Lillo and Comcare
[2007] AATA 1376
•29 May 2007
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1376
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION ) No 2004/1317
) No 2005/713
) No 2005/1034 Re Francisco Javier Lillo Applicant
And
Comcare
Respondent
DECISION
Tribunal Senior Member R Hunt & Member Dr M Thorpe Date 29 May 2007
Place Sydney
Decision The decisions under review are affirmed. …............[Sgd].................
R Hunt
Presiding Member
CATCHWORDS
WORKER'S COMPENSATION – Commonwealth employee – injury – applicant not still suffering effects of accepted injury - claimed consequential psychiatric injury – no work caused psychological or psychiatric injury – no work caused permanent impairment
Safety Rehabilitation and Compensation Act (1988), ss 14, 16, 19, 23(1), 24, 25, 27, 29
Anderson and Australian Postal Corporation (1993) 32 ALD 138
Australian Postal Corporation v Oudyn (2003) FCA 318 (10 April 2003)
REASONS FOR DECISION
introduction
1. Mr Francisco Javier Lillo, the applicant, suffered an accident in June 2003 when he was on his way to work. Before us are his three applications for review of decisions made by delegates of Comcare, the respondent. All the present claims concern the consequences of the 2003 accident. Comcare accepted liability for Mr Lillo’s physical injuries and made some payments of compensation before deciding in 2004 that the effects of the injury had ceased. Mr Lillo seeks review of this decision on the basis that he continues to suffer the effects of his 2003 accident. He claims that he remained incapacitated for work on account of the injuries sustained, that he still requires medical treatment for his injuries and that he needs household services, for the purposes of ss 16, 19 and 29 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act). He further claims that he is entitled to compensation for permanent impairment and non-economic loss pursuant to ss 24 and 27 of the SRC Act. Finally, Mr Lillo claims that he is entitled to compensation for “depression, fear [and] post-traumatic stress disorder” pursuant to ss 4(1) and 14 of the Act.
summary of findings
2. After considering the evidence and, on balance, the tribunal has decided that Mr Lillo’s injury of June 2003 had resolved by 13 April 2004, the date on and from which Comcare discontinued payments. This means that Comcare is not required to pay compensation for medical expenses and loss of earnings beyond that date. We find no present entitlement established under ss 16, 19 and 29 and affirm the reviewable decision of 6 August 2004 in this respect.
3. Secondly, we have decided that Mr Lillo has no psychiatric or psychological injury attributable to his 2003 injury and warranting compensation. We find, on balance, that Mr Lillo had developed illness behaviour or suffered chronic pain syndrome before the accident in 2003. We make this finding although noting that Mr Lillo never returned to work after his accident and his condition continues.
4. We do not accept Dr Menendez’s diagnosis of major depressive illness. We prefer the opinion of Dr Champion, in particular, as well as other medical opinions to the effect that Mr Lillo has chronic pain syndrome or is displaying illness behaviour. Our conclusions mean that we have found no secondary psychiatric injury warranting compensation.
5. Lastly, we agree with the reviewable decision denying the applicant’s entitlement to permanent impairment and non-economic loss compensation under ss 24 and 27. As set out above, we have already found that the physical effects of Mr Lillo’s injury in June 2003 have resolved. This means that none of Mr Lillo’s claims have succeeded.
issues
6. There are three sets of proceedings. The first proceeding, which is matter No 2004/1317, concerns the reviewable decision made on 6 August 2004. This decision varied a determination, on 16 April 2004, the effect of which the applicant argued, was to deny liability under s14. Comcare accepted liability from the date of injury but ceased to make any further payments on and from 13 April 2004, as determined on 16 April 2004. The applicant says there was a denial of liability on that date but we have not pursued this as the reviewable decision of 6 August 2004 varied the initial determination. In the reviewable decision, Comcare decided it had no present liability to pay further compensation as the accepted injury had resolved. The applicant claims he suffers continuing effects of the injury of 26 June 2003, giving rise to further compensation under s16 for medical expenses, s19 compensation for his incapacity to work after that date, up to the date on which he turned 65, and compensation for household services under s 29.
7. Matter No 2005/1034, concerns the reviewable decision made on 11 August 2005, which affirmed a determination of 3 May 2005. This decision denied liability pursuant to s14 for any psychological injury. The applicant says this claim is associated with the June 2003 physical injury and involves psychological or psychiatric injury consequential to the physical injury.
8. Matter No 2005/713 concerns the reviewable decision, made on 11 August 2005, affirming a determination of 3 May 2005, denying the applicant’s entitlement to permanent impairment and non-economic loss compensation under ss 24 and 27.
BACKGROUND
9. Mr Francisco Lillo was born on 14 March 1942 and turned 65 during the tribunal proceedings. On or about 17 July 1989, Mr Lillo commenced working for the Australian Taxation Office (ATO). Mr Lillo continued with the ATO until his accident in 2003. He told us he had not returned to work and was in the process of completing documentation for his voluntary redundancy in September 2006.
10. On 26 June 2003, Mr Lillo reported to his employer that he fell on the way to work and injured himself. Then, on 7 July 2003, he lodged a claim for compensation for neck pain, bilateral lumbo-sciatic pain, injury to both knees and right sided abdominal contusion. On 22 July 2003, Comcare accepted liability for:
Neck sprain, lumbar sprain, contusion of knees and lower leg (bilateral) and contusion of abdominal wall (right).
11. On 16 April 2004, Comcare notified Mr Lillo of its determination that he was no longer entitled to compensation pursuant to ss 14, 16, 19 and 29 of the Act, on and from 13 April 2004. Comcare also advised Mr Lillo that it did not accept liability for a depressive condition or sleep disorder condition and that it would not bear the cost of further counselling. On 6 August 2004, an Independent Review Officer (IRO) affirmed the determination that Comcare would pay no more compensation from 13 April 2004. The notification letter to Mr Lillo clarified that, “(T)o the extent that section 14 of the [SRC] Act 1988 permits, I determine that there is no further entitlement to compensation in respect of the injury in accordance with section 16 (medical treatment), section 19 (incapacity payments) and section 29 (household assistance) …”. With the determination, the delegate enclosed the letter of 10 March 2004, in which Comcare first notified Mr Lillo that it had decided he was no longer suffering the effects of the injuries he sustained on 26 June 2003. Medical evidence on which Comcare relied was set out in that letter.
Mr Lillo’s Evidence
12. Mr Lillo gave evidence that the accident in June 2003 happened as he was walking through the Galleries Victoria on his way to work at the ATO. As he was approaching an escalator, his right foot became caught under a carpet and he fell forward heavily onto his chest. Mr Lillo said he could not save himself because he was carrying a briefcase, a bottle of water and a plastic bag containing some fruit when he fell. He told us he received a very strong impact on the chest, the stomach, and the knee. Mr Lillo said a lady picked him up. He indicated that she had grabbed him by the collar of his shirt or jacket, dragged him away from the escalator and propped him in a seated position against a wall. When he had recovered sufficiently, he continued on his way to work and reported the fall. He said he left work early and went home before going to see Dr Carl Robalino.
13. Mr Lillo said his son drove him to the doctor. Dr Robalino prescribed a pain killer and anti-inflammatory medication. Dr Robalino gave him a certificate as well, which certified Mr Lillo as unfit for work until about 14 July 2003. The doctor also referred Mr Lillo to a specialist, Dr David Manohar. Mr Lillo recalled that Dr Manohar sent him for a bone scan around 10 July 2003. A report of the scan results is in the tribunal documents.
14. Mr Lillo said he took part in rehabilitation treatment which involved physiotherapy and hydrotherapy. He thought he went for about 46 sessions, starting three times in a week, and then two times, and he also went for hydrotherapy at the spastic centre in Lidcombe. He gave evidence about the difficulties he experienced in personal hygiene, cooking, vacuuming and other household tasks due to pain and other effects of his injury. He said it made him feel worse when he read the decision refusing further compensation payments in 2004.
