Marinov and Comcare
[2006] AATA 223
•10 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 223
ADMINISTRATIVE APPEALS TRIBUNAL )
)A2003/460
)A2006/35
GENERAL ADMINISTRATIVE DIVISION ) Re VLADISLAV MARINOV Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member
Dr M. Miller, MemberDate10 March 2006
PlaceCanberra
Decision The decisions under review are affirmed. ..............................................
Mr S. Webb, Presiding Member
CATCHWORDS
COMPENSATION - liability – determination to accept liability for regional pain syndrome - consent decision of Tribunal finding regional pain syndrome resolved – consent decision disputed – claim for regional pain syndrome and psychological sequela of physical injuries – eccentric behaviour and subjective symptomatology - conflicting medical evidence - credit - evidence not sufficient to disturb previous Tribunal findings and decision – no identifiable psychiatric disorder – eccentric behaviour does not equate to injury - no aggravation of previous compensable condition - decisions affirmed
Administrative Appeals Tribunal Act 1975 ss 33, 42C
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24, 62
Lees v Comcare (1999) 29 AAR 350
Hannaford v Telstra Corporation Limited [2005] FCA 1298
Riddle v Telstra Corporation Limited [2006] FCA 58
Commonwealth v Muratore (1978) 141 CLR 296
Comcare v Nichols [1999] FCA 209
Re Beer and Australian Telecommunications Commission [1990] AATA 5974
Comcare v Grimes (1994) 19 AAR 422
Re Matusko and Australian Postal Corporation (1995) 21 AAR 9
Re Lewis and Comcare [2000] AATA 158
Morales v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 51
Re Quin and Australian Postal Corporation (1992) 15 AAR 519
Re Liu and Comcare (2004) 79 ALD 119
Re Beer and Telstra Corporation Limited [1994] AATA 9838
Comcare v Mooi (1996) 69 FCR 439
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Federal Broom Co. Pty. Limited v. Semlitch (1964) 110 CLR 626
Wiegand v Comcare (2002) 72 ALD 795
REASONS FOR DECISION
10 March 2006 Mr S. Webb, Member
Dr M. Miller, Member1. By this application Vladislav Marinov is seeking relief from reviewable decisions by Comcare (dated 3 December 2003 and 10 February 2006) to deny his claims for compensation in relation to a bilateral upper limb condition (regional pain syndrome), which it is alleged arose as a result of repetitive keying duties in his employment by the Department of Defence, and an unspecified psychological condition, which it is alleged arose from his previously accepted physical injuries.
2. The matter is complicated by Mr Marinov’s assertion that a prior consent decision of the Tribunal, the terms of which he agreed at the time, whereby it was decided that his compensable regional pain syndrome had resolved on 26 July 2002, was incorrect.
3. The matter came on for hearing in Canberra on 21 February 2006. Mr Marinov gave oral evidence and was represented by Mr C. Erskine, counsel. Comcare was represented by Ms L. Walker, counsel. Drs W. Lucas, J. Bobba, B. Stevens, W. Glaser, V. Pascall and Professor J. Lance gave oral evidence. Materials were tendered and labelled for identification.
4. For reasons that will appear, we are reasonably satisfied that the decisions under review should be affirmed. Mr Marinov has not persuaded us to the requisite standard of proof that his claimed symptoms since 9 September 2002 are materially contributed to by his previous employment by the Department of Defence.
factual context
5. Mr Marinov (date of birth: 3 November 1960) commenced employment with the Department of Defence in 1980. He continued in that employment, in various positions, until 25 February 2005, when his employment was terminated.
6. In 1995 Mr Marinov commenced a Bachelor of Science Degree majoring in psychology, which he completed in 2005.
7. In 1997 Mr Marinov married. He and his wife subsequently had a daughter, who was diagnosed in 2001 with autism. The marriage broke down and Mr Marinov separated from his wife in or about June 2002. Mr Marinov’s ex-wife is a doctor. We note that neither she nor any member of Mr Marinov’s family were called to give evidence in these proceedings.
8. On 10 October 2000 Mr Marinov lodged a claim for compensation in relation to “pain and discomfort in tendons, joints, hands, wrists, upper limbs and pectoralis” purportedly arising from repetitive data entry and other administrative duties. He asserted the presence of symptoms since 1997. Comcare accepted liability for “synovitis and tenosynovitis (bilateral)” on 1 November 2000, with the date of injury being 9 October 2000.
9. On 15 June 2001, in a reviewable reconsideration decision, Comcare affirmed a primary determination to reject Mr Marinov’s claim for permanent impairment as a result of his accepted injury and varied its description of the condition for which it accepted continuing liability to include a “regional pain syndrome” (S51 folio 100). Mr Marinov made an application to the Administrative Appeals Tribunal for review of the decision concerning permanent impairment.
10. On 31 October 2001 Comcare determined that “on and from cob 31 October 2001, Comcare is no longer liable to pay compensation for [Mr Marinov’s] claim under any provision of the Act” (S62). On 12 December 2001 that determination was reconsidered and affirmed in a reviewable decision by Comcare (S68). Mr Marinov made an application to the Tribunal for review of that decision.
11. On 9 September 2002 the Tribunal made a decision by consent of the parties pursuant to s 42C of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”)(T4), relevantly as follows:
“The decision of 15 June 2001 denying [Comcare’s] liability to compensate [Mr Marinov] for permanent impairment … is affirmed.
