McCarroll and Comcare
[2006] AATA 720
•21 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 720
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1845
GENERAL ADMINISTRATIVE DIVISION ) Re BARBARA McCARROLL Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr J D Campbell, MemberDate21 August 2006
PlaceSydney
Decision The decision under review is affirmed. (Sgd) M D Allen
..............................................
Presiding Member
CATCHWORDS
WORKERS’ COMPENSATION – Applicant received payment for Permanent Impairment assessed at 39% - reviewable decision concerned whether Applicant had suffered an increase in Permanent Impairment – Applicant claimed impairment from four new injuries including Horner’s syndrome - Applicant’s credit in issue – Tribunal satisfied from video evidence that the Applicant has exaggerated her symptoms – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 - ss 24, 25, 28
REASONS FOR DECISION
21 August 2006 Senior Member M D Allen
Dr J D Campbell, Member1. In 1992 the Applicant received a payment for Permanent Impairment pursuant to the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”), her degree of Permanent Impairment being assessed at 39 per cent according to the Guide to the Assessment of Permanent Impairment, created pursuant to s 28 of the SRC Act.
2. On 7 July 2003 a delegate of the Respondent found that the Applicant had suffered an increase in Permanent Impairment which amounted to 10 per cent on the said Guide to Permanent Impairment. On 1 August 2003 another delegate of the Respondent in a reviewable decision made pursuant to ss 62(1) SRC Act, set aside the determination of 7 July 2003 and determined that the increase in Permanent Impairment suffered by the Applicant did not amount to 10 per cent and therefore pursuant to ss 25(4) SRC Act, no payment for any increase in Permanent Impairment was payable to the Applicant.
3. On 25 November 2003, an application to review the decision of 1 August 2003 was lodged with the Tribunal.
4. The said application for review first came on for hearing before this Tribunal on 18 May 2005. At that hearing the Tribunal raised with the parties the effect of the judgment of Hill J in Canute v Comcare [2005] FCA 299. The decision of Hill J was appealed to the Full Court and the decision of the Full Court, namely Comcare v Canute [2005] FCA 262, was handed down on 16 December 2005. This matter was then re-listed before Tribunal.
5. An appeal against the decision in Comcare v Canute (supra) was heard by the High Court on 13 June 2006. For the reasons set out below, we do not consider that we need to await the outcome of that appeal before making our decision.
6. As stated above, the Applicant was assessed in 1999 as having a whole person impairment of 39 per cent on the Comcare Guide to Assessment of Permanent Impairment. That figure was derived as follows:
· Cervical Spine Table 9.6 15 %
· Right Arm & Upper Limb Table 9.4 20 %
· Tension Headache Table 13.1 10 %
Which percentages, although totalling 45 per cent, became 39 per cent after the application of Table 14.1 of the Guide, namely the Combined Values Chart.
7. In these proceedings, in addition to claiming that the impairment occasioned by the above injuries had increased, the Applicant claimed impairment from four new injuries, namely Horner’s syndrome affecting the right eye, left limb symptoms as result of osteoarthritis in the left shoulder, psychiatric illness plus headaches and Vagal Nerve injury.
8. At the outset it can be said that the presence of Horner’s Syndrome and an injury to the Vagal Nerve were the results of surgery to the Applicant’s neck arising out of her disc lesions and hence compensable. Further, we accept that they are separate injuries.
9. For its part, the Respondent based its case upon the credit (or lack thereof) of the Applicant and submitted that she had exaggerated her symptoms.
10. In evidence-in-chief, the Applicant said that the restrictions of movement in her neck had become worse and affected her driving a motor vehicle. In particular, she was restricted when reversing the vehicle. She now has problems gripping with her left arm as there is no power in that limb. Her right shoulder pain prevents her ironing or hanging clothes on a clothes line.
11. Describing the difficulties occasioned to her by the Vagal Nerve injury, the Applicant stated that she gets a choking sensation and cannot eat steak or even bread and has to make sure her food is mashed. Her inability to swallow has now become even worse as she can choke while just drinking a cup of tea.
12. Cross-examined, the Applicant reiterated that she had a restricted range of movement in her neck and still had difficulties grasping and using her right arm. She was cross-examined regarding having told Drs Dunlop and White that she hung out clothes but stated she meant she hung them on a clothes hoist, even though Dr White recorded her as stating that she tried to hang out the washing as she believed stretching was good exercise.