15. Mr Lillo told us he had previously suffered an injury at work, on 9 December 1991. He explained he was asked to load files onto a trolley and then move the trolley from the eighth floor to the street, where there was a big truck awaiting the loading of these files. He said he injured himself when the heavy trolley became stuck as he entered a lift and he lifted it 5 or 10 centimetres to free it. He had to bend over and strain to lift the trolley. Mr Lillo said he consequently was on workers’ compensation for pain in the neck and lower back until about 1995 but returned to work on restricted duties in 1992 or 1993. He said he still had some pain when he went back to work full-time in 1995.
16. On 27 September 1997, Mr Lillo was involved in a motor vehicle accident. He said he was a passenger in a car that was stationary at an intersection when a collision occurred. He was injured again and took time off, returning to work in December 1997. He had some pain but gave evidence it was less than after the 1991 accident. He continued to perform normal full-time duties plus overtime until the injury on 26 June 2003. During this time, Mr Lillo was promoted to higher duties.
17. After resting and picking himself up from the fall in 2003, Mr Lillo walked to work although experiencing pain. He said he worked most of the day, after reporting the matter, filling out an incident report and revisiting the site of the accident with the assistant to his manager. They went together to see the building security manager. He left work around 4.00 pm, according to his recollection.
18. Mr Lillo said he felt worse in 2004 than in 2003. He gave evidence he had a strong headache every day, day and night, which started from the neck. The pain in the neck “variated” to the shoulder and the left arm and sometimes the right arm and in the thoracic spine. The thoracic pain radiated to the scapula and he had pain in the lower back, which radiated to the left with a burning sensation. He had some electrical shock feeling to the groin and he now had developed pins and needles in the right hand.
19. He further told us he could not wash his body properly. In terms of looking after himself, his personal hygiene, showering and the like, it was very difficult. He told us he had diabetes type two and could not clean or wash his feet very well. It was difficult to sit in the toilet and stand up. As Mr Lillo attended the hearing in person, we were able to observe that Mr Lillo was a very large overweight man who moved slowly and ponderously.
20. Mr Lillo also gave evidence he cannot do properly what he did before the accident. He complained of many symptoms and effects of his fall. He said he cannot drive his car although he added that he did drive a little bit and usually stopped in the petrol station to relax his body, move his legs and do some muscle movements. He said he cannot walk easily and usually uses a stick, which was provided to him by Dr Robalino. He could walk about 20 or 50 metres but, all the way, he was looking for a chair in the street to sit and relax a little bit. He shopped using a trolley. He suffered from headaches. He experienced electrical shocks in the area of his groin. He also had problems with his hands and constant pain in various parts of his body. He was able to move his neck now but more slowly than before the accident and not to the same extent and with pain. The pain in the shoulder and in the arm was constant and made him very tired.
21. All these problems meant he had trouble carrying out household tasks such as cleaning and cooking and he needed help at home. He could not deal with his clothes or wash the dishes. His daughter made him some meals, which she put in his freezer for later use. Mr Lillo gave further evidence that sometimes he walked to the shops to buy something vegetarian. He had eating problems, which he attributed to his taking painkillers, his stomach problems and the medication for his diabetes and high blood pressure. When he wanted to use the vacuum cleaner, Mr Lillo said he sat first and did a little bit in one spot, then moved to another seat and did another spot. It took him all day. He did one spot at a time over different times.
22. Mr Lillo also said someone came to his home to assess his condition. Counsel pointed out that an assessment of Joyce Verhey was part of exhibit A1. Additional material in the tribunal documents showed that Joyce Verhey carried out a number of assessments. She made a detailed report on 26 July 2003, again on 9 February 2004 and also on the 25 February 2004. These assessments made a number of recommendations in relation to Mr Lillo’s ability to complete ‘activities of daily living’ in his home environment. Recommendations included Mr Lillo’s using a long handled toe washer to wash his feet and having his beard trimmed at the barber twice per month. Ms Verhey also suggested that Mr Lillo may benefit from using a pair of long handled scissors to cut his toenails. Ms Verhey recommended assistance for Mr Lillo in the home in a number of respects including cleaning, vacuuming, mopping, washing up and other household tasks.
23. Mr Lillo gave evidence that he had trouble going up and down the stairs to his former flat at Five Dock. This was why he had moved to Fairfield, where he described the terrain as flat. He still found going up and down stairs very difficult. Mr Lillo gave evidence about his giving up former voluntary work. He added he no longer enjoyed the social life he had previously, was no longer able to swim or kick a soccer ball as he had before and it was difficult to play with his grandchildren. He said it was hard to “withdraw from the pain” as a 64 year old person.
24. Mr Lillo told us Dr Robalino had prescribed medication and Dr David Gorman, in the St George hospital, had approved of this medication. Mr Lillo became aware of stomach problems from taking the medication three or four months after the 2003 accident. For the stomach, he was taking Losec and now was taking Nexium. He recalled seeing Dr Robert Lewin, a psychiatrist, at the request of Comcare and telling Dr Lewin about the medication he was taking. He agreed, in response to a question, that he gave Dr Lewin quite a long list of medication that he was taking and said he was taking all the medication regularly. However, he clarified later that he did not mean that he was taking all the medications at the same time. Some of these medications included Tramol plus medication for diabetes and for high blood pressure. He agreed that Dr Menendez also gave him some anti-depressant medication. He recalled taking Prothiaden 75 mg, then Valium or Diazepam and Zoloft. At other times, he also took Pethidine and Stilnox.
25. At the time he put in his compensation claim for his psychiatric condition, Mr Lillo told us he felt very bad. He had been a good worker but found it difficult to continue. He gave evidence to the effect that he was suffering panic attacks because of the very strong pain. On one occasion, the pain was in his chest and he thought that he was having a heart attack. He said he has great difficulty coping with pain, he is emotionally very bad, he cries very easily and he is distressed, with depression.
26. Mr Lillo agreed he had been prescribed many medications, for varying and different reasons, but said they are of no benefit. He recalled seeing Mr Gerry Wenzel, a clinical and consulting psychologist, as well as Dr David Gorman at St George Hospital pain clinic. He agreed that Dr Gorman, a specialist in this area, had recommended that he be given the opportunity to try active pain management. Mr Lillo told us this treatment has not happened because he was unable to pay for it and the insurer was not willing to meet the costs.
Video evidence
27. The respondent showed us a surveillance video of Mr Lillo. Mr Lillo agreed it was him walking from his unit at Fairfield. We then saw him walking to the local supermarket for a distance that Mr Lillo agreed was approximately 80 metres. Mr Lillo did not have a walking stick. He walked through the supermarket aisles, selecting pieces of fruit and other groceries and carried those items in plastic bags in the crook of his left hand. Mr Lillo accepted this was correct but pointed out he was using a small bag.
28. Mr Lillo also accepted that the video was shot between 22 August and 9 September 2005 and showed him driving his car. He sometimes had a woman passenger, whom he told the tribunal was his ex-wife. He said she was not licensed to drive. He agreed that he drove to named locations. When asked if he visited one particular location, he gave evidence he sometimes “spoke to the father”. He explained that, at another location, he collected some takeaway food. He also gave evidence that one location was his daughter’s home. He said he had looked after her place when she went to Chile. He explained he was carrying a pillow because he used more than five pillows for his bed. He stayed in his daughter's unit, which was on the second floor, although it did not have a lift and he had trouble with stairs. He said he managed the stairs with difficulty, adding “what can you do?”
29. The video also recorded Mr Lillo walking from his daughter’s place to the local chemist. He agreed this was where he was going and that he walked past some benches without stopping to rest. He said this was because there was a chair inside to the chemist’s shop and the chemist always offered him a seat and a glass of water. We saw Mr Lillo leave the chemist and walk back to his daughter's unit. The video went on to show Mr Lillo engaging in various other activities. In one lengthy scene, Mr Lillo was rubbing a frothing preparation into his ex-wife’s hair while she was seated on the unit’s balcony. Another person stood by for some of the time appearing to give instructions. Mr Lillo told us the seated woman was his ex-wife and the other person was his daughter. When asked if his daughter could have done the task, he replied that she had arrived when he had almost finished. Once he had finished applying the product out of a tube, we saw Mr Lillo use both hands to rub the product more vigorously into his ex-wife's hair. This process took several minutes.