The reviewable decision dated 12 December 2001, in so far as it relates to ongoing liability, is varied as follows:
(a) [Mr Marinov] continued to suffer from symptoms associated with his compensable condition, namely regional pain syndrome, for the period from 31 October 2001 to 26 July 2002;
(b) [Mr Marinov’s] compensable condition, namely regional pain syndrome, resolved on 26 July 2002.”
12. Following the Tribunal’s decision Mr Marinov continued to work, performing clerical duties with restrictions.
13. Mr Marinov attended on Dr G Danta (neurologist) on 3 February 2003. Dr Danta reported that “The story is that of regional pain syndrome. I doubt there is any neurological abnormality here.” (T6 folio 15).
14. On 20 March 2003 Mr Marinov lodged a claim for compensation in relation to “regional pain syndrome” arising from “Massive keyboard tasks” (T3).
15. On 27 March 2003 Dr Al-Naser (general practitioner) certified that Mr Marinov was suffering from a regional pain syndrome “ongoing from previous injury 1997” and “need[s] assessment by Canberra Injury Management Centre Dr Eaton or pain management if needed” (T10). On Dr Al-Naser’s certificate Mr Marinov was fit for work with restrictions.
16. On 24 April 2003 Comcare determined to reject Mr Marinov’s compensation claim (T13).
17. On 6 June 2003 Dr A Lark (occupational physician) reported on his examination and assessment of Mr Marinov (T18 folios 32-33):
“The key feature of Mr Marinov’s history seems to be a two year history of involuntary upper limb movements…
…
With this history and observation of involuntary movements, it seems to me that Mr Marinov would be making an effort to control his arm movements, and that this undue effort could result in pain. He presents to me as someone suffering from a significant neurological condition.”
18. On 4 July 2003 Mr Marinov asked (out of time) for Comcare’s determination to reject his compensation claim to be reconsidered (T20 and T21). On 3 December 2003 Comcare decided to grant an extension of time and issued a reviewable decision affirming the primary determination to reject his claim (T28), stating:
“The evidence does not indicate that there was any particular incident of injury, contemporaneous to [Mr Marinov’s] recent claim for compensation. Rather, the medical evidence refers to the current condition suffered by the employee as a continuation from the injury of a regional pain syndrome which first became symptomatic in 1997.
The decision of the AAT, the terms of which were consented to by the employee, state that the employee’s regional pain syndrome, which was contributed to in a material degree by his employment, resolved in July 2002.
…
Given the employee is suffering from the same symptoms, the subject of his 02 claim, and in light of the Tribunal’s decision that the injury for which liability was accepted had ceased, I am not satisfied that there is a material contribution to his diagnosed regional pain syndrome by the employee’s employment.”
19. On 9 December 2003 Mr Marinov made an application to the Tribunal for review of Comcare’s reconsideration decision (A2003/460).
20. On 5 February 2004 Dr B Stevens (forensic psychologist) reported on his examination and assessment of Mr Marinov (Exhibit A2). Dr Stevens reported that his diagnoses of a mild to moderate chronic pain disorder and moderate chronic major depressive disorder were “partially supported by the results of psychometric testing” (pp 1-2). Dr Stevens reported that Mr Marinov’s presentation was “most unusual” and suggested the possibility of that Mr Marinov’s “strange physical movements are related to his psychological problems in some way, perhaps what is called a Conversion Disorder”.
21. On 24 March 2004 Dr R Tuck (neurologist) reported (Exhibit R5, p 2):
“I do not have a final neurological diagnosis for Mr Marinov. His signs are most unusual, as are his symptoms and might not have any organic basis at all. However, he does appear to have a movement disorder characterised mainly by dystonia.”
22. On or about 8 April 2004 Mr Marinov recommenced duties at the Australian Defence Force Personnel Centre (“ADFPC”). He described his duties as reading out personnel file numbers from a list while another person checked the file records. If the file was not present Mr Marinov would enter the file data into a computer system. In May 2004 Mr Marinov requested alternative duties. He was suspended from duty on 20 May 2004. His employment by the Department of Defence was terminated on 25 February 2005.
23. On 28 August 2004 Dr V Pascall (occupational physician) reported that (Exhibit R3 p 8) “Mr Marinov presents as an unusual case… No doubt that he has severe and overwhelming pain and can be considered to have a bilateral Regional Pain Syndrome”. Dr Pascall was of the opinion that “Mr Marinov’s movements and his interpretation of them are more consistent with a conversion disorder”.
24. On 10 September 2004 Dr W Lucas (consultant forensic psychiatrist) reported “I think it would be unsafe to make a firm diagnosis of a conversion disorder as this could divert attention from the need to exclude organic causes of movement disorder” (Exhibit A1, p 11). Dr Lucas was of the opinion that “Mr Marinov is suffering from pain disorder which is likely to be based on both a medical condition and psychological factors”.
25. On 9 February 2005 Professor J Lance (consultant neurologist) reported that (Exhibit R4, pp 6 and 8):
“Mr Marinov has a complex regional pain syndrome, complicated by marked functional overlay in association with a state of anxiety and depression…
…
My diagnosis is complex region pain syndrome with functional overlay. The condition started as repetitive strain injury in 1997 and developed into a chronic regional pain syndrome by June 2001, a disease which was contributed to substantially by Mr Marinov’s employment.”
26. On 7 September 2005 Mr Marinov made a claim for compensation in relation to “a psychiatric or psychological condition arising from his physical injuries”. On 23 September 2005 Comcare determined to reject that claim.
27. On 15 December 2005 Dr W Glaser (consultant forensic psychiatrist) reported that (Exhibit R2, pp 12 and 13):
“Mr Marinov is not suffering from any diagnosable identifiable psychiatric disorder or from any other psychological disturbance outside the range of everyday human experience...
