Miles and Comcare (Compensation)

[2018] AATA 349

Miles and Comcare (Compensation) [2018] AATA 349 (26 February 2018)

Division:GENERAL DIVISION

File Number:           2016/3465

Re:Wanda Miles

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:26 February 2018

Place:Melbourne

The Tribunal affirms the decision under review.

..[sgd]......................................................................

Miss E A Shanahan, Member

WORKERS COMPENSATION – motor vehicle accident – soft tissue injuries – dental damage claimed – subsequent development of post-traumatic stress disorder – denial of liability for injury to the teeth or bruxism secondary to PTSD as specified – decision affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988

Cases

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472
Re Manns and Comcare [2012] AATA 462
Re Stacey and Comcare [2015] AATA 386
Re HSDR and Comcare [2017] AATA 779

Frosch v Comcare (2004) FCA 1642

REASONS FOR DECISION

Miss E A Shanahan, Member

26 February 2018

1. On 8 September 2006, Ms Miles was injured in a motor vehicle accident (MVA). She had left work at the Australian Taxation Office (ATO) in the Melbourne CBD, at 3.30pm and was walking to Parliament Station to catch her train home, when she was struck by a Land Rover. While there have been differing descriptions of the MVA the medical records state that she suffered soft tissue injuries to the right side of the body, involving her elbow, shoulder, knee and back. She also had a scalp haematoma. Ms Miles believed she lost consciousness for a short period of time. According to her statements and evidence, the driver of the Land Rover did not offer any assistance but a passenger in this vehicle checked that she was not seriously injured. Several passers-by assisted her and she declined their offer to call an ambulance and caught the train to her home in Brighton.

2. On 8 September 2006, she saw her general practitioner Dr Demediuk who is also her next door neighbour. He felt she had not sustained any major physical injuries and was suffering from shock. The following day she saw a general practitioner in a St Kilda clinic and was referred to the Alfred Hospital for assessment. She was admitted to the Alfred Hospital for observation and investigation given the history of loss of consciousness. On 15 September 2006 an incapacity for work certificate was issued by a resident medical officer at the Alfred Hospital describing her injuries as a scalp haematoma, right supraspinatus tendon tear and post-traumatic stress disorder.

3. Ms Miles’ injuries as described above were accepted by Comcare as being work related.

4. As further symptoms emerged liability was also accepted for a neck sprain, injury to the right ulnar nerve and in May 2010, by consent, for the condition of unilateral left brow ptosis (AAT Application 2008/4071).

5. While at no time was liability accepted for any injury to Ms Miles’ teeth, determinations were made by Comcare to pay for dental treatment for set periods of time in 2007, 2011, 2012 and 2013 but not thereafter. On 3 February 2015 a determination was made by a Comcare delegate denying liability for dental treatment on tooth number 37. This determination was revoked on review and Comcare accepted liability under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for dental treatment for tooth 37 for a period of two months.

6. In mid-2015 Ms Miles presented quotations obtained from two dentists for further dental treatment. The proposed cost of treatment was accepted for teeth 15, 36, 37 and 46 as these were deemed to relate to the accepted compensable injuries. However, the claim in relation to teeth 17, 25, 31, 32, 41, 42 and 47 was denied as they represented disease arising from periodontal infection or were recommended replacements of previous crowns or repairs performed prior to the MVA of 2006.

7. The issue before the Tribunal was whether the proposed treatment of these teeth was compensable in that they attracted payment for treatment pursuant to s 16 of the SRC Act. Based on the expert opinions sought by the respondent the claim was denied.

8. The hearing was conducted over a period of three days, and Ms Miles was represented by Mr Paul Lamb of counsel instructed by Ciltra Henderson, solicitor with Henry Carus and Associates. Mr Peter Woulfe instructed by Claire Tota of HBA Legal appeared for the respondent. The respondent had prepared and filed Tribunal documents of considerable volume dating back to the events of 2006 (Exhibit R1). Both parties tendered further documentation, a list of which is appended to this decision.

9. Ms Miles, Dr Eugene Nelson and Dr PJKI gave evidence in person with Dr Andrew Howe giving concurrent evidence with Dr Nelson by telephone. Dr PJKI who treated Ms Miles for some 12 years was assigned a pseudonym after the completion of the hearing (s 35 Confidentiality Order) given the content of some of the evidence.

