Mayo and Australian Postal Corporation
[2011] AATA 249
•14 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 249
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5760
) 2009/0117
GENERAL ADMINISTRATIVE DIVISION ) Re BEN MAYO Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Deputy President S D Hotop Date14 April 2011
PlacePerth
Decision
The Tribunal:
Application No 2008/5760
· sets aside the decision under review and, in substitution therefor, decides that the respondent has continued on and from 16 October 2008 to be, and is presently, liable to pay compensation to the applicant, in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), in respect of an injury, namely, “muscle strain back and neck”, sustained on 21 April 2006;
Application No 2009/0117
· sets aside the decision under review and, in substitution therefor, decides that the respondent is liable, pursuant to s 14(1) and Part VIII of the SRC Act, to pay compensation to the applicant in respect of a mental injury, namely, Pain Disorder associated with both psychological factors and a general medical condition, sustained on 31 July 2007.
Application may be made to the Tribunal in relation to the costs of these proceedings within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
..........[sgd S D Hotop]........
Deputy President
Deputy President
CATCHWORDS
COMPENSATION – applicant employed by respondent – applicant suffered soft tissue injury to lumbar spine in employment-related motor vehicle accident in April 2006 – respondent accepted liability to pay compensation to applicant – respondent determined that not liable to pay compensation to applicant from October 2008 – applicant continues to suffer lower back pain symptoms resulting from injury – respondent continues to be liable to pay compensation to applicant for injury – applicant claimed compensation for psychological condition resulting from physical injury – respondent denied liability to pay compensation to applicant for psychological condition – applicant suffered major depressive episode and pain disorder associated with psychological factors and general medical condition as result of physical injury – applicant suffered major depressive episode also as result of reasonable administrative action taken in respect of his employment – major depressive episode not a compensable injury – respondent not liable to pay compensation to applicant for major depressive episode – pain disorder a compensable injury – respondent liable to pay compensation to applicant for pain disorder – decisions under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 5A, s 5B, s 6, s 7(4) and s 14(1)
Hart v Comcare (2005) 145 FCR 29
Trewin v Comcare (1998) 84 FCR 171
REASONS FOR DECISION
14 April 2011 Deputy President S D Hotop Introduction
1. Ben Mayo (“the applicant”), who is presently 32 years of age, has been employed by the Australian Postal Corporation (“the respondent”) since November 1998.
2. On 21 April 2006 the applicant, while travelling between his home and his workplace, was involved in a motor vehicle accident.
3. On 26 April 2006 the applicant claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) for “neck & back pain” resulting from that motor vehicle accident.
4. On 3 May 2006 the respondent accepted liability under the SRC Act to pay compensation to the applicant for “muscle strain back and neck” sustained on 21 April 2006.
5. The applicant thereafter received compensation pursuant to the SRC Act until 15 October 2008. On that date, however, the respondent determined that, on and from 16 October 2008, it had no present liability to pay compensation to the applicant for the cost of medical treatment under s 16 of the SRC Act, and for incapacity for work under s 19 of the SRC Act, in respect of his “muscle strain back and neck” injury.
6. On 26 November 2008 that determination was affirmed in a “reviewable decision” made by the respondent under s 62 of the SRC Act.
7. On 1 December 2008 the applicant applied to the Tribunal for review of that reviewable decision (Application No 2008/5760).
8. Meanwhile the applicant’s solicitors, by letter dated 4 November 2008, formally requested the respondent to accept liability under the SRC Act “in respect of whatever other conditions are set out in the medical reports as having been sustained by Mr Mayo as a result of his physical injury”.
9. On 5 December 2008 the respondent determined that it was not liable under the SRC Act to pay compensation to the applicant for a psychological condition.
10. On 29 December 2008 that determination was affirmed in a reviewable decision made by the respondent.
11. On 8 January 2009 the applicant applied to the Tribunal for review of that reviewable decision (Application No 2009/0117).
The Evidence
12. The evidence before the Tribunal comprised:
· the “T Documents” in Application No 2008/5760 (T1–T175, pp 1–248) and the “T Documents” in Application No 2009/0117 (T1–T8, pp 1–14) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1–A11 tendered by the applicant;
· Exhibits R1–R18 tendered by the respondent;
· the oral evidence of the applicant and the following witnesses:
-Dr A Home, Dr W Rappeport, Dr R Yin and Dr K Fischer (who were called by the applicant); and
-Dr J Low, Dr B Dare, Mr P Hardcastle, Dr G Edwards-Smith and Dr L Terace (who were called by the respondent).
The Applicant’s Evidence
13. The applicant affirmed the contents of his signed witness statement, dated 2 November 2010, as follows:
“ …
Personal Background
…
10. I left high school after completing Year 10.
11. Upon finishing high school I immediately sought employment.
Employment History
12.My first job upon leaving school was at a local nursery. I worked there for approximately 2 months.
13. Two days after leaving the nursery I commenced working at Chicken Treat.
14.Whilst working full-time at Chicken Treat doing day shifts I also worked part-time at TImezone some nights.
15. I worked at Chicken Treat for approximately 5 years.
16.When I had obtained employment at Australia Post I then gave Chicken Treat my notice. I had no time off in between working for Chicken Treat and working for Australia Post.
17.I started working for Australia Post when I was 20 years of age on 16 November 1998.
18.I started work for Australia Post as a Cleaner at the Perth Mail Centre.
19.I became a Mail Officer for Australia Post after approximately 1 year of working for them as a Cleaner.
20.During my employment with Australia Post I have primarily been a Mail Officer. However, I have acted in the following roles: Senior Mail Officer and Mail Process Coordinator Level 3.
21.When I was the acting Mail Process Coordinator I was effectively in charge of the staff on my shift. I was in charge of paperwork, rostering and dispute resolution.
22.Since commencing employment with Australia Post in 1998 I enjoyed working there and envisaged myself working up the promotional ladder.
Previous Injuries
23.I remember that one of my hands was in a plaster cast when I was a young child, but I cannot remember which one and have had no problems with it since childhood.
24.After working at Chicken Treat for approximately 2 years I suffered an injury at work when several crates of chickens fell on top of me. I attended my general practitioner, Dr Wendy Rappeport. I returned to work on restricted hours and my symptoms resolved completely within approximately 2 months.
25.I have been involved in a previous motor vehicle accident approximately 12 to 14 years ago but do not recall that I received medical treatment or sustained any injuries.
26.Prior to my initial back injury sustained on 18 March 2005 I had worked at Australia Post for approximately 6.5 years without significant injury.
27.Whilst working for Australia Post I did sustain minor injuries during the course of carrying out my employment tasks, such as paper cuts to my fingers. These very minor incidents may or may not have been reported during my employment. I did not sustain any residual disability or ongoing symptoms from these very minor injuries.
Australia Post Incident of 18 March 2005
28.On 18 March 2005 I suffered a work injury whilst working in the Perth Mail Centre.
29.I leant into a ULD (a large metal cage containing mail packages) to retrieve a ‘mis-sort’ package and felt muscle pain across the middle left side of my back.
30.An incident report form was completed by me on 18 March 2010 (sic).
31.I was diagnosed as having suffered a soft tissue injury to my latissimus dorsi/paravertebral muscles.
32.I underwent physiotherapy treatment and attended regularly upon a general practitioner at Carepoint.
33.I received a final medical certificate declaring me fit for my normal work duties dated 28 June 2005 and I returned to my normal work duties in June 2005.
Australia Post Incident of 30 August 2005
34.On 30 August 2005 I was working on the conveyor belt in the Air Logistics Section sorting mail when my neck, shoulders and lower back started aching and became painful.
35.The pain increased in intensity as I continued to stand and work at the conveyor belt reaching for mail.
36.I was issued with a first medical certificate and later diagnosed as having suffered a sprain to the thoracolumbar spine.
37.As a result of this injury I underwent physiotherapy treatment. I also underwent hydrotherapy and exercise programs.
38.During my recovery period for this injury it is recorded on a Carepoint medical certificate dated 9 September 2005 that I experienced ‘significant depressive and anxiety symptoms’.
39.At this time I remember seeing a psychiatrist on a couple of occasions (not more than 3 times) in relation to my ‘depressive symptoms’ and to deal with ‘work-related stress’.
40.Initially I returned to work doing my normal hours but I was restricted when it came to lifting objects heavier than 7.5 kg.
41.Eventually, on 9 September 2005, I was certified totally unfit for work due to ‘depressive symptoms’.
41.I had lodged a Workers’ Compensation Claim form for this incident. However, I am unsure as to whether liability was accepted.
43.I took 1 month off work, which was unpaid, and returned on 24 October 2005.
44.I returned to work in October 2005 on restricted duties which included no pushing or pulling objects greater than 10 kg in weight, work only between waist and chest height etc.
45.I returned to normal duties in January 2006.
The Motor Vehicle Accident
46.On 21 April 2006 as I was driving to work my vehicle was struck from behind.
47.The accident occurred whilst I was stationary at the traffic control signals at the intersection of Great Eastern Highway Bypass and Abernethy Road, Hazelmere.
48.At the time of the accident I estimated that the other driver impacted my vehicle at a speed of at least 35 km per hour. I remember I had my foot on the brakes and my car was pushed forwards and sidewards approximately 1 metre.
49.My vehicle, a hatchback, sustained damage to the rear panel and the boot would not close. The spare tyre compartment was compacted and unable to contain a spare tyre.
50.Following the accident I exchanged details with the other driver and continued on to work.
51.Within an hour following the accident, whilst at work, I noticed increasing neck and back pain.
52.I was sent to Carepoint and seen by a doctor I think (sic) was named Dr Walter Ong.
53.Dr Ong certified me fit for restricted duties.
54.I commenced physiotherapy treatment with Carepoint and continued to be certified fit to work restricted duties.
55.I was diagnosed as having sustained soft tissue injuries to my neck and back.
56.I completed a claim for compensation and liability was accepted.
57.I underwent physiotherapy treatment immediately following the accident. I ceased this treatment after approximately 6 months as my back pain did not seem to be resolving.
58.My neck pain largely settled within the first month or two following the accident.
Treatment for MVA Injuries
59.Since the accident in April 2006 I have undergone extensive investigations and treatment including, but not limited to, x-rays, MRI scans, CT scans, bone scans, EMG study, a sacroiliac injection and 2 facet joint injections.
60.I have undergone extensive physiotherapy treatment, exercise regimes with an exercise physiologist, attended upon several neurologists, attended upon various consultants in pain medicine and attended upon numerous other specialists including orthopaedic surgeons and general practitioners.
61.Whilst receiving ongoing treatment for my physical injuries I have also been referred to mental health specialists. I have attended upon Christopher Semmens, Clinical Psychologist, Lisa Palmer, Counsellor, and Dr Kurt Fisher, Psychiatrist.
62.I currently continue to see the following people for treatment:
(a)Dr Fischer, psychiatrist, approximately every 6 weeks;
(b)Dr Wendy Rappeport, my general practitioner, approximately once a month;
(c)Mr Hans Fisch, physiotherapist, approximately once per fortnight;
(d)Mr Colin Strydom, exercise physiologist, approximately once per month; and
(e) Dr Richard Yin, musculoskeletal physician, approximately every 6 weeks.
63.My general practitioner, Dr Wendy Rappeport, has been my general practitioner since I was about 12 years old, for almost 20 years now.
64.In the last two months I have reduced the frequency of my treatment due to financial constraints as liability for my injury is now denied.