…
Mr Marinov continues to voice a number of complaints, which are not supported by objective evidence.”
28. On 10 February 2006 Comcare reconsidered and affirmed its primary determination in a reviewable decision, stating:
“On the basis of the available material I am therefore satisfied that the employee has not suffered an identifiable medical disorder outside the boundaries of normal mental functioning and behaviour resulting from his claimed upper limb injury.
… I also note that liability under the Act has not yet been accepted for the claimed primary physical bilateral upper limb injury…”
29. Mr Marinov applied to the Tribunal for review of that reconsideration decision. Both applications by Mr Marinov were heard concurrently.
issues and legislation
30. The Tribunal must determine the correct or preferable decision in relation to the two reconsideration decisions that are before it concerning Mr Marinov’s claims. For that purpose it is necessary to determine whether Mr Marinov has suffered an injury for which Comcare is liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). ‘Injury’ is given meaning at s 4 of the Act and is defined to include a disease, being an ailment or an aggravation of an ailment to which the relevant employment has contributed in a material degree. If such injury is found, Comcare will be liable to pay compensation if the injury results in incapacity for work or impairment pursuant to s 14 of that Act. Other heads of compensation under the Act (such as s 16 in relation to medical treatment, or s 19 in relation to incapacity, or s 24 in relation to permanent impairment) are not properly before this Tribunal.
31. Comcare’s primary determinations to accept liability pursuant to s 14 of the Act for bilateral synovitis and tenosynovitis, and subsequently for a regional pain syndrome, are not matters that are the subject of this review. Neither determination has been reconsidered pursuant to s 62 of the Act and cannot now be attacked in these proceedings (Lees v Comcare (1999) 29 AAR 350). Nor would it be appropriate for this Tribunal to attempt to disturb those determinations by making inconsistent findings that are not germane to the matters now in issue (Hannaford v Telstra Corporation Limited [2005] FCA 1298, Riddle v Telstra Corporation Limited [2006] FCA 58). To the extent that it is necessary to consider or refer to the prior history of Mr Marinov’s claims, we will do so.
32. We note in passing that, strictly, there is no onus of proof applicable in these proceedings. There is however, on balance, an onus of persuasion on Mr Marinov to satisfy the Tribunal of the facts necessary to enliven an entitlement to compensation hitherto denied (Commonwealth v Muratore (1978) 141 CLR 296; Comcarev Nichols [1999] FCA 209 at [18]; Re Beer and Australian Telecommunications Commission [1990] AATA 5974 at [54]).
33. The issue for determination by this Tribunal is whether Mr Marinov’s claimed regional pain syndrome and psychological symptomatology, if any, after 9 September 2002 constitutes an injury in relation to which Comcare is liable to pay compensation.
consideration and findings
34. Making this decision we have carefully considered all of the material placed before us, the submissions of the parties, the relevant caselaw and legislation.
35. Mr Marinov’s claim, at its heart, concerns his complaints of severe, continuous and disabling pain in his fingers, thumbs, hands, wrists, arms and shoulders. The preponderant weight of the medical evidence indicates that no significant pathology or diagnostic signs of disease processes have been found to explain the symptoms complained of.
36. Mr Marinov commenced complaining of pain in or about 1997 in the context of difficulties over duties in his workplace. His evidence was that in 1997 he had experienced pain in his hands and wrists, and had experienced temporary paralysis in his thumbs. The pain worsened in 1999. He first consulted a doctor about these claimed symptoms in October 2000, when he attended Dr Al-Nasser and was certified unfit for work as a result of stress. By his own account, Mr Marinov was angry and frustrated with his treatment in the workplace and did not want to (and did not) undertake additional keying duties. In his words that prospect was “the straw that broke the camel’s back”, and he has experienced disabling pain ever since.
37. Mr Marinov rated his pain as 7 out of 10 on a scale of intensity. His evidence was that he has suffered from the symptoms of pain without relief since his injury in employment. He asserted that the intensity of the pain has become worse over time and that it prevents him from undertaking many activities, including household chores such as washing and cooking, and driving for periods of more than 20 minutes. The medical evidence reveals that he has claimed that pain prevents him from sitting or standing for long periods, that activity increases the pain, that light touch increases the pain, and that the pain prevents him from concentrating for long periods, even to watch sport on television (see Exhibit A2, pp 7-8, for example).
38. Mr Marinov was afforded the opportunity to stand or to request an adjournment if he required it in order to better cope with his claimed symptoms and pain during the hearing, he did not do so and remained seated in the witness box without any apparent discomfort. Mr Marinov’s answers to questions put to him under cross examination reveal that he had no difficulty following the proceedings, despite having been in the witness box without break for a number of hours. While giving his evidence, Mr Marinov was observed to move his arms and hands in an unusual way, grimacing and blowing loudly from time to time, and sitting with his upper body twisted to the right. It was apparent to us that Mr Marinov’s movements became more pronounced when he felt agitated or nervous but otherwise decreased during the time he spent in the witness box.
the 2002 tribunal decision by consent
39. At the outset it is necessary to consider the scope of Mr Marinov’s claims and, in that regard, the consent decision of the Tribunal on 9 September 2002. The consent decision is not subject of review by this Tribunal. Appeals from Tribunal decisions lie to the Federal Court, a course that Mr Marinov did not pursue. That is perhaps not surprising given his consent to the terms of the Tribunal’s decision. Nonetheless, there is no issue estoppel applicable to matters before the Tribunal (see discussion in Comcare v Grimes (1994) 19 AAR 422 at 426-430, Re Matusko and Australian Postal Corporation (1995) 21 AAR 9 at 16 to 24). The Tribunal has flexibility to determine its procedures under s 33 of the AAT Act and to prevent relitigation of matters previous determined. In appropriate circumstances, however, it may decide to apply again or to disturb an earlier decision that was, at the time, determinative of a matter (Re Lewis and Comcare [2000] AATA 158). That is a matter of discretion (Morales v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 51 at 65-66).