   BACKGROUND TO THE APPLICATION

10. Ms Miles was born and educated in the Ukraine, and obtained her first Bachelor’s Degree, said to be the equivalent of an Australian qualification in speech pathology, in her country of birth. At the age of 24 she migrated to the United Kingdom and at the age of 26, she and her husband migrated to Australia. She is now aged 52. She has two children, a son aged 30 and a daughter aged 20. Her marriage ended in an acrimonious divorce in 2014.

11. She commenced working with the Department of Defence in approximately late 1990 and ceased in 2003. She transferred to the Canberra office believing that she had received a promotion. Once there she claims she was harassed by co-workers and had not been appointed to the role in accordance with the advertised position. She lodged an application with the Administrative Appeals Tribunal in 2003 claiming workplace harassment but it was determined to be reasonable administrative action and her claim failed. She joined the Australian Taxation Office (ATO) as an investigator in 2004.

12. Throughout this period she has undertaken further study and has obtained a Master of Business Administration and a Master of System Engineering. She was undertaking a Doctorate of Philosophy in Enterprise Systems while working full time as an investigator at an Executive Officer Level 1, (EO1). It is noted that the ATO records state that she was a general clerk.

13. In 2003, Ms Miles was assessed by Dr Yvonne Greenberg, psychiatrist, at the request of the Department of Defence. Ms Miles had been diagnosed by a Dr Goloub as suffering from an acute anxiety disorder and post-traumatic stress disorder (PTSD) as a result of the harassment to which she was subjected while working in Canberra. Dr Greenberg made a diagnosis of an adjustment disorder and found that Ms Miles, while preoccupied with the injustice or perceived injustice of her workplace treatment, did not have sufficient symptoms to support a diagnosis of PTSD. Dr Greenberg was of the opinion that the prognosis was good. Ms Miles claims to have recovered from this episode in three or four months and was fully recovered by the time she commenced work at the ATO.

14. As outlined previously, on 8 September 2006 Mrs Miles was involved in a MVA. She was on her way to catch her train home having completed work at 15.30 and was crossing Spring Street in the city of Melbourne, walking toward Parliament Station. She was hit by a Land Rover and the exact mechanism of the collision is in conflict. There are several different reports recorded in late 2006.

15. In her evidence before the Tribunal Ms Miles claimed that she was hit by the Land Rover and catapulted over the vehicle landing on the other side of the road between two cars. There are other reports that she was hit on her right side by the Land Rover’s left-sided mirror and a third report stating she was dragged along the road when her handbag was caught in the wheel of the Land Rover. There is also conflicting evidence as to whether someone stopped, there being reports that the Land Rover drove on, another report that the Land Rover stopped, the driver peered at Ms Miles and then returned to his vehicle and drove off and a third report that a passenger got out and spoke with her.

16. No witness statements were obtained although she was assisted by other pedestrians. No vehicle was identified by the police nor did anyone obtain the registration number. Ms Miles refused to allow pedestrians who assisted her to call an ambulance. She walked to the railway station, caught the train and went home. By the time she reached home she felt unwell. She now says her husband took her to see a doctor in St Kilda. It was recommended that she go to the Alfred Hospital given she thought she had briefly lost consciousness following the collision. This description of events does not tally with her general practitioner’s notes that record that he saw her on 8 September 2006 and found evidence of some bruising but no major injuries. He concluded that she was shocked but not substantially injured. 

17. Ms Miles was seen in the Trauma Department at the Alfred Hospital on 9 September 2006 and was admitted for observation. She was complaining of pain and injury to her right shoulder, elbow, right knee and left knee and subsequently neck pain. The neck pain was treated at the Alfred Hospital with a Philadelphia Collar. Attempts were made to perform magnetic resonance imaging (MRI) of Ms Miles’ brain and cervical spine but she was unable to tolerate the confinement or keep still during the examination. The resulting imaging was not able to be interpreted.

18. While in hospital at the Alfred, Ms Miles stated that when she woke in the morning her mouth contained what she described as sand-like particles. Because of the use of the Philadelphia Collar she believed she was unable to properly brush her teeth. She dates the problems with her teeth from this period. After six days of observation in the Alfred Hospital she was transferred to the Cedar Court Rehabilitation Service where she underwent treatment and rehabilitation for a period of 13 days, following which she attended Brighton Rehabilitation Service as an outpatient. The Philadelphia Collar was dispensed with after a week or so at Cedar Court. The assessments at Cedar Court included examination and testing by a neuropsychologist who concluded that there was no evidence of any brain injury and that most of Ms Miles’ symptoms were explained by her acute anxiety.

19. Ms Miles claims that she developed pain in her jaw, in particular her temple areas while in hospital. Upon her discharge from hospital, she consulted the dentist who had been treating her since 1995. He had seen Ms Miles on a regular basis, her last appointment having been on 13 July 2006, some two months before the MVA.

20. In his reports and evidence Dr PJKI stated that Ms Miles had dental evidence of bruxism for many years prior to the accident and that this grinding of her teeth was caused by stress. To his knowledge she was constantly under stress as a result of her studying, her work and her family situation. Dr PJKI had ordered an x-ray of Ms Miles’ teeth when he saw her on 13 July 2006 and had also taken x-rays in 2005 when he detected the presence of periodontal infection.

21. At the consultation of 7 October 2006, Dr PJKI did not find any change in Ms Miles’ teeth or occlusion from that observed in July of the same year, before the MVA. It was Dr PJKI’s evidence that Ms Miles requested he provide her with a report to the effect that her current dental problems were all related to the injuries she suffered in the MVA. This he refused to do. He has not seen Ms Miles since. It is clear that there is residual resentment between Ms Miles and Dr PJKI. Dr PJKI provided a detailed interpretation of the OPG findings of the study performed in August 2006.

22. Over the 12 months after the MVA Ms Miles consulted four different dentists. The first was an attendance on Dr Razbash on 18 December 2006 and thereafter throughout 2007, Dr Besley on several occasion in 2007, Dr John also in 2007 and possibly Dr Shah in that year. Dr Shah’s report is undated. Ms Miles was also seen by Dr O’Brien in April 2007 at the request of Comcare. These reports will be considered under DOCUMENTARY EVIDENCE below. All the dentists noted that Ms Miles had had extensive reparative dentistry in the past and that she had periodontal disease with evidence of bruxism. Several dentists attributed the tooth grinding to the accepted PTSD and therefore to the MVA.

23. Doctors Razbash and Shah were of the opinion that Ms Miles suffered from a temporomandibular joint disorder, giving rise to pain and tenderness in the temple region and over the masseter muscles and that she required occlusal splints.

24. Ms Miles’ claim for PTSD was accepted by Comcare and from August 2007 she attended Dr Stewart Wild, psychiatrist, on referral by her general practitioner Dr Demediuk. Over a period of time Dr Wild noted that Ms Miles’ PTSD symptoms attenuated as her flashbacks and nightmares reduced but her depressive and anxiety symptoms and emotional lability persisted in response to further stressors including two MVA’s, the legal process, family interrelationship difficulties and the eventual breakdown of her marriage followed by a difficult divorce. Dr Wild made the further diagnosis of an adjustment disorder and a major depressive disorder resulting from the later stress.

25. Ms Miles was treated with transcranial magnetic stimulation (TMS) for her major depressive disorder as she had adverse side effects to anti-depressant medication. Dr Wild was of the opinion, supported by his clinical experience, that bruxism was a frequent side effect of PTSD and that anti-depressant medication could aggravate the bruxism.

26. In October 2010 Dr Wild referred Ms Miles to Dr Dana Wong, a clinical neuropsychologist. This referral was to determine whether Ms Miles had any cognitive difficulties arising from the closed head injury in 2006. Dr Wong provided extensive formal testing from which she concluded that Ms Miles was experiencing a number of symptoms suggestive of mild to moderate frontal lobe impairment, particularly in the orbitofrontal regions. These were considered to be partly neurological rather than solely psychiatric and involved cognitive difficulties in planning, organisation and the performance of complex tasks, changes in her sense of smell, lack of emotional reactivity and episodes of blanking out. