Lambie and Military Rehabilitation and Compensation Commission

[2006] AATA 354

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 354

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          T2004/146  &            )  T2005/132

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JACQUELINE LAMBIE

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal The Hon C R Wright QC (Deputy President)

Date13 April 2006

PlaceHobart

Decision

In each matter the application to review is granted and in lieu of the determinations originally made in the relevant reviewable decision it  is determined and ordered:

1.     T2004/146

(a) That the applicant is entitled to compensation under s16 of the SRC Act in respect of medical treatment relating to her accepted condition of thoracic pain of unknown origin from 12 November 2001 as detailed in the reasons of the Tribunal and the matter is remitted to the respondent to determine the amount of such compensation.

(b) That the applicant is entitled to compensation under Section 19 of the SRC Act on the basis that she has been totally incapacitated for work as a result of her injury from 12 November 2001 to the present date and the matter is remitted to the respondent to determine the amount of such compensation payable pursuant to Section 19(2)-(14) of the SRC Act.

(2)      T2005/132

(a) That the respondent forthwith arrange for an assessment of the applicant’s capability of undertaking a rehabilitation program pursuant to Section 36 of the SRC Act.

(b) That the applicant is entitled to compensation under Section 16 of the SRC Act in respect of medical treatment relating to her accepted condition of thoracic pain of unknown origin from 6 January 2005 to the present time as detailed in the reasons of the Tribunal and the matter is remitted to the respondent to determine the amount of such compensation.

(c) That the applicant is not presently entitled to compensation for permanent impairment under Sections 24 or 27 of the SRC Act.

[Sgd The Hon C R Wright QC]

Deputy President

CATCHWORDS

Compensation – Commonwealth employees – cost of medical treatment – therapeutic treatment – reasonableness – treatment under supervision or at direction of medical practitioner or other approved professional health care provider – pharmaceutical costs – capacity to work – permanent impairment – remitting matter for reconsideration.

Safety, Rehabilitation and Compensation Act 1988 – ss4, 16, 19, 24 and 27

Comcare v Watson 154 ALR 173

Thiele v Commonwealth 1990 11 AAR 376

King v Comcare (1998) 53 ALD 791

REASONS FOR DECISION

13 April 2006 The Hon C R Wright QC (Deputy President)     

1.      The applicant was born on 26 February 1971 and enlisted in the Australian Army on 10 October 1989.    She achieved the rank of Corporal and served for the latter part of her military service with the Military Police. There were two incidents during her service which caused painful back symptoms.   The more significant incident appears to have been on July or August 1997 during a 48 hour military skills competition during which she claims to have injured her middle back.   She lodged a claim for compensation in respect of this injury on 11 January 2000.  She was discharged from the Army as medically unfit on 26 March 2000.    She now lives with her two children in Devonport and receives a disability support pension.

2.      After initially rejecting the applicant’s claim the Department of Veterans’ Affairs  (the DVA) accepted liability to pay compensation in respect of left sided T7 facet joint pain, determining, in accordance with the Act, that the date of the relevant injury was 2 December 1997 being the date on which the applicant first received medical treatment in respect of her back condition.

3.      Compensation was paid to the applicant for incapacity from 2000 to 2001.   Ongoing medical expenses were also paid.   In February 2001 the applicant requested acceptance of liability by the DVA for extension of her claim to include depression caused by the back condition.   This application was rejected.

4.      In August 2001 the DVA arranged for a private enquiry agency to undertake surveillance of the applicant.   After notifying the applicant of an intention to do so in October 2001, the DVA’s delegate determined to cease liability “for the applicant’s claim on 12 November 2001 with immediate effect”.    This decision was substantially based upon the view of the determining officer that the applicant was malingering.

5.      The applicant requested a reconsideration of this determination on 17 January 2002.   Further evidence was considered, but on 1 October 2002 the review officer affirmed the original decision.

6.      On 25 June 2003 the applicant sought and received the DVA’s consent to an extension of time to seek review of the DVA’s determination.   This application was lodged with the AAT in Victoria and was subsequently transferred to Tasmania becoming application No T2004/136.

7. On 6 January 2005 the applicant through her solicitors lodged a further claim with the DVA seeking provision of a rehabilitation programme, medical expenses as detailed, an extension of the applicant’s compensable condition to include chronic pain disorder, and an assessment of her entitlement in respect of permanent impairment pursuant to ss24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”).

8.      On 24 March 2005 the respondent’s delegate made a determination disallowing the applicant’s claim to a rehabilitation programme, claimed medical expenses and the chronic pain disorder (syndrome) extension as claimed.

9.      On 31 March 2005 another delegate of the respondent rejected the applicant’s claim in respect of permanent impairment.

10.     On 26 April 2005 the applicant sought a reconsideration of the determinations of 24 and 31 March 2005, but on 20 July 2005 the respondent’s review officer affirmed each of the original decisions.

11.     On 19 September 2005 the applicant made an application to the Tribunal to review the respondent’s decision (No T2005/132).

12.     Applications to Review Nos T2004/146 and T2005/132 were heard together before me at Burnie in Tasmania on 21 and 22 February 2006 and at Melbourne in Victoria on 27 and 28 February 2006.    Oral evidence was taken from the applicant.   A number of medical witnesses also provided evidence in documentary form and, in several cases, orally in person.    In other instances, the doctors were examined by counsel by telephone.   A member of the surveillance agency referred to above also provided oral evidence regarding his observations and the contents of two video tapes.

13.     There was considerable initial debate as to the admissibility of this evidence having regard to the provisions of s138 of the Evidence Act (C‘th).     I admitted the material objected to de bene esse, but a final determination as to admissibility is not now called for as counsel for the respondent, on the final day of the hearing, made a number of important concessions which had the effect of rendering the surveillance evidence otiose and significantly reducing contested issues.    The respondent’s original position has been that the applicant was no longer suffering any disabling effect from the accepted back condition, but this position was substantially modified by the concessions which, in my view, were properly made and accorded with my own tentative opinion as to the appropriate findings.

14.     On 28 February 2006 counsel for the respondent made the following concessions on behalf of the respondent (see transcript PP 245-6):

“a.       That it (the respondent) does not rely on the video surveillance notes, found at T32, or the video tapes of PCS Pty Ltd taken on 19 July 2001, 20 July 2001, 21 July 2001, 7 August 2001 and 8 August 2001;

b.        That it does not rely on any evidence having regard to the video surveillance notes and the video tapes referred to in 1 a. above;

c.        That it accepts that the Reviewable Decision dated 1 October 2002 (T45 of T2003/718)[sic] (This should be T2004/146)  be set aside.  That the Applicant has suffered a compensable work condition of thoracic pain of unknown origin on and from 12 November 2001 to date.  That this compensable work condition is a result of the injury suffered by the Applicant referred to in the determination of the Respondent dated 8 November 2000 (T22);

d.        That it accepts that the part of the Reviewable Decision with regard to the refusal by the Respondent to provide an assessment of the Applicant’s capability of undertaking a rehabilitation program be set aside.  That the Respondent, on 27 February 2006, agrees to arrange an assessment of the Applicant’s capability of undertaking a rehabilitation program pursuant to s.36 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act).”

15.     Counsel for the Applicant contends that, as a consequence of these concessions, the following issues only remain for determination in respect of Applicant T2004/146:

“a. Whether the Applicant is entitled to compensation under s.16 of the SRC Act for medical treatment relating to her accepted condition of thoracic pain of unknown origin from 12 November 2001 to date. If the Applicant is entitled to compensation for medical treatment, what medical treatment in this period was it reasonable for the Applicant to obtain in the circumstances pursuant to s.16 of the SRC Act;

b. Whether the Applicant is entitled to compensation under s.19 of the SRC Act relating to her accepted condition of thoracic pain of unknown origin from 12 November 2001 to date. If the Applicant is entitled to compensation for incapacity payments, what is the amount of compensation payable to the Applicant calculated in accordance with 2.19 of the SRC Act for each week from 12 November 2001 to date.”

Mr Richards seeks orders from the Tribunal setting aside the DVA determination of 1 October 2002 and remitting the matter back to the respondent for reconsideration under Section 43 (1)(c) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) with appropriate directions as to causation, incapacity and reasonableness of medical items claimed.

16.      As to Application No T2005/132, Mr Richards submits that the remaining issues relate to:
a) the applicant’s entitlement to the cost of medical treatment from 6 January 2005 to the present time, falling into seven separate or distinct categories pursuant to Section 16 of the SRC Act;
b) whether the applicant suffers chronic pain arising from her injury resulting in incapacity for work or impairment thus entitling the applicant to compensation pursuant to Section 16 (sic) of the SRC Act, (in context it is plain that Section 19 is the relevant section);

c) whether the applicant’s injury and its sequelae have resulted in permanent impairment entitling the applicant to compensation pursuant to Section 24 and additional compensation for non-economic loss pursuant to Section 27 of the SRC Act; if so the appropriate percentage of such impairment will require assessment under the Guide to the Assessment of Permanent Impairment (the Guide).

17.      Counsel for the respondent, Mr Dube responded to the applicant’s submissions in respect of medical costs claimed as follows:  to be recoverable by the applicant the cost of treatment undertaken must be therapeutic in relation to the relevant injury, must be prescribed by a doctor, and must be reasonable in all the circumstances.  He conceded that pain treatment, even if providing small relief of short duration, can be therapeutic, but submitted that, if any such relief was outweighed by counter productive consequences, it may not be reasonable.  These submissions had particular relevance to “cupping” which I will refer to later.  Mr Dube also submitted that the applicant’s admission to hospital for Ketamine treatment was not reasonable in the circumstances.  This issue will also be discussed shortly.  It was also submitted that the evidence failed to establish how the cost of pharmaceutical benefits claimed were prescribed and by whom, and how the items claimed related to therapeutic treatment of the applicant.  He also submitted that medication was not appropriate, and (by inference) was unreasonable where, as here, the applicant exhibited no significant pathology.  Mr Dube also queried the applicant’s claim in respect of the cost of psychological counselling and gym membership.

18. In respect of the applicant’s claim to compensation for permanent impairment under Sections 24 and 27 Mr Dube submits that the claim in application number T2005/132 should be taken as referring only to psychological sequelae of the applicant’s injury and not to the physical sequelae which had already been placed before the Tribunal for adjudication in T2004/146. I do not accept that this is so but the real thrust of Mr Dube’s argument was that the evidence fails to establish a permanent psychological condition which would entitle the applicant to an assessment based upon a combination of impairment levels assessed under Table 5.1 of the Guide (psychiatric conditions) and also under Table 9.6 (spinal conditions). This is a matter of substance because compensation under s24 and 27 is not payable where a whole person impairment level is less than 10% (Section 24(7)). Mr Dube submitted that any psychological problems experienced by the applicant were transitory and not permanent and consequently her level of impairment, taken in conjunction with any possible assessment under Table 9.6 was less than 10%.

19. Mr Dube also raised the issue of the level of the applicant’s incapacity for work and suggested that on the basis of Dr Fisher’s evidence, she has been fit for light sedentary duties for 4 hours per day since June 2002. Mr Richards, in reply, countering the argument, pointed out that the respondent had made no attempt to provide the applicant with suitable work and thus, he submitted, she should be taken to be totally incapacitated at all relevant times. Whilst this is a relevant issue is not decisive. Whether the applicant was totally incapacitated for work at all relevant times depends upon the whole of the relevant evidence and the application of Section 19(4) of the SRC Act. There was no evidence that the applicant received offers of suitable employment so it seems to me that s9(4) (e) and (f) are of particular significance.