40. Principles appropriate to the exercise of the discretion to permit reconsideration of a previously settled matter were discussed in Re Quin and Australian Postal Corporation (1992) 15 AAR 519 at 526 and in Matusko’s case (supra) at AAR 20-21. To the extent that, generally, a matter that has once been decided by the Tribunal should not be revisited or relitigated unless, with an eye to fairness and justice to the parties, and the requirement for the Tribunal to make the correct or preferable decision, there is good reason to do so, we find no reason to depart from those previously enunciated principles.
41. Counsel for Mr Marinov asserted that new evidence placed before the Tribunal indicates that the Tribunal’s earlier decision that his regional pain syndrome had resolved was incorrect, or was correct at the time on the evidence then available but not subsequently, and should therefore be reconsidered. Counsel for Comcare contended that if the Tribunal is persuaded to reconsider its previous decision in relation to the resolution of Mr Marinov’s compensable condition, then it is also necessary to reconsider the question of diagnosis of that condition in the light of the ‘new evidence’.
42. For reasons that will appear, we are satisfied that it is neither necessary nor desirable to disturb the earlier decision of the Tribunal. We are satisfied that that decision is determinative of the issues addressed therein and that it is appropriately re-applied. Simply, the ‘new evidence’ on which Mr Marinov relies does not persuade us that his claimed regional pain syndrome had not in fact resolved on 26 July 2002. There is no medical evidence that is contemporaneous with the period 26 July 2002 (the date on which it was agreed that Mr Marinov’s regional pain syndrome had ‘resolved’) to 9 September 2002 (the date of the Tribunal’s decision by consent) to corroborate Mr Marinov’s assertion that his condition had not, in fact, resolved at that time.
43. It is true that Mr Marinov was subsequently examined by Dr G Danta (neurologist) in February 2003 and by other medical practitioners at various times thereafter. Those medical reports, which are in evidence, set out and refer to the history given by Mr Marinov. It is plain enough that the medical experts had some difficulty comprehending Mr Marinov’s presentation and his claimed history and symptomatology. Their difficulty was exacerbated by difficulties examining Mr Marinov (see reports of Dr Pascall, Dr Danta and Dr Tuck, for example).
44. We are reasonably satisfied that there are substantial inconsistencies in Mr Marinov’s reported history and symptomatology, in his presentation in the clinical setting and in his evidence before this Tribunal, to which we will return below, that are sufficient to render his evidence unreliable. To the extent that medical experts based their assessments of Mr Marinov on his reported history and symptomatology, and his presentation, without objective measure, those assessments will carry little weight.
45. We are satisfied that there is no compelling new evidence that the decision of the Tribunal dated 9 September 2002 was not the correct or preferable decision at that time and there is insufficient independent and objective evidence of probative value to support or warrant a contrary finding. There is Mr Marinov’s assertion, but that assertion is not sufficient basis to disturb the Tribunal’s previous decision.
46. We are not persuaded that Mr Marinov was pressured to agree to the consent decision terms by his then legal advisers and only did so under the duress of facing a bill of legal costs if he pursued the matter to hearing and was not successful. There is no evidence to corroborate his account. No other evidence was adduced on this point. Simply, the decision was a matter of his own making, whereby it is reasonable to expect that if he truly continued to suffer from the severe and disabling symptoms of which he complains after 26 July 2002 he would not have agreed to terms that he did not.
47. We are satisfied that the consent decision of the Tribunal on 9 September 2002 is appropriately re-applied as the correct and preferable decision at that time.
48. Counsel for Mr Marinov submitted that the decision of the Tribunal on 9 September 2002 does not have prospective effect. We agree. The decision that Mr Marinov’s regional pain syndrome had ‘resolved’ on 26 July 2002 does not purport to imply that Comcare’s liability to compensate Mr Marinov for that condition ceased for all time on that date, thereby precluding Mr Marinov from bringing further claims in the future in relation to that condition. Once liability is accepted for an injury as compensable under the Act, mere resolution of the symptoms of the compensable injury at a particular point in time does not extinguish Comcare’s liability for that injury under the Act (Re Liu and Comcare (2004) 79 ALD 119). A finding on a particular date that the symptoms of a compensable injury in the form of a disease have resolved at a particular point in time is a finding of fact located at a time then present. Plainly enough a person who is suffering a compensable injury in the form of a disease may experience episodic or intermittent symptoms whereby an entitlement to compensation under the Act may arise from time to time. Whether a recurrence of symptoms after a period of dormancy constitutes the continuation or re-emergence or reactivation of the compensable injury, whereby an entitlement to payment of compensation is raised, is to be determined as a matter of fact on the available evidence at the time.
credit
49. We find that Mr Marinov is an unreliable witness. In his evidence he demonstrated selective recall and was an extremely vague historian. Careful consideration of the history of his claims compels us to conclude that the inconsistencies in his accounts and presentation in the clinical setting, and in his evidence in these proceedings, raise serious doubts about the veracity of his claims. We do not propose to list each of those inconsistencies. They are numerous and significant, and compel us to conclude that Mr Marinov’s evidence is unreliable and will carry little weight without independent and objective corroboration.
50. In his evidence Mr Marinov described his claimed symptoms using technical medical language. Largely those symptoms related to his claims of ‘severe pain’ in his fingers, thumbs, wrists, arms, shoulders and neck. However, at no point in the proceedings did Mr Marinov appear to be suffering pain or discomfort. We formed the view that Mr Marinov was describing symptoms or phenomena in his mind that he was not experiencing physically.
51. Mr Marinov’s singularly eccentric behaviour in the witness box appeared, at least in part, to be calculated for effect. He was observed to attend the hearing over three days, only part of which required his presence in the witness box, without apparent discomfort. When he was not giving evidence Mr Marinov was observed in the hearing room without grimacing, blowing, twisting his body and moving his arms and hands in the manner that so afflicted him in the witness box.
52. During his evidence Mr Marinov demonstrated some startling inconsistencies. He stated that he cannot move the metacarpophalangeal joint in his thumbs, and then proceeded to do so without any apparent discomfort. He gave evidence that movement in his fingers, hands, arms and neck is restricted by pain, and then proceeded to demonstrate those very movements, gesticulating extensively and with a full range of movement while giving his evidence without apparent discomfort. He had no apparent difficulty giving his evidence while seated for more than two hours without a break (despite being invited by the Tribunal to request a break if he required one, or to move around if he needed to) but had previously informed Dr Stevens that he is unable to concentrate or sit for a long period even to watch a football match on television (Exhibit A2, pp 7-8).
53. Nevertheless, it would not be appropriate to base findings solely on such observations. We turn to consider the medical evidence.
54. Inconsistencies in Mr Marinov’s account and presentation were reported upon by Dr Danta (T6 folio 14), Professor Lance (Exhibit R4 pp 5-6), Dr Glaser (Exhibit R2, pp 9-11), Dr Lucas (Exhibit A1, pp 3-7), Dr Pascall (Exhibit R3, pp 6-9), Dr Tuck, (Exhibit R5, pp 1-2) and Dr Saboisky (Exhibit R6, p 3). Dr Lucas reported that Mr Marinov told him that his pain was severe and “lessens if he does nothing” (Exhibit A1, 2005 report p 4), later reporting that Mr Marinov “tended to gesture when talking” and “He was in no obvious discomfort other than clicking of his wrists which he said relieved the pain” (p 7). We note in passing that Mr Marinov alleged in his oral evidence that his pain symptomatology had worsened over time, even during extended periods of inactivity.
55. Mr Marinov’s oral evidence was that his unusual hand, arm and facial movements commenced in about 2000 or 2001, and sometime later, he could not be sure when, his torso and head twisted to the right. He asserted that he was not initially aware of these movements and that they were involuntary. Consistent with that evidence, Dr Lucas reported Mr Marinov’s account that his movement disorder commenced in or about 2000 (Exhibit A1, 2004 report, p 5). However, Dr Lucas noted that Dr Danta made no mention of a movement disorder or unusual movements on examination of Mr Marinov in February 2003. That is plainly the case (see Dr Danta’s report at T6). We note that Dr Burke did not report any unusual arm or hand movements or the presence of a nervous facial tic on 28 December 2000 (S15), whereas, one month earlier on 22 November 2000, Dr Griffith reported that Mr Marinov had told him that he “uses his hands using trick movements to circumvent the pain” (S11 folio 23) and noted an “unusual nervous tic, with repeated smacking movements of the lips consistent with anxiety” (S11 folio 24). Such hand movements were plainly not involuntary. Dr Lucas reported that Mr Marinov told him that he was able to control his movements “for a while but pressure built up. If he controlled his movements he hurt later” (Exhibit A1, 2004 report, p 6). Dr Stevens reported that Mr Marinov told him that (Exhibit A2, p 7):
“He has suffered about a 30% reduction in his ability to move his wrists and hands. He suffers from twitches in both arms and a need to constantly move his wrists to relieve stiffness and pain. He stated that he can suppress the movements; however it causes an increase in the level of his pain.”
56. However, Dr Pascall reported that Mr Marinov’s ‘involuntary movements’ “increased significantly whilst he discussed them, and when he was discussing other matters, they were absent” (Exhibit R3 p 8). Professor Lance made a similar observation in relation to Mr Marinov’s purported difficulty rotating his head and neck to the left (Exhibit R4, pp 5 and 6). Those observations are consistent with the Tribunal’s observation of Mr Marinov during the hearing. We accept Dr Pascall’s assessment that the movements are not involuntary, contrary to Mr Marinov’s account, and are likely psychogenic in origin, possibly relating to concentration on his claimed symptoms or to nervous stress.
57. Mr Marinov’s told Dr Stevens that he suffered a 30 percent reduction in the range of movement of his wrists and hands. That assertion is not supported by the medical evidence. Nor is it supported by our observations during the hearing.
58. Mr Marinov has given varying accounts of the difficulties he experiences moving his thumbs. The preponderance of the medical evidence, as well as our observations during the hearing, does not support his assertions concerning restricted movement in his thumb joints. Dr Lucas reported that Mr Marinov told him that “both thumbs could not move at the metacarpal phalangeal joint” (Exhibit A1, 2004 report, p4). That is consistent with Mr Marinov’s oral evidence, even though, curiously, Mr Marinov proceeded to demonstrate to the Tribunal (without apparent discomfort) the very movement he professed he could not perform. Dr Pascall reported being told that Mr Marinov “cannot fully extend his thumbs at the first joint (metacarpophalangeal joint) and he cannot fully extend his fingers” and observed that he maintained his thumbs “like a claw” during her assessment. Dr Pascall did not record any restriction on Mr Marinov’s range of movement in his fingers, thumbs, wrists or arms, but observed that “Mr Marinov was very difficult to examine and uncooperative professing a degree of pain and removing his arms from even the lightest touch” (Exhibit R3, p 7). Professor Lance observed a similar sensitivity to touch but observed “When attention was directed away from [the forearm and hands] while eliciting tendon jerks and blood pressure, the areas were touched without provoking a response” (Exhibit R4, p 6).