Current Symptoms
65.My back pain is persistent and ongoing and ranges from moderate to severe depending upon the activities I am carrying out.
66.My lower back pain is different pain to my mid to upper back pain.
67.I avoid activities which I know will aggravate my back pain, such as walking, prolonged sitting or standing, lifting my arms above shoulder height, carrying heavy objects etc.
68.As a result of my ongoing and persistent back pain I have also suffered losses in many other areas of my life, including:
(a)disrupted sleep;
(b)restrictions in movement;
(c)difficulty walking;
(d)reduction in social activities to virtually nil;
(e)reduced ability to carry out gardening activities and home maintenance.
69.My symptoms as a result of the accident have disrupted my life considerably and I am unable to do most things I did before the accident.
70.I am currently on anti-depressant medication. I get depressed when I think about the effects my injuries and constant pain state have had, and continue to have, on my life. I am not able to live the life I enjoyed before the accident and it remains uncertain as to whether I ever will again.
71.Before the accident I was a very happy person. I enjoyed working and I enjoyed many social activities. I enjoyed bushwalking and hiking, going to the beach, attending garden shows and music concerts, and just enjoying life in general. Before the accident I spent a great deal of my recreation time outdoors.
72.Since the accident I am unable to attend any function or event that involves walking any mid to long distances, prolonged standing, or crowded areas. I am unable to attend music concerts or garden shows and will only attend public places that I know will not be too crowded. I am unable to do most of the outdoor activities I used to enjoy.
73.I am able to tolerate doing short food shopping trips, but only out of necessity. I avoid walking too much unless it is necessary. When needing to do extended shopping trips my friends will help me and will push me around in a wheelchair.
74.I often get upset when I see other people enjoying the outdoors, even simple things like taking their dogs for a walk.
75.I also get extremely frustrated at my limitations. I have always been very active and creative and my physical limitations cause severe restrictions on what I can do. I can no longer participate in activities that I used to do regularly. My life has irrevocably changed and I am frustrated that despite all of the treatment I have received and investigations I have undergone, I continue to suffer persistent and severely restrictive back pain.” (Exhibit A1)
14. In his examination-in-chief, the applicant gave additional evidence which may be summarised as follows:
· as a result of his lower back pain he cannot walk properly;
· he cannot put weight on his left leg because that causes too much pain to his back;
· if he tries to put weight on his left leg, he tends to lose control of the leg;
· he has been using a walking stick for a little over 2 years;
· he uses the walking stick every day and everywhere he goes;
· he feels sad and depressed;
· he has been sad before but not like he is now;
· in June/July 2008 he made about 8 applications for administrative/clerical positions within Australia Post – jobs which he was capable of doing full-time with his injury;
· he did not get many interviews and all those applications were unsuccessful.
15. The applicant’s evidence in cross-examination may be summarised as follows:
· immediately after his motor vehicle accident on 21 April 2006 he did not feel pain symptoms;
· after exchanging details with the driver of the other car, he drove his car to work, arriving about 5 minutes later;
· when he got to work he informed his boss about the accident and filled out an incident report form;
· he started to feel pain about 15–20 minutes after arriving at work and he told his boss that he felt too sore to work;
· he was then sent to see a doctor at Carepoint;
· he walks with an abnormal gait because putting weight on his left leg causes him back pain;
· if he tries to walk normally, he just collapses;
· shortly after his motor vehicle accident in April 2006 he began to limp but at that time his limp was not really noticeable;
· subsequently his back pain gradually got worse and led to his walking differently in order to minimise his pain;
· he is unable to specify the date when he commenced to walk with an abnormal gait;
· he uses a walking stick as directed by Dr Yin;
· Dr Rappeport advises him to walk normally without a walking stick but refers him to physios regarding his walking;
· his medical treatments have included a sacroiliac injection and 2 facet injections;
· the sacroiliac injection (in June 2008) gave him some pain relief, but only for 2–3 weeks;
· the first facet injection (in February 2010) numbed his back for about 12 hours but there was no real pain relief afterwards;
· the second facet injection (in March 2010) did not really relieve his pain and did not have very much effect;
· he saw Dr Rigg, Psychiatrist, once every 1–2 months in the period 2001 – 2005 and Dr Rigg made a diagnosis of attention deficit hyperactivity disorder and moderate depression;
· his mother or sister had suffered from depression.
16. In response to a question from the Tribunal, the applicant said that he felt disappointed and sad that his applications for administrative/clerical positions within Australia Post in the first half of 2008 had all been unsuccessful.
The Evidence of the Medical Witnesses Called by the Applicant
Dr Alan Home
17. Dr Home, Consultant in Occupational Medicine, first examined the applicant, at the request of the respondent, on 14 February 2007 and he prepared a report, dated 15 February 2007, in respect of that examination. That report states as follows:
“ …
History From Examinee
Mr Mayo states that he has worked as a mail sorter for Australia Post for eight years. He was previously working for Australia Post as a cleaner for six months.
He was involved in a motor vehicle crash on his way to work as the seatbelted driver of a Toyota hatchback fitted with headrests, stationary in the right hand lane at a set of traffic lights on Great Eastern Highway bypass. His car was struck from behind by a large sedan vehicle and was pushed forward almost a car length onto the median strip.
His vehicle sustained rear end damage with the rear pushed in. He has obtained a quotation of $3000 but the car has not been repaired.
Following the accident he alighted from the vehicle and exchanged details with the other driver. He continued on to his workplace three minutes away, reporting the incident. He left work within 30 minutes.
He attended his general practitioner that day. He recalls symptoms of low back pain and neck pain. The neck pain has subsequently resolved.
He reports that subsequent treatment has included thrice weekly physiotherapy massage which was ceased due to symptom exacerbation several months ago. Hydrotherapy treatment over a three month period did not improve his symptoms.
He has undertaken an exercise programme under the care of Mr Tony Fulton at Australia Post, primarily range of movement exercises with the use of gym ball, which he undertakes in the gymnasium at the Perth Mail Centre.
He reports that low back pain symptoms have varied in intensity. He reports fairly constant ache in the lower back at this time.
He is reporting the current use of Tramadol analgesia 50 mg, two to four tablets daily. He ceased Stilnox due to over-sedation.
Current Symptoms
He describes ongoing symptoms of fairly constant low back pain, more prominent on the left side, with radiation to the buttock but not to the lower limbs.
He denies lower limb paraesthesia or numbness.
He experiences moderate back pain with coughing and sneezing, but no bowel or bladder dysfunction.
Abilities/Disabilities
He is right hand dominant. He reports a normal tolerance for sitting, up to 30 minutes.
His standing and walking tolerance is 40 minutes, after which he prefers to sit.
He describes a restricted forward bending capacity, and in general, stiffness of spinal movements.
He is unable to sleep through the night without waking with back pain.
He estimates a capacity to lift bags, several kilograms in each hand.
He is currently living in shared accommodation with two others. He does undertake a share of light domestic chores. He tries to avoid pushing a trolley at the shops. He does perform bench height tasks. He avoids heavy chores such as vacuuming, mopping and sweeping.
Prior to the accident he enjoyed gardening and bush walking. He has not been able to continue with these activities.
Past Medical History
There is a past history of mild side strain sustained at work, for which his compensation claim was rejected (sic) in 2005.
He has undergone surgery to treat a ganglion in his left foot.
He does report a history of ADD, however he does not take medication for that disorder.
He smokes 25 cigarettes daily.
Vocational History
Prior to commencing work with Australia Post, he worked at Chicken Treat for five years.
Rehabilitation
Mr Mayo reports that he is undertaking ‘a remedial job’ working in the label section. He has the opportunity to alter his posture at regular intervals. He is working up to six hours daily at present.
He describes variable work attendance over the past few weeks, due to periods of spontaneous symptom exacerbation.
He is hoping to return to his normal duties at work with recovery.
Industrial Relations Issues
He does report previous strained relations with colleagues regarding personal matters. He also reports a previous ‘stress’ claim, which did not proceed.
Investigations
I have reviewed all of the relevant imaging. I note that CT scan and MRI scans of the lumbar spine are essentially normal. Technetium bone scan of the lumbar spine is also normal.
Examination
Mr Mayo is a 28 year-old with medium height and thin build.
There is a restricted range of thoraco-lumbar spinal movement, with active spinal flexion performed to reach fingertips to the upper shins, restricted by tight hamstrings on each side. Extension is full. Right and left lateral flexion are performed to reach fingertips to 5 cm above the knee crease, two-thirds normal range on each side.
Tenderness is elicited to palpation across the lumbosacral junction. This is well-localised and reproducible.
Straight leg raise is restricted by tight hamstrings to 70˚ on the right, 65˚ on the left.
There is no abnormality on neurological examination of the lower limbs. Waddell’s signs are negative.
Assessment
Mr Mayo presents with a history of ongoing fairly constant low back pain with subjective clinical signs limited to the lumbosacral segment. He does present with some caution in relation to his lumbar movements. There may well be some anxiety and fear-avoidance contributing to his symptom experience and restricted spinal movement.
Diagnostic imaging has excluded significant structural damage to the lumbar spine, however this cannot exclude symptoms arising from minor damage to the lumbosacral facet joints.
I spent some time with Mr Mayo discussing his progress and his expectations. I do anticipate that with reassurance, commitment to his active exercise programme aimed at strengthening his supporting lumbar and abdominal musculature, and continuation of the vocational rehabilitation programme, he will go on to make a good recovery in the long term.
In the majority of cases, patients suffering from symptoms related to rear-end accidents causing soft tissue injury to the lumbar spine do go on to make a full recovery within eighteen months to two years.
In answer to your specific questions:
1. The history provided by Mr Mayo at examination is detailed above.
2.The clinical findings upon examination are non-specific, although I did elicit well localised and reproducible tenderness at the lumbosacral junction.
3.Mr Mayo suffers from soft tissue injury, probably involving damage to the ligaments and facet joints at the lumbosacral junction, notwithstanding normal technetium bone scan and MRI scan investigations.
4.I am of the opinion that Mr Mayo’s current medical condition does relate to the incident of 21 April 2006. Psychological anxiety may be contributing to muscle tension in the lumbar spine.
5.There is no evidence of a pre-existing or underlying condition.
6.…
7.On subjective grounds, Mr Mayo’s complaints are of moderate severity, however on objective clinical grounds and from my review of diagnostic imaging, there is no evidence of significant structural spinal pathology.
8.The natural progression for Mr Mayo’s current condition is for further symptom recovery to occur over the next six to twelve months, with maximum medical improvement anticipated at twenty-four months post-injury.
9.Again, anxiety may be an adverse factor. I do note a past history of stress at the workplace and a past history of a rejected worker’s compensation claim. He does present with some clinical features of anxiety.
10.In a small percentage of patients suffering from soft tissue injury, recovery can be prolonged due to physical or psychological factors.
11.Mr Mayo does continue to suffer from a work-related motor vehicle crash injury. I anticipate slow improvement in symptoms over the next six to twelve months. I agree with the views of Dr Gee regarding medical treatment in this case.
12.It is my experience that in a small percentage of patients suffering these injuries, symptom recovery is prolonged. Indeed, in a very small percentage of patients, chronic symptoms can ensue.
