MELISSA LOVISATTI and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2012] AATA 480
•26 July 2012
[2012] AATA 480
Division VETERANS' APPEALS DIVISION File Number(s)
2009/1250
Re
MELISSA LOVISATTI
APPLICANT
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Miss E.A. Shanahan, MemberDate 26 July 2012 Place Melbourne The Tribunal affirms the decision under review.
(sgd) John Handley
Senior Member
MILITARY REHABILITATION AND COMPENSATION – applicant sustained a back injury during service with the Royal Australian Navy in 1997 – liability accepted for spinal surgery – applicant suffered a dural leak as a result of the surgery which lead to recurrent headaches – character of headaches changed in 2004/2005 – concurrent evidence of medico-legal witnesses – diagnosis of headache agreed – claim for permanent impairment for headaches – applicant has not undertaken all reasonable rehabilitative treatment – evidence did not support finding that headaches are likely to continue indefinitely – impairment not permanent – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 s 24(2)
SECONDARY MATERIALS
Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1) Table 13.1
REASONS FOR DECISION
Mr John Handley, Senior Member
Miss E.A Shanahan, Member
Mrs Lovisatti, the applicant in these proceedings, enlisted in the Royal Australian Navy on 1 July 1996. On 6 August 1997, she sustained an injury to her lower back while on‑board HMAS Penguin.
On 17 September 1999, the respondent determined that the injury arose out of, or in the course of military service and admitted liability for it (T4). On 6 June 2000, the respondent accepted liability for the cost of surgical treatment for the injury (T6).
The applicant has been paid weekly compensation by the respondent to the present date, save for a 2 year period between 30 May 2002 and 31 May 2004 when she consented to a decision of this Tribunal suspending her entitlements to weekly compensation pursuant to section 37(7) of the Safety, Rehabilitation and Compensation Act1988 (the Act). That decision was made in application N° 2007/4233 and is not relevant to the decision which is under review in this application.
On 23 August 2007, the respondent determined that it was liable for recurrent headaches caused by a dural leak which resulted from the spinal surgery (T11). On 10 October 2007, the applicant claimed compensation for permanent impairment and non-economic loss for the condition of recurrent headaches as a result of dural leak from back surgery (T12). (The letter at T11 also records that the applicant had an accepted claim for major depressive disorder. The T‑documents do not indicate when that claim was made or when liability for it was accepted).
The respondent determined on 4 December 2008 (T25) that it was not liable to pay the applicant lump sum compensation for permanent impairment resulting from the (recurrent headaches) injury because it had not stabilised, it was likely to improve and ultimately, the level of impairment would be assessed at nil. That decision was affirmed by the respondent on review on 18 March 2009 (T30) which is the decision under review in these proceedings.
Entitlement to lump sum compensation is dependent on the impairment being permanent. We assume that the primary and subsequent decision-makers were not satisfied that the impairment was permanent because they decided it had not stabilised.
The circumstances of this application dictate that any entitlement to lump sum compensation for permanent impairment is to be determined pursuant to the combined provisions of Part XI of the Act and Part 2 the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1) (the Guide). The parties agree that Table 13.1 applies to determine the percentage of whole person impairment (and therefore, allow calculation of the amount of compensation payable, subject to a finding of impairment of at least 10 per cent). Table 13.1 in edition 2 and edition 2.1 of the Guide are identical, including the obligation to have regard to the interference on the activities of daily living, as defined in the Glossary to each Guide.
The Military Rehabilitation and Compensation Act 2004 and the Guide to Determining Impairment and Compensation issued pursuant to section 67(1) of that Act have no application in this review because the injury suffered by the applicant, which gave rise to this impairment application, occurred before 1 July 2004.
THE INJURY
The applicant sustained her back injury in August 1997. Thereafter, she continued in service undertaking lighter duties in a reduced capacity. In May 1999 her symptoms became considerably worse and she was admitted to hospital for pain management and rest. An MRI then performed displayed evidence of desiccation of 2 lumbar discs without prolapse.