13. On 15 April 2003, the Applicant filled out a Non-Economic Loss Questionnaire and stated that she was having daily dull headaches. On 6 June 2003 the Applicant was examined by Dr Gibson, Occupational Physician. Dr Gibson took a history of some 10 symptoms then affecting the Applicant but no mention was made of headaches. Similarly, no reference to headaches is made in the report of Dr Lawson. When asked, the Applicant stated “sometimes I never talk about my headaches”. We find this difficult to accept given the other symptoms, 10 in all, recounted by the Applicant to Dr Gibson and it indicates to us that her headaches are not as debilitating or as often as claimed.
14. Further cross-examination of the Applicant revealed she had been involved in a motor vehicle accident on 10 August 2003. She was specifically asked if she had complained to her General Practitioner of an increase in neck pain following the motor vehicle accident and denied this. Dr Galvin’s Clinical Notes record an entry bearing date 11 August 2003 which refers to neck pain and stiffness.
15. None of the other medical practitioners who examined the Applicant post August 2003 were told of the motor vehicle accident. Likewise, none of the examining medical practitioners were told by the Applicant of a fall at her home in December 2001 when she injured her left shoulder. Pain from this fall was still affecting the Applicant in May 2002, according to the notes of her General Practitioner, Dr Galvin.
16. The Applicant was specifically questioned regarding her ability to park and she said she could not reverse park. She was also specific in stating that she could not pick up a child or nurse it while feeding it a bottle.
17. Exhibits R4 and R5 in these proceedings are video films taken of the Applicant. In these films she is seen to walk freely and briskly whilst in a supermarket. She operates a shopping trolley and transfers shopping from the trolley into a motor vehicle. She extended her right arm fully to reach the top shelf in a shop and was also able to squat to access lower shelves. She used a key to open a car door, and was observed to open a screw top type bottle with no apparent signs of difficulty. She was able to reverse her vehicle and appeared to turn her head to do so.
18. More particularly, despite denying her ability to do so, she was seen to pick up a small child and to eat take away food (apparently chicken) without difficulty.
19. Having viewed the video film, we are satisfied that the Applicant has exaggerated her symptoms. We are assisted in this conclusion by medical reports obtained after medical practitioners have reviewed the said video films.
20. In a report dated 4 June 2006, Dr Morse, Psychiatrist stated inter alia:
“It is not my field of expertise but the activities carried out in the observed video surveillance did not indicate any marked degree of physical disability or impairment and appeared to be in excess of what she described to me when I saw her on 31st August 2004.
As mentioned above I did not see her face or hear her conversation and have no idea what other activities she may or may not have carried out in terms of social activity, interaction with friends and family etc. However there is certainly nothing in the video surveillance to indicate that she is experiencing any depression and given the manner which she described her activities to me on August 2004 it would seem that she is not as depressed as she described to me on that date as observed in these videos. She indicated to me that she is depressed most of the time and I made a diagnosis of Dysthymia which indicates she is not suffering from severe depression but had an overall lowered level of depression which affected her functioning and from what I observed on the tapes over a period of several days prior to Christmas 2004 and in February and March 2005 this did not indicate the level of depression she described to me in August 2004.
I also stated there were indications of her suffering from Panic Attacks. There is certainly no indication she is suffering any form of anxiety state or panic attacks from these video surveillance.”
21. Dr Fearnside, Neurological Surgeon in report dated 15 May 2006 stated:
“The video which was taken in December 2004, 3 months after she was assessed and in March 2005, 7 months after she was assessed on 30/8/04 show Mrs McCarroll to have a normal range of movement of her neck and no loss of range of movement of her right or her left arm. She is capable of shopping for a prolonged period of time. It would also appear that she is capable of eating a normal diet.
I do not attach any significance to the episode where she was seen sitting in a café holding a baby. Even assuming the impairment as estimated, I believe she would be capable of doing that albeit with some difficulty. She was part obscured while the video was being taken.
The video leaves me little alternative but to vary opinions previously expressed.
I was reliant on Mrs McCarroll for an assessment of her symptoms and her functional activity. The video suggests that she is more capable of normal activities than she reported to me. Further, the video reveals her with a normal range of movement of her neck and upper limbs.
