Mahne and Comcare
[2004] AATA 985
•21 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 985
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/228, V02/1332
GENERAL ADMINISTRATIVE DIVISION ) & V03/510 Re MARIA MAHNE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date21 September 2004
PlaceMelbourne
Decision 1. The applicant suffered an impairment of her right shoulder and a psychiatric impairment both becoming permanent after 1 December 1988.
2. The applicant is entitled to Compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 under both Tables 5.1 and 9.1 of the Guide to the assessment of permanent impairment at 10 per cent.
3. The entitlement to compensation shall be determined upon the Conversion Values Chart at Table 14.1 of the Guide.
4. Accordingly, the decisions under review in applications V2002/228 and V2003/510 shall be set aside and decisions pursuant to the above and these reasons shall be made in substitution.
5. For the reasons contained in this decision, the decision under review in application V2002/1332 is affirmed.
(Sgd) J Handley
Senior Member
COMPENSATION – shoulder injury in 1985 – total incapacity from 1986 to date – surgery in 1998 – psychiatric sequelae – whether injuries – permanent before or after 1 December 1988 – decisions set aside ‑ household services – decision affirmed
Compensation (Commonwealth Government Employees) Act 1971 s39, s39(14),
Safety, Rehabilitation & Compensation Act 1988 (Cth) s4, s24 and s29
Department of Defence v Maida (2002) 36 AAR 69
Department of Defence v West (1998) 885 FCR 491
REASONS FOR DECISION
21 September 2004 Mr J Handley, Senior Member 1. The applicant applies to review three decisions of Comcare.
2. In application V2002/228 the applicant applies to review a reviewable decision made on 7 January 2002 which affirmed a determination made on 19 September 2001. The respondent then decided that the applicant was not entitled to lump sum compensation for permanent impairment for the condition of “right rotator cuff tear” under the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) or the Safety, Rehabilitation & Compensation Act 1988 (“the 1988 Act”).
3. In application V2002/1332 the applicant applied to review a reviewable decision of the respondent made on 22 October 2002 which affirmed a determination of 16 August 2002 denying liability in an application for “household services” pursuant to s29 of the 1988 Act. The claim then made was confined to provision of services for gardening, lawn mowing, washing of window shutters and external washing of windows.
4. In application V2003/510 the applicant applied to review a reviewable decision made on 7 May 2003 which varied a determination made on 6 March 2003. In the primary determination the respondent denied liability for compensation for a psychiatric injury consequent upon the right rotator cuff injury. In the reviewable decision the respondent was satisfied that the applicant suffered a disease more particularly an “ailment” as defined by the 1988 Act and further decided that the employment had made a material contribution to the psychiatric illness. The respondent however denied that that illness resulted in an impairment and accordingly it decided that there was no entitlement to compensation pursuant to s24 of the 1988 Act. The injury found by the respondent was described as “secondary anxiety and depression”.
5. The hearing proceeded in Melbourne on 23 and 24 October 2003. Mr Keely appeared on behalf of the applicant and Mr Miles appeared on behalf of the respondent. Mrs Mahne gave evidence with the assistance of an interpreter. A number of other witnesses gave evidence and a number of documents were received into evidence. The evidence of the witnesses and the documents will be referred to in these reasons.
Maria Mahne
6. Mrs Mahne is presently 69 years of age having been born on 11 December 1934. She was born in Italy and entered the workforce after six years of schooling. She was initially employed as a hairdresser and then as a process worker in a shoe factory. Mrs Mahne and her husband and three children moved to Australia in 1955. She found employment in a shoe factory for six years and then in a cable factory for eight years. Later she found employment with Australian Defence Industries (“ADI”) as a machine operator.
7. At ADI Mrs Mahne was required to operate and service a number of machines which made bullets. She was required as part of her duties to lift boxes and baskets of lead pieces and metal caps into a hopper from above shoulder height. She is right hand dominant and recalled that she predominantly used her right hand and shoulder to lift the baskets and boxes. Additionally she was required to drag boxes of heavy metal items along the floor.
8. Mrs Mahne described the work as being heavy and repetitive. In approximately 1985 she noticed the onset of right shoulder pain. She continued to work without complaint but in the presence of pain. In approximately 1986 she first saw a doctor at the workplace who in turn referred her for treatment from her family doctor, Dr Poulier.
9. Mrs Mahne was initially off work for about three months but expressed a strong wish to return to light duties. Dr Poulier provided appropriate certification and she returned to work on machines where she was only required to pull on a metal bar. Mrs Mahne said she coped with this work. Later she was given another light job where she was required to place “drops into bullets” which she also described as being light. She also described that work as being “experimental”. The job however was of a short duration and when it concluded, despite her frequent requests from the foreman “Wayne”, light work was not made available to her. Mrs Mahne said that she eventually “gave up” and whilst she continued to attend Dr Poulier, and he continued to provide medical certificates certifying her as fit for light duties, ADI was unable to find suitable light work.
10. In August 1988 the employment of Mrs Mahne was terminated by the employer.
11. At all relevant times prior to August 1988, Mrs Mahne was paid weekly compensation when incapacitated. Subsequent to August 1988 she has received weekly compensation for total incapacity.
12. Initially Mrs Mahne was treated by Dr Poulier who provided medication which was consumed for about three years but without benefit. Mrs Mahne then ceased to consume the medication. She also attempted physiotherapy for approximately 10 months but without success. Thereafter Mrs Mahne did not have any treatment until approximately 1998. In the interim she attended Dr Poulier on two or three occasions per year and he provided light duty certificates only.