…” (T68)
18. Dr Home next examined the applicant, at the request of the applicant’s solicitors, on 11 January 2010 and he prepared a report, dated 12 January 2010, in respect of that examination. That report states as follows:
“ …
History from Examinee
Mr Mayo states that since last review he has attended Dr Gabriel Lee, consultant neurosurgeon. He underwent further MRI scanning of the lumbar spine and EMG examination of the lower limbs. These were reported to be normal. I reviewed the MRI scans and I confirm the findings.
Mr Mayo states that he has attended a series of physiotherapists including Mr Adam Floyd, exercise physiologist, Mr Peter O’Sullivan, physiotherapist, and Mr Colin Strydon (sic), exercise physiologist.
He is currently receiving treatment under the care of Dr Richard Yin, general practitioner, in Shenton Park. He attends Dr Yin at six weekly intervals.
He is currently attending a physiotherapist Mr Hans Fish (sic) for passive physiotherapy mobilisation directed towards his back at two to three week intervals. He self funds this treatment.
He is attending a gymnasium in Shenton Park at fortnightly intervals He cannot afford more frequent attendances. He also undertakes home based exercises incorporating use of an exercise ball and various stretching exercises.
He is self funding psychiatric management under the care of Dr Kurt Fisher (sic). He has been taking Effexor antidepressant medication. Currently he attends Dr Fisher (sic) at six weekly intervals.
He states that funding for the medical treatment related to his compensation claim was discontinued last year. He has since made a claim for reinstatement of benefits through the AAT.
He further confirms that he has attended Dr John Liddell, neurosurgeon, who recommended against surgical management.
He attended Dr Lee, neurologist, who found no evidence of nerve damage.
He has undergone bilateral sacroiliac joint injections. He recalls transient symptomatic benefit with the anaesthetic but no durable improvement.
There has been no other form of medical treatment.
Mr Mayo confirms that he has undergone further independent medical examinations including those conducted by my colleague Dr Overmeire. He also attended a medical panel convened by Australia Post.
He has taken to using a walking stick over the past four months. He holds the walking stick in his right hand to offload his left leg whilst weight bearing.
Current Symptoms
Mr Mayo reports chronic constant low back pain, average intensity 6/10 increasing to 9/10 with modest physical activities such as shopping for 30 minutes. There is occasional radiation of pain to the left buttock and the proximal half of the left thigh, but not below the knee.
There is occasional momentary sharp pain with coughing and sneezing.
There is increased back pain when straining on a stool.
There is no bladder dysfunction.
He denies lower limb paresthesia.
Sitting tolerance is estimated at 30 minutes with a necessity to stand after one hour. He is comfortable standing and walking for up to 30 minutes.
He states that low back pain is more prominent on the left side of his lumbar spine.
He has discontinued use of Durogesic and Fentanyl patches. He experienced withdrawal symptoms upon their cessation.
There is current use of the following medications:
· Tramadol 50 mg, one in the morning and two at night.
· Effexor 300 mg mane.
· Endep 100 mg nocte.
Abilities/Disabilities
Currently he reports a normal capacity for personal care and dressing. He describes difficulty dressing in shoes.
He lives with two housemates. He undertakes light domestic chores. He avoids prolonged stooping such as when washing dishes. He undertakes his own laundry and hangs washing on an inside airer. He does some very light pruning in the garden. He performs food preparation and cooking. He avoids vacuuming, mopping and sweeping.
Rehabilitation
Mr Mayo confirms that he undertook labelling tasks at Australia Post until December 2008. He worked up to seven and a half hours daily but attended full days of work 2–3 days a week. On other days he would often leave early.
In December 2008 he was sent home on sick leave without pay due to cessation of his compensation benefits. He did utilise his long service leave thereafter.
He has been advised that he may be formally retrenched in May 2010.
Investigations
MRI scans of the lumbar spine dated 12 June 2006 were normal.
Technetium bone scan of the lumbar spine dated 18 January 2007 shows no abnormality.
MRI scans of the lumbar spine dated 7 January 2008 demonstrate no abnormality.
Plain radiographs of both sacroiliac joints dated 21 April 2008 are normal.
MRI scans of the cervical and thoracic spine dated 25 May 2008 are normal.
Bilateral SI joint injections were performed on 17 June 2008.
Examination
Mr Mayo is a 31 year old with short stature and thin build.
He entered the examination with a pronounced antalgic limp, with his left foot externally rotated and avoiding push-off through the left hallux during a prolonged left foot stance phase.
Ranges of active thoracolumbar spinal movements are mildly restricted with flexion to reach fingertips to the upper shins, smooth lumbar deflexion and extension to ¾ normal range at 15˚. Left lateral flexion is accompanied by reported ipsilateral pain and right lateral flexion with contralateral pain on the left side.
There is a prominent discomfort with left quadrant manoeuvre and with left hip extension whilst lying in a prone position.
There is pain associated with thoracic rotation to the left. There is less prominent pain with simulated left sided lumbar rotation, however no pain with axial compression.
Tenderness is elicited to palpation across the lumbosacral junction, more prominent overlying the left paravertebral structures. There is mild tenderness elicited to palpation overlying the sacroiliac joints.
Straight leg raise is restricted by tight hamstrings without reported back or leg pain. There is a negative Lasegue’s sign. Slump test is negative.
There is no pain reported with a figure-of-4 test for sacroiliac joint dysfunction.
There is a full range of pain free movement of both hips.
Neurological examination of the lower limbs is normal.
Assessment
It is my opinion that your client sustained soft tissue injury to the lumbar spine primarily involving the lumbosacral segment with probable involvement of the left sided facet joint. Pain is more prominent on the left side. Your client describes somatic referred pain to the posterior left thigh which is a common symptom experienced in patients suffering from facet joint dysfunction.
I agree with other examiners that your client has developed an abnormal gait. This is a rather exaggerated version of the gait often seen in patients with facet joint dysfunction with a tendency to walk with the left leg and foot externally rotated, avoiding push off through the left hallux.
Your client has taken to using a walking stick over the past four months.
I agree with other examiners that psychological factors are contributing to the presentation of disability.
In my opinion, in additional (sic) to a musculoskeletal disorder your client suffers from a Pain Disorder associated with both psychological factors and a general medical condition.
I again note that CT, MRI and bone scan investigations are normal. This does not exclude underlying soft tissue injury and facet joint dysfunction.
I do note the opinion of Dr Gemma Edwards-Smith. I do not agree with the opinion expressed. I do not agree that there is a consensus of medical opinion that ‘there is no evidence that the motor vehicle accident contributed to the onset or persistence of physical symptoms in this case’. I note that most of the examining physicians determined that Mr Mayo suffers from back pain, albeit with some difficulty in providing a precise patho-anatomical diagnosis due to normal imaging.
I note that my colleague Dr Overmeire, at the time of his independent medical examination of 1 August 2007, recommended physical lifting restrictions and a functional restoration program.
The physiotherapist, Mr Adam Floyd, found that the examinee presented with primarily left lumbar pain referring to the left buttock. I note that Mr Floyd found the gait pattern to be unusual in that the examinee appeared to unload the right side on stance phase and weighed more heavily on the left side. Whilst he reported that this is inconsistent with left sided mechanical pain, I have seen this gait pattern in many patients suffering from facet joint dysfunction as they do not wish to transfer weight on to the left hallux during the push-off phase.
I note that Mr Lee recommended ongoing exercise but understandably did not recommend surgical management.
It is not surprising in my view that EMG examination was normal as Mr Mayo does not represent (sic) with clinical features of nerve root entrapment. Again, normality of the MRI scans of the lumbar spine does not exclude an underlying spinal injury.
I would recommend that the examinee undergo diagnostic facet joint injections to determine whether the left sided L4/5 or L5/S1 facet joints are contributing to his pain experience. In the circumstance of a strongly positive analgesic response obtained, consideration could be given for referral to a pain specialist for rhizotomy treatment.
I have not reviewed any evidence that Mr Mayo suffered from significant chronic low back pain prior to the motor vehicle crash or indeed that he suffered from a somatoform disorder or pain disorder prior to the motor vehicle crash.
It is my view that this man has developed a psychiatric condition (pain disorder) as a secondary consequence of the persisting pain arising from the physical injuries associated with his motor vehicle crash.
I would recommend that you seek advice from Mr Mayo’s treating psychiatrist regarding his progress and recommended management of his psychiatric condition.
In relation to your specific questions:
1. The history provided by your client is detailed above.
2. Current symptoms and restrictions reported by your client are detailed above.
3. The current symptoms and restrictions result from the accident.
…
4. The detailed examination findings are detailed above.
5.The current diagnosis is that of a Pain Disorder associated with both psychological factors and a general medical condition (back pain). Back pain reflects soft tissue injury to the lumbosacral (L5/S1) segment, possibly also at L4/5. There are clinical signs consistent with facet joint dysfunction. There are also signs of a superimposed behavioural response to injury including abnormal and maladaptive gait pattern and reliance upon a walking stick.
The prognosis is most guarded in view of the persistence of symptoms and the development of secondary psychological complaints.
6.Your client required ongoing review and management by his psychiatrist. Your client is currently receiving antidepressant medication.
In my opinion there is a requirement for further diagnostic investigation with targeted left sided facet joint injections at L4/5 and L5/S1. This may lead onto treatment with rhizotomy.
Counselling is likely to be required in at least the short term. In the short term I would recommend that you seek specific from (sic) Mr Mayo’s treating psychiatrist regarding recommended psychiatric management.
Mr Mayo will benefit from exercise however I would defer further advice about exercise pending further diagnostic injection.
Your client does not require surgical management.
7.At this stage your client is restricted to work of a sedentary, semi-sedentary and light manual nature. It is reasonable to impose an overall lifting restriction of 10 kg. I would recommend that he avoid lifting of more than 5 kg from ground level. He should avoid work requiring repetitive bending to reach below knee height and further twisting of the spine.
8.Your client is suffering from chronic symptoms that have ensued following a motor vehicle crash. Given the duration of time since the accident it is probable that his condition will be chronic, that is persistent. Maximal medical improvement is usually anticipated by twenty-four months post-injury.
…”(Exhibit A8)
19. Dr Home reviewed the applicant, at the request of the applicant’s solicitors, on 13 October 2010 and he prepared a report, dated 18 October 2010, which states as follows:
“ …
Further History From Examinee
Mr Mayo states that there has been no further medical treatment directed toward his low back pain complaint. He reports that he does take Tramadol 50 mg one tablet thrice daily, Effexor 150 mg one tablet twice daily, and Endep 100 mg nocte.
He is currently under the care of Dr Richard Yin, whom he attends at six-week intervals. He is attending Colin Strydom, an exercise physiologist, whom he attends at six-week intervals for review and upgrade of his exercise programme.
He reports that he attends Dr Kurt Fischer, psychiatrist every month at Hollywood Specialist Rooms. He also attends a physiotherapist, Mr Hans Fisch at approximately five-week intervals. Overall, he feels some relief from physical therapy for a week or two at most.
He underwent a trial of facet joint injections during the early part of this year. He recalls several days of relief following each of the injections at the L4/5 and L5/S1 levels. There was no durable benefit.
Current Symptoms
Mr Mayo reports symptoms of chronic low back pain at average intensity 6-7 out of 10 on an analogue scale. He describes sharp pain with coughing and sneezing.
There is pain extending to the left buttock and left thigh. There is paraesthesia in the buttocks but not extending to the lower limbs.
He describes additional interscapular pain at times.
He complains of difficulty with dressing in shoes and socks.