59. We are satisfied that Mr Marinov’s evidence is unreliable and his accounts to medical experts must be treated with caution. For that reason we are not prepared to rely on his evidence in relation to crucial matters in issue in the absence of independent corroboration. Furthermore, we are not prepared to accept as independent evidence medical reports that are based on Mr Marinov’s account without objective assessment.
regional pain syndrome
60. If Mr Marinov has genuinely experienced the symptoms of pain since 9 September 2002 about which he has complained, we are not persuaded that such symptoms are materially contributed to by his previous employment. Nor are we persuaded that his previously accepted ‘regional pain syndrome’, which we understand to be unexplained pains that were materially contributed to by his previous employment, has been aggravated by his employment since 9 September 2002 or that it has recurred in compensable circumstances.
61. In Mr Marinov’s submission his pain symptoms after 9 September 2002 are either a continuation or a recurrence of his compensable regional pain syndrome. We are not persuaded to that conclusion.
62. The term ‘regional pain syndrome’ is not a diagnosis. The medical experts agree that it is a descriptive label attaching to complaints of pain that cannot be explained on the basis of physical pathology. The evidence placed before us is informed to a substantial degree by Mr Marinov’s account of the history of his claimed condition and his claimed symptoms.
63. We accept that it is difficult to objectively assess Mr Marinov’s claims concerning his pain symptomatology. Pain is a subjective phenomenon that is not amendable to objective measure. In the absence of apparent pathology or objective indicia of disease processes, assessing the veracity of the symptomatology under claim is attended with some difficulty and is reliant to a substantial degree on the reliability of the evidence of the claimant. We have found that Mr Marinov’s evidence must be treated with caution in the absence of corroboration or objective assessment.
64. With respect to the medical experts who have given evidence, to the extent that their assessments derive from acceptance of Mr Marinov’s account of his history and symptoms and his claim to be suffering pain, we do not accept that evidence as independent. The evidence on which Mr Marinov relies is substantially his own, whether given to examining doctors or in these proceedings.
65. We note that counsel for Mr Marinov conceded during the hearing that Mr Marinov had exaggerated his symptoms in the clinical setting. We are satisfied that he did so repeatedly and in his evidence in these proceedings. Nonetheless, in Mr Marinov’s submission, he should succeed in his claim because mere exaggeration does not mean that he was entirely free of the symptoms of his previous injury. If that is so, and we do not accept that it is, at what point and on what basis are we to accept Mr Marinov’s evidence? If he has lied by exaggerating his symptoms, what evidence is there to indicate that he has not lied about the very existence of the condition and symptoms he claims from 9 September 2002? In terms of his claimed regional pain syndrome the evidence relies on Mr Marinov’s subjective and uncorroborated account. We do not accept his account for the reasons stated.
66. We are mindful that the decisions under review are decisions to deny Mr Marinov’s claims for compensation. We must be satisfied on the evidence before us that Mr Marinov’s claimed pain and psychological symptomatology after 9 September 2002 is materially contributed to by his previous employment if his claims are to succeed.
67. On balance, the evidence does not persuade us as a matter of clinical fact or as a matter of probability that Mr Marinov is suffering from the employment related symptoms or conditions he claims. His assertions are not proved on the evidence. It follows that we are not persuaded that he suffers from a regional pain syndrome that is materially contributed to by his previous employment or that is a continuation of his previous compensable condition. If Mr Marinov does in truth suffer pain, he has failed to place sufficient probative evidence before us that such pain is in any material degree the result of his previous employment. We note that Mr Marinov has experienced significant psychological stresses in his personal life, most notably the diagnosis of autism in his daughter and the breakdown of his marriage.
68. Counsel for Mr Marinov contended that this case is similar to Beer’s case (Re Beer and Australian Telecommunications Commission (above) and Re Beer and Telstra Corporation Limited [1994] AATA 9838). We do not agree. Plainly, there are similarities between the cases with regard to the successive determinations made by the respondent parties to accept liability at first instance and subsequently to purportedly cease liability to pay further compensation. In Beer’s case the Tribunal found in her favour on two occasions and found that her compensable injury was ongoing. Nonetheless, Beer’s cases are to be distinguished for the simple reason that in both of those cases the Tribunal believed Ms Beer and found that her pain was real and not fabricated. The same does not hold in this case. Furthermore, In Ms Beer’s cases evidence was led concerning objective assessment and testing that had been carried out and indicated neurological deficit arising from an index injury (see Re Beer and Telstra Corporation Limited [1994] at paragraphs 26-38, for example). There is no compelling evidence of a similar character in this case.
69. However, that does not resolve the matter of the claimed regional pain syndrome. Mr Marinov relies on the report of Professor Lance, who diagnosed a work related Complex Chronic Pain Syndrome Type 1 (being a condition previously known as reflex sympathetic dystrophy). We note, however, that Professor Lance gave oral evidence that he did not find any of the diagnostic criteria for a Type 1 complex pain syndrome on examination, such as temperature change, discolouration and parasthaesia, but made the diagnosis nonetheless. Professor Lance stands alone among the medical experts in his diagnosis and our attention was not taken to any supporting findings in other medical reports in evidence. While noting his eminence in his field, and with respect, we are not satisfied that Mr Marinov suffers from a complex chronic regional pain syndrome Type 1 and so find.
70. We note in passing that there is no evidence before us that Mr Marinov continues to suffer from the condition of bilateral tenosynovitis and synovitis, for which liability was initially accepted by Comcare. We accept Dr Pascall’s finding that he does not, and so find.
71. To the extent that Mr Marinov asserts that his previously compensable regional pain syndrome was aggravated and caused to recur by his duties in employment after 9 September 2002, we do not agree. There is no medical evidence to support such a proposition. Nor does Mr Marinov’s own account of his history, on which, alone, we would not rely, indicate any such occurrence. In his contention his pain did not resolve in July 2002 and had continued to deteriorate relentlessly since 1997. We find that Mr Marinov did not suffer any aggravation of his previously compensable regional pain syndrome after 9 September 2002.
psychological sequela of physical condition
72. Counsel for Mr Marinov explained that Mr Marinov’s claim for compensation in relation to “a psychiatric or psychological condition arising from his physical injuries” is essentially to ensure that the Tribunal has jurisdiction to determine whether psychological aspects of his claimed ‘physical’ injuries are compensable.
73. Having heard the parties on this subject, and having considered the medical evidence, it appears to us that three possible psychological conditions are in issue, being Pain Disorder, Major Depressive Disorder and Conversion Disorder as described in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”). We are mindful that it is not strictly necessary to determine a diagnosis in order for a condition or suite of clinical symptoms to be compensable. What is necessary, however, is for Mr Marinov to satisfy the Tribunal that he is “in a condition that is outside the boundaries of normal mental functioning and behaviour” (Comcare v Mooi (1996) 69 FCR 439) and, essentially, that such condition is materially contributed to by his previous employment (Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323; Federal Broom Co. Pty. Limited v. Semlitch (1964) 110 CLR 626 at 641).
74. Mr Marinov’s claim concerns a condition that “arises from” physical injury. Thus his case is to be distinguished from a case such as Wiegand v Comcare (2002) 72 ALD 795, for example, in which there is a direct connexion made, albeit in that case in the form of perceptions of events in the workplace, between the claimed injury and the employment. In this case the causal chain contended for by Mr Marinov between his claim psychological injury and his previous employment is by physical injury.
75. The physical injuries to which Mr Marinov refers in his claim are not described. We comprehend those ‘physical injuries’ to be the injuries that Comcare previously accepted as compensable under the Act, namely bilateral tenosynovitis and synovitis and regional pain syndrome (although the physical nature of the compensable ‘regional pain syndrome’ is far from clear on the available medical evidence). Mr Marinov has not persuaded us that he suffers from a psychological condition outside normal mental functioning and behaviour that was contributed to in any material degree by the compensable injuries in his previous employment.
76. We have had regard to the diagnostic criteria set out in the DSM-IV in relation to Pain Disorder, Major Depressive Disorder and Conversion Disorder. Dr Lucas and Dr Stevens diagnosed Pain Disorder and Major Depressive Disorder. Dr Glaser did not. For reasons that will appear we prefer the evidence of Dr Glaser.
77. Dr Lucas diagnosed “pain disorder which is likely to be based on both a medical condition and psychological factors” (Exhibit A1, 2004 report, p 11). In his 2005 report Dr Lucas agreed with the diagnosis made by Dr Stevens of Pain Disorder and Major Depressive Disorder (Exhibit A1, 2005 report, p 8 and Exhibit A2, p 1, respectively). We note, however, that in the section of his 2004 report headed ‘Diagnosis’, Dr Lucas stated (Exhibit A1, 2004 report, pp 10 and 11):
“[Mr Marinov] complains of depression and Dr Stevens has diagnosed major depression with moderate severity. I found the level of his depression difficult to assess but once again there were many factors likely to be contributing to his depressed mood, pain and his employment and personal circumstances.”
However, in the ‘Opinion’ section of that report Dr Lucas did not mention a diagnosis of Major Depression. In the ‘Diagnosis’ section of Dr Lucas’ 2005 report he does not mention Major Depressive Disorder but suggests a possible diagnosis of Conversion Disorder (Exhibit A1, 2005 report, p 8). In his oral evidence Dr Lucas explained that when he examined Mr Marinov he was not suffering from Major Depression, but had a depressed mood. Dr Lucas stated that he had accepted Mr Marinov’s account of his history and symptoms as he had no evidence that the symptoms were feigned.
78. We have noted discrepancies that arise from Dr Lucas’ reports in relation to Mr Marinov’s claims and other evidence. Essentially Dr Lucas accepted Mr Marinov’s complaints as true. We have found that Mr Marinov’s accounts are not reliable. Dr Stevens’ evidence supports our conclusion.
79. Dr Stevens conducted psychometric testing of Mr Marinov, applying three tests (Coping Scale for Adults test, Pain Patient Profile test (“P3”) and Personality Assessment Inventory test (“PAI”))(Exhibit A2). Dr Stevens gave evidence that, of those tests, the P3 test concerning pain was invalid, indicating exaggeration on Mr Marinov’s part. In consequence Dr Stevens assessed Mr Marinov’s claimed pain as “mild to moderate”, having “scaled down” the pain scores. Dr Stevens explained that he took into account information provided by Mr Marinov during the half hour consultation when arriving at his reported conclusion, but did not ask Mr Marinov to demonstrate physical movement, “what he could do”. We note that Dr Stevens expressed some concern during his testimony about the depth of his clinical assessment of Mr Marinov. Dr Stevens agreed that his clinical assessment of Mr Marinov was that he was “responsive and emotionally engaged” and that his diagnosis of Major Depression was not based on his clinical assessment. Dr Stevens conceded that he “should have reduced depression to mild-moderate rather than moderate” and that he had some concerns about Mr Marinov’s credibility.