13. In 1998 Mrs Mahne recalled that her right arm “dropped”. She said she had suffered pain since 1988, but in 1998 when her arm “dropped”; she felt as if she could not “hold it”. She described the arm as feeling “like nothing”. She recalled that it “hung down” and after a few hours it “happened again”. She attended Dr Poulier who arranged an ultrasound. He eventually referred her to Mr Haw, an orthopaedic surgeon, who conducted an MRI scan. He recommended surgery which was undertaken in April 1999.
14. Mrs Mahne said that the surgery “didn’t help”. In fact she described her shoulder as being “worse” subsequent to the surgery. She said the only benefit that she obtained from it was to be able to reach with her right arm and hand behind her back.
15. Mrs Mahne said that she is worse subsequent to the surgery because she is nervous and upset. She was of the belief that the surgery would improve her right shoulder and permit her to regain its normal function. Subsequently however she said that she is jumpy, nervous and withdrawn. She said that she suffers fits of anger, she sleeps poorly and says that there are days where she “cries for no reason”. She described herself as being withdrawn and is not comfortable in the presence of friends. She said she has poor memory and poor concentration and on occasions when she watches television she “switches off”. Mrs Mahne said that she is unable to interact with her grandchild, no longer has the patience or tolerance to knit, or sew, or undertake dressmaking, which she did previously. She said she has no confidence in herself. Prior to the surgery Mrs Mahne said that her emotional state was “OK”.
16. With respect to the claim for household services, she said that she has never undertaken gardening or lawn mowing, which was previously undertaken by her husband. She said a claim is made for household services because if her husband is working in the garden or mowing lawns outside, he is unable to assist her inside the house. She said that inside she is limited only to being able to make beds, wash dishes, some light cleaning and cooking, although she recalled that stirring whilst cooking was difficult. She said she needed assistance inside the house with vacuuming and cleaning surfaces. Her claim is confined to household services outside the house because she “doesn’t want strange people inside the house”. She is reluctant to ask her adult children for help because “they have lives of their own” and they live some distance from her house.
17. Mrs Mahne said that her husband has previously washed the windows and shutters outside the house “a few times per year” and on those occasions she has assisted only by holding a ladder that he worked from. She said that if she was “fit” she would be assisting her husband with the cleaning of windows and shutters.
18. Subsequent to the right shoulder surgery, Mrs Mahne has been referred for further opinions from Mr Lyons and Mr Burns, both orthopaedic surgeons. They have counselled her against further surgery. Mrs Mahne is also reluctant to undertake further surgery.
19. In approximately 1996 Mrs Mahne had coronary bypass surgery following episodes of chest pain. She says the chest pain returns from time to time particularly when she becomes upset. Subsequent to the shoulder surgery she has had two strokes (cerebrovascular accidents). She said at present she is “alright” and has had a good recovery from both the bypass surgery and the cardio vascular accidents.
20. In cross-examination Mrs Mahne said that she has only ever been employed in heavy factory type work and was not qualified for clerical or office type duties. She agreed that she last worked in 1986 and has not sought employment subsequent to her retrenchment from ADI. At that time she said that she was 53 years of age, was only fit for light duties and had limited job skills. She agreed that she continues to receive weekly compensation which was reduced to 60% of the maximum rate when she achieved 65 years.
21. From 1986 to the present time, Mrs Mahne said that she has suffered shoulder pain and limited use of her right shoulder which she said has been “about the same” to date. She agreed that she gave a history to Dr Ward, who examined her for the respondent in 1988, that she needed assistance with her housework and was then being assisted by her husband particularly with heavy work around the house. She said however that her major concern is her inability to do many things around the house which she was previously able to do. She found this embarrassing, upsetting and frustrating. Mrs Mahne said that she had no choice but to seek assistance from her children when they were living at home and often the children voluntarily assisted around the house. However all of her children are now adults and live elsewhere.
22. Mrs Mahne said that her husband retired in 1992. He was also employed by ADI and had been receiving compensation prior to his retirement. She said that her husband has not worked elsewhere since 1992 and has also suffered a stroke and has had surgery (it appears from the description by Mrs Mahne that he has had surgery upon his carotid artery). Mrs Mahne also said that her husband “cannot see properly”, he also suffers from arthritis in his knees and consumes medication. By reason of the latter injury, Mrs Mahne said that he is unable to climb ladders to wash windows. He presently helps her at home hanging the washing, but she is otherwise reluctant to ask him to perform housework inside the house because “if I ask him he takes it too easy and I can’t stand it”. Nonetheless she said that he was meticulous when he washed the windows and shutters, on one or two occasions per year. She said that he did a very thorough job.
23. At the present time, Mr Mahne helps Mrs Mahne with hanging washing on the line and travels with her to supermarket once a week for groceries. He alone drives the family motor vehicle because Mrs Mahne says that she is no longer confident in driving. He also shops once per day in the mornings for bread and milk and in the afternoon tends a vegetable garden in the backyard of their house. She said that he is still capable of gardening but he “takes it slowly”.
24. Mrs Mahne disagreed that doctors who examined her in the late 1980’s and recently found that she had a good range of movement in her right shoulder. Mrs Mahne said that her range of movement is “a little bit worse”. She demonstrated to us that she was capable of lifting her arm but said that she was unable to lift it repeatedly. It was for this reason that her husband hangs out the washing.
25. With respect to her emotional illness, Mrs Mahne said that she was prescribed medication which she consumed for approximately two months but ceased. She said that it did not appear to be of any assistance and she was already consuming five tablets per day associated with her coronary illness. Mrs Mahne said that the prior strokes had affected her left arm and right leg but she has no ongoing disability with those limbs. She said that she had been advised to ensure that her blood pressure medication is consumed regularly and whilst she said that she is worried about having another stroke, she was not concerned (having regard to her bypass surgery) that her heart could be put under stress. She said she was not afraid of death and “when it happens, it happens”. She said the things that worry her are her right shoulder limitations which she said has worried her “from the beginning”.
26. In re-examination Mrs Mahne said that prior to the shoulder surgery she was able to shop alone but subsequently she undertakes it with her husband. She said that he lifts bags of groceries and pushes trolleys.
27. Mrs Mahne explained that she ceased consuming the medication prescribed by Dr Poulier for her depression because she said she became less motivated and it was “no good for me”. She said that when she consumed the anti-depressant medication she “wanted to do less than (she) did before”.
Howard Poulier
28. Dr Poulier is the general practitioner of Mrs Mahne. He first saw her on 21 April 1986 and obtained a history of right shoulder “problems” which he has subsequently treated. He initially recommended physiotherapy and prescribed anti-inflammatory medication. He was aware that Mrs Mahne ceased consuming that medication in approximately 1988 at which time he believed that she was still capable of performing light work but understood that it was not available.
29. Dr Poulier was then taken through his treatment notes (which were very difficult to interpret and were virtually illegible). He recorded that in 1986 he referred Mrs Mahne for an x-ray where an abnormality was not detected. Thereafter he continued to attend Mrs Mahne on two or three occasions per year after she ceased work to provide light duty certificates. He said from time to time he “tried odd anti-inflammatories” for brief periods only but without apparent success.
30. In 1998 Mrs Mahne returned with complaints of increased right shoulder pain and “trouble at home”. He referred to her Mr Haw who apparently found a “tear of muscles” and surgery was performed in 1999. His notes recorded that he understood Mrs Mahne believed that the surgery would “ease her pain” but he also noted that she had reported to him that there had been “little improvement”, he subsequently prescribed anti-depressants and some anti-inflammatory medication on three occasions but ceased prescriptions in November 2002.
31. Dr Poulier said that the results of the MRI in 1999 revealed degenerative changes in the glenohumeral joint which he said was a common location of arthritis. He said that there was no apparent arthritis in the applicant’s left shoulder. He said that he would have expected osteoarthritis in the right shoulder because of her prior repetitive work and because she was right hand dominant.
32. Presently he found that Mrs Mahne was very limited and her “right upper extremity is useless to her”. He said that she would be unable to perform gardening, vacuuming, or hanging washing on the clothes line. He thought that she would be able to wash windows with her left hand and use her left hand for other cleaning around the home. Similarly she would only be able to carry bags of groceries with her left hand but he noted that the applicant’s husband accompanied her when shopping.
33. In cross-examination Dr Poulier said that when he first consulted Mrs Mahne he diagnosed a right rotator cuff injury. He said he maintained that opinion subsequent to the radiologist’s report following x-ray in 1986 and thought that those x-rays were of “no real significance”.
34. When Mrs Mahne was working with ADI, it was his opinion that heavy work stressed her right shoulder but by early 1988 he was of the opinion that “nothing further could be done and her condition was likely to remain static”. He thought that Mrs Mahne was unemployable at the time of her retrenchment by reason of her age, the limitation of movement in her shoulder, her poor command of English and her limited work skills.
35. Dr Poulier said that he had a note of Mrs Mahne being restricted in performing housework from shortly after she first presented to him and he also noted that she had continued with difficulty at home. He said that this was consistent with the history that she had given to Dr Ward in March 1988. He also had notes of Mrs Mahne expressing her worry to him of having to rely on others to help her at home.
36. At 1998 when she returned with a history of increased pain in her right shoulder he referred her for an ultrasound. He had no history of any new injury but did have a history of the pain progressively worsening and it was “getting her down”. Following surgery, his history from Mrs Mahne was there was “not much difference” and she was upset that there had not been an improvement. He noted that cortisone injections had been administered but they helped only “for a few weeks”. Dr Poulier has not treated Mrs Mahne with respect to her cerebrovascular accidents or for her coronary surgery. He has not prescribed medication for her hypertension and did not know who was treating her for these illnesses.
37. Dr Poulier was aware that Mrs Mahne had been referred to Mr Lyons and Mr Burns for second opinions and was aware that they had reported that her shoulder is “as good as it will get and surgery was not botched”. He said that he would expect to see degeneration in the applicant’s right shoulder by reason of her age and by reason of her being right hand dominant.
38. Mrs Mahne has not been referred by him to a psychiatrist because her illness is “not severe enough to warrant it”. He regarded her as suffering from “moderate” depression manifested by weeping, withdrawal, difficulty sleeping, and inability to socialise. These features suggested to him that she was “depressed”.
39. In re-examination Dr Poulier said the applicant’s ongoing symptoms were by reason of arthritis affecting the right shoulder joint which she regarded as being an ongoing process. He said that once established it tends to progress.
40. When asked whether he could explain Mrs Mahne complaining of her right shoulder pain becoming more “constant” from about 1998, he said there had probably been a tear of the supraspinatus muscle which “probably happened progressively”.
Stanley O’Loughlin
41. Dr O’Loughlin is an orthopaedic surgeon who examined Mrs Mahne at the request of the respondent on 7 November 2002. He prepared two reports of 7 November 2002 and 3 October 2003.
42. In his first report, Dr O’Loughlin concluded (Exhibit 1, page 6):
I consider Ms Mahne has sustained a rotator cuff tendon tear affecting her right shoulder which has been treated surgically. She has been left with some fibrosis and shoulder dysfunction after this operation. Even though it appears that a perfectly satisfactory repair procedure has been performed it is not uncommon for post-operative scarring to result in some limitation of shoulder movement and in particular in this lady’s case as there is some underlying degenerative change affecting the glenohumeral and the acromioclavicular joint some of her symptoms may be arising from this.
43. Dr O’Loughlin concluded that Mrs Mahne had a 10% permanent impairment pursuant to Table 9.1 of the Comcare Guide. He thought that Table 9.4 was not appropriate. He relied on Table 9.1 because Mrs Mahne had “loss of less than half normal range of movement” of her right shoulder.
44. In his second report, Dr O’Loughlin concluded that the impairment was permanent prior to 1 December 1988 because there had not “been an obvious change in the underlying Patho physiological condition, other than possible slight deterioration of the osteoarthritic process, which would have occurred normally and the fact that she has had a surgical procedure” (Exhibit 2, page 2).
45. In evidence Dr O’Loughlin said that in his opinion, the applicant had probably suffered a minor tear in her right shoulder prior to December 1988 but at surgery a larger tear was present. He acknowledged that Mr Haw had observed a large tear at the time of surgery. Dr O’Loughlin said that in his opinion the applicant’s impairment commenced at the time of the initial tear and any larger tear was related to the earlier injury. In his opinion the applicant’s clinical state had not altered after 1 December 1988.
46. In cross-examination Dr O’Loughlin said that post-operative scarring together with progressive arthritis would account for the applicant’s present symptoms. He thought that the surgery was “technically a success” and that the repair was “as good as could be expected”. Nonetheless he thought that had the rotator cuff tear been repaired earlier there would have been a better result. He said that the applicant did have a “short tear” initially and her continuing to work and other life events would have been responsible for an extension of the tear. In the event that there was no abnormality detected at x-rays in 1986, a comparison of the MRI findings in 1998 suggested to him that there had been a substantial change in the shoulder joint by reason of arthritis. Dr O’Loughlin said that it was not common to have arthritis in the shoulder compared to a weight bearing joint (such as a person’s knee or hip). In his opinion the presence of arthritis could be related to the initial rotator cuff injury. He thought the arthritis affecting the glenohumeral joint was “definitely related” to the initial tear and the arthritis affecting the acromioclavicular joint may be an incidental consequence in the case of a person who has previously been engaged in heavy manual repetitive work. Additionally it was his opinion that movement in the humeral head was related to the rotator cuff tear. On balance therefore he was of the opinion that the initial rotator cuff tear precipitated an increased risk of osteoarthritis in the applicant’s shoulder thereby accounting for the applicant’s symptoms.
47. Dr O’Loughlin thought that Table 9.1 was more appropriate than Table 9.4 because of the nature of the abnormality and the loss of range of movement (having regard to the criteria as against each Table).
48. Additionally he thought that the applicant’s request for household services was reasonable.
49. In re-examination Dr O’Loughlin said that upon the basis that there was a rotator cuff tear initially in 1986, and the applicant thereafter was undertaking “ordinary household duties with limitations involving some tasks”, that any progression in the tear would be a consequence of the original tear. Additionally had there been a small tear initially it may have healed but in the circumstances of Mrs Mahne this was obviously not so.
Nigel Strauss
50. Dr Strauss is a consultant psychiatrist who examined Mrs Mahne at the request of the respondent on 4 March 2003 and provided a report of the same date. In his report Dr Strauss concluded that Mrs Mahne did suffer from “secondary anxiety and depression as a consequence of her physical condition”. He was of the opinion that Mrs Mahne had a permanent impairment pursuant to Table 5.1 of the Comcare Guides of 5% whole person by reason of her “reactions to stressors of daily living with minor loss of personal or social efficiency”.
51. In evidence he said that the applicant’s inability to undertake her housework together with other frustrations associated with the injuries amounted to “stressors of daily living”. Dr Strauss said that 5% assessment only was appropriate because an assessment of 10% would involve a finding that Mrs Mahne suffered from “minor distortions of thinking” which he did not believe was appropriate. He said that he could not find any “significant distortions of thinking”.
52. In cross-examination Dr Strauss said that the appropriate diagnosis for Mrs Mahne was that of adjustment disorder with secondary anxiety and depression. He based this diagnosis on the symptoms presented to him of irritability, grumpiness, loss of motivation, poor sleep, tearfulness, and poor memory and concentration.
53. Dr Strauss acknowledged that the applicant thought the surgery did not produce the result that she had expected of becoming pain free and having greater use of her shoulder. He thought that an outcome of this type was the type of event which would precipitate the symptoms suffered by Mrs Mahne and would cause a person to attend their doctor for prescription of anti-depressant medication. This was because, in his opinion, Mrs Mahne was “pinning her hopes on improvement” by the surgery. That the general practitioner had felt a need to prescribe anti-depressant medication after surgery, was in his opinion, a recognition that her psychiatric illness occurred post-surgery and (conversely) was an indication that the symptoms suffered post-surgery were not existing prior to surgery. It followed therefore that Mrs Mahne did not have any diagnosable psychiatric illness prior to surgery.
54. Dr Strauss agreed that the only difference between an assessment of 5% as opposed to an assessment of 10% whole person impairment under Table 5.1, was a finding of whether the person had “minor distortions of thinking”. In his opinion, “minor distortions of thinking” must be “significant” in order to warrant an impairment rating.
55. Dr Strauss was of the opinion that the applicant did not suffer any abnormality or distortions of thinking, nor any pathology which would permit him to make this diagnosis. Nonetheless he agreed that it was difficult to be conclusive because the Guide was not assisted by any definition on this issue. He did not think that suffering from depression precipitating an absence or loss of motivation was of itself a distortion of thinking nor did he believe that being withdrawn or experiencing a loss of concentration amounted to a distortion of thinking. Similarly the applicant ceasing to drive a motor vehicle was not of itself (in his opinion) a distortion of thinking but may amount to an accurate reflection of the absence of confidence on the part of the applicant (although he agreed that he did not have a history of the applicant ceasing to drive a motor vehicle).
56. In re-examination Dr Strauss noted that the applicant had undergone surgery in 1999 but ceased driving a motor vehicle in 2003. He said it did not necessarily follow that a 68-year-old person with shoulder pain has ceased driving a motor vehicle because of “minor distortions of thinking”.
Chris Haw
57. Mr Haw is an orthopaedic surgeon who has treated Mrs Mahne. He provided a report dated 5 September 2003 which was received into evidence as Exhibit C.
58. In his report Mr Haw concluded:
It is reasonable to state that the patient's right upper limb condition was not permanent as at the 1st December 1988, that she continued to have ongoing problems with extension of what initially would have been a minor tear into a large tear of the rotator cuff with some associated rotator cuff arthropathy. She has been improved by surgical repair of the cuff but has less than a perfect result for three reasons. Firstly she has arthritis in the AC joint and secondly the rotator cuff is still attenuated and not as strong as normal and thirdly she has changes in the glenohumeral joint of early osteoarthritis.
I am not equipped to make an evaluation of any psychiatric or psychological injuries as this is not my area of expertise. Using the Guides to Assessment of the Degree of Permanent Impairment from Table 9.1 10% impairment and from Table 9.4 20% impairment.
59. In evidence Mr Haw said that he has consulted with Mrs Mahne on 18 occasions. He was aware that x-rays in 1986 did not detect any abnormality however an MRI scan of February 1999 demonstrated a full thickness tear of the supraspinatus tendon. He also found that there was migration of the humeral head which he thought was related to the rotator cuff tear as was an imbalance of the supraspinatus muscle. Mr Haw thought that the consequences of an initial rotator cuff tear was a consequent subluxation of the humeral head causing the shoulder joint to “operate incorrectly” in turn causing a rotator cuff arthropathy. The presence of arthritis was in his opinion “directly connected with her work” being heavy, repetitive, and physically demanding.
60. Mr Haw agreed with the opinions expressed by Dr O’Loughlin that post-surgical scarring was responsible in part for the applicant’s symptoms and would account for a reduction in shoulder rotation. Additionally he was of the opinion that stiffness in the applicant’s shoulder is associated with post-surgical bleeding. He also agreed with the opinion of Dr O’Loughlin that an assessment of 10% impairment pursuant to Table 9.1 was appropriate. Mr Haw said in evidence that he could no longer maintain his opinion that an impairment pursuant to Table 9.4 was appropriate.
61. With respect to the presence of arthritis before (if at all) 1 December 1988 and subsequently, Mr Haw said that an arthritic process was present which could have affected surgery adversely. He was also of the opinion that the applicant’s former employment may have accelerated the progress of the arthritis, indeed most activity could have accelerated that process.
62. Nonetheless the history given to him of a sudden increase of right shoulder pain in 1998, together with the applicant’s right arm “dropping” with associated weakness, was probably explained by a further tear of the rotator cuff or a worsening of an existing tear.
63. Mr Haw also agreed with an opinion expressed by Dr O’Loughlin that early repair of a rotator cuff repair would have more than likely produced a better result than that which occurred in 1999 and would have been easier to repair.
64. He was of the opinion that the applicant’s claim for household services was reasonable.
65. In cross-examination Mr Haw said that it was impossible to say that there was a rotator cuff tear in 1986. He said an investigation of the rotator cuff was not then performed. He said whilst the applicant did present with a rotator cuff tear he is unable to say when it occurred and he conceded that it was not necessarily a consequence of the applicant’s former heavy, repetitive, employment. He reaffirmed the opinion expressed at page 3 of his report that the applicant would have initially suffered a minor tear based on the history that was given to him but he acknowledged that he cannot be “sure” of this conclusion.
66. Mr Haw said that in his opinion, there was a full thickness tear present at surgery in 1999 because when he observed the tendon at surgery it was capable of being “returned to its normal position”. He said this was indicative of a recent tear whereas a full thickness tear of longstanding would not have permitted the tendon to be returned to its normal position. It followed therefore that it was unlikely that there was a full thickness tear at 1986.
67. Mr Haw said that a degenerative process in the applicant’s right shoulder commenced after 1986 and any tear of the rotator cuff at that time would have been associated with the applicant’s work. He was of the opinion that the applicant would eventually need to have surgery and he thought that the applicant’s “shoulder condition” has been permanent since 1986.
68. In re-examination Mr Haw said that the applicant did not have a permanent impairment at 1 December 1988 because any rotator cuff tear was surgically “repairable” including a repair of the supraspinatus and infraspinatus tendons. In his opinion because those tendons were repairable the “shoulder condition” could not be regarded as being permanent. He said that in the event that Mrs Mahne had suffered a rotator cuff tear in 1986 she would have been vulnerable to further tearing at a later time.
69. In conclusion it was his opinion that because any pre-existing rotator cuff tear had not been repaired at 1 December 1988, there could not then be a finding of permanent injury. It followed therefore that the condition could not be regarded as being stabilised. Indeed he thought that the condition was “slowly progressing”.
70. When asked to comment upon the applicant’s history of her arm suffering sudden weakness and it “dropping” in 1998, Mr Haw said that the manifestation then experienced by the applicant was either the initiation of a rotator cuff tear or a continuation of a pre-existing tear.
Albert Kaplan
71. Dr Kaplan is a psychiatrist who interviewed Mrs Mahne on 8 November 2002 and provided reports dated 11 November 2002 and 1 September 2003.
72. In his first report he concluded:
As a result of her shoulder injury, her chronic pain and the severe limitations this pain has had upon her ability to function normally, Mrs. Mahne has developed an Adjustment Disorder with mixed anxiety and depressed mood.
73. In his report of 1 September 2003 he assessed the applicant’s disability under Table 5.1 of the Comcare Guide at between 10% and 20%. He was of the opinion (unlike Dr Strauss) that Mrs Mahne did suffer from “minor distortions of thinking”. Consistent however with the opinion of Dr Strauss, Dr Kaplan was of the opinion that Mrs Mahne did also suffer from “reactions to stressors of daily living with minor loss of personal or social efficiency”.
74. In evidence Dr Kaplan said that he obtained a history of the applicant suffering right shoulder pain in 1985 and having ceased work in 1986. He was aware that she attempted physiotherapy for approximately ten months and had consumed medication for about three years. Thereafter she was restricted and had some assistance in her home during the 1990’s but by 1998 her right arm had “dropped” and felt weak and without strength. He was aware that she had shoulder surgery in 1999 without “lasting relief” which disappointed Mrs Mahne because she believed that her shoulder function would be improved. He found that she was upset by the absence of improvement and noted that she was tearful, grumpy, irritable, lacked motivation, had poor memory and concentration, was withdrawn and slept poorly. It was his belief that the onset of the psychiatric illness occurred after 1999.
75. Dr Kaplan was firm in his opinion that Mrs Mahne did suffer from “minor distortions of thinking” because she was preoccupied with her injury and the effect upon her. He found that she lay awake at night thinking about it and had difficulty concentrating. These features he said amounted to a “distortion” because it caused her to be “disturbed” which he found to be abnormal behaviour. He agreed with an opinion of Dr Strauss that the applicant suffered negative thoughts. Dr Kaplan was of the opinion that negative thinking occurred because of the applicant’s depression and that negative thinking was a “minor distortion” of thinking.
76. In cross-examination Dr Kaplan said that lying awake at night and “ruminating” amounted to a distortion of thinking.
77. With respect to the symptoms giving rise to the diagnosis of adjustment disorder, Dr Kaplan agreed that some features were suggestive of stressors of daily living namely low tolerance, frustration, irritability, reaction to chronic pain and limitation. However distortions of thinking were indicated by withdrawal, being tearful, lack of motivation, poor memory and concentration, negative thoughts, preoccupation with injury and lying awake at night. He agreed that the applicant was exposed to other stressors in her life namely hypertension, prior heart attack and coronary bypass surgery, having suffered two cerebrovascular accidents and some back and leg pain, but he regarded these contributions as minor. He thought it was natural to suffer anxiety as a result of those conditions but he noted that the coronary illnesses particularly had occurred some years earlier and she had otherwise enjoyed good health. He was of the opinion that the applicant’s “major preoccupation” was the shoulder injury.
78. Dr Kaplan dismissed the suggestion that ceasing anti-depressant medication in March 2003 was indicative of improvement. He said that whilst he would need more information he would have been surprised if anti-depressant medication had been of any assistance. He was also doubtful that referral of Mrs Mahne to a psychiatrist for treatment would have resulted in improvement in her emotional health, save that it may have reduced her irritability. It was unlikely, in his opinion, to reduce the level of her depression and anxiety. He thought that her condition presently was stable.
Conclusion and Reasons for Decision
79. Mr Miles, on behalf of the respondent, submitted that the evidence of Mr Haw was unreliable and inconsistent. He submitted that the applicant should be assessed as having a permanent impairment prior to 1 December 1988 because:
(i)A right shoulder injury occurred in 1985 which deteriorated to the point of Mrs Mahne being unable to perform heavy work by April of 1986; and
(ii)On 21 April 1986 Dr Poulier diagnosed a rotator cuff injury which permitted the applicant to perform light duties for a few weeks only but thereafter she has been totally incapacitated; and
(iii)Since 1986 the applicant has been limited in household work and has sought assistance from others; and
(iv)At March 1988 Dr Ward found that the applicant had a reduced range of movement by 10% in all directions which continued until 1998 when the applicant saw Mr Haw; and
(v)The symptoms from 1986 continued at the same rate and at the same level until 1999 when an MRI was performed to repair the rotator cuff.
80. It therefore followed upon the submissions of Mr Miles that the applicant had a well established permanent right shoulder impairment for two or three years before 1 December 1988.
81. It was submitted that the applicant could not qualify for lump sum compensation under s39 of the 1971 Act because – having regard to the provisions of s39(14) - she had been found to have been totally incapacitated. It was submitted that the applicant could not qualify for compensation under s24 of the 1988 Act unless she satisfied the qualifying criteria found within the reasons of Department of Defence v West (1998) 885 FCR 491 and Department of Defence v Maida (2002) 36 AAR 69.
82. With respect to the applicant’s psychiatric illness it was submitted that Mrs Mahne had been exposed to a number of other stresses in her lifetime and any deterioration in her emotional health following the surgery in 1999 was temporary. Mr Miles referred to the evidence of Dr Kaplan who thought that further treatment was warranted and on that basis he submitted that the psychiatric illness could not be regarded as being permanent.
83. As to the application for the cost of home help Mr Miles submitted that the applicant had never previously undertaken lawn mowing or gardening or cleaning windows or shutters. He submitted that the applicant could not therefore rely on the provisions of s29 of the 1988 Act. Additionally he submitted that the applicant’s husband and members of her family were capable of undertaking this work.
84. Mr Keeley on behalf of the applicant submitted that Mrs Mahne presently has a significant right arm and shoulder injury for which she is deserving of compensation.
85. He submitted that it would be permissible to find that the effects of injury had not stabilised and become permanent prior to 1 December 1988 in which case she would be entitled to assessment under s24 of the 1988 Act. In the alternative if there was a finding that there was a permanent impairment at 1 December 1988 a finding was permitted of a new impairment subsequently which was also compensable under s24.
86. Mr Keeley submitted that the evidence of Dr Haw may be thought to be confusing however the subject matter upon which he was asked to give evidence was intrinsically difficult and he may have been confused by expressing an opinion with scientific certainty as opposed to expressing an opinion on the balance of probabilities.
87. It was submitted that the major development in the applicant’s injuries occurred after 1 December 1988. Mr Keeley relied on the opinions expressed by Dr Ward (T76 p150) that the injury should be regarded as being temporary and involved a minor tear only. Additionally he submitted that the evidence of Dr Poulier can be interpreted as the treatment by him of an injury which was thought would respond to conservative management and a belief (at least initially) that the applicant would be able to cope with lighter work. Additionally it was submitted that the evidence of Mr Haw could be interpreted as the injury being progressive and the need for surgery occurring as a result of a major rotator cuff tear in 1998. On balance therefore, if this application had been heard at 1 December 1988 the evidence would have been that there was nothing that pointed to the need for any surgery or for ultrasound examination or treatment other than (past) physiotherapy and some medication. In those circumstances it was submitted that there would not have been a finding of a permanent impairment.
88. The alternative basis upon which the claim was put was that if there was any permanent impairment prior to 1 December 1988 the extent and degree of impairment has significantly increased subsequently because of surgical scarring, the onset of an arthritic process and bleeding at surgery. He submitted that the nature of the injury as evident upon surgery and upon radiology indicated a significantly worsened injury subsequent to 1 December 1988. The evidence of Mr Haw and the reports of Mr Burns and Mr Lyons all indicate that the surgery was technically successful but the applicant had developed a number of other conditions associated with the right shoulder injury which has been responsible for a subsequent, additional impairment which should be regarded as being permanent.
89. With respect to the psychiatric illness Mr Keeley submitted that the preponderance of evidence pointed to a psychiatric impairment becoming permanent after 1 December 1988. Mr Keeley relied on the applicant’s evidence and that of Dr Poulier which would not support any permanent impairment prior to 1 December 1988. It was clear, he submitted, that the applicant’s emotional health had deteriorated subsequently – largely associated with the surgery – nonetheless it may be regarded as being an impairment of permanence for which compensation should be paid.
90. Mr Keeley submitted that the evidence of Dr Strauss should not be adopted and his interpretation as to “minor distortions of thinking” and his interpretation of such events having to be “significant” were not valid. He noted that there was a suggestion that the applicant might improve with some treatment however Mr Keeley pointed to the evidence of Dr Kaplan who gave evidence that he was not confident that any treatment would assist the applicant.
91. As for the claim for household services Mr Keeley relied on the evidence of Mr Haw and Mr O’Loughlin who thought that such assistance was desirable. It was noted that the applicant has a substantial injury affecting her dominant arm who requires assistance from others. It was noted that the applicant’s husband is presently 73 years of age who has previously had coronary surgery and also suffers from arthritic knees. It was noted that the applicant’s children were adults but did not live at home. It was submitted that having regard to the illnesses affecting the applicant’s husband, were it not for her injuries, she would be undertaking the work over which she seeks household assistance.
92. “Impairment” is defined at s4 of the 1988 Act as “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function”. I think there can be no doubt that the applicant does suffer from an “impairment”. The impairment relates to the applicant’s right shoulder and right arm. It is her dominant arm. The applicant also suffers from an “impairment” affecting her emotional health.
93. “Permanent” is defined also at s4 as meaning “likely to continue indefinitely”.
94. The challenge of this review is to determine whether the “impairment” is “permanent” and if it is, whether it became “permanent” before or after 1 December 1988.
95. Applications of this type are notoriously difficult because it requires reconstructing past events. It is as if an applicant’s circumstances at 1 December 1988 are being examined at a point in time many years later.
96. At 1 December 1988 the applicant had been out of the workforce for approximately two years and was in receipt of weekly compensation as for total incapacity. She had been treated conservatively by Dr Poulier and had completed 10 months of physiotherapy without apparent relief. Prescribed medication had been consumed for approximately three years also with little effect. Attendances upon Dr Poulier were on two or three occasions per annum.
97. Dr Ward who examined on behalf of the respondent (but who was not called) provided a report following an examination in March 1988. He concluded that the right shoulder injury was associated with the former employment and concluded that Mrs Mahne then suffered from “an unresolved rotator cuff syndrome of her right shoulder”. He reported that the effects of the injury were “still evident but I believe they should be only of a temporary nature and I believe that with correct intensive treatment the effects of this rotator cuff syndrome should resolve within the next 6 to 12 months”. It is noted that an X-ray arranged by Dr Poulier in 1986 did not detect any abnormality but it would appear on the balance of evidence (particularly that of Mr O’Loughlin and Mr Haw) that it is likely that the applicant suffered a small rotator cuff tear arising out of her employment. That condition would have been responsible for her symptoms prior to 1 December 1988.
98. It would appear that the applicant has suffered a significant deterioration in the right shoulder injury after 1 December 1988, in fact, precipitating the surgery of 1999. I am satisfied that the need for that surgery was the consequence of a sudden deterioration in the applicant’s right shoulder which may also be associated with the prior tear of the rotator cuff consequent upon the heavy employment in 1985 and 1986.
99. On balance, and for all of the above reasons, I am satisfied that at 1 December 1988 it could not be found that the an “impairment” was then “permanent”. That is to say it could not be found on the balance of probabilities that at 1 December 1988 the impairment of the right shoulder could be found as being “likely to continue indefinitely”. I am confident, that if an application was then heard to assess whether liability existed to award lump sum compensation for right shoulder injury, it would have failed. On the evidence then existing, it could not have been found that any impairment was then permanent.