Rehabilitation
He has not undertaken any work or training since last review. He has not identified a suitable goal for vocational rehabilitation. There is no current rehabilitation assistance.
He volunteers that he believes he may experience some difficulty with retraining due to his known dyslexia condition.
He reports that he is experiencing difficulty with depressed mood. He describes difficulty with his thought processes. He says that sometimes his thinking is confused.
Abilities/Disabilities
Currently he mobilises using a walking stick held in his left hand. He says that he is experiencing difficulty in improving his gait. He is aware that his gait is very unusual, but he says he experiences severe pain when attempting to load the left side of his back. He first began using a walking stick twelve months ago in an attempt to improve his gait pattern.
He describes a current sitting tolerance of approximately 40 minutes to an hour. He drives an automatic vehicle for short distances. He says that he has difficulty applying the brakes quickly.
He reports a restricted capacity for standing and walking.
He is able to crouch and kneel but avoids deep forward bending at the waist.
He is largely independent for dressing and other activities of self-care.
He reports prominent sleep disruption.
He estimates a capacity to lift 2-3 kg in weight, such as a light shopping bag. He undertakes very light shopping tasks. He describes difficulty carrying shopping bags.
He lives with his boyfriend and a housemate. He does not undertake vacuuming, mopping, sweeping, cleaning showers and baths. He will straighten the doona. He is able to hang several items of clothing. He performs bench height cleaning and dish washing. He is able to cook with a slow cooker.
He has not resumed previous active hobbies such as gardening and vigorous walking.
Examination
Mr Mayo is a 32 year-old with medium height and thin build, weighing 65 kg.
Examination of the thoracolumbar spine reveals a marked restriction of active spinal motion with flexion to reach fingertips to the knees. There is dysrhythmia during lumbar deflexion. There is a full range of spinal extension, however pain is reported during the return to neutral position. Right lateral flexion is performed to reach fingertips to the knees, left lateral flexion is restricted to two-thirds normal range.
There is pain with a left quadrant manoeuvre.
Straight leg raise is unimpeded to 70˚ bilaterally.
There is a mild left quadriceps wasting. The circumference of the left thigh measures 41 cm compared with 42.8 cm on the right.
He walks with an unusual collapsing gait through the left lower limb. I agree with other practitioners that this is a uniquely peculiar gait.
Tenderness is elicited to palpation overlying the left paravertebral structures between L4 and S1.
Assessment
Mr Mayo continues to present with a history of chronic low back pain, predominantly left sided, with referral to the left thigh. There are no true radicular complaints.
He has developed an abnormal gait pattern, likely to be driven by psychological factors.
There is objective evidence that he does not walk evenly, with mild wasting of the left quadriceps and a reduction in circumference of the left thigh. In this regard, my clinical findings do not tally entirely with those documented by Dr Hardcastle.
I do agree that this man has developed an abnormal psychological reaction to his pain symptoms such that he has developed an unusual ‘collapsing’ gait which can be regarded as an abnormal behaviour response to his injury.
I cannot determine that there is evidence that this man is asymptomatic or that he does not suffer left sided back pain. Apart from his bizarre gait, Waddell’s signs are negative.
I do note that MRI scans of the lumbar spine are normal.
The technetium bone scans of the lumbar spine performed in January 2007 are also normal.
Repeat MRI scans of the lumbar spine of January 2008 demonstrated no abnormality.
Saroiliac joint investigations were normal.
That is, all spinal imaging has been negative.
This, however, does not exclude the probability that Mr Mayo suffers from left sided lumbar facet joint dysfunction. There is currently no satisfactory diagnostic imaging modality to assess the facet joint and the surrounding soft tissues. Technetium bone scan will only show changes where the bony surface of the joint is damaged. To the extent that his symptoms improved for a short period after facet joint injection, this is confirmatory evidence that the facet joints represent an underlying pain source.
I would not recommend rhizotomy treatment. He is clearly not a candidate for surgical management.
I do note that Mr Mayo’s symptoms and level of disability have increased over time and I do concur with other specialists that psychological factors have contributed to his pain perception and to his presentation of disability.
I agree that this man has developed a psychiatric Pain Disorder, as a secondary consequence of the physical injuries associated with his motor vehicle crash.
It is probable that other factors such as adverse industrial relations have impacted upon his psychological reaction to his injuries and his presentation.
Overall, the diagnosis has not altered from that outlined on page 7 of my medical report dated 12 January 2010.
In answer to your specific questions outlined in your referral letter dated 12 July 2010:
1. Brief history given by my client.
The history provided by your client is detailed above.
2.Current symptoms and restrictions complained of by my client arising from the accident.
The current symptoms and restrictions reported by your client are detailed above.
3.In your opinion, are the current symptoms and restrictions complained of by my client as a result of the accident?
The current symptoms and restrictions complained of by your client appear to result from the accident in question.
4.Please detail your findings on clinical examination.
I have detailed the clinical findings on examination.
5.What is your current diagnosis and prognosis of my client’s condition?
The diagnosis has not altered. The prognosis is guarded, noting the chronicity of symptoms since 2006 and an increase in the severity of disability several years ago.
6.Are you of the opinion that my client will, in the foreseeable future, require the following treatment as set out below:
a)further consultations with specialists or general practitioners;
b)medication;
c)counselling;
d)exercise programmes;
e)physiotherapy, chiropractic or massage treatment;
f)surgery.
If so, please provide your estimate of the likely frequency, duration and costs of same.
Your client remains under review by his general practitioner.
It is reasonable that he attend a counsellor for cognitive behavioural therapy.
He is currently attending an exercise programme and should continue with that programme over the next three months, with review after that timeframe.
The current medication requirements are likely to be required over at least the short term, possibly the medium to long term. There is no indication for passive physiotherapy treatment or surgery.
7.Do you consider my client will be restricted in relation to the type of work and activities he is able to undertake currently and in the future?
Your client will be restricted to sedentary or semi-sedentary forms of employment in the short to medium term. At this stage Mr Mayo remains certified unfit for work.
I would recommend that a lifting limit of 5 kg be imposed. He should avoid work requiring repetitive bending to reach below knee height.
In my opinion he should commence future work on a part-time basis, with a possibility of increasing hours of work with work hardening over a six month period.
I anticipate that he will experience difficulty with vocational rehabilitation to a sedentary role due to his unrelated complaint of dyslexia.
I note also his bizarre gait pattern, that may cause him difficulty accessing employment.
…” (Exhibit A9)
20. In cross-examination Dr Home said that the most likely causes of ongoing back pain are disc pathology and facet joint pain. He added that, in the applicant’s case, there is no disc pathology and it is probable that the cause of his ongoing back pain is facet joint pain.
21. Dr Home agreed that, in his report of 12 January 2010, he noted that the applicant held a walking stick in his right hand while walking, whereas, in his report of 18 October 2010, he noted that the applicant held a walking stick in his left hand. Dr Home said that this change in the way the applicant used the walking stick was not significant.
22. Dr Home acknowledged that he relied on the history provided to him by the applicant but he added that, in addition to the subjective complaints of pain made by the applicant, he made an objective finding, on examination of the applicant on 13 October 2010, that the applicant’s left thigh was more wasted than the right, the circumference of the left thigh being 41 cm and the circumference of the right thigh being 42.8 cm. He confirmed that he had taken that measurement on 3 occasions on 13 October 2010 and he opined that that difference in the circumference of the applicant’s thighs indicated left-sided pain in his back and/or leg.
Dr Wendy Rappeport
23. Dr Rappeport is the applicant’s treating general practitioner. She said that she had first seen the applicant during his “teenage years” but that she only had clinical notes regarding his consultations with her from 2006. Those notes were tendered in evidence (Exhibit A12).
24. Dr Rappeport said that the first time she saw the applicant after his motor vehicle accident of 21 April 2006 was in September 2006 when he complained of low back pain, especially on the left and extending down into his left leg. She added that his reported low back pain symptoms have since continued and have increased in severity.
25. In cross-examination Dr Rappeport was taken to her clinical notes. She confirmed that:
· her note of 19 June 2007 was the first reference to the applicant’s limping;
· on 27 July 2007 she told the applicant that there was nothing wrong with his muscles or nerves so there was no need for him to be limping;
· on 18 October 2007 she asked him why he was limping since all the tests showed that there was nothing wrong with his back and he did not limp from the time of the motor vehicle accident until June 2007;
· on 13 March 2009 she noted that he was “still sore … but persisting with exercises and is much more upright with walking” and that an exercise physiologist had said that “the more he walks normal the more he will get normal, and the pain will be the last thing to go”;
· on 4 December 2009 she advised him to get on with as normal a life as possible and not to regard himself as an invalid or “injured”;
· on 1 February 2010 she noted that his gait was “improving” and that he was “nearly upright” and using a stick in his right hand;
· on 26 February 2010 she noted that he reported “mild localised improvement from recent facet joint injection” and she noted that his gait appeared “mildly improved – more upright and evenly paced”;
· on 7 May 2010 she noted that he reported that his pain and range of movement had not improved but he felt that his posture had improved; he was “walking more upright” and his gait pattern was “more normal”; he was using a walking stick and found it very difficult to balance without it; she advised him to try using railing in his house for balance so that he would not need to rely on the walking stick; she queried whether there was “psychological reliance on walking aid”.
26. Dr Rappeport was referred to the report of the Medical Review Panel on the applicant, dated 22 February 2008, prepared by Dr S Overmeire, Chair of the Panel (T130 – see paragraph 53 below). Dr Rappeport confirmed that she was a member of the Panel and that she agreed with Dr Overmeire’s report.
Dr Richard Yin
27. Dr Yin, a medical practitioner who practises in physical medicine and physiotherapy, said that he first saw the applicant on 6 July 2009. He said that the applicant presented with low back pain radiating to his left buttock and that he walked unusually although he was not then using a walking stick. He said that, at a subsequent consultation on 16 July 2009, he suggested to the applicant that he should try using a walking stick.
28. Dr Yin confirmed that he had prepared a report, dated 13 January 2010, at the request of the applicant’s solicitors. That report states as follows:
“ …
History of Injury
In April 2006, Mr Mayo was driving on his way to work when his car was hit from behind while stationary at a set of lights. The main chassis of the car was buckled, he recalls walking away from the accident with slight pain in his low back. This worsened over the next 30 minutes.
His ongoing current issue is one of persisting low back pain… In addition he has an unusual gait due to his pain and continues to be treated for depression through his psychiatrist Kurt Fisher (sic). His pain is severe. It profoundly affects his life. He struggles to walk, manage his activities of daily living, or do the shopping. He no longer works, his employment ending in December 2008. At that time he was managing 7.5 hours per day but was in severe pain and requiring opioid analgesics to cope.
I note that Mr Mayo has been seen by numerous specialists and that you are already in receipt of numerous medical reports detailing his history, progress and treatments to date. I therefore will not reiterate this clinical course.
On examination
He has an antalgic gait with pain on left weight bearing. The pain extends from his back to his left buttock.
In answer to your specific questions:
…
3.Yes I believe that Mr Mayo’s current symptoms and restrictions are due to his accident. He had no low back pain prior to this event
…
5.I cannot make a specific diagnosis. I note that all investigations to date including a lumbar CT, two MRI scans, bone scan and EMG have failed to reveal a structural abnormality. I would point out however that in all cases of chronic nonspecific low back pain [which is the most accurate medical diagnosis] a discrete pathoanatomical diagnosis cannot be made. I am not in receipt of a psychiatric report and yet I note that the Medical Review Panel recommend a psychiatric assessment. I would concur that a possible diagnosis would include a somatoform disorder.
Given it is now over three years since the accident and Mr Mayo is no better, that he has not been working for over a year, one would assess his prognosis as poor.
6. Regarding future treatment:
a) Mr Mayo requires ongoing support from his General Practitioner and psychiatrist. Eight visits to his General Practitioner per year and four visits to his psychiatrist. He needs to continue with his Effexor 300 mg twice daily, Endep 100 mg daily and Tramadol 150 mg SR nocte.
b) He needs to complete his current gym programme and an assessment made as to its benefits. If there has been little gain then I would not recommend further exercise programmes.
c) He would benefit from a trial of a multidisciplinary pain programme such as the SCAMP (Self Control and Management of Pain) programme running out of Sir Charles Gairdner Hospital. This is a five week programme running three days per week and staffed by doctors, psychologist (sic), physiotherapists, occupational therapists and nurses.
He does not require surgery.
7.Given that he has not been employed for over a year and continues to be in severe pain it is unlikely statistically that he will ever return to work. Nonetheless a formal work capacity assessment and discussion with a vocational rehabilitation provider may open the way for retraining that will allow Mr Mayo to find some meaningful work at least on a part time basis. Given that he remains highly motivated and determined I would urge that this direction be considered.
…”(Exhibit A10)
Dr Kurt Fischer
29. Dr Fischer, Consultant Psychiatrist, said that he has been treating the applicant since July 2008. He confirmed that he had provided a report, dated 24 October 2008, to Dr Rappeport. That report states as follows:
“ Thank you for asking me to see Ben. From the medical review panel report that you provided I understand that he was involved in a low-speed rear end collision in April 2006. His neck pain settled quickly with physiotherapy but the low back pain has persisted. The diagnosis is one of non-specific benign mechanical low back pain. Treatments recommended by specialists have been pursued without any benefits or functional improvement. Ben had apparently had one prior episode of low back strain which had resolved after two months of physiotherapy. He was said also to have had a previous episode of work-related stress after his promotion as acting supervisor in air logistics. Since the accident his gait has been abnormal but pertinently on orthopaedic examination he has not had an absence of antalgic reduction in weight transfer through his painful left leg. He was said to have been unable to successfully implement skills taught to him by psychologist Chris Semmens, he had had fear-avoidance behaviour unresponsive to incremental goal-setting, and he had apparently repeatedly failed to bring his activity diary to sessions. I understand that Mr Semmens had not found any obvious emotional or psychological issues to explain a psychosomatic process. Ben’s levels of distress and disability have been noted to deteriorate with time. The panel thought it likely that he had a somatoform disorder as a result of the accident, but speculated that his psychological reaction may have been due to factors unrelated to the accident.
When I met Ben in July he told me that prior to the accident he had been well thought of at work and if not for the accident he would have been progressively promoted. Although he does not dislike his current job he feels like ‘a lackey’, he said that curtains had been removed from his office nine months ago and at times he has been in tears because of lack of privacy, and he has heard disparaging comments from other workers. Even the limited physical expectations of his current job can cause significant pain and he has felt pressured by the need to prove himself capable of returning to his previous job. He feels stressed about the demands on him at work, he feels lonely at work because of his isolation from other people, he is quite angry about work policies that will probably see him lose his job for something that is not his fault, he is frustrated by the lack of a medical solution, and he feels that people have not realised how severe the accident had been. He believes that the solution to his difficulties would have been an administrative job but he has been unsuccessful in repeated applications for sedentary work.
He has pain in his lower back and buttocks, with altered sensation down his legs. He is most comfortable when recumbent but he can nevertheless have uncomfortable nights. He is never completely free of pain but it tends to be better earlier in the week. He felt that his pain had changed little over the past year although for a few months the edge had been taken off it with cortisone. He also said that in more recent months the pain had not been as severe or as constant.
With weight transfer his left leg ‘goes to jelly’. If he does not take care and inadvertently walks normally sometimes his back suddenly becomes very painful and his leg collapses. He is aware of his abnormal gait and said that it has become ‘automatic’. His gait is worse when his pain is worse. He knows that it attracts attention and sometimes he gets annoyed about this.
He and his partner had been together for only a few months before the accident. Despite the effects of the accident his home life has remained ‘quite good’ and he has not felt as much pressure at home as at work, but he has been aware of being moody and he believes that his partner has been concerned about accidentally hurting him. He had previously loved gardening but has lost a lot of plants for lack of tending, weekend walks are difficult, he is unable to pick up animals, and if he Is too sore he cannot sit for any length of time. Increasingly he has become concerned about the loss of his job and therefore the loss of his house.
He said that he used to be happy and bubbly but he now felt like a different person, more irritable, withdrawn, and not as enthusiastic. Intellectually he has been able to think of happy things but he has not felt them. He has had a sense of loss about what has transpired and there have been days when he has cried at work and has felt ‘so sad and angry’. All in all he considered himself to have been depressed, although his mood has probably been more one of frustration, particularly when his pain has been worse. He has felt depressed for a few weeks at a time ‘here and there’ but he also said that his mood has often changed from hour to hour. He thought that his sadness was generally related to pain and disability. If work was difficult he could have fleeting suicidal thoughts, he believed mostly related to pain but at times also because of the impact of organizational policies on him and feeling pressured to perform despite pain. He feels ‘like a leper … a nobody’.
He thought that at his worst, perhaps a couple of months before I met him, he had been persistently depressed for at least a full month. He imagined that this had largely been the result of the pressure that he had felt at work. During that time his mood had been one of anger, frustration and sadness. Although he had had some mood reactivity this had not been consistent and for most of that time he had felt ‘down’ and without much spontaneity. There had been no obvious diurnal mood variation although he thought that his mood might have been slightly better on weekends, perhaps because of some reduction in pain. Despite some better moments he had generally been anhedonic, he had felt less energetic, and had found work tiring. He had had some loss of interests but mostly these had been retained. His appetite and weight seemed to have fluctuated although he thought that he had probably lost some weight. Sleep had been more difficult, he thought mostly because of pain, and he had noticed that if not well slept he had been more frustrated. His concentration had been impaired, he had found it difficult to think, and speed of thinking had probably been a bit slower. He said that he had mostly felt helpless and ‘a bit useless’ and had been unable to see a future. Perhaps a couple of times a week he had fleetingly thought of suicide, but without any planning. He had previously been a ‘clean freak’ but he had lost interest in self-care, he had found it difficult to sit in a barber’s chair so his hair had grown longer, he had become unhappy with the way he looked, and generally his self-esteem had deteriorated. He thought that he had withdrawn a bit from his partner. He had not had any pathological guilt.
His contention is that as far as had (sic) dysfunction for work is concerned pain rather than depression is the principal issue. He was aware of anxiety but believes that it is mostly about the prospect of losing his job and then finding his house in jeopardy. At times when his mood does deteriorate he believes that increased pain is usually the trigger. He believed that relaxation training with psychologist Mr Semmens had helped his pain and his emotions.
At age twenty-one he was apparently diagnosed by psychiatrist Wesley Rigg with ADD and had dexamphetamine for about a year. It had helped him feel more relaxed but had also caused him to feel angry. He recalled having had an antidepressant eight years ago after a relationship ended but he had not taken it for long because of side-effects. He has difficulties with closed spaces. Since being robbed by a friend he has had checking behaviours involving doors and windows.
When I met him he had been on amitriptyline 100 mg nocte and Fentanyl for the previous 15 to 18 months, with occasional Panadeine Forte. Tramadol had caused some problems with sleep. He has occasionally used marijuana in small quantities in social situations, at a maximum once a fortnight. He has not used other substances.
…
In summary, apart from the abnormal gait he has presented in a normal way. I take it that he has pain that has been judged by other doctors to be in excess of that explained by physical pathology but I cannot find sufficient evidence of psychological factors that might explain this. There is no evidence of significant ‘secondary gain’ and there is no evidence to me that he is malingering. The fact that he is conscious of his abnormal gait by definition rules out a conversion disorder. Ben says that this is a response to pain but I cannot make sense of why his gait is as obvious as it is.
On close questioning Ben describes features that could be construed as evidence of a mild major depressive syndrome, mostly secondary to pain but also secondary to what he finds to be a difficult situation at work. For this reason, and because of some literature suggesting that it might be helpful as an adjunct to pain management, I had him start the antidepressant venlafaxine in July. I have put quite a bit of effort into trying to tap his sense of hopelessness about his current situation and to tap his anger and resentment, and to try to link these to developmental issues. He has responded to these enquiries in a very reasonable way and nothing has been thrown up that would explain his difficulties at the moment.
He has progressively increased the dose of venlafaxine and has recently been taking 300 mg/d. There have not been any obvious changes in pain experience. Although there have not been positive benefits to mood he feels that all his emotions are a bit ‘numbed’ (SSRIs can occasionally do this) but he sees this as a useful thing at the moment.
I am struggling to find a focus for intervention. Ben believes that a desk job would help his pain and this seems plausible. He feels that it helps to talk and for this reason some regular psychiatric follow-up would seem to be indicated. I think that a trial of hypnotherapy would be worth pursuing.
I have put most of the preceding in a report to claims manager David Howard, including asking for consideration to funding hypnotherapy. Unfortunately, Ben contacted me a few days ago saying that his employer has stopped ‘comp’. I will continue to see him, at least in the short term.” (Exhibit A6)
[The Tribunal notes that Dr Fischer’s report of 20 October 2008 to Mr Howard, referred to in the final paragraph of his above report, is contained in the T Documents (T169).]
30. Dr Fischer confirmed that he had prepared a report, dated 12 January 2010, at the request of the applicant’s solicitors. In that report Dr Fischer noted that he had seen the applicant on 20 occasions since July 2008 and that his mood symptoms had improved to the extent that they were “no longer sufficient to diagnose an ongoing Major Depressive syndrome”. The report went on to state as follows:
“ 5) current diagnosis and prognosis I cannot frame Mr Mayo’s pain and abnormal gait in terms of a psychiatric disorder and for this reason it is difficult to offer a comment about prognosis.
Mr Mayo thought that his mood had been at its worst perhaps a couple of months before I met him in July 2008. From what he had described of himself during that time I thought it probable that he had had a mild Major Depressive Episode (persistent depression of mood for at least a month, some but inconsistent reactivity of mood, mostly he had lost the capacity for pleasure, he had had some loss of interests, he had had less energy, he had been more easily tired, he had probably lost some weight, concentration had been impaired, speed of thinking had probably been somewhat slower, he had mostly felt helpless, self-esteem had been affected, he had felt hopeless about the future, a couple of times a week he had fleetingly thought of suicide, he had experienced some reduction in normal self-care, and there had been some interpersonal withdrawal).
In March this year I referred Mr Mayo to Counselling Psychologist Dr Robert Segal, wondering whether a trial of hypnotherapy might have something to add to management of his pain and abnormal gait. As yet no major benefits seem to have come from this avenue of treatment.
In my opinion the outcome for his Major Depression (now diagnostically, Major Depression in Partial Remission) is linked to the outcome of pain and future physical disability. If the prognosis for his pain were positive then the prognosis for his mental state would also be positive.
6) agreement with diagnosis of Somatoform Disorder My position as a clinician is that whilst it is important to have working hypotheses it is also important not to argue beyond the evidence. Especially when it comes to unconscious processes and the difficult issue of psychiatric aetiology it is too easy to be wrong, something that can damage therapeutic relationships.
With regard to Somatoform Disorder, this diagnosis requires the judgement that psychological factors have an important role in the onset and maintenance of the pain. In Mr Mayo’s case, given what I understand to be the absence of radiographic and other findings to explain the extent of his pain, and given the unusual nature of his gait, it is very reasonable to wonder about what non-physical processes might be at play. However, at no point have I had access to psychological material from Mr Mayo that is sufficiently obvious for me to be comfortable to judge that it has an important role in the onset and maintenance of his pain, and for this reason I do not agree with the diagnosis of Somatoform Disorder.
…
8) current and future restrictions to work and activities My impression is that Mr Mayo’s disability for work is principally a consequence of pain. His psychological state presents little or no disability for work and this should also continue to be the case.
…” (original emphasis) (Exhibit A7)
31. Dr Fischer opined that the applicant contracted mild Major Depressive Episode in the period March – May 2008. He was referred to the clinical note of his first consultation with the applicant on 14 July 2008 which states (inter alia):
“ Applied for 10 admin jobs since Jan all knocked back”. (part of Exhibit A5)
He said that the applicant wanted a sedentary, administrative position at Australia Post that would be within his physical capacity and he opined that the applicant’s failure to obtain such a position, despite numerous applications, was “one of a number of issues playing a role in” the onset of his depression.
The Evidence of the Medical Witnesses Called by the Respondent
Dr John Low
32. Dr Low, Consultant Occupational Physician, initially assessed the applicant, at the request of the respondent, on 18 July 2006 and he completed the assessment on 17 August 2006. He subsequently prepared a report, dated 25 August 2006, which states as follows:
“ …
History of Current Complaint
Mr Mayo stated that he was on the way to work on 21 April 2006 when he sustained the injury. He stated that he was the driver of a Toyota Starlet hatchback which was stationary at a red light. He stated that without warning, he felt his vehicle being pushed forward from behind. He stated that he had his foot on the brake at the time. He stated that he did not quite hit the vehicle in front.
He could not recall direct impact to any part of his body. He stated that he was wearing a seatbelt at the time. He stated that his vehicle had a headrest. He stated that his vehicle was seven years old.
He stated that the vehicle that hit him from behind was either a Commodore or Falcon.
He stated that he managed to get out of his vehicle unassisted and was able to drive his car away and attend work. He stated that the other vehicle was also driven away.
He stated that he had not had his vehicle fixed as yet and was able to drive his vehicle around.
Mr Mayo stated that he may have worked for a short period that day but recalled being referred to Carepoint. He stated that he started to feel pain mainly in the lower back and neck whilst at work on the day.
Mr Mayo stated that interventions undertaken subsequently included:
·Referral for physiotherapy at Carepoint. He stated that he was instructed on exercises to do on the fit-ball. He stated that he was attending the physiotherapist 1-2 times a week. At the time of the initial assessment, he stated that he had attended more than 10 sessions.
·Certification as being totally unfit for work before being certified fit to return to work on alternative duties.
·CT and MRI scan of the lower back. He stated that he was advised ‘there is minor damage … nothing I need to have an operation for’.
I note in the documentation provided the lumbar spine CT scan report dated 12 May 2006 which commented that there were no significant findings identified.
I note the lumbosacral spine MRI scan report dated 12 June 2006 also identified no significant abnormality. There were very minor degenerative changes identified at T12/L1.
Mr Mayo stated that the doctors at Carepoint suggested an exercise program and ongoing physiotherapy.
Mr Mayo stated that he was working four hours a day, three days a week, and five hours a day on the other two days a week. He stated that he had been on the same hours for the previous 1½ weeks (at the time of the initial assessment).
He stated that he continued working alternate duties and was not tying off bags. He stated that he was not lifting tubs or trays. He stated that he was sorting on the conveyor. He stated that he was sorting letters into frames (sitting to sort small letters and standing to sort large letters). He stated that he was doing light housekeeping and paperwork.
Current Symptoms (18 July 2006)
Mr Mayo stated that he felt better sometimes and other times felt worse. He felt that overall there was marginal improvement in his range of movement. He stated that the pain was now more localised to the neck and lower back.
Lower Back
He described constant pain of variable intensity localised to the midline and both sides of the lower back. He stated that sometimes, the pain felt worse on the right but ‘it does move a little bit’.
He stated that the low back pain was worse with:
· Driving, especially when depressing the brake pedal.
· Prolonged sitting or standing. He stated that his sitting tolerance was around one hour.
· After four hours at work. He stated that he had to lie on an electric blanket after work.
· In cold temperature.
Neck
He described constant interscapular pain in the upper back. He stated that the ‘neck’ pain was not as severe as the lower back.
He stated that the pain was worse when working on the conveyor belt and sorting letters which he attributed to the sustained neck flexion.
…
Current Symptoms (17 August 2006)
Mr Mayo stated that there had been no improvement since I saw him a month previously. He stated that his symptoms had ‘slightly changed’. He described the change to involve the pain being more localised to the midline of the lower back. He stated that he had slightly more movement now.
Lower Back
He stated that he continued to experience left-sided low back pain worse since increasing his work hours to six hours a day, five days a week. He stated that his work hours had been reduced again to 4-5 hours a day as previously. He stated that he was working five days a week but had been off sick this week.
He stated that the left-sided low back pain was constantly present and of variable intensity.
He stated that the pain was worse with ‘nearly everything’. When asked to elaborate, he stated that this included prolonged lying down, sitting, standing, walking up a slight hill.
Neck
He stated that the neck was ‘nowhere near as bad as the back’. He described intermittent pain which he localised across the base of the neck.
He stated that the neck pain was worse with head movement for example sorting mail and looking upwards.
Current Function (17 August 2006)
Work
He stated that he was currently alternating four and five hours a day at work. He stated that he was working five days a week. He stated that he continued working alternate duties and had increased his weight of occasional lifting to 7.5 kg. He stated that he was sorting mail into bags and sorting mail into the vertical sorting frames as well as on the conveyor belt. He stated that he was not tipping bags and not pushing or pulling cages.
Home
He stated that he could not wash his clothes. He stated that he could not lift his washing basket because of back pain. He stated that he could not wash too many dishes because standing stooped over aggravated his condition. He stated that he was not vacuuming or sweeping. He stated that he was not scrubbing or doing any cleaning. He stated that he was doing some cooking but ‘I haven’t been doing a lot at home’.
…
Examination Findings (17 August 2006)
Mr Mayo walked slowly and moved cautiously. He arrived late for the second appointment without apology or explanation.
He weighed 50 kg and was 171 cm in height.
Cervical Spine
Range of movement of the cervical spine was full however he complained of discomfort at end range forward flexion, extension, lateral flexion and rotation on the right. He localised the discomfort to the left side of is neck.
He was tender to palpation at the left C3/4 facet joint and the levator scapular insertion on both sides. He was also tender to palpation in the suprascapular area on both sides.
Q8.Will Mr Mayo have the capacity to return to full pre-injury duties and hours as a Mail Officer in the long term? What would be the expected timeframe for a return to full duties and hours? If not, please explain why Mr Mayo will not attain pre-injury capacity.
It is unlikely that Mr Mayo will resume full pre-injury duties as a Mail Officer in the long term. His lack of progress and, in fact, deterioration over the past twelve months, despite evidence-based medical management, suggests that full recovery is unlikely.
Q9.Mr Mayo is currently undertaking a Graduated Return to Work Program, undertaking predominantly Quality Control duties of a very light physical demand level.
a)what are the current work restrictions?
b)what is the expected graduation of his restrictions in the short and long term?
The following permanent restrictions are recommended;
i)maximum lifting limit of 5 kg at waist height,
ii)avoidance of repetitive or sustained bending, twisting and lifting,
iii)regular postural variety,
iv)avoidance of static standing and prolonged walking.
He is fit for general administrative or office-based duties with optimal ergonomics and regular postural variety.
Q10.Is Mr Mayo able to undertake any form of employment? If yes, please detail what types of employment he would be able to undertake. Please specify the types of duties that Mr Mayo would be able to undertake. What would be the expected timeframe for him to demonstrate fulltime work capacity in suitable employment?
Mr Mayo is fit to undertake full-time administrative, office-based duties. A meaningful role with autonomy and a level of responsibility that is consistent with his skills and experience will increase the chance of a successful rehabilitation outcome. He is considered fit for such duties on a full time basis.
…” (T130)
54. In an earlier report, dated 1 August 2007, following an examination of the applicant on 31 July 2007 at the request of the respondent, Dr Overmeire opined that the applicant had “persisting, mechanical low back pain”. As regards the causation of the applicant’s low back pain, Dr Overmeire opined:
“ The reported onset of symptoms occurred shortly after the motor vehicle crash of 21 April 2006. He denied any previous symptoms. There is no evidence of significant pre-existing degeneration. Therefore I believe that his condition is directly related to the motor vehicle crash.”
In his findings on examination, Dr Overmeire noted (inter alia):
“ He walked with a dramatic limp, with a reduced right leg stance phase and a jerking motion of the pelvis.” (T91)
The Relevant Legislation
55. Pursuant to s 14(1) and Part VIII of the SRC Act the respondent is
“ liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
The word “impairment” is defined in s 4(1) of the SRC Act to mean:
“ 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.”
As regards the phrase “incapacity for work”, s 4(9) provides:
“ A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”
56. Prior to 13 April 2007 the words “injury” and “disease” were defined in s 4(1) of the SRC Act as follows:
“ injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
“ disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
57. Prior to 13 April 2007 s 6 of the SRC Act relevantly provided:
“(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
…
(b) while the employee:
…
(ii)was travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment;
…”
58. Sections 5A and 5B of the SRC Act define the words “injury” and “disease” (respectively), in relation to an “injury” or a “disease” sustained on or after 13 April 2007, as follows:
“ 5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
5B Definition of disease
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.”
59. Section 7(4) of the SRC Act provides:
“ For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”
Analysis
Has the applicant’s “muscle strain back and neck” injury, sustained on 21 April 2006, continued to result in impairment on and from 16 October 2008?
60. The applicant testified that he has continued to suffer lower back pain, as a result of the motor vehicle accident of 21 April 2006, since that accident and that he presently continues to suffer that pain.
61. Dr Rappeport, the applicant’s treating general practitioner, has, from September 2006, regularly issued workers’ compensation progress medical certificates in respect of the injury sustained by the applicant on 21 April 2006, and she testified that the applicant has continued to complain of low back pain symptoms since that time and has reported that they have increased in severity over that period. The Tribunal notes, however, that (as indicated in the clinical notes referred to in paragraph 25 above), Dr Rappeport has, from July 2007, encouraged the applicant to try to walk normally and, generally, to try to “get on with as normal a life as possible and not to regard himself as an invalid”.
62. Dr Overmeire, Consultant Occupational Physician, who chaired a Medical Review Panel on the applicant convened at the request of the respondent, opined (in his report of 22 February 2008 set out in paragraph 53 above) that the applicant was currently suffering mechanical low back pain related to the motor vehicle accident of 21 April 2006.
63. Dr Yin, who first saw the applicant in July 2009, opined (in his report of 13 January 2010 set out in paragraph 28 above) that the applicant suffers from chronic low back pain and that his current symptoms are due to the motor vehicle accident of 21 April 2006.