20. I find that from 12 November 2001 to date the applicant has continued to suffer thoracic spinal back pain of unknown origin which was caused by the applicant’s accepted injury as determined on 8 November 2000. The evidence contained in the S37 (T) documents and that received in oral and documentary form at the hearing satisfies me that the applicant obtained a good deal of medical treatment which it was reasonable for her to obtain in the circumstances in respect of her compensable work condition on and after 12 November 2001 up to and including the present time. Consequently she is entitled to compensation in respect thereof under s16 of the SRC Act, both in relation to Application to Review No T2004/146 and Application to Review No T2005/132.

21.      Some of the modalities in respect of which medical expenses were incurred by the applicant were disparaged by some of the medical witnesses as “alternative” treatments (and, by implication, of no value, or of lesser value, than more conservative procedures available), or as being used excessively (and thus, unreasonably) by the applicant.  In respect of other modalities it was suggested that the treatments undertaken were inappropriate to the applicant’s condition.

22.      An initial problem in assessing these opinions has arisen from the fact that there were many conflicting opinions, even among the applicant’s own medical witnesses, as to the nature of the applicant’s condition and the cause of her persistent back pain.  On the respondent’s side, opinions were also divided.  Dr Baker, after initially diagnosing the applicant as suffering from T7 left sided neuralgia in 1997, later changed his diagnosis to T7 facet joint pain and later, after viewing the surveillance video (which, incidentally, he had been instrumental in initiating) he formed the opinion that the applicant was a malingerer.  Dr Barton (who, like Dr Baker) was called as a witness for the respondent, expressed the opinion that the applicant had an “illness belief” which was supported by inappropriate medication and that she had no physical disability when he saw her in August 2004.  Dr Barton was highly resistant to the view that medication which merely provided symptomatic relief without demonstrable curative effect was reasonable or appropriate.  At p210 of the transcript he said:

“If I was treating this patient I would be spending time with her talking about her problem, talking about perception of the pain, I would start moving her towards the concept of cognitive behaviour therapy and trying to move her away from the use of therapeutic agents.”

23.      I found the opinion of Dr Baker to be unacceptable in light both of the respondent’s formal concessions and the views expressed by pain management specialists such as Dr Henshaw and Dr Rose.  Dr Baker, although having clincial experience as a back pain practitioner at the Mersey General Hospital has no specialist qualifications.  Dr Barton’s views may be conditioned by his speciality as an occupational physician, but I find his opinion puzzling in view of the fact that the applicant told him on their first meeting in August 2004 that her back pain had improved about 20% since it first became manifest and, on their second meeting in January 2006, (significantly just before the hearing of her AAT applications) that she was “50%-60% better”.

24. Dr Barton rejected fibromyalgia (as diagnosed by Dr Rose) and complex regional pain syndrome (as diagnosed by Dr Fisher) as contentious medical entities, although he modified this view somewhat in answer to questions which I put to him at pages 211-212 of the transcript. I do not accept the opinions of Dr Barton. I think they have been too dogmatically expressed and have been coloured by his personal philosophies, but above all, they fail to recognise that treatments prescribed by a medical practitioner which do not necessarily heal or eliminate the cause of the underlying condition, may nonetheless be “reasonable”, even if only effective in diminishing chronic pain for a finite period of time. That such treatments may be regarded as “therapeutic” and thus “medical treatment” within the meaning of s4 of the SRC Act and compensable within s16 thereof was established by Comcare v Watson 154 ALR 173. It is also worth noting at this point that such “medical treatment” may also be compensable if provided by or under the supervision of (inter alia) a physiotherapist or chiropractor (S4 of the SRC Act).

25.      Dr Greenberg, who saw the applicant in January 2006 provided a report relating to the applicant’s psychiatric condition (Exhibit R2).  She did not give oral evidence and she was not cross-examined, although available for that purpose.  Dr Greenberg drew attention to the applicant’s belief, expressed on consultation, that if she was provided with a significant range of treatments which she had been receiving when SRC benefits were terminated in October 2001, or which she had pursued at her own cost thereafter, she would be cured of her pain if the treatments were to be continued over a further period of about 12 months.  This also reflected the views expressed by the applicant in the witness box.  I think it fair to say that this belief by the applicant may be ill-founded and may prove to be wrong but the improvement from the pain treatments and, more particularly, those provided by her becoming involved in Dr Henshaw’s pain clinics appears to have brought about a significant improvement in recent times.  I think it appropriate to observe that in my opinion it is likely that even greater improvement would have been achieved a long time ago if her medical treatments which were initially funded by the respondent had not been terminated in 2001.

26.      Counsel for the applicant has not asked me to assess each of the specific items of medical expense referred to in the evidence as having been provided to the applicant since November 2001, which is perhaps just as well, as no direct evidence has been given linking the accounts contained in Exhibit A1(A) with the treatment mentioned by the applicant and her treating doctors. 

27. Mr Richards’ submission is that general findings should be made as to whether or not treatment of the type provided should be regarded as compensable treatment and issues as to the quantities of individual items should then be remitted back to the respondent for calculation under Section 43(1)(c)(2) of the Administrative Appeals Tribunal Act 1975. Mr Dube has not opposed that course but has submitted (inter alia) that some of the accounts provided have no details sufficient to show that they should be properly regarded as compensable treatment eg the document at page 12 give no information as to how when and where the “pharmaceutical expenses” were incurred. This is a legitimate point but is not crucial to my making an appropriate determination in relation to pharmaceutical expenses and can be resolved, if necessary, by the applicant providing additional details to the assessment officer.

28. I shall deal separately with each category of treatment in respect of which a Section 16 application has been formulated.