The video does not exclude the assertion that Mrs McCarroll does experience neck and right arm pain. The activities which she was seen undertaking, however, suggests that her pain and disability is minimal and would not amount to the level of impairment as assessed.
I note that she had previously been awarded lump sums of compensation under the Safety and Rehabilitation Act and I assume that these are to be taken as correct. I assess Mrs McCarroll as having an increase of 20% impairment because of her headaches and I also assessed her for the loss of neurological function and 10% for the left upper limb.
Headache is a subjective phenomenon and I am reliant upon her self report. She did not appear to have any restriction of neck movement nor did she appear to be suffering from any discomfort through the video. Headache may occur intermittently and the video may have been exposed on ‘good’ days.
In view of her apparent ability to eat a normal meal, objective evidence of a neurological impairment of swallowing such as with a barium swallow would be necessary for an assessment of impairment of neurological function of her cranial nerves.
The assessment of 10% WPI for the left arm does not require amendment because the activities she was seen performing in the video is consistent with such an assessment.
In summary, Mrs McCarroll’s appearance in the video which was filmed over a number of days at different times is inconsistent with the physical findings and report I obtained when I saw her on 30/08/04.”
22. The surveillance films were also shown to Dr Bornstein, Orthopaedic Surgeon who had previously examined the Applicant and furnished a report to the Respondent. In his later report dated 9 May 2005, he states:
“I have now viewed fairly extensive video tape exposed of this patient which shows her freely driving a vehicle, doing her shopping, packing her shopping into her vehicle and driving.
It is quite clear that while there appears to be a slightly restricted range of movement over what one would expect of a normal person at this age, that she is quite capable of carrying out the activities of daily living without any restriction what so ever.
Quite clearly on the basis of the video tape now seen, which was exposed during December 2004 and February/March 2005, this lady has very significantly less disability than she presented with to me last year.”
23. Previously in a report dated 28 May 2004, Dr Bornstein had stated that his assessment of the Applicant’s degree of impairment was under Table 9.6, 15 per cent, Table 9.4, 10 per cent and 20 per cent under Table 13.1 for headache, based on the Applicant’s self reporting to him.
24. Cross-examined in these proceedings, Dr Bornstein stated that the assessment of headache is not within the purview of an orthopaedic surgeon but probably that of a neurologist. We note that Dr Fearnside had originally assessed the Applicant at 20 per cent for headache but in his later report stated that headache is a subjective phenomenon and that he was reliant upon her self report. He commented that in the video she did not appear to be suffering any discomfort although headache is intermittent. Given our view as to the Applicant’s credibility, we are not prepared to assess her incapacity from headache as amounting to more than 10 per cent on Table 13.1.
25. So far as any impairment to the Applicant’s neck is concerned, although Dr Lawson assessed it as 20 per cent under Table 9.6, stating in his report of 12 February 2004 that the Applicant had a complete loss of movement in her cervical spine, the surveillance films have shown that statement to be inaccurate. We are more convinced now by the opinions of Drs Fearnside and Bornstein. Dr Fearnside opined that she had a normal range of movement of the neck. Prior to seeing the video film Dr Bornstein had assessed the Applicant as having a 15 per cent impairment (loss of more than ½ range of normal movement) but retracted that assessment, stating that she had “a slightly restricted range of movement”.
26. In a report dated 8 June 2004 Dr O’Neill, Consultant Neurologist had assessed the Applicant as having “about 50 per cent of the normal (range of movement)”. That opinion would now have to be modified in the light of the findings by Drs Fearnside and Bornstein. Given the various reports, we are satisfied that the Applicant has at best a 5 per cent impairment of the cervical spine under Table 9.6 which equates to “minor restrictions of movement”.
27. As to the Applicant’s right arm, Dr Lawson assessed the Applicant as having 20 per cent impairment pursuant to Table 9.4. Dr Fearnside in his original report also assessed the Applicant as having 20 per cent impairment under Table 9.4. In his subsequent report he stated she exhibited “no loss of range of movement in her right or left arm”. Dr Bornstein in his second report gave no percentage of impairment but in evidence stated that on the video film she had zero impairment.
28. We are satisfied therefore that the degree of impairment in the Applicant’s right upper limb does not equate to 10 per cent under Table 9.4 of the Tables in the Guide to Impairment.