30. At another point in the video, Mr Lillo and his ex-wife lifted a large rug off the balcony rail, where it had been draped, and carried it inside. Mr Lillo also bent over for some time doing something we could not see below the level of the balcony rail. In another scene, Mr Lillo strolled down a street to a park with family members, walking unassisted and stepping up and down off the pavement at times. Having arrived in the park, Mr Lillo bent to pick up a ball and kicked it a couple of times to a child, whom he identified as his grandson. Mr Lillo’s counsel suggested Mr Lillo appeared to walk back to the unit more slowly and this was consistent with his evidence of physical limitations as it showed the activities had tired him.
31. We also saw Mr Lillo, on the way back from the chemist, standing outside his daughter's unit, checking the tyres of his car. He lifted one leg and put all the weight on the other leg to kick the tyre. He agreed he was checking the tyre pressure. Mr Lillo told us he cannot pay people to check the tyre. He also retrieved some items from the boot and returned them to the boot of the car. Mr Lillo pointed out they were small items. We could see he was able to bend fully from the waist to reach into the boot. He again checked a tyre by lifting one leg and putting all of his weight onto his other leg and kicking the tyre. Then, he drove off with a person he identified as his son, and later returned. He got out of the car showing no signs of restriction and walked back into the unit block. Later, Mr Lillo came out of the unit block, got into the car and drove off on his own.
32. In response to questions, Mr Lillo agreed that, in the park scene, his son kicked the ball to him and he was able to put all the weight onto his left leg, pivot and kick the ball with his right foot. He ran a short distance with his grandson. He walked back to the unit, which he accepted was a distance of 475 metres. He was shown walking without a stick to some other destinations as well. Mr Lillo then gave evidence that he sometimes did not use the stick because he forgot when in the car or because his grandson was with him.
Medical Evidence
33. Several doctors and specialist have examined Mr Lillo and have provided medical reports. Dr David Maxwell and Dr G David Champion have furnished reports and gave oral evidence to us in relation to Mr Lillo’s physical problems. As well, we heard concurrent evidence from Dr Robert D Lewin and Dr Jose Menendez, consultant psychiatrists, and separate evidence from Mr McCauley, a psychologist, as to Mr Lillo’s psychological or psychiatric condition. We are dependent on these experts in forming our opinion as to Mr Lillo’s health conditions and the causes of the health problems he is experiencing.
34. Doctors who examined Mr Lillo before his 2003 accident included Dr John Lawson, consultant physician, and Dr Griff Richards, rheumatologist. Dr Griff Richards reported on 19 November 1997 that he saw Mr Lillo on 17 November 1997, after the car accident, and that he had experienced predominantly soft tissue problems to the cervical, thoracic and lumbar spine region but also:
aggravating pre-existing osteoarthritis in these sites [that is, cervical, thoracic and lumbar spine region].
After dealing with those three areas, Dr Griff Richards wrote:
I also feel there is a super-imposed functional disability contributing to the chronicity of the problem.
35. In a short report of the same date, Dr Griff Richards wrote “the sooner this man returns back to work the better things will be all round”. He commented on the prolonged and protracted course of events after the 1991 injury and advised that the “psychological aspect is obviously an important factor.”
36. Dr John Lawson, in his report dated 1 June 1998, dealt with Mr Lillo’s complaints after the motor vehicle accident also. Dr Lawson set out a “summary of injuries’:
… left shoulder pain and neck pain, pain in the mid thoraco-lumbar spine and lower back. … some pain of the posterior thigh…. There was some pain at the back of the head and upper chest with seat belt bruising in these areas.
37. Under the concluding paragraph and assessment, Dr Lawson found his examination of the applicant confirmed the severity of Mr Lillo’s injuries as a consequence of the motor vehicle accident. In Dr Lawson’s opinion, Mr Lillo had sustained some permanent impairment of his neck and lower back and probable adverse affects upon the long term control and risk of complications related to the diabetes.
38. Under the opinion section, Dr Lawson wrote that Mr Lillo had symptomatic cervical and lumbar spondylosis together with degenerative changes affecting spinal joints and some accompanying intervertebral disc degeneration particularly at two lower levels of his lumbar spine. And he commented:
Progression to full recovery from the effects of the injury which occurred nine months ago seems unlikely at this relative late stage in a man of this age group. It is reasonable to conclude that he sustained some permanent effects from the injuries affecting his back and lower back.
39. Dr Arthur Wong, occupational physician, examined Mr Lillo on 16 November 2005 and found him totally unfit for work. Doctors McCauley, Maxwell and Champion also examined Mr Lillo in connection with the 2003 fall and gave evidence of their findings and opinion to the tribunal as well as providing reports. As to Mr Lillo’s psychiatric condition, we heard from Dr Lewin and Dr Menendez. We have considered the medical evidence below.
consideration
40. We have dealt with Mr Lillo’s three claims separately below. Firstly, we considered Mr Lillo’s claim of continuing physical effects from the 2003 injury. The physical condition, which Comcare accepted, was neck strain, lumbar strain, confusion of the knee and both lower legs and continuous abdominal pain. Comcare has ceased to pay compensation for this injury and Mr Lillo argues they should continue and also accept liability for permanent impairment and non-economic loss. Mr Lillo has, since the physical injury, made an application for compensation for psychiatric injury including depression, fear and post traumatic stress disorder (PTSD), which he claims are a consequence of his physical work-related injury. We have considered Mr Lillo’s various claims separately under the headings below.
Does Mr Lillo continue to suffer physical effects of the 2003 injury accepted by Comcare?
41. The reviewable decision of 6 August 2004 determined that Mr Lillo was not, as at 13 April 2004, continuing to suffer compensable effects of the injuries he sustained in June 2003. We agree with that finding and explain why below. We base our finding on the majority of medical opinions before us as well as on the video evidence. In reaching our conclusions, we have taken into account Mr Lillo’s own description of his problems and some medical opinion that supports Mr Lillo’s view that the injuries have not resolved.
42. Mr Lillo complains of constant and significant symptoms in his neck and his upper limbs, his back, his lower limbs together with constant headaches. He has given evidence that the extent of his symptoms prevents him from leading other than a very restricted and isolated life. On the other hand, surveillance of Mr Lillo was undertaken in August and September 2005, which showed him to be more active than his own evidence suggests. By way of example, Mr Lillo said he always uses a walking stick. At no stage in the video is he shown using a walking stick. Mr Lillo said his ability to walk a distance was limited to less than 50 metres and to the effect that, where a bench was available, he would sit on it to re-gather himself before moving on. The video shows him walking past park benches without stopping. His gait and ability to walk in the video shows him to walk quite normally. He said he has difficulty rising from seated positions. However, the video shows him getting in and out of a car with ease. Mr Lillo says, where possible, he doesn't drive and he would defer to someone else to drive for him. With the exception of one occasion, where his son drives, Mr Lillo drives himself. He said that he is no longer able to engage in family activities. The video shows him walking approximately 650, 675 metres to a public park where he engages in a kick around with his grandson, his son and ex wife. He then walks back the distance to his unit. Again, he has no stick and we saw no demonstration of inability to walk other than normally.
43. Mr Lillo agreed that, in the park scene, his son kicked the ball to him and he was able to put all the weight onto his left leg, pivot and kick the ball with his right foot. He ran a short distance with his grandson. He walked back to the unit, which he accepted was a distance of 475 metres. He was shown walking without a stick to some other destinations as well. Mr Lillo then gave evidence that he sometimes did not use the stick because he forgot when in the car or because his grandson was with him.
Dr David MAXWELL
44. Dr David Maxwell, orthopaedic and spinal surgeon and medico-legal consultant, provided the tribunal with four reports dated 22 January 2005, 13 February 2006, 9 May 2006 and 6 September 2006, as well as giving oral evidence. Extracts from his reports are set out below. In his report of 27 January 2005, Dr Maxwell stated:
Mr Lillo had a fall on both knees and stomach when he tripped on his way to work on 7.7.03. (sic) he subsequently appears to have become significantly disabled… He basically complains of pain ‘everywhere’. It has been said that he has ‘chronic pain syndrome’ but he doesn’t appear to be in a great deal of pain and had quite a pleasant disposition. The only time he appeared to be in pain was when the formal examination commenced. Despite this and lots of grimacing and hyperactive pain responses, he tended to smile at different times during the examination. The wide spread nature of his symptoms would suggest that he either has pathology involving almost every area of his body or the more likely explanation that there is not organic basis for his symptoms. I consider it is possible that he sustained soft tissue bruising to both knees and perhaps his stomach and abdomen in the fall. I do not consider that he sustained any more significant injuries.
45. Dr Maxwell went on to state that he could not find “any objection [sic] evidence” that would confirm that Mr Lillo had any continuing neck, back, knee and stomach conditions on 27 January 2005. Regarding the neck, Dr Maxwell stated that he did not consider Mr Lillo had “any specific neck condition”. He did not consider Mr Lillo suffered a back condition and reported that “his MRI scan is excellent for his age”. Regarding Mr Lillo’s knees, Dr Maxwell did not consider Mr Lillo suffered any bilateral knee conditions. He stated that, although it was possible that Mr Lillo may have suffered contusion and grazing to both knees, he did not consider Mr Lillo sustained any more significant injury. Dr Maxwell opined that, although Mr Lillo may have suffered soft tissue bruising to his abdominal wall, Mr Lillo was not suffering from any condition of his stomach related to the fall.
46. In his report of 13 February 2006, Dr Maxwell commented on Mr Lillo’s non-economic loss questionnaire, which was completed by Mr Lillo on 14 June 2004. Regarding this questionnaire, Dr Maxwell stated:
In general terms I consider the responses [of Mr Lillo] are exaggerated. I do not consider that he has suffered an injury which would affect his life expectancy.
47. In his report of 9 May 2006, Dr Maxwell reviewed his report of 27 January 2005 and responded to the report of Dr Arthur Wong which we have referred to earlier. Dr Maxwell set out:
Dr Wong essentially agreed with me that any effects of the incident which occurred on 26/6/2003 would have resolved in a period of 8-12 weeks. He states that he has chronic pain which is a description of a symptom and does not refer to any specific pathology. He makes no explanation as to where the chronic pain is in fact coming from. He makes no explanation as to why somebody suffering chronic pain would suffer less chronic pain at home than at work.
48. Dr Maxwell concluded:
[S]omebody who is suffering chronic pain with no organic cause would be far better off having their mind occupied by some form of activity. Therefore work would be therapeutic.
49. On 6 September 2006, Dr Maxwell wrote that he had watched a video of Mr Lillo taken from 22 August 2005 to 9 September 2005. He noted that he had seen Mr Lillo on 27 January 2005. Dr Maxwell described the various activities he observed Mr Lillo undertaking. He noted that Mr Lillo displayed no signs of restriction of any joints. He concluded that the video surveillance report confirmed his opinion that the injuries would have settled down in four to six weeks.
50. Dr Maxwell, when giving further evidence orally before the tribunal, expressed the view that that the video showed a man with no disability. Dr Maxwell, having seen the video, said it simply confirmed his original opinion that Mr Lillo suffered soft tissue bruising to his knees, perhaps his stomach and abdomen and the effects of that should have settled within four to six weeks.
Associate Professor Dr David G CHAMPION
51. Dr G David Champion, Conjoint Associate Professor, University of NSW, and writing from St Vincent’s Clinic, saw Mr Lillo in 1994 and 1995 and provided reports after those consultations. Dr Champion provided further reports dated 16 July 2004 and 21 November 2005 and gave oral evidence before us.
52. Dr Champion saw Mr Lillo, on several occasions for medico-legal referral and assessment. His report and assessment in February 1994 was similar to that of January 1995 and similar again in July 2004. In his report of 24 February 1994, when setting out diagnosis and assessment, Dr Champion said:
It is apparent that at least to some extent the minor structural abnormalities identified by the MR scans of cervical and lumbar spine notably features of internal disc disruption and degeneration were probably mainly constitutionally determined and may well have been largely pre-existed.
53. Dr Champion observed that Mr Lillo had developed chronic pain disorder in 1994, saying:
The most provocative event leading to the majority of Mr Lillo's disorder was the lifting strain on 9 December 1991. So far as I was able to determine, that was the sole principal factor in a complex chronic pain syndrome, which is essentially a left neuropathic cervico-brachial disorder but with wide pain radiation, including the left scapula area, inter scalene region and the left pectoral region.
54. About his 16 July 1994 report, Dr Champion gave oral evidence that he did not have access to the MRI scan dated 21 January 1992 when he made his comments. He added he would have been very interested in an MRI and asked what it examined. When told it involved the lumbar spine and the cervical spine in 1992, Dr Champion explained that while he would have been interested to see it, ideally, one shouldn't put too much weight on the actual underlying pathology. It was not that which determined whether there was pain or disability.
55. On 13 January 1995, Dr Champion wrote:
He has experienced pain in much the same manner as previously described, with distribution principally in the inter-scapular region, left side of the neck, left super-scapular region, left upper arm, also low back and down both legs as well as the headaches.]
56. In the report of January 1995, Dr Champion again referred to the chronic pain disorder. Then in 2004, he wrote:
His chronic pain syndrome post injury is a mix of underlying pathology, quite severe post-injury neuro-biological changes with deep secondary allodynia reflecting prominent central sensitisation of nociceptor and important psychological factors.
57. Dr Champion recalled in his report of 16 July 2004 that he had seen Mr Lillo in 1994/5 but that these records were not available to him. He had part of a copy of a letter he wrote in June 1995 and a copy of February 1995 medical certificate that Mr Lillo provided to him. Dr Champion agreed, under questioning, that the complaints Mr Lillo made to him in July 2004 included those same complaints but they extended beyond what Mr Lillo had mentioned at earlier visits. Dr Champion gave evidence he did not have access to CT scans of the cervical and lumbar spine from October 1997 but did have access to the report of the scan of January 1992. The doctor did not agree that he was entirely dependent on the truth of what Mr Lillo told him when making his assessments. Dr Champion said:
… reasonable and ethical minds will accept what the patient says provided it is consistent with the observations on examination and observations of other medical personnel and provided it all makes sense and provided there is no evidence to the contrary and that is the position that I have maintained to the present in this man's case.
58. In his 16 July 2004 report, Dr Champion further wrote, at page 7, after referring to Dr McCauley's report and what Dr McCauley considered prominent illness behaviour:
I believe this behaviour is influenced by genuine and relatively severe chronic widespread pain disorders, cultural and psychological factors and no doubt by conditioned responses associated with the caring behaviour of his family…
59. In his report of 21 November 2005, Dr Champion assessed Mr Lillo, saying:
Did the accident of 26/6/2003 aggravate the 1991 injury? The work-related regional pain disorders from 1991 involved his neck, left shoulder, upper arm, left posterolateral thorax, low back and legs. By June 1995 my examination showed signs referable to a chronic regional pain syndrome involving neck, posterior, thorax, left shoulder girdle, left posterolateral thorax and left upper arm, also low back and both legs. These are the principal regions of ongoing chronic pain so that even though he was able to work effectively from 1998 to 26/6/03, it would seem a valid interpretation that in each of these regions the severity and chronicity of the regional pain disorders had been significantly pre-disposed to by the work-related disorders which began in 1991. Recently his headache seems to have been a worsening development. Considering the statement on aggravation in the Comcare Guides firstly I consider that the aggravation is permanent. The disorders includingn the impairment since 26/6/03 and attributable to the accident of that date, do not represent the natural progression of those 1991 disorders. Whereas the permanent impairment total assessments as recorded on p8 of my report of 16/7/2004 remain valid on reappraisal I consider, for each item 30% should be deleted because of the pre-existent conditions. Applying the combined Values table to 7% + 7% + 7% + 7% gives a final rating of 26% whole person impairment. (no emphasis added).