29.      Cupping and Acupuncture

Cupping was a type of treatment provided initially in 1997 and later from about March 2000 onwards, by Mr Vu Van Nguyen of Devonport. Mr Van Nguyen is a practitioner in Chinese medicine and acupuncture. The cupping treatment was described as the application of heated cups containing vapour to a patient’s back. The applicant said it provided her with temporary reduction of her back pain for a period of about 24 hours. She believed that the treatments “supposedly suck the toxins out” but there was no evidence to support this, and medical practitioners, including Dr Rose, believed that “cupping” is essentially just an alternative method of applying heat to the affected area. The applicant has always found that heat, whether from cupping, an electric blanket, or hot water bottle provides relief from her pain. She says she tries to avoid taking analgesics, and, up to a point, this may tend to affect one of the objections raised by the respondent to the cost of the cupping procedures which, at times, the applicant has undertaken 3 times per week. The applicant also received acupuncture and other treatment from Mr Van Nguyen, but details of this were very sparse. There has been no suggestion that Mr Van Nguyen is a practitioner whose treatment can be considered under para (d) of the “medical treatment” in Section 4 of the SRC Act and it has not been shown that his treatments have been “under the supervision” or “at the direction” of a legally qualified medical practitioner under paras (a) or (b). On the authority of Thiele v Commonwealth (1990) 11 AAR 376 and Comcare v Watson (supra) it is my opinion that the costs of “cupping” and the other treatments provided by Mr Van Nguyen are not recoverable or payable as the cost of medical treatment under s16 of the SRC Act. However I would not be prepared to find that such treatment is, or was, inappropriate or of no therapeutic value so as to fall foul of the views expressed by Deputy President Blow and Member Davis in King v Comcare (1998) 53 ALD 791. This does not save the applicant’s claim, of course. Nor do the opinions expressed by Dr Fisher (transcript p.91, 97, 101 and 103) to the effect that cupping is “reasonable” treatment. If Dr Fisher or some other medical practitioner is prepared to not only endorse, but also direct or supervise such treatment in the future, its cost may well be payable under s16 (as to which see the views of Finn J @ 175-176 Comcare v Watson (supra)).

30.      Ketamine and Lignocaine Treatment

The applicant gave details of this treatment during her evidence and what she said is well summarised in the history which she provided to Dr Rose for his report of 25 October 2004 (Exhibit A22/Document T67 p 308):

“Ms Lambie told me that her pain had lessened since her discharge from military service.  For the last three years she had been on Neurontin, a third generation anti-epileptic medication and this had been prescribed for her by Dr John Henshaw, a pain management expert in Burnie, Tasmania.  He had also given her a series of ketamine and Lignocaine infusions.  She told me that this consisted of day long infusions every six weeks for a period of eight to nine months initially in 2001 and then had moved to 4-5 days of inpatient treatment with Ketamine and Lignocaine infusions.  Ms Lambie told me she had felt that this had helped to a better extent but she felt that this may have been due to the rest.  She told me that she had four or five of these long infusions over the past two years.  She told me that there had been a 12 month break in treatment between the last two infusions because there had been some improvement”.

The North West Private Hospital accounts contained in part 1 of Exhibit A1 (A) appear to relate to the applicant’s hospital admissions for these treatment.  Dr Henshaw who initiated these treatments for the applicant described them in these terms:

“This is basically an infusion of pain medication that is provided to a patient on a continuous basis over a period of usually between – for half a week or a week.  it is infused into the patient subcutaneously, which is under the skin, but not intravenously.  It required hospital admission because of the technical aspects and the monitoring of the patient that’s required.  Lignocaine is a local anaesthetic agent.  It’s technically known as a calcium and magnesium channel blocker and it use is for people that have long-term pain that is difficult to control in a more straightforward pharmacological manner.  It does require hospital admission.

My experience with Ms Lambie is that Lignocaine-Ketamine infusion has been useful to her from the point of view of reduction of her pain levels and increase in her activity levels”.

Dr Fisher and Dr Rose also endorsed the use of these procedures.  Dr Rose provided estimates as to cost and was questioned as to the frequency of use of the procedure during cross-examination.  He said (inter alia):

“... I would be looking at alternatives.  I would be looking at other ways of administering the Ketamine, perhaps.  I would be looking at newer drugs.  There are newer drugs now which mimic the effects of Ketamine without the risks associated with Ketamine and some of the costs but they are very expensive still.  Pain management, the drugs used in pain management are often extremely expensive.

That is just the cost of the infusion itself, not the associated costs of the hospitalisation?

---

That’s right”.

I do not regard these views as impinging adversely on the applicant’s claim. I find that Ketamine and Lignocaine treatments received by the applicant were undertaken reasonably. They were provided at the direction and under the supervision of Dr Henshaw and they have been of therapeutic value. They meet the statutory criteria provided in Section 4 and Section 16 of the SRC Act and the respondent is liable to pay the costs in respect thereof as incurred by the applicant.

31.      Chiropractic Treatment

Mr Drentlaw of the Devonport Chiropractic Clinic has provided treatment for the applicant on a more or less regular basis since December 2003. The treatment provided was described by the applicant at pages 38, 49 and 52 of the Transcript. Mr Drentlaw did not give evidence but costs have clearly been incurred by the applicant for this treatment. I infer that Mr Drentlaw is registered under the relevant State legislation and thus the treatment provided falls within “medical treatment” under s4 of the SRC Act. Neither counsel made submissions relating to the recoverability of the costs incurred for Mr Drentlaw’s services. Dr Rose in his report (Exhibit A22 at page 7/T67 @ 312) said:

“I believe that the treatment Ms Lambie has received up to this date has been reasonable and appropriate and I believe that this includes the chiropractic treatment, physiotherapy, hospitalisation for infusions and counselling to date.

... I believe that Ms Lambie has suffered from a partial and permanent impairment of her spine but using Table 9.6 of the Commonwealth Guide I believe that this amounts to approximately 5% involving minor restriction of movement of the thoracolumbar spine”.

Obviously Dr Rose’s opinion is not binding upon me but I should record that I regard him as a highly qualified expert in both the practice and theory of pain management and I accept his views as expressed above. I find that it was reasonable for the applicant to obtain such treatment in the circumstances. In my opinion chiropractic costs incurred by the applicant comply with the statutory criteria prescribed by s16 of the SRC Act and are recoverable by the applicant from the respondent.

32.      Pharmaceutical Expenses

The applicant seeks to recover the cost of antidepressants, painkillers, sleeping tablets and other medications. She described these in general terms at page 39 of the transcript. They included Neurontin/Gabapentin, Panadeine Forte, Mersyndol Forte, Tramadol, Amtriptiline, Fentanyl and Zoloft. The purpose and effect of these drugs was described by some of the doctors who gave evidence. It is unclear whether a medical prescription is required for Panadeine Forte or Mersyndol Forte and it is unclear whether either of these were medically prescribed or recommended. In respect of the other medications listed they appear to me to have been prescribed by a qualified medical practitioner. However, as I read “medical treatment” under para (h) of s4 of the SRC Act – (“nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in hospital or otherwise”) – it is not essential that a “medicine” be prescribed by a doctor to be recoverable. There is no room for application of the “ejusdem generis” principle. In my opinion the medications listed are all capable of meeting the statutory criteria provided in s4 and s16 of the SRC Act and, if the applicant establishes that such expenses as she has incurred for these items were incurred in respect of her back pain (as distinct from headache, toothache or some other ailment) they are recoverable. No doubt there will be little difficulty in establishing this in respect of all the medical practitioner prescribed medications mentioned, as it is plain to me that such medication would have been reasonable for the applicant to obtain. So far as non-prescribed medication is concerned, I consider it highly likely that it was reasonably obtained in the circumstances, having regard to the applicant’s avowed dislike of analgesic preparations.

33.      Gymnasium Membership and Swimming Pool Fees

On the principles established in Comcare v Watson (supra) this item may be recoverable.  The applicant said (transcript p41) that she used to attend a gymnasium at East Devonport which closed down in September 2003.  She used the gym for swimming in the pool and for use of the sauna.  Thereafter she started swimming regularly at the Devonport Olympic Pool (during summer) and an indoor saltwater pool in Croft Avenue.   Both Dr Fisher and Dr Rose considered this practice to be “reasonable” and Dr Fisher (transcript p100) also explained the therapeutic value of attendance at the gym if it was used as a venue for “strengthening” exercise.  Although there was some confusion on his part as to what the applicant had actually been doing at the gym, his evidence clearly endorsed the value of swimming as having therapeutic benefit in the sense discussed in Watson’s case but, unfortunately for the applicant there is no evidence that either gym or pool expenses were obtained “at the direction” or took place “under the supervision” of a medical practitioner or one of the other practitioners of a health discipline named in the “medical treatment” definition paras (a) and/or (d) of s4 of the SRC Act. These items are therefore not recoverable.

34.      Physiotherapy

According to the evidence of the applicant she had only one physiotherapy treatment recommended by Dr Henshaw. This took place while she was in hospital for Ketamine infusions (see transcript p41-42). The treatment supplier was Coastal Physiotherapy Pty Ltd. This plainly was therapeutic treatment provided by a practitioner acknowledged under s4 of the SRC Act and was, in the opinion of Dr Fisher and Dr Rose, “reasonable” for her to receive. Indeed Dr Rose seemed to suggest (transcript p179-180) that such treatment from time to time to alleviate the back condition, would be “reasonable”. This item is in my opinion recoverable under s16.

35.      Psychological Counselling

Mr John de Jong, and Ms Bernadette Smith, both psychologists, have provided written reports. Mr de Jong’s reports are dated 17 October 2003 and 26 October 2004 and are numbered as Exhibits A18 and A23 respectively. Ms Smith’s reports are dated 24 March 2004 is Exhibit A20. The applicant and Drs Rose and Fisher all acknowledge that for future purposes, including implementation of a rehabilitation plan, the applicant will only require the services of one psychologist but this does not mean that the expenses already incurred to Mr de Jong and Ms Smith are not fully recoverable. Initially the applicant required psychological assistance to deal with her depression and anxiety caused by her back pain. Later on when she entered Dr Henshaw’s pain management program she was provided with psychological counselling by Ms Smith and she continued to see Ms Smith for hypnotherapy thereafter. In considering the reasonableness or otherwise of the counselling provided by both psychologists to the present time it is necessary, I think, to recall that the applicant claims to have received great benefit from their attentions in diminishing her perception of pain and the resultant disability. This is a view which appears to be endorsed by Dr Henshaw (see transcript p127-128). She suggests that her present requirements are a counselling session with one psychologist once per week. Mr de Jong in his report of 17 October 2003 (Exhibit A18/T63 @ 296) says that the applicant was “referred” to him for treatment but he does not identify the source of the referral. Assuming the referral was “at the direction” of a medical practitioner within the meaning of s24 of the SRC Act costs incurred would be recoverable – otherwise they would not, because psychologists are not recognised as members of one of the appropriate disciplines with status to authorise or undertake such treatment “off their own bat” under Section 4. I infer that in the circumstances in which Ms Smith commenced her professional relationship with the applicant she was working at the “direction” of Dr Henshaw, but I do not think that such an inference can be extended to her private consultations with the applicant which she refers to in her report. These problems may well be overcome when the respondent undertakes the assessment process which I intend to direct, because I am of opinion that, in principle, costs incurred by the applicant for psychological counselling to date have been reasonably incurred by the applicant and have been therapeutic in nature. I am also of the opinion that such services should be continued in the future as recommended by a qualified medical practitioner to deal with depression, anxiety and stress experienced by the applicant as a result of her back condition from time to time. In view of the applicant’s progress to date it is quite possible that a regular program of periodic counselling could be directed by the treating doctor.

36.      The Claim for Incapacity

The applicant claims ongoing payments for incapacity under Section 19 and a lump sum for permanent impairment under Section 24. It is recognised that incapacity and impairment are different concepts but to a degree they overlap. I should say at once that I am satisfied that at all times relevant to both applications for review the applicant has been incapacitated for work as a result of her back injury. It is therefore appropriate to refer this issue back to the respondent to perform the necessary assessments under s19(2) of the SRC Act. The applicant’s attitude to her ability to work is perhaps encapsulated in what she claims to have said to Dr Greenberg (see transcript p57) and her other responses to cross-examination immediately thereafter @ pages 57-59:

“Yes, and you told Dr Greenberg that you wouldn’t be able to work at the present time? --- No, what I said was, to Dr Greenberg, was, “If they wanted me back at work tomorrow I couldn’t see that being possible.  However, if they gave me the rehabilitation that I need then there could be quite a big possibility that that chance will happen”

Would you agree with me that you are getting a fair bit of medical treatment as it is at the moment, aren’t you? –-- No, I don’t agree with.  I’m sorry, I don’t;  no.

So you are having the Ketamine injections? --- That’s correct

A couple of times a year? --- Yes.

Yes? --- Three ---

You are having chiropractic treatment once a week? --- Yes.

Yes? --- No, not for much longer because my private health’s just run out, so here we go, another six months I’ll be lucky to be able to afford it once a month so this is where the job zones comes.[sic]

All right, well, just for the moment, Mrs Lambie, could you just listen to my questions?  You are getting the chiropractic treatment once a week? --- Yes, I am.

Yes, and you are seeing a psychologist once a fortnight? --- Once every three weeks I think you would find out ---

Once every three weeks, okay? --- it just comes out once every three weeks just about.

And the hypnosis, are you still having that? --- Yes, I try and have that at least 12 times a year.

Right, so once a month? --- 10 to 12, yes

Yes, and you are swimming three times a week? --- That’s correct.

Right.  So you are saying, on top of – that that is not enough to rehabilitate you, there needs to be more before you can attempt to go back to work? --- Oh, yes, physical rehabilitation, like, the cupping, the massage.  I think they have all got to – you have got to use them all.  That’s the only chance I’m going to have of getting better.  You have got to put them all together and give me a go at this.

Yes.  Well, would you agree with me that, then, when they were putting them all together in 2001 your pain levels were the same then as they ---? --- They weren’t putting them all together.  I wasn’t having the Ketamine and the Lignocaine then.  All I was having was Vu.

Well, in 2002 you were having cupping, not three times a week --- ? --- That’s right.

--- but you were having that? --- Yes.

And the psychologist;  and you were on some medication;  and you were having the injections.  And at that stage your pain level was even higher;  you would agree with that:? --- What year are we talking about, 2002?

2002? --- Yes

So just to be clear, you are saying if military compensation lets you have three lots of cupping a week, massage, chiropractic, visits to a psychologist, the ongoing injections a couple – three or four times a year, paid for a gym program and swimming three times a week then you think that if you did all that then it might be possible that you would be able to return to work at some time: --- No, that’s not what I’m saying.  What I’m saying is, I want Vu once a week.  I want the massage once a fortnight.  I want the chiropractor once a week.  don’t worry about the gym because there isn’t one in Devonport unless you want to put me under a physical trainer, which, I mean, between myself and Dr Fisher we seem – we seem to be quite efficient at that between the two of us, me just doing my swimming and my walking.  And I would only need the one psychologist.

Right? --- And without this legal battle you could probably even cut that down to once every four week, once every five weeks for the psychologist”.

As already mentioned above the respondent has not offered retraining or rehabilitation to the applicant, or more accurately, did not do so until the final day of the hearing.  Dr Fisher expressed dismay that, prior to the commencement of Dr Henshaw’s regular pain clinic the applicant had been making good progress but that as a consequence of the DVA withdrawing support and rejecting liability for continuous funding of the applicants treatment “she entered a sort of crisis phase in pain and psychological reaction to pain and loss of function which caused [her] a lot of distress and we didn’t have much else to treat her with at the time”.   This crisis was somewhat ameliorated by February 2002 after the applicant commenced her Ketamine and Lignocaine infusion treatments with Dr Henshaw.

In June 2002, in his report to the applicant’s solicitors Dr Fisher expressed the view that she was “ready to perform light manual or clerical duties on a part-time basis say up to 4 hours daily initially”.  (See Exhibit A14/T41 p183).  However in the same letter he expressed his strong support for the continuation of ongoing therapies and cautioned that the injury had not yet stabilised and when, cross-examined by Mr Dube (at p94 Transcript), he emphasised that it would be necessary for the applicant to be able to take discretionary breaks.  Dr Greenberg (at p7 of her report) suggested that at the present time the applicant ought to be able to work in some capacity but that view was based on the surveillance video which has in effect been totally excluded from the evidence and as a result of her opinion on this issue is without weight. The opinion which I prefer as to the applicant’s capacity to work since November 2001 is that expressed by Dr Rose @ pp 183-4 of the transcript where he said:

“MR RICHARDS:      Finally, doctor, can you give an opinion as to what capacity the applicant would have had for work as best you can, on or around November 2001?  Say so if you can’t give an opinion? --- Again, given – if the history is consistent with the actual – with other people’s records of that, then certainly I would think that she would found it difficult to work at that time.

If she was able to work ---? --- If she was ---

--- can you give an opinion as to whether she would have had restrictions, for instance? --- I think – I think she would have had significant restrictions.  She has never – she has never denied that she is capable of doing physical activity, it is just that there is significant pain following that activity.

Again, with regard to the period January 2005, can you give an opinion as to whether the applicant would have restrictions and whether she would have had a capacity for work at that time? --- I would have predicted that 3 months or 4 months ahead of my examination of her that she would still be experiencing the same – the same difficulties and, therefore, it is reasonable.

It is reasonable being ---? --- Reasonable, that she would not be able to work”.