29. Dr Lawson assessed the Applicant as having 5 per cent impairment under Table 12.1 for Horner’s syndrome. There is no evidence before us which would suggest that assessment is incorrect. Unfortunately for the Applicant, the Horner’s Syndrome is, in our opinion, a separate injury having occurred as a result of the first operation to fuse the cervical vertebra at C5/6/7. As the impairment does not reach the threshold figure of 10 per cent, payment for Permanent Impairment is denied pursuant to paragraph 24(7)(b) of the SRC Act.
30. The injury to the Applicant’s Vagal Nerve has resulted in a “huskiness” in the Applicant’s voice and difficulties in swallowing. She described her difficulties in swallowing to Dr Fearnside as follows:
“As she reported dysphagia and a weak voice. This dysphagia was for solids and she ate a modified diet regularly. She had always eaten softer foods since the food operation for example eating yoghurt. She avoided hard and chunky foods such as crunchy vegetables or meat such as a steak. If she attempted to eat any of these items, she would experience a choking sensation. She said this change had occurred since her third operation. She said that she had also noted a change in her voice which was more husky and which fatigued. The fatiguing in her voice had been pointed out to her by friends when she was talking on the telephone.”
31. Table 12.1 refers to swallowing impairment due to one or two contributions of the IX, X and XI cranial nerves. The Vagal Nerve is numbered X. We are not sure just what is meant in the Table as “semi solids”. Notwithstanding these apparent difficulties of assessment, we find we cannot make any assessment until the objective evidence by way of, for example, a barium swallow as referred to by Dr Fearnside has been carried out.
32. Whereas the Applicant complained of incapacity now occurring in her left arm, there is some doubt as to how much of that incapacity can be attributed to her work injury and how much to the fall at her home in December 2001.
33. On 12 February 2004, Dr Lawson took a history of pain radiating across both shoulders and a decrease in strength in the left arm. The Applicant does have bilateral carpel tunnel syndrome but Dr Gibson, Consultant Occupational Physician opined that this condition was unrelated to the Applicant’s employment. Dr O’Neill, Neurosurgeon was of the same opinion.
34. Dr Fearnside in his report of 30 August 2004 refers to pain in the Applicant’s left upper arm and left dorsa scapula region but noted that neurological examination of the upper limbs revealed normal tone and power with no wasting. Reflexes were equal and symmetrical. In his later report he opines that 10 per cent is still a proper assessment for impairment in the left arm. Dr O’Neill makes no reference to the left limb when making an assessment of the Applicant’s degree of incapacity, likewise Dr Bornstein does not refer to the left arm in his reports.
35. Having regard to all the material before us, including the fact that the Applicant sustained an injury to her left upper limb in a fall at her home, we can only conclude that a 10 per cent degree of impairment is generous but not unreasonable.
36. Dr Lawson in his report refers to scarring of the neck as a result of the fusion operations. Table 4.1 of the Comcare Tables refers to functional loss of which there is none, whereas Table 4.2 refers to facial scarring and thus has no application in these proceedings.
37. So far as Psychiatric Impairment is concerned, having regard to the second report of Dr Morse and the evidence adduced, we are satisfied that there is none.
38. When the degree of incapacity presently suffered by the Applicant is considered, the following assessment is applied, namely:
· Cervical Spine Table 9.6 5 %
· Headache Table 13.1 10 %
· Right Upper Limb Table 9.4 0 %
· Left Upper Limb Table 9.4 10 %
Giving a total, which on the combined Tables, that is to say Table 14.1, is 24 per cent. To this would be added the separate injuries, namely the Horner’s Syndrome and the Vagal Nerve severance if those injuries occasioned impairment in excess of 10 per cent and were permanent and capable of assessment. We have found that impairment from Horner’s Syndrome is only 5 per cent and that any impairment from the Vagal Nerve severance is at present incapable of being assessed.
39. The current situation is therefore that the Applicant has a Permanent Impairment of 24 per cent. As this is less than the 39 per cent for which she has already received payment, the decision under review is affirmed.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr J D Campbell, Member
Signed: E.Pope .....................................................................................
AssociateDates of Hearing 18 May 2005, 2, & 3 May 2006, 24 July 2006
Date of Decision 21 August 2006
Counsel for the Applicant Mr Mark Best
Solicitor for the Applicant Beilby Poulden Costello
Counsel for the Respondent Mr Brendan Kelly
Solicitor for the Respondent Phillips Fox
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