80. Dr Glaser examined Mr Marinov in 2001 and 2005. Reports from both examinations are in evidence (S60 and Exhibit R2, respectively). On both occasions Dr Glaser found that Mr Marinov was not suffering from any identifiable psychiatric disorder. In his 2001 report Dr Glaser said (S60 folio 147):
“… it is clear that [Mr Marinov] is not suffering from any diagnosable clinical psychiatric disorder. His mild psychological complaints which are basically within the bounds of normal, can be quite easily ascribed to the personal circumstances discussed above. There is good evidence of at least some deliberate and conscious manufacture of his symptoms, motivated by a range of factors including a desire for revenge against staff at his employ, who allegedly treated him unfairly, a need to justify his relatively limited success in life so far and, almost certainly, financial incentives.”
In his 2005 reports Dr Glaser stated (Exhibit R2, pp 10-11):
“With respect to the diagnosis of “Chronic Pain Disorder” there is absolutely no evidence for this…
He simply does not fulfil the diagnostic criteria of DSM-IV, which states quite clearly that “the pain causes clinically significant distress or impairment in social, occupational or other important areas of functioning”. As has been discussed above, the current clinical presentation is essentially that of a man who has made various (somewhat vague) complaints of pain, with no significant evidence that this pain (if it exists) has caused him impairment in the areas mentioned in DSM-IV criteria. Furthermore, there is good evidence that Mr Marinov has intentionally, at least in part, manufactured his symptoms. This evidence, by its very nature, would tend to exclude the diagnosis of pain disorder.
The other diagnosis made by Dr Stevens is that of “Chronic Major Depressive Disorder”. Again, to put matters simply, if crudely: Mr Marinov does not appear depressed, does not behave as if he is depressed and apart from some very mild irritability and intermittent sleep disturbance, does not have any of the symptoms associated with a Major Depressive Disorder…
…
Furthermore, as has been noted, the psychological distress that he does experience could be quite adequately explained as being normal and understandable reactions to everyday experiences, e.g. distress when people tell him that they do not believe that his complaints are genuine.”
81. With regard to the possibility that Mr Marinov may be suffering from a Conversion Disorder, we note that the evidence of Dr Lucas and Dr Stevens is that such a diagnosis is a speculative possibility only at this stage that should be investigated during therapy. Considering Dr Glaser’s comments concerning the possibility of Conversion Disorder, we are reasonably satisfied that such a diagnosis is not made out. Furthermore, we are reasonably satisfied that there is insufficient evidence that Mr Marinov’s previous employment or his compensable injury in that employment have materially contributed to cause his unusual movements, which have given rise, at least in part, to consideration of the possibility of Conversion Disorder.
82. Weighing the evidence of Drs Lucas, Stevens and Glaser in the light of our findings concerning Mr Marinov’s credibility and the veracity of his claims, we are satisfied that it is appropriate to accept Dr Glaser’s conclusion that Mr Marinov does not suffer from an identifiable psychiatric disorder, and so find.
83. Finally, we accept as a possibility that Mr Marinov’s unusual movements and eccentric behaviour, as reported, may be symptomatic of an unidentified psychological condition. We are sympathetic to Mr Marinov in that regard. However, there is simply insufficient evidence to enable us to find that his unusual movements and eccentric behaviour constitute an injury under the Act. The causal nexus with his previous employment is not made out.
conclusion and decision
84. The evidence is not sufficient to establish to the reasonable satisfaction standard that Mr Marinov suffers from a regional pain syndrome to which his previous employment has contributed in a material degree. We have found that the duties Mr Marinov performed in the period from 9 September 2002 to the cessation of his employment on 25 February 2005 did not cause an aggravation of his previously compensable injury, which resolved on 26 July 2002. No probative evidence has been placed before us that his previously compensable regional pain syndrome recurred after 26 July 2002. Mr Marinov’s assertion that his pain, however described or labelled, did not resolve on 26 July 2002 is not made out as a matter of probability. His assertion is not supported by objective and independent evidence of probative value and must be assessed against the evidence of exaggeration and inconsistency on his own part, whereby his evidence is rendered unreliable.
85. We are reasonably satisfied that no diagnosis of Pain Disorder, Major Depressive Disorder or Conversion Disorder is made out. If, in fact, Mr Marinov did suffer from the symptoms of pain of which he complains after 9 September 2002, the evidence is not sufficient to establish that those symptoms were materially contributed to by his previous employment. There is insufficient probative evidence to establish a causal nexus, in a material degree, between his ‘physical injuries’ and a psychological condition that is outside the boundaries of normal mental functioning and behaviour. It has not been established as a matter of probability that Mr Marinov’s unusual movements and eccentric behaviour constitute a psychological or psychiatric condition that is compensable under the Act.
86. In the final analysis, Mr Marinov has failed to make out his case to the necessary standard of proof. That being so the decisions under review are affirmed.
I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr S. Webb, Member; and
Dr M Miller, MemberSigned: .....................................................................................
AssociateDate of Hearing 21-23 February 2006
Date of Decision 10 March 2006
Counsel for the Applicant Chris Erskine
Solicitor for the Applicant Bill Redpath
Pamela Coward & Associaties
Counsel for the Respondent Lorraine Walker
Solicitor for the Respondent Geoff Wilson
Dibbs Abbott Stillman
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