It is my view that the applicant has been totally incapacitated for work since the date on which the respondent terminated benefits in November 2001 and that such incapacity has continued up to the present time.  Whilst the applicant’s psychological problems have resolved to a significant extent at the moment (and her psychological outlook has plainly impacted upon her work capacity to a greater or lesser extent over the intervening 4 ½ years) she is still experiencing disabling pain.  This is likely to resolve, if not completely, at least to a level where part-time or full-time employment may be a realistic possibility if she is accorded treatment in general accordance with the Care Plan (Exhibit A24/T69 p32) prepared by Dr Fisher and sent to the respondent’s director Mr Ontong on 28 October 2004 with a covering letter.  In his covering letter Dr Fisher suggested that implementation of the care plan may see the applicant able to return to work after resolution of her problems over a period of 1-2 years.  This I think was a more realistic assessment of the applicant’s capacities than that contained in Exhibit A14.  The views expressed in this paragraph do not and are not intended to subvert the respondent’s function when I refer these matters back, of determining whether the applicant is able to earn in suitable employment in future.

The Claim for Permanent Impairment

37.  General

The applicant also seeks compensation for permanent impairment under Sections 24 and 27 of the SRC Act. There is no entitlement to such compensation if the relevant employee’s maximum impairment expressed as a percentage assessed in accordance with the Comcare Guide (the Guide) is less than 10%. The applicant claims that she has a permanent impairment in respect of her physical spinal condition under the Musculo-Skeletal System guidelines in Table 9.6 of the Guide and also in respect of her psychiatric state under the Psychiatric Conditions guidelines in Table 5.1. The Guide used for this purpose is the First Edition. This was supplanted by the Second Edition in 2005 but that Edition expressly provides in para 3, “Application of this Guide”, at page iv, that claims under Section 24, 25 and 27 of the SRC Act received before 28 February 2006 are to be determined under the provisions of the First Edition of the Guide.

Section 24(2) of the SRC Act provides:

(2)       For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a)  the duration of the impairment;

(b)  the likelihood of improvement in the employee’s condition;

(c)  whether the employee has undertaken all reasonable rehabilitative treatment for the impairment;  and

(d)  any other relevant matters”

The Principles of Assessment incorporated in the Guide (1^st Edition) @  page 3 supplement this provision with the following:

“Permanent

Permanent means “likely to continue indefinitely”.  In determining whether an impairment is permanent regard shall be had to:

.  the duration of the impairment

.  the likelihood of improvement in the employee’s condition

.  whether the employee has undertaken all reasonable rehabilitative                    treatment for the impairment;  and

.   any other relevant matters.

An impairment will generally be regarded as permanent when the recovery process has been completed, ie when the full and final effects of convalescence, the natural healing process and active (as opposed to palliative) medical treatment has been achieved”.

It is also of relevance to note the provision at page 5 relating to Combined Impairments and Double Assessment as follows:

“Combined Impairments

It is important to realise that impairment is system or function based and that a single injury or disease may give rise to multiple loss of function.  When more than one table applies to a single injury separate scores should be allocated to each functional impairment.  Where two or more injuries give rise to the same impairment a single rating only should be given.

Double Assessment

The possibility of double assessment for a single loss of function must be guarded against.  For example it would be inappropriate to assess a lower limb amputation by reference to both the amputation table (9.3) and the lower extremity table (9.2).

Where an employee suffers from more than one impairment the values are not added but are combined using the Combined Values Table.  The purpose of this table is to give the total effect of all impairments, according to a formula, as a percentage value of the employee’s whole bodily system or function (see Table 14)”.

The extent to which these principles apply in the present case was not the subject of any submission by either counsel but, fortunately the latent ambiguities in these last mentioned paragraphs do not cause any particular difficulty in this case for the following reasons.

Impairment Under Table 9.6

When giving evidence during the Tribunal hearing Dr Fisher provided the following opinion in answer to questions which I put to him:

“THE D. PRESIDENT:  Doctor, I would assume from the evidence that you have given that these various modalities that we have been talking about are seen by you as providing symptomatic relief on a more or less long-term basis.  Have you got any view, however, as to whether or not a time is likely to come when treatment of any of these kinds may be unnecessary?--- As I’ve repeated with Jackie over the years, I think she’ll get over this and I think she’ll return to completely normal function down the track.

Yes? --- As I say, I can’t be dogmatic about that and the outcome of complex regional pain syndrome is always guarded and if that’s what we’re dealing with, that is, there is an if there then, you know, I wouldn’t predict that with certainty, but having seen where she’s come from and where she’s got to it’s validated my early statements, I thought that this would resolve.

But this isn’t a short-term expectation by you, it is for a rather longer term? --- Yes, a 5-10 year time frame, I would that though, yes”.

By contrast Dr Henshaw said in his report of 12 November 2002 that the applicant had reached the stage of maximum medical improvement and that further recovery or deterioration was not anticipated.  However this report was prepared about 3 ½ years ago and, when Dr Henshaw was asked about his prognosis at the hearing, he said he would concur with Dr Fisher’s assessment of “significant improvement” in 5 to 10 years (in fact this was not a completely accurate quotation of Dr Fisher’s opinion in my view) but it clearly demonstrates that Dr Henshaw was accepting the need for a substantial shift away from his original expectations.  He also declined to endorse his assessment made on 14 June 2003 (Exhibit A17/T61 @ 292), that under Guide Table 9.6 the applicant had a 10% impairment with a loss of less than half of her normal range of movement of her thoraco-lumbar spine.  Dr Henshaw said he would need to make a further examination of the applicant.  Whilst he did not say so, I think that it was implicit from his evidence that he expected that a lower % of impairment was probable at the present time.

Dr Rose in his report  (A22/T67 p312) said:

“I believe that Ms Lambie has suffered from a partial and permanent impairment of her spine but using Table 9.6 of the Commonwealth Guide I believe that this amounts to approximately 5% involving minor restriction of movement of the thoracolumbar spine”. 