60. Dr Champion expressed the opinion that Mr Lillo had prominent neurobiological indicators of chronic pain. He continued:
He was vulnerable because of previous injuries, particularly in his cervical and lumbar spine but had made some, according to his history and the supportive indication that he was working full time and doing other things, so he was vulnerable because of the previous injuries, especially to his cervical and lumbar spine, with chronic pain at those sites even though they had currently subsided to a large extent, and then the injury of 2003 … may have added to the pathology. No one can tell for certain about that. Certainly increased the chronic pain syndrome through the process as now understood of chronic pain, central sensitisation of no susception and what is now known about other mechanisms of chronic pain such as glial activation, it is an assumption through the prominent deep secondary allodynia characteristics and because what is known about chronic pain and as is very common, behavioural and psychological responses undoubtedly would have worsened the situation.
61. Dr Champion maintained his opinion that the 2003 incident had contributed to Mr Lillo’s physical problems to the extent that he had assessed in his 2004 report. He told us he would have expected Mr Lillo to have some continuing spinal related pains and left upper limb pains right through the period from 1997 to 2003 but that, on the information he was given that Mr Lillo returned effectively to full‑time work for several years, during this period, this was a very different clinical picture from the post June 2003 picture.
62. He gave evidence that the common misunderstanding of chronic pain disorders was that it is a kind of persistence of an acute pain disorder but it is not. It is a very different condition involving “neuro-biological mechanisms and not just soft tissue injuries”. Dr Champion thought Mr Lillo had “very impressive sounding mechanical stress to his cervical and lumbar spine and also he had a huge psychic shock at the time which absolutely compounds the consequences of an accident. So what he has subsequently experienced is in line with my expectations”….
63. Dr Champion explained:
The assessment of pain requires consideration of pathology, the neurobiology so far as we are able to assess that, and the psychosocial associations or implications and one has to put all those three together. It's not a matter of you can't tell whether somebody hurts because they have got a disc protrusion or not.
Dr David McCAULEY
64. Dr David McCauley, a specialist in musculoskeletal medicine and rheumatology, examined Mr Lillo on 20 January 2004, at the request of Comcare. He produced a report of the same date. Dr McCauley recorded the history of incidents in 1991, 1997 and 2003. Before dealing with Mr Lillo’s state in January 2004, Dr McCauley dealt with his circumstances from June 2003 until January 2004. This involved the limitations that Mr Lillo described in his activities of daily living. Dr McCauley told us he had put no interpretation on the description at this stage and it was a recording of what Mr Lillo actually said. On page 4, Dr McCauley set out details of his physical examination. On a number of occasions, he described "voluntary restrictions". He explained in evidence that he meant, particularly when coming to the lower limb, that getting Mr Lillo to move his legs, even with assistance there was a restriction, a fighting back of the attempt to move them, even though they were assisted movements. Dr McCauley said this was quite dramatic at that time.
65. Dr McCauley thought Mr Lillo may have jarred his neck. He regarded those injuries as at January 2004 had resolved. He noted Mr Lillo’s presentation was one of chronic illness behaviour, which he described as having no organic basis. He considered Mr Lillo was ensconced in chronic incapacity mode. He explained orally that, when one saw voluntary restriction of movement fighting against attempted movements, or a discrepancy between what is observed when talking to the person and what is found on examination, one always looked at going beyond the physical illness to something else. Whether it was called “chronic illness behaviour, functional overlay, non-organic”, these were words used in the same respect. He noted that Mr Lillo had a fall, as documented, and there was no question about that, he underwent excellent therapy over a period of seven months, and he regarded the injury as resolved. His opinion and diagnosis was that of:
Minor muscular ligamentous injuries to the knees and chest.
66. Dr McCauley pointed out that, when you look at natural resolution of injuries it is very important to add an age factor as older people require a lot longer in the way of treatment than what would be conventionally regarded for a 25 year old. He had noted Mr Lillo's age at the time he examined him as 61. Taking that into account, the time frame for resolution of those minor musculo-ligamentous injuries, the doctor considered would be a maximum of six months. He mentioned that there were no broken bones and no other major issue that he could identify at the time, given the fact that the injury was entirely genuine, but Mr Lillo was also treated for that period of time. From a physical capacity Dr McCauley felt that he was fit to resume his pre-injury duties.
67. Dr McCauley added that he had the opportunity of reviewing the reports of people who had been involved in either Mr Lillo's care or as independent medicals going back to his original injury in 1991. Among these, Dr McCauley noted that Dr Griff Richards, a rheumatologist, in his report of November 1997 says:
There is an aggravated pre-existing osteo-arthritis in the site cervical, thoracic and lumbar spine.
and he also says:
I also feel there is a super-imposed functional disability contributing to the chronicity of the problem.
68. Dr McCauley also noted that Dr Lawson wasn't very confident that Mr Lillo would improve after the accident in 1997. He thought Dr Lawson’s description of Mr Lillo’s injuries in 1997 was similar to the injuries that he had reported in the incident of June 2003. Dr McCauley compared his own examination results with those of Dr Lawson in the 1998 report.
69. When asked to consider his findings in light of Mr Lillo’s evidence over the last two days that his overall condition had deteriorated, that he was functionally worse now than in June 2003, and looking at a copy of the most recent non economic loss questionnaire and statement from Mr Lillo, Dr McCauley agreed with the suggestion that the pattern of deterioration Mr Lillo described did not fit with his own conclusions. He said the completed questionnaire certainly described a person with quite severe disability.
70. Dr McCauley told us he had looked at the video which was shown to the tribunal. He said he viewed it twice, “last night and again at 6 o'clock this morning”. It still was his opinion that the person depicted in that video was not significantly incapacitated or suffering a significant disability. Dr McCauley stated:
I would have to say there has been a dramatic improvement, which I was very pleased with, because I believe that is part of the resolution of injury. So certainly in that 18 months Mr Lillo was moving quite freely. He was reaching up in a supermarket, pushing a trolley, driving a car. He was even able to take a young child out for two hours in that period of time.
71. Under cross-examination, Dr McCauley agreed that people who have chronic pain syndrome may be quite disabled. He further agreed there would have to be some sort of event that kicked off the pain process but added that often the event may be extremely minor. He conceded that Dr Champion had found the incident in June 2003 could have caused chronic pain syndrome and that he could not say that it didn't. However, when asked to turn his mind to the legal standard of the balance of probabilities and whether it was more probable than not that there was that connection, Dr McCauley replied:
One would have to say there was a documented injury, … in the absence of everything else one would have to say on the balance of probabilities that's when everything started.
72. Dr McCauley observed that the injuries Mr Lillo reported to Dr Lawson after the 1997 car accident were fairly similar to the injuries that Mr Lillo reported also in the incident of June 2003. Dr McCauley pointed out that he had seen Mr Lillo only once and that was in 2004. In reference to his finding in 2004 that Mr Lillo’s presentation was one of chronic illness behaviour with no organic basis, and comparing this to possible chronic pain syndrome, Dr McCauley said chronic illness syndrome was not the terminology he would have used in 2004. Dr McCauley said he certainly couldn't match Mr Lillo’s actions in the video to the description Mr Lillo gave in the non economic loss questionnaire he completed in August 2006. However, overall, Dr McCauley said: “I stick by my report”.
Our findings
73. Despite Mr Lillo’s coping with his employment until June 2003 and then ceasing, we are satisfied that Mr Lillo’s physical injuries experienced in June 2003 had resolved by 16 April 2004, the date when Comcare decided not to make any further payments. Although liability for the workplace injury is admitted, Mr Lillo must, nevertheless, demonstrate a need for continuing treatment of the injury and a nexus to continuing economic loss before he is entitled to continuing compensation for these matters.
74. The respondent decided that as at 13 April 2004 it had no present liability. On balance, we agree with that decision and find that Mr Lillo’s physical injury had resolved on or before that date. This means that Comcare, although having accepted liability for the injury, was entitled to decline to make any further payments for medical expenses and economic loss as at 13 April 2004.
75. Orthopaedic opinions that the injury had resolved are confirmed by the video evidence which shows little sign of restriction of any joint. In essence, Dr Maxwell, having seen the video, told us it simply confirms his original opinion that Mr Lillo suffered soft tissue bruising to his knees, perhaps his stomach and abdomen and that the effects of that should have settled within four to six weeks. Dr McCauley also’ when giving oral evidence, stuck to his opinion formed in 2004 that there was no organic basis for Mr Lillo’s complaints and that he was displaying illness behaviour.
76. It was put to us by Mr Lillo’s counsel that we should place more weight on Dr Champion’s evidence as he had seen Mr Lillo over the years and might even be considered a treating doctor. In this respect, although Dr Champion saw Mr Lillo over the years since his 1991 injury, his consultations resulted in a medico-legal report on each occasion rather than treatment. While we accept that Mr Lillo’s history of consultations with Dr Champion gave Dr Champion some added insight, there were long intervals when Dr Champion did not see Mr Lillo, particularly between 1995 and 2004.
77. Further, we note there is some conflict in Dr Champion’s evidence. When he saw Mr Lillo in 2004, Dr Champion considered Mr Lillo’s condition was the result of new injuries in 2003 and not a progression of old injuries. Nevertheless, when coming to assessment of the degree of impairment, Dr Champion made some allowance for the circumstances that Mr Lillo’s body had already suffered damage before 2003.
78. We note that Dr Champion thought Mr Lillo had musculo-skeletal problems and not just a soft tissue injury but he still found the main source of Mr Lillo’s ongoing difficulties were attributable to chronic pain syndrome rather than a physical condition. Dr Champion, in his report dated 26 July 2004, went through the history of the matter. While the report specifically deals with the permanent impairment claim, it gives a broad overview and comes to the question of whether there is an aggravation of a pre-existing condition or whether these are new injuries or whether they are simply the progression of the injuries.
79. In his report dated 21 November 2005, Dr Champion expresses the view that Mr Lillo’s condition then was not a natural progression of the early injuries, but new injuries. Dr Champion does not regard those as aggravations of existing injuries, but still makes an allowance for the fact that those parts of the applicant's body had already been compromised to some extent. He reduced his earlier assessments by 30 per cent to take into account the pre-existing conditions.
80. Despite Dr Champion’s reference to a mix of underlying pathology, other doctors who have examined Mr Lillo do not supply a musculo-skeletal medical explanation as to Mr Lillo’s ongoing widespread complaints of disability and disorder. On balance, we consider the opinion of Dr Maxwel, that he may have suffered soft tissue injury as a result of the fall with bruising to both knees, perhaps his stomach and abdomen, is the preferable diagnosis. This opinion is more reconcilable with what Dr McCauley says when he sees the applicant in January 2004, that is, Mr Lillo exhibits chronic illness behaviour. He writes:
Radiologically the extensive investigation shows that some evidence of degenerative changes. There is no evidence that these abnormalities are the cause of his clinical signs. I am of the opinion Mr Lillo suffered minor muscular ligament injuries to his knees and chest. In June 2003, he may have jarred his neck. I regard those injuries having been resolved. His presentation is now one of chronic illness behaviour with no organic basis to his complaints. He is now quite happily ensconced in the chronic incapacity mode.
81. A similar opinion is expressed by Dr Hall earlier, in November 2003. His summary and assessment is that:
Mr Lillo presents in a contradictory picture. On one hand there was evidence of gross pain behaviour contrasted with his smiling and relaxed manner for much of the interview. Consistent with this is his history of his absence from work on workers compensation with back pain. He does not appear overtly depressed although I note he is having regular counselling. On the other hand there are minor abnormalities on his extensive imaging, which have been pointed out to him by Dr Manohar. That his symptoms may not be serious is supported by his aversion to both injection and surgery.
Dr Hall says, on page 92:
While there is no physical evidence of a condition which would preclude Mr Lillo's return to formal duties, in view of his pain behaviour and his previous injury and other factors, I am not confident that he will return to work.
82. On the other hand, Dr Manohar in his medico-legal report of 28 January 2004 finds Mr Lillo has multiple intervertebral disc lesions and radicular pains which were rendered symptomatic during the fall. But the difficulty with Dr Manohar's opinion is that the applicant did not give him a full history of his previous injuries. Dr Manohar has not referred to the 1992 MRI scan or the 1997 CAT scan.
83. It is the view of Dr McCauley and of Dr Maxwell as well as of Dr Hall in November 2003 that any aggravation or physical injury suffered by the applicant in June 2003 should have passed well before Comcare discontinued compensation payments. Dr McCauley added an age factor but still considered recovery would be a maximum of six months. Dr Wong and Dr Maxwell thought any effects of the incident which occurred on 26/6/2003 would have resolved in a period of 8-12 weeks. Dr Maxwell thought this would be by November 2003. Dr Hall says within six months.
84. On balance, we conclude from the medical opinions that Mr Lillo’s condition has no musculo-skeletal or physical cause to explain his condition as at 13 April 2004 and at the date of our review. We prefer the opinions of Dr Maxwell and McCauley that Mr Lillo’s condition is explained as chronic pain syndrome or illness behaviour. We further have taken into account our observations of Mr Lillo on the video tape and the opinions of doctors who saw Mr Lillo after the 2003 incident and expected his injuries to resolve with a few weeks or months. For these reasons, we affirm the reviewable decision that Mr Lillo has no presently valid claims for compensation under ss 16, 19 and 29.
Does Mr Lillo have a work-caused psychological or psychiatric injury?
85. Mr Lillo lodged his claim for psychiatric injury in March 2005, claiming depression, fear, post traumatic stress disorder as a result of the fall and physical injury experienced on 26 June 2003. Mr Lillo gave evidence that his condition deteriorated significantly in the time since June 2003 and that, ever since June 2003, he has been significantly disabled. He complained of constant pain and said he led an isolated existence because of the injuries. The tribunal documents show that Mr Lillo visited more than one psychologist, attending for treatment on several occasions, as well as seeing his psychiatrist, Dr Jose Menendez.
Mr Gerry WENZEL
86. Mr Gerry Wenzel, clinical and consulting psychologist, furnished a report to Mr Lillo’s solicitor on 18 March 2005. Mr Wenzel saw Mr Lillo on 15 March 2005 and referred to the reports of Dr Carlos Camacho dated 1 April 2004 and 21 November 2003 as well as that of Associate Professor David Champion of 16 July 2004. Mr Wenzel, at page 6, recommended treatment for his pain related depression as an adjunct to his psychiatric treatment.
Concurrent medical evidence and reports of clinical psychiatrists
87. Dr Robert D Lewin and Dr Jose Menendez, clinical psychiatrists, both furnished reports and gave concurrent evidence responding to each other’s views orally. Several of the medical opinions before us describe Mr Lillo as suffering from chronic pain syndrome. Both Dr Lewin and Dr Menendez were in agreement that chronic pain syndrome is not recognised as a psychiatric condition in the American manual, the DSM-IV. And both Dr Menendez and Dr Lewin agreed that pain is a symptom and not a syndrome. The respondent seized on this to argue there was little succour for the applicant’s claiming a psychological condition, being chronic pain syndrome. Nevertheless, we note that the tribunal found in 1993 that somatoform pain disorder is a recognised psychiatric disease where an applicant feels pain with no or little organic cause to be found. See Anderson & Australian Postal Corporation (1993) and the annotated SRC Act commentary of J O Ballard and P Sutherland, seventh edition, para 4.96. The more important question, from our perspective, is whether Mr Lillo’s psychological or psychiatric problems were caused by or exacerbated by the fall in June 2003.
88. We have first examined the evidence about what afflicts Mr Lillo before deciding whether he has a claim related to the cause. Within the realm of the psychological injury, Dr Menendez is of the view that the applicant has a major depressive disorder and Dr Lewin disagrees with that. Dr Lewin says the applicant displays depressive symptoms but he does not have any psychological condition arising as a consequence of the incident on 26 June 2003. Dr Menendez did not hold the opinion that Mr Lillo was experiencing post traumatic stress disorder. Dr Menendez said in his evidence that the condition that the applicant had was major clinical depression. He added:
So I can only say that I treat Mr Lillo for a major depressive syndrome and panic attacks … secondary to the pain he has suffered from the accident on the way to work over three years ago.
Dr Robert D LEWIN’s reports
89. Dr Lewin provided written reports dated 22 September 2005, 16 February 2006 and 2 March 2006, as well as oral evidence. On 22 September 2005, Dr Lewin stated his opinion towards the end of the report of that date:
In my opinion, there is no psychiatric impairment attributable to [the] incident [of june 2003]. His condition was clearly established in a well recognised pattern for a decade before that episode.
90. Dr Lewin also provided comment on Mr Lillo’s fitness for work. In this regard, he said:
I consider Mr Lillo’s response to the effects of 1995 and 1997. Once Mr Lillo returned to work, he was able to manage, despite fears about pain and his perception of overwhelming distress. In my opinion, Mr Lillo’s best interest would be served by energetically supporting him in regard to return to work. It is my opinion that his psychiatric symptoms [of anxiety and depression] would not prevent him from undertaking his pre-injury duties. Other factors which are unrelated to his psychiatric condition stand in his way. Predominantly, Mr Lillo has a perception that he is suffering from a catastrophic illness. There is no medical evidence for that position. When his psychiatric condition is considered on its own, I consider that Mr Lillo is fit for full pre-injury duties without restriction.
91. In his report of 16 February 2006, Dr Lewin confirmed his opinion contained in his report of 22 September 2005. Dr Lewin gave evidence that he saw Mr Lillo for the purpose of assessment roughly 12 months ago on a single occasion. Before meeting Mr Lillo, he was given a number of materials which he considered. They were mainly reports relating to the physical symptoms. Many of those reports he found a little contradictory in that there was no broad agreement as to physical diagnosis. The area that seemed to be clear, in Dr Lewin’s estimation, when all those documents were considered, was that there was a pattern of persistent symptoms in the absence of a clearly defined physical condition sufficient to explain all of the physical symptoms. Dr Lewin wrote of Dr Menendez’s opinion:
The opinions expressed by Dr Menendez do not cause me to change the conclusions which I expressed in my original report. I remain of the opinion that there is no psychiatric condition (and no psychiatric impairment) resulting from the workplace situation.
92. In his report of 2 March 2006, Dr Lewin referred to the opinion of Dr Jose Menendez set out in the report of 21 November 2005. Dr Lewin dealt with their difference of opinion saying that he did not agree with Dr Menendez’s opinion that Mr Lillo was clearly suffering from major depressive disorder and that in this respect, their opinions were clearly different.
93. Dr Lewin continues, saying, at the bottom of page 8 of his report:
Mr Lillo first reported pain symptoms following an accident in the workplace in 1991. The same pattern of widespread symptoms which are said to be becoming worse and worse with the passage of time has existed since that time. He reports no remission of these symptoms since 1991. Mr Lillo has experienced a range of anxiety and depressive symptoms in response to pain symptoms at various times since 1991. He has had various periods of psychological treatment and treatment with other modalities such as physical treatment. He told me that none of those treatments has made any difference.
94. Later, Dr Lewin says:
There is a long term pattern impairment of impairment in the absence of significant psychiatric pathology. This pattern of symptoms and distress pre-dates the incident in June 2003 by more than a decade. It is my opinion that Mr Lillo is likely to have reported similar pain, anxiety and depressive symptoms, whether that incident on 26 June 2003 had occurred or not.
95. In dealing with the prognosis, Dr Lewin says:
The best predictor of future behaviour is past behaviour. In this sense it is likely that Mr Lillo's report of emotional distress and persistent symptoms of pain, anxiety and depression will continue.
96. As to the incident of 26 June 2003, Dr Lewin finds no relationship, saying:
In my opinion there is no psychiatric impairment attributable to that accident in that his condition was clearly established in a well recognised pattern for a decade prior to that episode.
97. In his report of 16 February 2006, Dr Lewin confirmed his opinion contained in his report of 22 September 2005. Dr Lewin gave evidence that he saw Mr Lillo for the purpose of assessment roughly 12 months ago on a single occasion. Before meeting Mr Lillo, he was given a number of materials which he considered. They were mainly reports relating to the physical symptoms. Many of those reports he found a little contradictory in that there was no broad agreement as to physical diagnosis. The area that seemed to be clear, in Dr Lewin’s estimation, when all those documents were considered, was that there was a pattern of persistent symptoms in the absence of a clearly defined physical condition sufficient to explain all of the physical symptoms. Dr Lewin wrote of Dr Menendez’s opinion:
The opinions expressed by Dr Menendez do not cause me to change the conclusions which I expressed in my original report. I remain of the opinion that there is no psychiatric condition (and no psychiatric impairment) resulting from the workplace situation.
Dr Jose MENENDEZ
98. In his report of 21 November 2005, Dr Menendez set out, in part:
After witnessing his struggle with his pain on 13 occasions already I can only conclude that the pain is very real and that the associated physical and psychiatric suffering are also very real. Any suggestion from anybody that there is a “non-organic” basis for the pain, and that it is all an exaggeration (or something similar) on his part can only be catalogued as bizarre, embarrassing, and offensive to Mr Lillo. (p2)
99. Dr Menendez discussed the source of Mr Lillo’s problems:
It is my opinion that the psychiatric problems experienced by Mr Lillo are a direct consequence of the injuries suffered at work, and the subsequent chronic pain and physical disability. (p4)
100. Dr Menendez made his diagnosis as:
My diagnosis is Major Depressive Disorder, on a background of chronic pain. Mr Lillo is at present on optimum medication and his condition is reasonably stable. As such it can be considered as being permanent.
Evidence at the hearing
101. At the tribunal hearing, Dr Menendez told us he had seen Mr Lillo on 18 occasions since January 2004 up until the previous week. All these consultations were conducted at his private practice. Each of these consultations lasted for at least an hour, if not longer, on some occasions. Mr Lillo always came by himself, there was never anybody else present during those consultations and Dr Menendez conducted them in Spanish, which was their mother tongue. Throughout the course of these months, Dr Menendez said he received numerous reports and letters from other practitioners and professionals who had seen mr lillo but nothing had convinced him that his diagnosis of major depression was wrong.
102. In dealing with the depressive condition that Dr Menendez records, Dr Lewin’s oral evidence was that he had a similar initial impression. However, Dr Lewin told us his conclusion after examination was that Mr Lillo’s suffering did not equate to the pattern of morbid depression he saw in many other patients. Dr Lewin said he saw a similarity between the clinical presentation Mr Lillo described in 1991, in 1997 and in the period since June 2003. That pattern was a similar manifestation of distress and Dr Lewin thought that was the key observation in this case. He did not think Mr Lillo's problems originated in 2003 discretely as a result of the fall. There had been a long term problem that was poorly understood and did not fit the usual mental description of major depression any more than it fitted the usual clinical depression description of a slipped disc.
103. Dr Menendez, nevertheless, held to his opinion and diagnosis. He pointed out that he had seen Mr Lillo for a great many consultations and that he always presented as a very ill man. Even taking the video presentation into account, Dr Menendez explained that Mr Lillo’s problems could be attributed to Mr Lillo’s perception of his physical condition as a result of his depressive illness. He told us that, having heard all this, he maintained his diagnosis of major depressive syndrome. Dr Menendez still believed that the psychiatric problems Mr Lillo has experienced were as a direct consequence of the injuries suffered at work and subsequent chronic pain and physical disability. He had observed Mr Lillo’s difficulty with stairs, his dependence on a stick and other features which suggested physical problems and pain. He said further:
Any suggestion from anyone that there is a non-organic basis for the pain and that there is an exaggeration or similar on his behalf can only be categorised as bizarre, embarrassing or offensive to Mr Lillo. That is what I am saying and that is my opinion.
104. When asked to reconcile physical signs he had observed and Mr Lillo’s claim that he was incapable of walking more than 20 to 50 metres with the demonstration on the video tape of him walking 675 metres, Dr Menendez said “the explanation for that is that it is a matter of perception”. He further explained there was a difference of perception in what Mr Lillo believes his pain allows him or doesn't allow him to do.
105. Dr Lewin responded that a person cannot “become worse and worse and worse over many years without some objective evidence of discrete illness”. There was no doubt Mr Lillo has been distressed and, based upon his own accounts, Dr Lewin said it was clear that he has been similarly distressed since 1991.
106. He observed that Mr Lillo moved rapidly from that state of being sad to a different emotional state. Dr Lewin noted reactivity of mood, saying that was an objective observation. Dr Lewin suggested this observation was consistent with Mr Lillo’s actions. Dr Lewin thought there had been a long-term problem that had been poorly understood but which did not fit the usual medical description of major depression. When Dr Menendez suggested that Mr Lillo would have done his best to present well to Dr Lewin and to smile and react appropriately, because he was a gentleman who would have respected him, Dr Lewin explained that he had looked for the clinical signs: the retardation, the reactivity and other matters and those signs weren't there.
107. Dr Menendez pointed out he saw Mr Lillo on many different occasions and had seen previous medical reports about his condition, including Dr Lewin's reports and recent letters. However, he noted that all those reports and letters were from people who had seen Mr Lillo from January 2004 onwards. Dr Menendez had never been provided with anything written by anybody before 2004 so all he knew about the accidents of 1991 and 1997 was what Mr Lillo told him. Mr Menendez said he believed Mr Lillo may have been seen by other psychologists on some occasions after the 1991 accident but he had never seen any report of those consultations. He understood Mr Lillo eventually returned to work on both occasions. Dr Menendez said he had never heard any mention of post traumatic stress disorder in connection with Mr Lillo before the hearing.
108. Dr Menendez said he was used to certain behaviours being portrayed in front of him. He thought it offensive to try to make a case that Mr Lillo was putting on a show in front of him so many times in consultations of one hour each time. Dr Menendez was convinced Mr Lillo had genuine pain related behaviours. First of all his rooms were on first floor. There was a staircase of about 20 steps which took Mr Lillo a reasonable amount of time to get up. He did it aided by his walking stick and never asisted by anybody. He then remained seated in the chair in front of Dr Menendez for long periods of time. He had to stand up, walk around the room and then sit again and was unable to remain in the same position for more than a few minutes. His behaviour was so consistent and similar again and again that Dr Menendez believed his account was true. Dr Menendez said “I feel that because of the accident and the subsequent pain he has developed a depressive disorder which is of a major depressive syndrome. He has shown and experienced a depressed mood ...., which is a lack of interest in usual pleasurable activities, one of which used to be going to work because he enjoyed his work, a chance for a salary and an income for him and his family…”
109. After hearing about the video evidence, Dr Menendez did not change his opinion. He gave evidence to the effect that, when he heard Mr Lillo was able to walk from his car to a bit of a kick out with the kids and come back to his car, he wondered how he was left after that. Dr Menendez believed Mr Lillo was making an effort to do that for himself, for his family, for his grandchildren and had no problem with hearing all that and maintaining the diagnosis of depression, secondary to pain, secondary to the accident.
Our findings
110. We agree with Dr Lewin that the earlier reports of other doctors, including Drs Richards and Lawson, indicate Mr Lillo was displaying chronic pain syndrome or illness behaviour before the 2003 accident. We prefer Dr Lewin’s opinion to that of Dr Menendez. Dr Lewin holds that Mr Lillo has no psychiatric condition resulting from the workplace situation. We accept that Dr Menendez has been treating Mr Lillo for some length of time and holds a genuine opinion but we cannot reconcile the behaviour Mr Lillo displays at consultations with him with his physical abilities shown on the video we saw and reports of doctors who saw him before the 2003 accident. It follows that we are not satisfied, on balance, that Mr Lillo’s fall in 2003 has brought about a psychological or psychiatric injury for which Comcare is liable.
111. In addition, we can find no support for any entitlement to compensation for the condition Mr Lillo has claimed, namely, “depression, fear [and] post-traumatic stress disorder” pursuant to ss 4(1) and 14 of the Act. Neither Dr Menendez nor Mr Wenzel has diagnosed Mr Lillo with such conditions.
112. We agree with the reviewable decision of 11 August 2005, which denied liability pursuant to s14 for any psychological injury. We find no psychological or psychiatric injury consequential to the physical injury of June 2003.
Does Mr Lillo have an entitlement to compensation for permanent impairment?
113. When we assess the claim under ss 24 and 27, the question of compensation involves the extent to which the accepted 2003 injury is still causing Mr Lillo difficulties. Comcare accepted liability for continuing compensation up to and including 16 April 2004, a period of some 10 months. Mr Lillo’s counsel asked us to note that Mr Lillo had continued to work until the 2003 injury despite his earlier injuries and at times performed overtime duties. By contrast, he had not worked since the accident. He argued that this indicated the severity of the effect of the 2003 incident on Mr Lillo’s capabilities. In forming our opinion, we note that, although the applicant had earlier injuries, he was working full time for a significant period before the injury on 26 June 2003. On that basis, we were asked to find that liability should be restored for incapacity payments from 16 April 2004 up to and including 14 March 2007, the date upon which s23(1) operates to disentitle any further benefits.
114. Dr Champion, in his report of 16 July 2004, found that there was a 10 per cent whole person impairment with respect to the cervical spine under table 9.6, a 10 per cent permanent impairment of the thoracic-lumbar spin also table 9.6, a 10 per cent permanent impairment of the upper limb, table 9.4 and 10 per cent whole person impairment of the lower limb under table 9.5, which by report on 21 November 2005 was reduced to seven per cent in each, taking into account the previous conditions. Applying the combined values table, Dr Champion found Mr Lillo suffered 7% + 7% + 7% + 7% impairments, gives a final rating of 26% whole person impairment. Dr Champion's opinion carries some weight as he saw Mr Lillo on several occasions, not only after the 1991 injury, but after the 1997 motor vehicle injury and after the 2003 injury. However, his opinion finds negligible support from other medical opinions before us.
115. We again refer to It is the views of Dr McCauley and of Dr Maxwell as well as of Dr Hall in November 2003 that any aggravation or physical injury suffered by the applicant in June 2003 should have passed within a few months or weeks. The opinions before us find no musculo-skeletal or physical cause for the applicant's condition and decide it is explained only as chronic pain syndrome or illness behaviour. For this reason, we affirm the reviewable decision that Mr Lillo has no entitlement to compensation for permanent impairment in respect to his physical injury or injuries in June 2003.
116. Finally, we have found no compensable permanent impairment in terms of any psychiatric injury. Using the guidelines set out in table 5.1 for psychiatric conditions, Dr Menendez assessed Mr Lillo as having a 25% impairment rating. We have already explained that we are unable to accept Dr Menendez’s opinion that Mr Lillo suffers major depression as a result of the 2003 fall. On balance, we do not accept that Mr Lillo’s psychiatric condition warrants a 25% impairment rating.
117. All the other medical opinions before us are that Mr Lillo displays illness behaviour. Only Dr Menendez makes a strong causative link between Mr Lillo’s psychological problems and the fall in 2003. Several other reports detailed above observe this behaviour well before 2003. We have already found that Mr Lillo has not suffered any psychiatric injury due to the work related fall so it follows that we find no compensable psychiatric impairment that is a permanent impairment for the purposes of ss 24 and 27.
Aggregation of impairments
118. The applicant argued that he suffered one injury in June 2003 and could aggregate any separate assessments of whole person impairment by reference to the combined value table so as to achieve the 10% threshold for compensation. This argument was related to Dr Champion’s assessments of a range of 7% impairments referred to above. There is no other evidence before us of assessment of Mr Lillo’s claimed impairments by reference to the tables. In addition, we have already found that Mr Lillo suffers no work related permanent impairment.
119. At the close of hearing, we granted leave to the applicant to provide authority for the aggregation proposition and leave for the respondent to reply to any submission. After some delay, we received a list of authorities on behalf of the applicant and the respondent’s reply and submission.
120. We have considered these further submissions of both parties. However, as we have already decided that Mr Lillo has no work related permanent impairment, it is unnecessary for us to make a finding about possible aggregation of any impairments. It follows that we have not made any further finding as to the appropriate treatment of claims by way of aggregation under the tables.
decision
121. The tribunal affirms the decisions under review.
I certify that the 121 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hunt
Signed: .........[Talaishia Collis] ........
Associate
Date/s of Hearing 5 September 2006
6 September 2006
7 September 2006
24 April 2007
Date of Decision 29 May 2007
Counsel for the Applicant Mr George Giagios
Solicitor for the Applicant Novaro & Associates
Counsel for the Respondent Mr M. H. Best
Solicitor for the Respondent Sparke Helmore
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