The applicant developed symptoms of sciatica in about September 1999 when she was readmitted to hospital and has not worked since. In February 2000, she was referred to Mr Peter Moran, an orthopaedic surgeon, who arranged another MRI which showed an L5/S1 disc prolapse.
Subsequent treatment involving epidural cortico-steroid injections, use of a TENS machine, medication and physiotherapy did not relieve the pain. The applicant was admitted for spinal surgery, following which she was relieved from leg pain.
Shortly after discharge from hospital, the applicant developed severe headaches which suggested to Mr Moran that there was a small cerebrospinal fluid (CSF) leak. He reported that those symptoms settled spontaneously, without the need for further intervention (T9, p 26).
THE REVIEW
The hearing of this review commenced briefly on 9 August 2010 and re-listed on 3 March 2011. It did not then conclude and resumed on 15 June 2011 at which time evidence was heard from Associate Professor Owen White, a specialist neurologist. At the conclusion of his evidence, we decided that the hearing should be adjourned. It resumed and concluded on 10-11 April 2012. Between June 2011 and April 2012, the applicant, together with her husband and children relocated to Darwin.
THE APPLICANT
In evidence, the applicant said she had headaches continually for about 8 weeks after the spinal surgery and thereafter suffered from them on an intermittent basis, at an average of between 3 -5 days duration until about 2005. Thereafter, the headaches occurred more frequently ‑ every 2 or 3 weeks, were of greater intensity and persisted for 5 -7 days.
The applicant recalled that little relief was obtained by lying down and was made worse when sitting, especially if her back rested against hard surfaces. She did not suffer nausea, vomiting, disturbed vision, dizziness, or sensitivity to light. She was able to watch television. She described the headaches as occurring at the front of her head, comprising the whole of her forehead and the front half of her scalp. More precisely, Miss Shanahan (who is medically qualified), described the anatomical location of the pain, as described by the applicant, as commencing from the top of her orbit to her coronal sinus (Transcript of 3 March 2011, p 31).
The applicant said the headaches she experiences start slowly; they build up to a level of intense pain over a four-day period and then slowly subside.
The applicant was examined over the content of the clinical notes made by her general practitioners between 2000 and 2011, which were received into evidence. She acknowledged that whilst she had attended the doctors on many occasions, not every entry recorded a complaint made by her of headache or headaches. She explained that she would only complain if the headaches were significant. She demonstrated to us her frustrations with the headaches that she had suffered for many years when, in an answer during cross-examination, the applicant said, I didn't often go to the doctors because they couldn't prescribe me anything that was going to make it better. She acknowledged that she did take painkilling medication which relieved her lower back pain, however, she explained, over the history of my headaches, I have experienced that there wasn't any medication that would relieve the pain in my head (Transcript of 3 March 2011, p 57).
The applicant was re-called to give evidence on 10 April 2012. The issue of treatment was again raised during cross-examination and she said:
… from moving to Melbourne to Darwin [sic] I have not had any difference. I've had my headaches; some last three days, some last seven days. I had the bubble in my head exactly the same as I had it. It's all the same to me. It's still happening – it's still happening on a regular basis and it’s still driving me crazy (Transcript, p 48).
The applicant said she has consumed Panadeine Forte which reduced the intensity of her pain (but did not eliminate it) and it made her drowsy. Oxycontin, Endone and anti‑epileptic medication did not relieve the pain. Sandomigran was prescribed by Associate Professor White but it made her drowsy, lethargic and she felt rotten (Transcript of 10 April 2012, p 10 and 21). Topamax was prescribed by the applicant's general practitioner in Darwin but it was learnt during the concurrent evidence of Associate Professors White and Chambers that it was prescribed at either an inappropriate level or frequency and therefore, did not relieve her pain.
The daily activities of the applicant have been severely affected by her headaches. She has two children now aged three and seven years. When she lived in Melbourne, she was given considerable assistance by her mother in caring for the children and in preparing and cooking meals. Her husband also prepared meals, completed most of the housework and maintained their garden. The applicant did not engage in any heavy cleaning or shopping nor did she visit friends. When she moved to Darwin her parents visited on a frequent basis to assist. She was also assisted by her sister who travelled to Darwin. She did drive her children short distances to school and to a crèche but then returned home and the remainder of each day was spent resting, either by lying down or watching television.