64. Dr Home, Consultant in Occupational Medicine, examined the applicant on 3 occasions, namely, on 14 February 2007, 11 January 2010 and 13 October 2010, and he opined (in his reports of 15 February 2007, 12 January 2010 and 18 October 2010 set out in paragraphs 17–19 above) that the applicant sustained a soft tissue injury to the lumbar spine in the motor vehicle accident of 21 April 2006 and that he has since been suffering chronic low back pain resulting from that accident.
65. Dr Low, Consultant Occupational Physician, examined the applicant on 17 August 2006 but has not examined him subsequently. He testified that, on that occasion, he concluded that the applicant had suffered a soft tissue injury to his cervical, thoracic and lumbar spine in the motor vehicle accident of 21 April 2006. He opined, however, that it was a minor injury which would normally be expected to resolve within about 6 weeks.
66. Dr Dare, Consultant Occupational Physician, examined the applicant on 7 September 2006, 23 April 2007 and 16 August 2010. In his reports of 9 September 2006 and 24 April 2007 (set out in paragraphs 35–36 above) regarding the first and second examinations, Dr Dare opined that the applicant had suffered soft tissue injuries principally involving his thoracic spine and lumbar spine as a result of the motor vehicle accident of 21 April 2006 and that he still had some ongoing lower back pain symptoms related to that injury. In his report of 17 August 2010 (set out in paragraph 37 above) regarding his examination of the applicant on 16 August 2010, however, Dr Dare stated that he did not believe that the applicant was suffering from “any significant or chronic low back pain or ongoing low back injury” and he opined that the applicant was “certainly not suffering from any ongoing injury related to his motor vehicle accident”. He noted that “there is no objective evidence of a cause for [the applicant’s] ongoing symptoms” and he opined that he applicant had “recovered from any minor soft tissue injuries he would have suffered in his motor vehicle accident in 2006 and any (sic) of his present ongoing symptoms are related to other factors”. Dr Dare also opined that such injuries would normally be expected to resolve within 6–12 months.
67. Mr Hardcastle, Consultant Orthopaedic Surgeon, examined the applicant on one occasion, namely, on 29 July 2010. In his report of 30 July 2010 (set out in paragraph 40 above), Mr Hardcastle noted that there was “no clinical or radiological evidence to support the significant complaints of chronic pain” and he stated that it was “not [his] opinion that the motor vehicle accident is having any effect on [the applicant’s] current pain situation” He further opined in his oral evidence that any minor low back strain injury which the applicant sustained in the motor vehicle accident of 21 April 2006 would be expected to have resolved within 6–8 weeks.
Conclusion and finding
68. The Tribunal attaches greater weight to the collective evidence of Dr Rappeport, Dr Yin, Dr Overmeire and (especially) Dr Home than it attaches to the collective evidence of Dr Low, Dr Dare and Mr Hardcastle.
69. As regards the evidence of Dr Low, Dr Dare and Mr Hardcastle, the Tribunal makes the following observations:
· Dr Low has not examined the applicant since 17 August 2006 and the opinion which he expressed on that occasion – namely, that the soft tissue injury sustained by the applicant in the motor vehicle accident of 21 April 2006 “cannot account for his significant ongoing symptoms of pain and disability” – is inconsistent with the opinions of the other specialist medical practitioners who examined the applicant at about that time, namely, Mr G W Thomas, Neurosurgeon (who opined in a report dated 19 July 2006 that the applicant had sustained a soft tissue injury to the neck and back in the motor vehicle accident of 21 April 2006 and that it was “clearly going to take quite a long time for him to recover” – see T25), and Dr Dare;
· as regards Dr Dare, although he accepted the applicant’s complaints of ongoing lower back pain symptoms at his examinations on 7 September 2006 and 23 April 2007 and then opined that those symptoms resulted from the soft tissue spinal injury sustained by the applicant in the motor vehicle accident of 21 April 2006, in his report of 17 August 2010 (in respect of his examination of the applicant on 16 August 2010) he indicated that he had ceased to accept that the applicant was suffering ongoing lower back pain symptoms as a result of that motor vehicle accident, and he opined that any such ongoing symptoms are “related to other factors” – but he failed to specify any “other factors” which might account for such ongoing symptoms;
· Mr Hardcastle did not have the opportunity to examine the applicant until 29 July 2010 (some 4 years and 3 months after the relevant motor vehicle accident) and his opinion (as expressed in his report of 30 July 2010) that that motor vehicle accident is not having any effect on the applicant’s “current pain situation” is predominantly based on the absence of any objective clinical or radiological evidence that a significant injury was sustained by the applicant in that accident and his general expectation that any minor low back strain injury which was sustained by the applicant in that accident would have resolved within 6–8 weeks.
70. Dr Rappeport, Dr Overmeire and Dr Home, on the other hand, all had the benefit of seeing the applicant in the period prior to 15 October 2008, and Dr Rappeport and Dr Home have seen him subsequently. Indeed, Dr Rappeport, as the applicant’s treating general practitioner, has seen him on approximately a monthly basis from September 2006.
71. The Tribunal attaches the greatest weight to the evidence of Dr Home and Dr Rappeport. In the Tribunal’s opinion, Dr Home’s 3 reports are very thorough, soundly reasoned and objective, and his oral evidence was clearly and cogently given. Although Dr Rappeport is the applicant’s treating general practitioner, in the Tribunal’s opinion she gave her evidence objectively and concisely. The Tribunal has also been greatly assisted by Dr Rappeport’s clinical notes (Exhibit A12), some of which were referred to in paragraph 25 above.
72. Having considered the whole of the medical evidence, the Tribunal accepts Dr Home’s analysis and opinion regarding the applicant’s lower back pain symptoms and their causation, namely, that the applicant sustained a soft tissue injury to his lumbar spine in the motor vehicle accident of 21 April 2006 and that he has thereafter continued to experience lower back pain symptoms resulting from that injury.
73. The Tribunal also accepts the applicant’s evidence that, since the motor vehicle accident of 21 April 2006, he has continued to experience, and is presently experiencing, lower back pain.
74. The Tribunal notes the evidence of Dr Low, Dr Dare and Mr Hardcastle that soft tissue injuries, of the kind sustained by the applicant in the motor vehicle accident of 21 April 2006, are normally expected to resolve within a relatively short time – although the expected timeframe for resolution was not expressed consistently by them: “about 6 weeks” (Dr Low), 6–12 months (Dr Dare), and 6–8 weeks (Mr Hardcastle).
75. The Tribunal, however, also notes the following passages in Dr Home’s report of 15 February 2007 (T68):
“ …
8.The natural progression for Mr Mayo’s current condition is for further symptom recovery to occur over the next six to twelve months, with maximum medical improvement anticipated at twenty-four months post-injury.
…
10.In a small percentage of patients suffering from soft tissue injury, recovery can be prolonged due to physical or psychological factors.
…
12.It is my experience that in a small percentage of patients suffering these injuries, symptom recovery is prolonged. Indeed, in a very small percentage of patients, chronic symptoms can ensue.
…”
Dr Home subsequently came to the conclusion, as expressed in his reports of 12 January 2010 (Exhibit A8) and 18 October 2010 (Exhibit A9), that psychological factors have been contributing to the applicant’s presentation of disability and that his lower back pain symptoms have become chronic. The Tribunal accepts Dr Home’s analysis and concludes that, although soft tissue injuries of the kind sustained by the applicant in the motor vehicle accident of 21 April 2006 generally resolve within 2 years, in the particular circumstances of the applicant’s case, including the operation of the psychological factors, he has not yet recovered from the soft tissue injury to his lumbar spine which he sustained in that motor vehicle accident and has continued to experience chronic lower back pain symptoms resulting therefrom.
76. Accordingly, the Tribunal finds that the applicant’s “muscle strain back and neck” injury, sustained on 21 April 2006, has continued to result in impairment (as broadly defined in s 4(1) of the SRC Act) of his lower back on and from 16 October 2008 to the present date, and is presently continuing to result in such impairment.
Has the applicant’s “muscle strain back and neck” injury, sustained on 21 April 2006, continued to result in incapacity for work on and from 16 October 2008?
77. On the basis of the evidence of Dr Home (to which the Tribunal attaches the greatest weight), the Tribunal finds that the applicant, as a result of the abovementioned compensable injury, continued to be partially incapacitated for work, within the meaning of s 4(9)(b) of the SRC Act, on and from 16 October 2008 to the present date, and is presently partially incapacitated for work.
78. Although the applicant did not seek from the Tribunal a specific finding regarding the degree of his incapacity for work, the Tribunal notes that it accepts the opinions and recommendations expressed by Dr Home in response to Question 7 in his report of 18 October 2010 set out in paragraph 19 above.
Has the applicant suffered a mental injury for the purposes of the SRC Act?
79. There is specialist medical evidence before the Tribunal regarding the following psychiatric disorders:
· Major Depressive Episode;
· Pain Disorder.
Major Depressive Episode
80. Dr Fischer, the applicant’s treating psychiatrist, opined that the applicant contracted Major Depressive Episode in the period March–May 2008. He opined, in his abovementioned reports (see paragraphs 29–30 above), that the onset of that condition was predominantly due to pain and associated disability resulting from the motor vehicle accident of 21 April 2006. In his oral evidence, however, he said that “one of a number of issues playing a role in” the onset of that condition was the applicant’s failure to obtain a sedentary, administrative position within Australia Post despite numerous applications since the beginning of that year. Dr Fischer further opined that the applicant’s mental condition had since improved and that the appropriate current diagnosis is Major Depression in Partial Remission (see his report of 12 January 2010 – Exhibit A7).
81. Dr Edwards-Smith, Consultant Psychiatrist, first assessed the applicant on 17 October 2008 and, in her report of 31 October 2008 (Exhibit R7), she opined that the appropriate diagnoses of his mental condition were:
· Pain Disorder associated with psychological factors; and
· Major Depressive Episode.
As regards the aetiology of the applicant’s Major Depressive Episode, Dr Edwards-Smith opined that the motor vehicle accident of 21 April 2006 was not “responsible for his ongoing presentation” and she referred, in general terms, to various non-employment-related factors which were “adequate … to account for his ongoing presentation”, although she had noted, in her statement of his history, that he said that “he had applied for 15 positions within Australia Post in the administrative area and that he had been unsuccessful” and that he said that “he felt he was unfairly treated by his employer”.
82. On the basis of the evidence of Dr Fischer and Dr Edwards-Smith, the Tribunal finds that the applicant suffered a mental disorder, namely, Major Depressive Episode. As regards the time at which the applicant contracted that mental disorder, the Tribunal finds, on the basis of Dr Fischer’s evidence, that the applicant contracted Major Depressive Episode in the period March–May 2008.
83. As regards the aetiology of the Major Depressive Episode contracted by the applicant in the period March–May 2008, the Tribunal accepts Dr Fischer’s evidence that the predominant cause was pain and associated disability resulting from the motor vehicle accident of 21 April 2006 but that the applicant’s failure to obtain a sedentary, administrative position within Australia Post, despite numerous applications from January 2008, also played a role in the onset of that depressive condition. The Tribunal notes that, although Dr Edwards-Smith did not expressly include that factor (namely, the applicant’s numerous unsuccessful applications for an administrative position) or any other employment-related factor amongst the various factors she regarded as “adequate … to account for his ongoing presentation”, she did not expressly exclude that factor.