100. On balance also I am satisfied that the impairment of the right shoulder has subsequently become permanent and should be assessed under Table 9.1 of the Comcare Guide at 10%. Such a finding would be consistent with the evidence particularly of Mr O’Loughlin and of Mr Haw who were satisfied that the criteria against that level of impairment does exist being (in the case of shoulder injuries) a loss of less than half normal range of movement.
101. Therefore in so far as the claim for assessment of the shoulder injury is concerned I am satisfied that the impairment was not permanent prior to 1 December 1988 but has become permanent subsequently. I am satisfied that with the passage of time and by reason of the surgery it can now be found as a fact that the shoulder injury is likely to continue indefinitely. I am satisfied that Mrs Mahne meets the criteria against a 10% impairment under Table 9.1 and compensation should accordingly be paid.
102. In relation to the claim for impairment under Table 5.1 of the Guide for “psychiatric conditions” I am satisfied that an “impairment” does exist and that it may be found as being “permanent”. There probably were some minor emotional type symptoms prior to the surgery but I am not satisfied they would have constituted an impairment. However there is little doubt that an impairment has become permanent after 1 December 1988 and can reasonably be associated with the consequences as perceived by Mrs Mahne from the shoulder surgery. The impairment under Table 5.1 can also be associated with the “reactions to stressors of daily living with minor loss of personal or social efficiency” together with “minor distortions of thinking”. The criteria against an assessment of 10% under Table 5.1 requires a finding of more than one of the listed criteria. The criteria against an assessment of 5% requires a finding only of satisfying one of the listed criteria. For reasons which follow I am satisfied that an assessment of 10% under Table 5.1 is appropriate.
103. Drs Strauss and Kaplan were both agreed that the applicant did suffer from reactions to “stressors of daily living with minor loss of personal or social efficiency”. However their point of departure was whether the applicant suffered from “minor distortions of thinking” as that phrase existed within the Table 5.1 criteria. Dr Kaplan thought that the applicant did suffer from “minor distortions of thinking” whereas Dr Strauss thought that such “minor distortions of thinking” should be “significant” in order to satisfy the criteria. He thought the distortions of thinking were not significant and the criteria was therefore not met. I can see no validity in his interpretation of that criteria. Indeed it may be open to doubt as to what could be envisaged as “significant” “minor distortions of thinking”. If the Guide intended that “minor distortions of thinking” should be significant, the word “significant” would appear as opposed to the word “minor”. Indeed I note that the criteria against an impairment of 15, 20, and 25 per cent refers to “marked disturbances of thinking” and the criteria against 50, 60 and 90 per cent impairment refers to “severe disturbances of thinking”. In my view the distortions of thinking suffered by Mrs Mahne are to be found by her lack of motivation, her poor memory and concentration, her negative thoughts, her pre-occupation with injury, lying awake at night and “ruminating”, her withdrawal and being tearful. Her reactions to the “stressors of daily living” with “minor loss of personal and social efficiency” are to be found by her frustration, irritability, chronic pain and low tolerance.
104. I am satisfied therefore that the criteria against an impairment of 10% under Table 5.1 is appropriate.
105. The claim for household expenses was confined to the provision of services for gardening, lawn mowing, washing of window shutters and washing of windows externally. The claim is put pursuant to s29 of the 1988 Act. Mrs Mahne acknowledged in evidence that she did not ever perform these jobs but did assist her husband by holding a ladder when he washed windows previously. She said that he was unable to perform these jobs because she requires his assistance inside the house with other domestic jobs. She sought financial assistance for the gardening and window washing – which were external jobs – because she “doesn’t want strange people inside the house”. Mrs Mahne was also reluctant to ask her adult children for assistance because “they have lives of their own” and they live some distance from the house.
106. I am not satisfied that this claim should be upheld. I note that Mr Mahne – despite his age and health – attends his vegetable garden daily. He also attends a local shop on a daily basis to purchase bread and milk and also helps Mrs Mahne with supermarket shopping by driving and by lifting bags of groceries.
107. The work outside the home for which Mrs Mahne seeks assistance is not of a nature where it would be required to be undertaken on a regular routine basis. I can see no reason why Mr Mahne could not undertake gardening and lawn mowing especially when it is he that maintains his vegetable garden on a daily basis. I also note that he assists Mrs Mahne with some domestic tasks including hanging washing on a clothesline and with that capacity and apparent mobility I could think of no reason why he would not be capable of washing windows and shutters. I also note that the home in which Mr and Mrs Mahne reside is of single storey only.
108. Additionally – and having regard also to the provisions of s29 – that if it is that he is incapable of undertaking these jobs – especially window washing and washing of window shutters - I would have thought that the adult children of Mrs Mahne would be capable of assistance. Whilst sub-section (2)(b) refers to members of the household who might reasonably be required to provide this assistance, section 2(d) refers to other members of the employee’s family who might reasonably be expected to perform these services.
109. It might be thought – I believe reasonably – that having regard to the respective ages of both Mrs Mahne and Mr Mahne that the domestic assistance now sought could reasonably be provided by other (and younger) family members. In the circumstances the decision under review with respect to application V2002/1332 - the denial of liability for the provision of expenses under s29 - should be affirmed.
110. The applicant is entitled to her costs upon the Federal Court Scale in relation to applications V2002/228 and V2003/510.
I certify that the 110 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr J Handley, Senior MemberSigned: Holly Weston
AssociateDates of Hearing 23 and 24 October 2003
Date of Decision 21 September 2004
Counsel for the Applicant Mr T Keeley
Solicitor for the Applicant Nowicki Carbone & Co
Counsel for the Respondent Mr C Miles
Solicitor for the Respondent Phillips Fox
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