The applicant has not had any pain management or rehabilitation treatment for her headaches. (She did have specialised pain management and rehabilitation under the care of Dr Barry Rawicki at the St John of God Hospital in Frankston between 2005 and 2006 for her back pain). She was referred by Associate Professor White to Dr Terry Lim who, in his opinion, runs the best comprehensive pain management program in Melbourne (Transcript of 11 April 2012, p 52). The applicant did contact him and sought an appointment but heard nothing in the following month. Shortly thereafter, the applicant moved to Darwin. She has not sought pain management or rehabilitation in Darwin. She said if it was available, she would undertake it.
MEDICAL EVIDENCE – 15 JUNE 2012
Associate Professor White was engaged by the applicant’s solicitors on a medico-legal basis. Having reviewed medical and radiology reports, and obtaining a history from the applicant, he was of the opinion that the dural leak of CSF following the surgery resulted in a meningocele at L5 level. Associate Professor White was suspicious that the applicant may have suffered a subsequent dural leak which was responsible for her continuing headaches.
It was the case of the applicant that the CSF leak was responsible for intracerebral hypotension giving rise to her low pressure headaches.
Counsel for the respondent contended that despite determinations of 23 August 2007 (T11) and 14 December 2009 (Exhibit R5) accepting that the applicant had suffered recurrent headaches as result of a dural leak from [her] back surgery (T11, p51), the applicant presently did not suffer a dural leak. It followed, on the basis of that submission, that the applicant does not suffer from intracerebral hypotension and her headaches are properly characterised as migraine.
In support of those contentions, the respondent relied on the reports of Associate Professor Brian Chambers (T22 and Exhibit R7) who expressed an opinion that there was no further CSF leak, the meningocele had calcified and the headaches immediately post surgery had ceased. In his opinion, the onset of headaches in about 2004 or 2005 and which she continues to experience are more likely to be migraine in nature, rather than low pressure headaches.
In cross-examination, Associate Professor White was asked to give his opinion based on the applicant’s evidence before the Tribunal. He was referred to her evidence that she suffered headaches every three weeks which persisted for 5-7 days. She said the headaches commenced with a bubble like feeling in her head and could also be precipitated by lengthy periods of sitting but not when rising from a seated position. The applicant had assumed these headaches arose from pressure on her lower back at the site of the meningocele. Associate Professor White was asked to assume – on the evidence of the applicant – that she did not suffer headaches for about 4 years after the initial headaches following the spinal surgery i.e until about 2004 or 2005. In response, he said:
… with that history I would be uncertain what the cause of the headache was, and I would not exclude the possibility of low pressure headache but it would not necessarily be the first amongst my differential diagnoses. And I would want to arrange investigation (Transcript, p 13)
Associate Professor White said that investigation would be another MRI, clinical examination of her eyes (fundi) to determine whether there was low or high pressure, and a lumbar puncture to examine the fluid. Later he suggested that subject to the results of those investigations, consideration would be given to a blood patch (if a dural leak was found) (Transcript, p 16) and a trial of medication (Transcript, p 25).
When he was pressed to consider the pattern of headaches as described by the applicant, Associate Professor White said the pattern of a person's headache could become quite irregular over a period of time and can represent almost any pattern. He said that no pattern of headache excludes the diagnosis. On the history that she had given, it did not suggest to him that she did suffer from low pressure headache and she would need to be investigated but his immediate clinical thought was the applicant was not suffering from low pressure headache (Transcript, p 19).
A report of an MRI of the applicant’s brain conducted on 1 October 2010 concluded normal appearance to the brain, with no evidence to suggest intracranial hypotension. Associate Professor White reported on 19 October 2010 (Exhibit A3) and again on 28 October 2010 (Exhibit A4) that although the MRI did not demonstrate any intracranial abnormality or hypotension, the possibility of the applicant suffering cerebral hypotension could not be excluded.