84. The Tribunal finds, on the basis of Dr Fischer’s evidence, that the applicant contracted Major Depressive Episode predominantly by reason of the ongoing lower back pain and related disability which he experienced as a result of the motor vehicle accident of 21 April 2006 but that his failure to obtain a sedentary, administrative position within Australia Post also played a part in, or contributed to, his contracting that condition.
85. Having regard to that finding, the question arises whether the Major Depressive Episode suffered by the applicant falls within the definition of “injury” in s 5A(1) of the SRC Act.
86. The Tribunal finds, on the basis of Dr Fischer’s evidence, that the applicant’s Major Depressive Episode was “contributed to, to a significant degree, by” his employment by the respondent and that it, accordingly, constitutes a “disease” as defined in s 5B(1) of the SRC Act.
87. That being the case, the applicant’s Major Depressive Episode will be a compensable “injury” for the purposes of the SRC Act unless it is caught by the exclusionary clause in the definition of “injury” in s 5A(1) of that Act.
88. Pursuant to the exclusionary clause in s 5A(1) of the SRC Act, “injury”, for the purposes of that Act:
“ does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”
Section 5A(2) provides that, for the purposes of subs (1), “reasonable administrative action” is taken to include (relevantly):
“(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.”
89. The applicant appeared to concede, having regarding to Dr Fischer’s evidence, that his failure to obtain an administrative position within Australia Post had contributed to the onset of his depressive condition in 2008, but he submitted that Australia Post had a duty, under Part III of the SRC Act, to provide him with suitable employment, namely, an administrative position, and, accordingly, his failure to obtain such a position constituted a failure to obtain a right or an entitlement, not a failure to obtain a “benefit” within the meaning of s 5A(2)(f) of the SRC Act.
90. The Tribunal does not accept the applicant’s submission. In Trewin v Comcare (1998) 84 FCR 171 the Federal Court held that a “benefit”, within the meaning of the exclusionary clause, includes a benefit to which an employee is entitled as a matter of right. In the Tribunal’s opinion, the obtaining of an administrative position within Australia Post in 2008 would clearly have been beneficial to the applicant. The Tribunal notes the report of Dr Overmeire (Chair of the Medical Review Panel), dated 22 February 2008 (set out in paragraph 53 above), in which it is stated (in response to a question regarding suitable employment for the applicant):
“ Mr Mayo is fit to undertake full time administrative, office-based duties. A meaningful role with autonomy and a level of responsibility that is consistent with his skills and experience will increase the chance of a successful rehabilitation outcome. He is considered fit for such duties on a full time basis.”
Whether or not the applicant was entitled to be redeployed to such a position, as a matter of right, is not to the point. Such redeployment would clearly have been beneficial to him, for the reasons stated in Dr Overmeire’s report, and that is sufficient for it to constitute a “benefit” within the meaning of s 5A(2)(f) of the SRC Act.
91. The Tribunal concludes, therefore, that the applicant’s numerous unsuccessful applications for a sedentary, administrative position within Australia Post from January 2008 constituted a “failure to obtain a … benefit”, within the meaning of s 5A(2)(f) of the SRC Act. It was not submitted by the applicant that the respondent’s actions in connection with his unsuccessful applications for such a position were other than “reasonable” within the meaning of that paragraph. Furthermore, there can be no dispute that action taken by the respondent in respect of the applicant’s applications for a sedentary, administrative position was “action taken … in respect of the [applicant’s] employment”, within the meaning of the exclusionary clause in s 5A(1) of the SRC Act.
92. Accordingly, the Tribunal finds that the applicant suffered Major Depressive Episode “as a result of reasonable administrative action taken in a reasonable manner in respect of [his] employment”, within the meaning of the exclusionary clause in s 5A(1) of the SRC Act. The fact that that “disease” also resulted from other factors – including a more significant factor, namely, the motor vehicle accident of 21 April 2006 – is immaterial: Hart v Comcare (2005) 145 FCR 29.
93. The Tribunal concludes, therefore, that the applicant’s Major Depressive Episode is not an “injury” as defined in s 5A(1) of the SRC Act, and is accordingly not an “injury” within the meaning of s 14(1) of the SRC Act.
Pain Disorder
94. Dr Edwards-Smith and Dr Terace each opined that the applicant is suffering from a somatoform disorder, namely, Pain Disorder associated with psychological factors. They each confirmed, however, that they had made that diagnosis on the basis that the applicant was not suffering ongoing physical pain symptoms, and they accepted that, if the applicant was continuing to experience such symptoms, the appropriate diagnosis would be Pain Disorder associated with both psychological factors and a general medical condition.
95. Dr Fischer did not agree with the diagnosis of somatoform disorder in the applicant’s case for the following reason (as stated in his report of 12 January 2010 set out in paragraph 30 above):
“ With regard to Somatoform Disorder, this diagnosis requires the judgement that psychological factors have an important role in the onset and maintenance of the pain. In Mr Mayo’s case, given what I understand to be the absence of radiographic and other findings to explain the extent of his pain, and given the unusual nature of his gait, it is very reasonable to wonder about what non-physical processes might be at play. However, at no point have I had access to psychological material from Mr Mayo that is sufficiently obvious for me to be comfortable to judge that it has an important role in the onset and maintenance of his pain …”
96. Although Dr Fischer expressed disagreement with a diagnosis of a somatoform disorder in the applicant’s case, he did not, in the Tribunal’s opinion, go so far as to exclude the possibility of such a diagnosis, acknowledging that “it is very reasonable to wonder about what non-physical processes might be at play”.
97. On the basis of the reports of Dr Edwards-Smith and Dr Terace, the Tribunal is satisfied that the applicant is suffering from a somatoform disorder. In the Tribunal’s opinion that somatoform disorder is evidenced, in particular, by the applicant’s grossly abnormal gait and his subsequent dependence on a walking stick.
98. Dr Edwards-Smith and Dr Terace acknowledged that the appropriate diagnosis of the applicant’s somatoform disorder depends on whether or not he has continued to suffer ongoing physical pain symptoms. The Tribunal has found that the applicant has continued to suffer chronic lower back pain symptoms resulting from the soft tissue injury to his lumbar spine which he sustained in the motor vehicle accident of 21 April 2006. On the basis of that finding, the Tribunal finds that the appropriate diagnosis of the somatoform disorder suffered by the applicant is Pain Disorder associated with both psychological factors and a general medical condition. The Tribunal notes that Dr Home so opined in his report of 12 January 2010 set out in paragraph 18 above.
99. The Tribunal further finds that the chronic lower back pain symptoms suffered by the applicant as a result of the motor vehicle accident of 21 April 2006 have contributed “to a significant degree” (as defined in s 5B(3) of the SRC Act) to his contracting Pain Disorder associated with both psychological factors and a general medical condition. That mental ailment is, accordingly, a “disease”, as defined in s 5B(1) of the SRC Act, and an “injury”, as defined in s 5A(1) of the SRC Act. It is, therefore, an “injury” within the meaning of s 14(1) of the SRC Act.
100. The date of onset of this mental “injury” (being a “disease”) is somewhat problematic. Neither Dr Edwards-Smith nor Dr Terace was prepared to express an opinion on this matter other than that the date of onset was after the motor vehicle accident of 21 April 2006. It seems to the Tribunal that, given its opinion that the applicant’s somatoform disorder is evidenced by his grossly abnormal gait and his subsequent dependence on a walking stick, the time at which he developed that abnormal gait would be indicative of the time of onset of his somatoform disorder.
101. The applicant testified that he began to limp shortly after the motor vehicle accident of 21 April 2006 but that at that time his limp was not really noticeable.
102. The earliest reference, in the medical evidence, to the applicant’s walking with a limp is a workers’ compensation progress medical certificate issued by Dr Rappeport on 8 June 2007 in which it is stated that he reported that his limp “is much more noticeable since he has been walking more, and aggravated by the extra weight of his work shoes” (T80). The next reference is a clinical note of Dr Rappeport, dated 19 June 2007, which refers to the applicant’s “limping badly” (part of Exhibit A12).
103. The earliest medical report in evidence which refers to the applicant’s walking with a limp is Dr Overmeire’s report of 1 August 2007 (T91) in which it is noted that, on examination on 31 July 2007, the applicant “walked with a dramatic limp, with a reduced right leg stance phase and a jerking motion of the pelvis”. Subsequent medical reports in evidence refer variously to the applicant’s “dramatic, slow, broadbased gait”, “abnormal gait”, “bizarre gait”, “uniquely peculiar gait”.
104. Medical reports in evidence refer to various approximate dates in 2009 when the applicant commenced to use a walking stick. The applicant’s own evidence was that he has been using a walking stick “for a little over 2 years”. The Tribunal, however, accepts the evidence of Dr Yin that, when he first saw the applicant on 6 July 2009, he was not then using a walking stick and that he subsequently suggested to the applicant at a consultation on 16 July 2009 that he should try using a walking stick. The Tribunal is reasonably satisfied that the applicant commenced to use a walking stick in or about late July 2009.
105. In the Tribunal’s opinion, the earliest unequivocal reference in the medical evidence to the applicant’s having been observed to walk with a grossly abnormal gait appears in Dr Overmeire’s report of 1 August 2007 in respect of his examination of the applicant on 31 July 2007 (see paragraphs 54 and 103) above). The Tribunal is reasonably satisfied, having regard to that evidence, that the applicant developed a somatoform disorder at or about that time.
106. Accordingly, the Tribunal finds, pursuant to s 7(4) of the SRC Act, that the applicant sustained his compensable mental “injury”, namely, Pain Disorder associated with both psychological factors and a general medical condition, on 31 July 2007 (being the date on which that disease resulted in impairment of the applicant).
Conclusion
107. The Tribunal determines that the respondent has continued on and from 16 October 2008 to be, and is presently, liable to pay compensation to the applicant, in accordance with the SRC Act, in respect of his accepted injury, namely, “muscle strain back and neck”, sustained on 21 April 2006. The Tribunal also determines that the respondent is liable, pursuant to s 14(1) and Part VIII of the SRC Act, to pay compensation to the applicant in respect of a mental injury, namely, Pain Disorder associated with both psychological factors and a general medical condition, sustained on 31 July 2007.
108. The Tribunal is unable, on the evidence before it, to make a specific determination regarding the quantum of compensation payable to the applicant by the respondent in respect of the abovementioned injuries. That matter is accordingly remitted to the respondent for determination.
Decision
109. For the above reasons, the Tribunal:
Application No 2008/5760
· sets aside the decision under review and, in substitution therefor, decides that the respondent has continued on and from 16 October 2008 to be, and is presently, liable to pay compensation to the applicant, in accordance with the SRC Act, in respect of an injury, namely, “muscle strain back and neck”, sustained on 21 April 2006;
Application No 2009/0117
· sets aside the decision under review and, in substitution therefor, decides that the respondent is liable, pursuant to s 14(1) and Part VIII of the SRC Act, to pay compensation to the applicant in respect of a mental injury, namely, Pain Disorder associated with both psychological factors and a general medical condition, sustained on 31 July 2007.
I certify that the 109 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...............[sgd D Brodie]........................
Associate
Dates of Hearing 14–18 March 2011
Date of Decision 14 April 2011
Representative of the Applicant Ms L Makinda
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr G Johnson SCSolicitor for the Respondent Sparke Helmore
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