertucen also did not diagnose an adjustment disorder. He accepted she had depression, but noted that Ms Catterick’s psychological symptoms fluctuated depending on her pain levels and her ability to work. That is consistent with Ms Catterick’s evidence that her depression became worse after her fifth attempt to obtain work, these attempts not having resulted in work which she found satisfying. By contrast her mood had improved since she has been working at Carpet One, work which she enjoys and has sustained. The two clinical psychologists, Mr Lyttleton and Dr Cotton, also accepted that Ms Catterick had a predisposition to depression and anxiety, but that she had ‘no diagnosable mental health disorder’.
The Tribunal notes from the clinical notes that Ms Catterick has regularly been on an anti-depressant, only ceasing while pregnant and that on two occasions she has suffered from post-natal depression, the last such occasion being in 2004. She has also had a trial period without Prozac when not pregnant from 25 October 2010, but requested to go back on the anti-depressant two months later in December 2010, only ceasing in November 2011 due to her latest pregnancy. Ms Catterick was on Prozac twice daily from June 2008 until she ceased taking the medication on pregnancy in the latter part of 2009. She resumed at twice daily in June 2010, stopped taking the anti-depressant from August 2010 but resumed at once daily from December 2010.
It is clear Ms Catterick does suffer from depression and has done so for some time. There is a reference in the clinical notes of the general practice which she attends to ‘depression – Endogenous’ in 2006 indicating that she had a predisposition to depression prior to her injuries. However, the views of the psychiatrists and of the specialist clinical psychologists, which the Tribunal accepts, are that the depression from which Ms Catterick continues to suffer is not sufficient to be classified as a diagnosable mental health disorder.[3] Accordingly the Tribunal finds that Ms Catterick no longer suffers the effects of the recognisable condition of adjustment disorder with mixed emotional features which had been accepted as work-related.
[3] Comcare v Mooi [1996] 69 FCR 439 at 444.
As to the time from which she ceased to suffer from the effects of her adjustment disorder, Dr Sheehan’s opinion was based on his consultation with her on 19 January 2010; and Dr McAndrew’s report was provided in August 2010 following her interview with Ms Catterick that month. Mr Lyttleton and Dr Cotton’s report was provided on 5 August 2010, following their interview with her on 20 July 2010. Dr Knox did not see Ms Catterick until June 2012 and although he conceded in ‘earlier times’ she probably did have an adjustment disorder, at the time he saw her she was successfully working up to 30 hours a week and he found she was not suffering from a mental illness. Dr Bertucen’s report was in July 2011.
This evidence indicates that by early 2010, Ms Catterick was no longer suffering from the effects of her earlier diagnosable mental illness. Dr Sheehan’s views as to timing are supported by the views of Dr McAndrew and the two clinical psychologists who saw her early in the second half of 2010. Dr Pahn’s clinical notes for prescriptions in the period 30 November 2009 to 2 June 2010 show only one prescription for an anti-depressant (Prozac) in that period, namely, on 2 June 2010. The Tribunal has taken into account that during her pregnancy Ms Catterick ceases taking any significant medication including anti-depressant medication. However, from the birth of her son in April 2010 she no longer needed to abstain from taking medication. Despite that she did not resume taking the anti-depressant until June 2010, initially once daily, for a period from August 2010 twice daily, ceased in October 2010, but back to once daily from mid-December 2010, suggesting that her earlier, more severe condition, had not returned. Accordingly, the Tribunal is satisfied that the effects of Ms Catterick’s accepted depressive condition following her injury on 1 March 2007 had resolved by January 2010.
Psychogenic pain
That leaves for consideration Ms Catterick’s condition of psychogenic pain, accepted on 23 June 2010 as due to employment. Ms Catterick says she continues to experience pain in her neck, headaches, and in between her scapula radiating down her spine. Psychogenic pain is a pain disorder, and a recognisable psychiatric condition.[4]
[4] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th edn, Text Revision,2009) (DMS4 - TR) 498-502 (pain disorder).
Dr Sheehan's view was that Ms Catterick no longer suffered a diagnosable psychiatric illness. That conclusion would encompass a recognisable psychogenic disorder. However, his report was focused more on an adjustment disorder than on her continuing pain condition. Dr Knox’s view was that she did suffer from a pain disorder, ‘not entirely or even predominantly psychological’, and his view was that it was organically based. Whatever the cause, he did concede she had a pain disorder. Dr McAndrew did not diagnose a recognisable psychiatric disorder, referring only to Ms Catterick’s reactively depressed mood. Dr Bertucen diagnosed chronic pain disorder due to non-organic factors. Dr Cairns diagnosed chronic non-specific regional pain syndrome.
The view of the clinical psychologists, Dr Cotton and Mr Lyttleton, was that Ms Catterick’s symptoms were psychological in nature and were due to psychosocial factors. Their conclusion was that she had ‘no diagnosable mental health disorder’. Their views may have been influenced by their contact with Dr Navin, some of whose evidence was discredited in cross-examination and although the Tribunal accepts their conclusions, it gives them diminished weight.
Dr Pahn’s view was that Ms Catterick suffers from a pain syndrome; Dr Champion considered she had ‘an injury induced cervicothoracic spinal pain syndrome' but, like Dr Knox, he considered there was an organic cause. The views of the other medical specialists who considered the source of her pain is organic are not considered at this point.
In summary, the views of the medical experts are divided on whether Ms Catterick’s psychogenic pain was a mental health or some other form of pain disorder. The view of two psychiatrists (Dr Sheehan, and Dr McAndrew) and of the two psychologists, Mr Lyttleton and Dr Cotton, was that Ms Catterick had no diagnosable mental health disorder. Against that, two other psychiatrists, Dr Bertucen and Dr Knox, Dr Pahn, the treating general practitioner, Dr Champion, a pain specialist, and Dr Cairns, an orthopaedic surgeon, considered she suffers from a pain syndrome whether organically based or psychological in nature. On balance, the Tribunal accepts the views of the majority of medical experts, including the pain specialist and an orthopaedic surgeon, that she has a pain syndrome. That conclusion is consistent with Ms Catterick’s evidence and is supported by the clinical notes of Dr Pahn showing she continues to be on various pain-alleviating medications. That means the Tribunal has found that Ms Catterick continues to suffer the effects of a condition described as a psychogenic pain disorder.
The cause of that pain is, however, contested. The argument by counsel for Ms Catterick was that her initial injury on 1 March 2007 had triggered the psychological conditions from which she continues to suffer; counsel for Comcare's view was that her psychological conditions had totally superseded her initial injury and were not work-related.
In Dr Cairns view employment was a factor in the development of the condition. However, he found that there were non-work-related factors, including stress related anxiety and depression, and age-related degeneration of her spine which were the major causes of her underlying injury. He concluded that employment ‘continues to contribute to her condition’ because ‘the onset of her condition was provoked by’ the events of 1 March 2007, but her pain was being perpetuated by other unidentified psychosocial factors.
Dr Bertucen’s views largely concurred with those of Dr Cairns in relation to psychosocial factors which he identified as Ms Catterick's low self-esteem, impaired confidence, depression and anxiety. However, he also said that the initial injury ‘could have been the catalyst or the pretext for the development of physical symptoms which … have been aggravated and perpetuated by her underlying psychological state and related stressors … (particularly her relationship with her daughter …)’. Dr Knox’s views were that Ms Catterick’s condition was due to her initial injury but that ‘secondary mood disorder … played some part in the perpetuation of the pain’. He also said her ‘psychosocial stressors are mixed arising from the physical injury on the one hand, and some others unrelated to the injury’, without allocating which played the major part. Dr McAndrew, who only saw Ms Catterick on one occasion, reported that Ms Catterick had ‘personality vulnerabilities to anxiety and possibly also to depression’. Dr Champion noted that her principal pain, which he attributed to the events of 1 March 2007, arose when Ms Catterick was ‘stressed out’. That suggests Dr Champion considered stressors were a predominant reason for her pain, although he did not specify what the stressors were other than her ‘vulnerability to depression’.
Mr Lyttleton and Dr Cotton’s views were that her pain was due to psychosocial factors which they identified as work avoidance behaviour; low morale/self-esteem; exaggeration of symptom reporting; anxiousness about future changes; personal stressors; and reinforcement of learned illness behaviour. Taking account of its perception of Ms Catterick, her work history, and the views of the majority of specialists who gave evidence, the Tribunal does not accept their views as to work-avoidance behaviour, nor as to exaggeration of symptom reporting, or reinforcement of learned illness behaviour. In that regard the Tribunal accepted the sincerity of Ms Catterick’s statement to the Tribunal that she is not a ‘stay-at-home mum’, nor a malingerer and that she needs to work for her own psychological and social health. That leaves from the factors they identified low morale/self-esteem; anxiousness about future changes; and personal stressors. Predominantly these factors are not work-related. although the medical treatment Ms Catterick has received has in part been a consequence of her work-related injury, and her anxiety is to an extent due to her injuries and the continuing pain she experiences which inhibit her working full-time and lead to diminished ability to manage.
On balance the Tribunal accepts the views of the majority of medical specialist that although Ms Catterick continues to experience pain, the majority of the factors that are causal of that pain are not employment-related. Whatever the nature of her pain, whether classifiable as a recognisable mental health disorder or as some other form of pain disorder, the condition would be categorised, not as a frank injury but as a ‘disease’.[5] As such, in order for the disease to be compensable, it must be related to employment to a ‘significant degree’.[6] Finn J in Comcare v Sahu-Khan[7], a decision which was the precursor to the introduction of the 'significant' test in section 5B(3), concluded that for a contribution to be 'material' - the former statutory test - it must be ‘substantially more than material’,[8] 'of serious or substantial import'; 'significant, important, or of consequence'[9]. It is these adjectives which dictate what is a contribution ‘to a significant degree’ under the current legislation.
[5] Safety, Rehabilitation and Safety Act 1988 (Cth) (Act) ss 5A, 5B.
[6] Ibid, s 5B(1) – (3).
[7] Comcare v Sahu-Khan (2007) 156 FCR 536.
[8] Act s 5B(3).
[9] Comcare v Sahu-Khan (2007) 156 FCR 536.
The Tribunal is not satisfied, on the evidence as discussed that it was Ms Catterick’s initial injury which can any longer be said to be the material, substantial or important source of Ms Catterick’s continuing pain. The predominant view from the medical evidence is that the principal source of Ms Catterick’s continuing pain were factors apart from her initial injury. These included her personal vulnerabilities to depression and anxiety; the relationship with her daughter; and the stressful experience between 2007 and 2009 of the fraud investigation. The Tribunal accepts that view.
As to the time from which the effects of her psychogenic pain disorder diminished, the Tribunal notes the findings of two of the psychiatrists and the two psychologists that Ms Catterick was not suffering a diagnosable mental health disorder from the first half of 2010. In relation to her pain symptoms, Dr Pahn’s clinical notes assist. He considered her fit for normal duties and hours from January 2010. From February 2010, he noted her ongoing back pain but, with one or two periods of a couple of days, his notes until at least August 2011, state that her back and neck conditions are ‘stable’. Of the 15 consultations recorded during that period, four only referred to back or neck pain. He prescribed short periods of pain relieving medication in July 2010, August 2010 and November 2010, but not again until February 2011, when she had been moving house, and in August 2011 he prescribed two over-the-counter products for pain relief. He noted in July 2010, that she had had no morphine patches for 12 months, and in April 2011 that she had had no physiotherapy for 10 months. In other words, her need for pain relief for her psychogenic pain condition had reduced considerably during the relevant time.
Ms Catterick commenced work with Target in October 2010, only ceasing in February April 2011. She recommenced work with Carpet One in October 2011, and was still employed at the time of the hearing although the Tribunal assumes she has ceased work prior to the birth of her next child, due in February 2013. In combination this evidence indicates, to the satisfaction of the Tribunal, that the more debilitating effects of Ms Catterick’s continuing pain condition had diminished by early in 2010 and have not recurred except on an occasional and short-term basis. As a consequence she is no longer suffering a work-related ‘disease’ since it is either not a recognisable mental health disorder, nor if the pain can be categorised as some other psychological condition, is it related to her employment to a substantial degree.
Remaining issues
The agreed issues are based on the premise that although liability for Ms Catterick’s adjustment disorder had been ceased by Comcare from January 2010, their liability for her neck and thoracic sprain and her psychogenic pain condition continues.
Whether in the period since 31 August 2011, Ms Catterick has continued to require household assistance as a result of her accepted injuries
The Tribunal notes that household assistance or services are those ‘household services … she reasonably requires’ which arise ‘as a result of an injury to the employee’.[10] What is ‘reasonably required’ is non-exhaustively defined in section 29(2) of the Act and requires attention to:
(a) the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;
(b) the number of persons living with the employee as members of his or her household, their ages and their need for household services;
(c) the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;
(d) the extent to which the persons referred to in paragraph (b), or any other members of the employee's family, might reasonably be expected to provide household services for themselves and for the employee after the injury;
(e) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).
[10]Act s 29(1).
Ms Catterick had earlier received household services in the periods from 20 October 2008 to 5 May 2009, and between 24 May 2011 and 30 August 2011. Ms Catterick’s household from 31 August 2011 were Mr and Mrs Catterick, and her three children, one of 11 years, one who was six, and another who was one year old. Ms Catterick is expecting another child early in 2013. Mr Dean Catterick assists Ms Catterick with household matters as does her elder son. However, Mr Catterick is employed full-time and the two primary school aged children are away from home during school hours.
Ms Catterick also has been working, although not full-time and had increased her work hours to 30 hours a week for a period in 2012. Ms Catterick lives in a four-bedroom house and in her most recent request for household services on 18 July 2011 she claimed that she needed assistance with general cleaning, gardening including mowing, and ironing, all being tasks she performed herself prior to her injury. Her request was supported by Dr Pahn and Dr Champion in his report of 7 November 2011. Dr Knox in his report dated 13 June 2012, also noted that Ms Catterick restricted her ‘physical activities with household chores and care of the children due to avoiding aggravation of her pain’.
'Injury' in this context means a compensable injury and the Tribunal has found that Ms Catterick at the relevant time did not suffer the effects of her compensable back and neck sprains, nor of her adjustment disorder and that by early in 2010, Ms Catterick’s pain condition was both diminished in its effects and was principally due to non-work-related factors. Accordingly, it was not a compensable injury. That means, she did not meet that requirement of the statutory preconditions for household services.
If the Tribunal’s conclusions on this issue are incorrect, the evidence about Ms Catterick’s ability to work, and of the continuing support of her husband and increasingly of her eldest son, in the light of her diminished symptoms from her conditions, indicate that household services are no longer ‘reasonably required’.
Whether, in the period since 12 May 2011, Ms Catterick continues to require reasonable medical treatment including physical therapies in relation to the accepted injuries
It is only medical treatment 'obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain)’ which is compensable.[11] In the period under consideration, that is since May 2011, Ms Catterick was not suffering the effects of her initial injury, her adjustment disorder, and only faced with diminished effects of her psychogenic pain. In addition the information relating to pain relief from the clinical notes of Dr Pahn indicate that apart from a prescription for over-the counter pain medications in August 2011, he had prescribed no medication for her condition from May 2011. Nor was she using morphine patches. She had also not been undergoing regular physiotherapy from April 2010, and payments ceased in September 2010. The Tribunal notes that Ms Catterick recommenced regular physiotherapy which she says she finds therapeutic, from January 2012.
[11] Safety, Rehabilitation and Safety Act 1988 (Cth) s 16(1).
Dr Speldewinde, a pain specialist, considers that physical therapies have a recognised role in relation to reduction in pain and assist with functioning. Dr Knox acknowledged that her organic injury would continue to benefit from physiotherapy. Dr Champion too supported the benefits of physiotherapy, but noted in his report of 9 July 2012, that it was time for her ‘to move [from passive therapies] to more active self-directed therapies, particularly an exercise regimen’. Dr Navin noted that she should be undertaking a self-managed exercise program which would be integrated into her normal home activities. Ms Hughes, physiotherapist, noted that she had prescribed a home exercise program but understood Ms Catterick had not complied with it. Mr Baulding, also a physiotherapist said since she had recommended treatment from January 2012, he too had prescribed a home exercise program but her prognosis was only ‘fair’ provided she implements ‘self-management strategies, her exercise program and stress management strategies’.
In evidence Ms Catterick said she has, at times, done home exercises but admitted she does ‘get slack’ and that she has a long-term goal of self-management but does not see this happening in the short term, given her work and home responsibilities. Mr Catterick also noted that Ms Catterick was not doing the program while pregnant and prior to then her use of the home exercise equipment and her doing physiotherapist-prescribed exercises at home was intermittent.
The evidence indicates that Ms Catterick’s firm belief is that physical therapies assist her functioning and health, a belief supported by the pain specialists and by her general practitioner. Ms Catterick has attended over 93 formal physiotherapy sessions without sustained benefit, and the views of even pain specialists such as Dr Champion, and even more tellingly by her treating physiotherapist, Mr Baulding and Ms Hughes, are that she has a home exercise program and equipment, but for the most part, has not adopted effective self-management practices. The result is that she has not improved to the extent possible. In those circumstances, even if at the relevant time Ms Catterick was suffering from a work-related ‘injury’ (as to which see the earlier findings), the Tribunal considers it would not be reasonable for Comcare to continue paying for formal physical therapy sessions. In addition, her improvement in her general health indicates that from May 2011 it was no longer reasonable for her to obtain reimbursement for medical treatment.
Whether in the period since 9 January 2011, Ms Catterick has continued to suffer incapacity for employment due to her accepted injuries
Finally, under section 19, compensation is only payable to an employee who is incapacitated for work as a result of an 'injury'. [12] At the relevant time, Ms Catterick was only partially incapacitated for work.. She was at the time working successfully for Carpet One, work which has continued until late in her current pregnancy. In addition Ms Catterick was incapacitated predominantly by factors other than a work-related injury at the relevant time, as her accepted conditions had either resolved, diminished in effect to a manageable degree, or were not recognisable mental illnesses which could amount to an ‘injury’ for the purposes of sections 5A and 5B of the Act.
[12] Act s 19(1).
In those circumstances, the Tribunal affirms the decisions under review.
I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of PROFESSOR RM CREYKE, SENIOR MEMBER and Dr P WILKINS, MEMBER. ................................[sgd]..................................
Associate
Dated 17 January 2013
Dates of hearing 9 to 11 October 2012 Counsel for the Applicant Mr L. Grey Solicitors for the Applicant Pappas J Attorney Counsel for the Respondent Mr C. Clarke Solicitors for the Respondent Sparke Helmore
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