Associate Professor White gave evidence that despite the report of the radiologist, Dr Ian Cox, who he regarded as being the gold standard accepted across Melbourne-(Transcript p 32), 28 per cent of patients who are proven to suffer from low pressure headaches have a normal MRI result (Transcript, p 8).
At the conclusion of re-examination, we asked Associate Professor White, on the basis of his examination of the applicant, his reading of extensive clinical data, the absence of treatment that he would have preferred the applicant to have undertaken and having heard the history given by the applicant in her evidence, whether his opinion of the applicant suffering from low pressure headache because of the dural leak was at the level of probability or possibility. He said:
I'm not sure I can put it any more clearly than to say we’re now dealing with a very complex syndrome that has been going for a long period of time and it is not possible at this stage to say on the balance of probability that's what it is. So everything is on the basis of possibility. And if you're going to look at it as of this date, you would want to do all of the investigations that investigate all of the possibilities before embarking on what I would see as an appropriate treatment course.
So you considered her to be under-investigated in terms of resolving the cause of her headache? – Yes (Transcript, p 35).
APPLICATION TO ADJOURN THE HEARING
At the conclusion of the evidence of Associate Professor White, Mr Seit, Counsel for the applicant, applied to adjourn the hearing. He submitted that the evidence of Associate Professor White pointed to the illness suffered by the applicant as being under‑investigated, an adjournment would permit further investigation into the applicant’s illness and upon it being completed, the hearing could resume.
Counsel for the respondent, Mr Lenczner, opposed the application. He submitted that the applicant should withdraw her application and upon the investigations and any consequent treatment being completed, the applicant could make a new application.
After considerable debate, we eventually decided to allow the application and adjourned the matter to a date to be fixed.
SUMMARY OF MEDICAL REPORTS RECEIVED AFTER THE ADJOURNMENT
Subsequent to the adjournment, we were advised that the applicant had been referred to Associate Professor White for treatment. He prepared a number of reports dated 17 August 2011 (Exhibit A6), 23 August 2011 (Exhibit A7), 13 September 2011 (Exhibit A8) and 19 February 2012 (Exhibit A9).
In his reports, Associate Professor White concluded that the applicant had initially suffered intracranial hypotension as a trigger for low pressure headache. He thought that the applicant had subsequently suffered a disruption of her nociceptive pathways, which were linked also to her chronic back pain and she had developed a secondary chronic headache syndrome.
The applicant consulted with Mr Myron Rogers, a neurosurgeon at the referral of Associate Professor White. In a report of 31 August 2011 (Exhibit A13), Mr Rogers reported that the applicant had previously suffered a dural leak which was responsible for her subsequent headaches. He thought it was unlikely that the headaches presently suffered by the applicant were related to the previous dural leak. He declined to give an opinion on whether the headaches experienced by the applicant were migraines.
Associate Professor Chambers examined the applicant following the adjournment of the hearing. In a report of 28 December 2011 (Exhibit R8), he recorded that the applicant's headaches were not related to intracranial hypotension and dismissed the opinion expressed by Associate Professor White that any disruption of her nociceptive pathways were responsible for her headaches. He expressed optimism that her headaches would respond to treatment and it was possible she could become pain free.
RESUMPTION OF HEARING
The applicant again gave evidence when the hearing resumed on 10 April 2012. Her evidence was taken by telephone from Darwin. It was mainly concerned with her symptoms and treatment, initially under the care of Associate Professor White in Melbourne and later under the care of a doctor in Darwin. The evidence of the applicant on the first and the resumed day is summarised earlier. Prior to resuming the hearing in 2012, the Tribunal decided with the consent of the parties that Associate Professors White and Chambers would give their evidence concurrently.
CONCURRENT EVIDENCE OF ASSOCIATE PROFESSORS WHITE AND CHAMBERS
Both doctors attended the Tribunal and met privately before they gave their evidence concurrently.
They agreed that the appropriate diagnosis for the headache syndrome suffered by the applicant was tension-vascular headache. They agreed that the applicant no longer suffers low pressure headaches, sometimes referred to as intracranial hypotension. They agreed that the applicant suffered headaches of that type immediately following her spinal surgery in 2000 when a dural leak occurred but from about 2004, she developed a pattern of episodic headache. They also agreed that the applicant no longer suffers a dural leak.
Associate Professors White and Chambers had referred to the criteria of the International Headache Society (the Society) in deciding that the applicant suffered tension-vascular headache. They agreed that she did not satisfy the criteria for either migraine or tension headache. In those circumstances, where the criteria of the Society does not apply to each condition individually, a combination of the criteria for migraine and tension headache results in a diagnosis of tension-vascular headache.
They also agreed that the cause of the applicant’s pain was multifactorial. They said that her pain was complicated by a significant amount of pain amplification. The factors contributing to the amplification were stress experienced by the applicant (partly related to pain both in her head and in her lower back), depression (which itself was regarded as multifactorial, comprising family stressors, the loss of an infant and a loss of self-image because of the injury) and a degree of cervical dysfunction probably associated with secondary muscle spasm arising from the pain in her lower back (Transcript, p 11).
They described pain amplification as a phenomenon secondary to her chronic back pain and low pressure headaches causing an altered perception of pain. Associate Professor White explained that there were two components to pain that a person experiences namely, the initial pain from the source of injury to nerve fibres or the stimulation of nerve fibres and the patterns of behaviour in response to pain.
During examination by Counsel, in the context of the cessation of headache due to intracranial hypotension in about 2001 and headaches of a different character commencing in about 2004 or 2005, the witnesses were asked whether there was any pain amplification component related to those latter headaches.
Associate Professor White was of the view that there was no incompatibility between the headaches being of a different character before and after 2004/2005. He said that pain amplification in his experience was poorly understood and he has treated patients who have had prolonged gaps between an initial response to pain and subsequent resumption of it by a stimulus manifesting in severe headaches. He said the views that he had previously expressed need not be reconsidered, namely, that the dural leak and the subsequent hypotensive headaches were the environment for the development of the tension-vascular headaches. He said the continuing back pain was a contributing factor to pain amplification and the intensity of her headaches after 2004 is the subject of pain amplification (Transcript, p 15-18).
Associate Professor Chambers had earlier said his view was slightly different because it was his opinion that the continuing lower back pain has greater relevance to pain amplification. He said the applicant became headache free 6-12 months after the spinal surgery and then enjoyed an interval of 3 of 4 years before the commencement of episodic headaches. Associate Professor Chambers noted that the resumption of headaches in about 2004 coincided approximately with the loss of the applicant’s first child which he also regarded as relevant, yet unrelated to her back injury. He said there was no direct connection between the initial low pressure headaches and the subsequent development of tension-vascular headaches, except that she may have been a little bit sensitised to pain because of the back pain and the low pressure headaches (Transcript, p 16). He explained that the connection existed by the pain amplification syndrome which derived from the surgery, the consequences of it and other psychological issues, many of which derive from the back as well (Transcript, p 17). Later he said that pain amplification was poorly understood, however, in his view, the ongoing back pain was the most relevant factor contributing to the pain amplification (Transcript, p 45).
Associate Professor White agreed and added that the back pain must be considered a significant factor in pain amplification and the headache is the subject of pain amplification (Transcript p, 45-46).
Discussion with the doctors progressed to an examination of the applicant’s treatment to date. Both doctors were aware that the applicant had been prescribed many different medications to relieve her pain, none of which was effective. The applicant was apparently resigned to not having relief from her pain because in evidence she said ...nothing helps and not even … pain medication helps relieve it…. I've been told there’s nothing else that can help. In response to a question whether she would attend a hospital when suffering severe pain she said:
…I don't go to casualty … because I know what is going on… I've been having these for so many years now and I dealt with them as best I can. It’s something that me and my family have had to try and live with (Transcript of 10 April 2012, p 52).
The applicant moved to Darwin shortly after the conclusion of the hearing in June 2011. She arranged to consult Dr Filipcic at the Territory Medical Clinic in Nightcliff. Dr Filipcic did not give evidence but her clinical notes recorded that she had received a copy of the report of Associate Professor Chambers of 28 December 2011 and commenced treating the applicant with Topamax medication.