A little earlier in his report Dr Rose, whilst endorsing Dr Henshaw’s therapy regime as appropriate, suggested that “it may be worthwhile exploring the possibilities of invasive nerve blocks and the possible usage of Botulinum Toxin”.  He added “These therapies have been shown to be effective where other treatments have failed in the past”. 

Dr Henshaw, when formulating his diagnosis of the applicant’s pain condition, attributed it to an internal disc disruption at thoracic level 11, which is sometimes also known as Schmall’s Node. He was the only medical practitioner who felt able to point to a distinct pathological cause for the condition demonstrable on x-ray. He may well be right but, as his views have not been endorsed on this issue by other medical witnesses it leaves the question of the cause of the applicant’s condition very much open to debate. At best it can be said that there is an organic (as distinct from a psychological) cause for the applicant’s pain syndrome. This seems to me to provide good reason for anticipating that future treatment may well result in a resolution of the plaintiff’s impairment in the foreseeable future. At all events, so far as the permanent impairment claim is based upon the applicant’s physical spinal condition, taking account of the mandated matters under Section 24(2) and the Guide, I believe that it is not yet the appropriate time to determine that the applicant’s condition is permanent. Furthermore, if the assessment were to be made, based on current assessments it would not in my opinion be appropriate to assess the level of such impairment at more than 5%. As already pointed out, a level of impairment less than 10% is not compensable.

Impairment Under Table 5.1

When reporting on the applicant in Exhibit 18 Mr de Jong described the applicant as having symptoms of depression and anxiety and, in his more recent report of 26 October 2004, (Exhibit A23/T68) he gave his diagnostic opinion as follows:

“During much of the course of treatment, Ms Lambie would have met the diagnostic criteria for Adjustment Disorder as defined in DSM-IV.  This is premised on thebasis that she presented with a range of symptoms of stress, anxiety and depression that appeared to arise from an identifiable stressor:  the injury and subsequent chronic pain.

Prognosis

Ms Lambie has very good potential for a full recovery, and this is a function primarily of her very resilient character.  The ongoing dispute with MCRS is an inevitable obstacle to her recovery for as long as that dispute continues.  In relation to the need for psychological treatment, the likelihood is that Ms Lambie will continue to need infrequent but continuing treatment in order to maintain her gains and prevent relapse at lease for as long as the dispute remains on foot”.

Mr Foenander in his report of October 2004 (Exhibit A5./T321) (which incidentally contains a useful chronological history of the applicant’s progress), said that in his opinion the applicant had a 10% permanent impairment under the provisions of Table 5.1  However when giving evidence at the hearing he modified this assessment by lowering it to 5% and, at page 166-7 of the transcript, he conceded that “with further treatment she may improve”, although at the time he examined the applicant in October 2004 he was satisfied her condition was permanent.  Mr Foenander said that he believed the applicant was suffering from a DSMIV Chronic Pain Disorder and an Adjustment Disorder.  He was of opinion that these disorders were secondary to her thoracic pain disorder.  He was unable to say with certainty when these conditions first became manifest.

Dr Rose, who is, of course, not a psychologist or psychiatrist, expressed the view that the applicant does not suffer from a psychiatric condition.  This was also the opinion of Dr Yvonne Greenberg who is a psychiatrist. In her report (Exhibit R2) sheprovided a useful review and compendious analysis of other medical reports and psychological reports provided in relation to these applications.  Dr Greenberg provided a comprehensive diagnosis and opinion, the nub of which was as follows – the applicant did not appear or claim to be depressed, anxious, psychotic or impaired at interview and there was no evidence of a chronic adjustment disorder.

It appeared to be common ground between all examining specialists who gave evidence that whatever psychological problems the applicant experienced, such problems were secondary to her painful back condition and such psychological problems tended to improve or diminish as her back pain improved or diminished.  For the reasons previously expressed in relation to Table 9.6 impairment I am of opinion that it is not yet time to assess any psychological problems which the applicant may suffer as permanent, but in any event the weight of evidence is currently against the opinion by Dr Foenander that the applicant suffers from a diagnosable condition which is capable of supporting an assessment under Table 5.1 of the Guide and I am unable to on the whole of the evidence to accept an assessment of even at 5% permanent impairment.

Conclusion

In each matter the application to review will be granted and in lieu of the determinations originally made in the relevant reviewable decisions it will be determined:

(1)      T2004/146

(a) That the applicant is entitled to compensation under s16 of the SRC Act in respect of medical treatment relating to her accepted condition of thoracic pain of unknown origin from 12 November 2001 as detailed in the reasons of the Tribunal and the matter is remitted to the respondent to determine the amount of such compensation.

(b) That the applicant is entitled to compensation under Section 19 of the SRC Act on the basis that she has been totally incapacitated for work as a result of her injury from 12 November 2001 to the present date and the matter is remitted to the respondent to determine the amount of such compensation payable pursuant to Section 19(2)-(14) of the SRC Act.

(2)      T2005/132

(a) That the respondent forthwith arrange for an assessment of the applicant’s capability of undertaking a rehabilitation program pursuant to Section 36 of the SRC Act.

(b) That the applicant is entitled to compensation under Section 16 of the SRC Act in respect of medical treatment relating to her accepted condition of thoracic pain of unknown origin from 6 January to the present time as detailed in the reasons of the Tribunal and the matter is remitted to the respondent to determine the amount of such compensation.

(c) That the applicant is not presently entitled to compensation for permanent impairment under Sections 24 or 27 of the SRC Act.

There will be orders accordingly.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)

Signed:  R Hunt  (Administrative Assistant)

Date/s of Hearing  21/22 February (Burnie) + 27/28 February     (Melbourne) 2006  
Date of Decision  13 April 2006
Counsel for the Applicant         Mr D Richards
Solicitor for the Applicant          KCI Lawyers
Counsel for the Respondent     Mr B Dube
Solicitor for the Respondent     AGS Melbourne