Kylie Catterick and Comcare

Case [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, MEMBER

Date 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 536

Secondary 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

  1. 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.

  2. 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

  3. 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

  4. 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

  5. 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

  6. 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

  7. Ms Catterick moved to Canberra in 2005. She was married to her present husband…

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AGLC
Kylie Catterick and Comcare [2013] AATA 21
Case
[2013] AATA 21
Decision Date

CaseChat Overview and Summary

The case of Kylie Catterick and Comcare involved a dispute regarding the denial of liability for medical treatment, incapacity payments, and household assistance by Comcare under sections 16, 19, and 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Ms Catterick claimed that her adjustment reaction with mixed emotional features, originating from a work-related injury on 1 March 2007, continued to affect her. Comcare, however, denied ongoing liability for treatment and other payments from 25 January 2010.

The central legal issue in the case was whether Ms Catterick's psychological conditions, specifically an adjustment reaction with mixed emotional features and psychogenic pain, were directly related to her initial work-related injury or were the result of psychosocial factors unrelated to her employment. Counsel for Ms Catterick argued that her psychological conditions were a direct consequence of the initial organic injury and thus work-related. Conversely, Comcare contended that although Ms Catterick had initially suffered from an organic condition, her subsequent psychological conditions were primarily due to unspecified psychosocial factors not connected to her employment.

The court examined the evidence regarding Ms Catterick's initial neck and thoracic sprain, finding it had resolved within a few weeks, consistent with medical opinions. The court also considered the opinions of various medical professionals regarding whether Ms Catterick continued to suffer from an organic condition. While some doctors suggested she had an ongoing organic injury, others concluded her symptoms were not due to her initial injury. Regarding her psychological conditions, the court found that while they were related to her initial injury, they were also influenced by other factors, including psychosocial issues not directly related to her employment.

In conclusion, the court ruled that Ms Catterick's claim for ongoing medical treatment, incapacity payments, and household assistance should be denied, as her psychological conditions were influenced by factors other than the initial work-related injury. The decision was based on the evidence that her organic condition had resolved and that her psychological conditions were not solely work-related. The court's ruling affirmed Comcare's decision to cease payments from specified dates.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.