The notes of Dr Filipcic record that the applicant consulted her on 14, 21 and 29 February 2012. Topomax was prescribed at 25 mg for the first week and at 50 mg in the second week. On 29 February 2012, Dr Filipcic recorded that the applicant, having consumed Topamax at 50 mg in the previous week, felt hangover during day and she reduced the dose to 25 mg. There is no clinical note of the applicant re-attending the clinic. An enquiry made by the applicant’s solicitor during the hearing confirmed that the applicant had not returned.
The prescription regime appears to have exceeded the regime that would have been devised by Associate Professors White and Chambers. Associate Professor Chambers said in his experience, Topamax is initiated at 25 mg nightly for one week and thereafter, at the same strength twice-daily for one or two months to determine whether there was any clinical improvement or side-effects. If not, 50 mg would then be prescribed twice daily. He said Topamax is not a drug which is usually prescribed by general practitioners and that neurologists are a lot more comfortable with using the drug. He suggested that as a result of her reaction to the medication, the applicant may have lost confidence in Dr Filipcic which might explain why she did not attend Dr Filipcic’s practice after 29 February 2012 (Transcript, p 30).
Associate Professor White had referred the applicant to Dr Lim, a pain management specialist. It was learnt that the applicant had not consulted him and the reasons were unknown. The applicant moved to Darwin shortly after the referral and having regard to his waiting list (which could be up to 6 months), it was thought that she may not have been able to secure an appointment with him. Associate Professor Chambers agreed that referral to Dr Lim was appropriate. Both doctors agreed that he would have provided a multifactorial approach to pain management and give guidance to the applicant about how to live and cope with her pain (Transcript, p 26).
Having regard to the period of time during which the applicant has suffered pain, Associate Professor White thought that there was no likelihood or expectation of the applicant improving. However, he said that he would not exclude the possibility of her having a response to a multimodal approach to pain management, which we still think should be tried, although the expectation of response is fairly low (Transcript, p 12). Associate Professor Chambers agreed. He noted the medication that the applicant had been prescribed, including non-steroidal anti-inflammatory drugs, has not helped her. He was pessimistic about the applicant responding to migraine medication but acknowledged that further treatment trials should involve a multimodal approach, including physiotherapy and psychology which would be obtained through a multidisciplinary pain management clinic (Transcript, p 13).
Later, in re-examination, Associate Professor White said that the chances of the applicant responding to further treatment were small, but not to the point of not having a go at it. Associate Professor Chambers said that in his experience, persons involved in an active compensation claim tend not to respond terribly well to treatment … Nonetheless, he thought the applicant should attempt treatment through a pain management program. He remained guardedly optimistic and thought there was a 20 to 25 per cent chance of improvement. Associate Professor White agreed with that assessment. He said that he doesn't like giving up on young people and his impression of the applicant was that she was reasonably well intentioned (Transcript, p 52-53).
DOES THE APPLICANT HAVE AN IMPAIRMENT THAT IS PERMANENT?
Entitlement to lump sum compensation under section 24 of the Act is dependent on an applicant suffering an injury that results in an impairment that is permanent.
We are satisfied and find as a fact that the applicant suffers tension-vascular headaches which have their origin in the compensable back injury and the subsequent back surgery. We are also satisfied that the applicant suffers a significant degree of pain amplification associated with the persisting pain and discomfort she experiences in her back and head (which we are satisfied continues to exist). The continuing pain and the incapacity caused by her back have resulted in depression and the loss of self-image. We acknowledge the evidence of Associate Professors White and Chambers that the amplification of her pain probably also includes a component referable to the loss of her child in 2004, but in the circumstances that the applicant has endured, we regard that component to be a relatively minor contribution to the amplification of her pain.
We are satisfied the applicant suffers an impairment, being the damage or malfunction… of the body, or the bodily symptom or function of the applicant as a result of the tension-vascular headaches (section 4 of the Act).
An impairment is permanent if it is likely to continue indefinitely (section 4 of the Act). Section 24(2) provides that in order to determine whether an impairment is permanent, that is, likely to continue indefinitely, regard shall be had to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
We acknowledge that the applicant has suffered headaches for many years. It is very unfortunate that she has not yet been able to obtain relief from it. We are satisfied that she has consumed many different types of pain relieving and other medication. None have provided relief of any significance.
Whilst the chances of the applicant either becoming pain free or achieving a level of comfort or improved function are small, we accept the evidence of Associate Professors White and Chambers who have not dismissed the possibility that a multi‑disciplinary approach to pain management, including physiotherapy and psychology, may offer relief. Based on the applicant's experience with the prescription of Topamax in Darwin (and the advice of her doctor concerning the strength of dosage), we are also of the view that the applicant may receive benefit from medication. A multi‑disciplinary regime of treatment would inevitably include appropriately qualified medical practitioners who could competently prescribe and monitor the consumption of medication.
The applicant expressed a degree of despondency that appropriate treatment or medication could be found to allow her to become pain free. Having regard to the duration of her pain and the consumption of many different forms of prescribed medication not having given her pain relief, her pessimism in achieving a better quality of life is not surprising.
We accept that the applicant has been suffering from the impairment for many years and the chances of any improvement are slim. However, we cannot find that the applicant has undertaken all reasonable rehabilitative treatment for her impairment. Indeed, on the evidence heard, the applicant has not had any rehabilitation at all. Treatment to date has consisted solely of the consumption of prescribed medication which has not relieved her pain. The applicant has not refused to enter into a pain management program which in the circumstances we regard as an appropriate form of rehabilitation. Other than the referral to Dr Lim, which the applicant was unable to pursue because she moved to Darwin, no other referral has ever been offered. It is very unfortunate that she lost that opportunity. In evidence, the applicant said if an appropriately recognised facility exists in Darwin, she would be prepared to undertake pain management treatment. It is not known whether appropriate pain management facilities exist in Darwin.
As recorded earlier, the applicant will have an entitlement to an impairment lump sum if we can find that her injury is permanent. Having regard to the definition in section 24(2) and the evidence heard, the applicant cannot presently satisfy paragraph (c) because we are unable to find that she has undertaken all reasonable rehabilitative treatment for the impairment. Based on the evidence of Associate Professors White and Chambers, we accept that the likelihood of any improvement is slim. Nonetheless, there is a possibility of improvement and it should not be dismissed.
It is for these reasons that we cannot find that the applicant has an impairment which is permanent.
We should also add in conclusion that the amount of lump sum compensation, if any, will depend on the extent to which the permanent impairment interferes with the applicant’s activities of daily living and whether the impairment is 10 per cent or more. In this application, Table 13.1 of the Guide is applicable.
The expression activities of daily living is defined in the Guide as:
those activities that an employee needs to perform to function in a non-specific environment, i.e. to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:
·Ability to receive and respond to incoming stimuli
·Standing
·Moving
·Feeding (includes eating but not the preparation of food)
·Control of bladder and bowel
·Self-care (bathing, dressing etc)
·Sexual function
Calculating the impairment will depend on the extent of interference to the activities of daily living (refer to criteria of an assessment of 10 per cent of Table 13.1).
Having regard to our findings above concerning qualification under section 24(2) of the Act, we do not need at this stage to make a finding on this latter issue. Whilst we would hope that the applicant does improve by undertaking a pain management program, if she does not improve and is able to obtain an opinion from her doctor/s that she has an impairment which is permanent, it should also include an opinion as to whether she suffers an interference with the activities of daily living as defined.
DECISION
The decision under review will be affirmed.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member and Miss E.A. Shanahan, Member. .............................[sgd]...........................................
Associate
Dated 26 July 2012
Date(s) of hearing 9 August 2010, 15 June 2011 and 10‑11 April 2012 Counsel for the Applicant Mr R. Seit Advocate for the Applicant Ms A. Sdrinis Solicitors for the Applicant Ryan Carlisle Thomas Counsel for the Respondent Mr J. Lenzcner Advocate for the Respondent Mr A. Shelley Solicitors for the Respondent Sparke Helmore
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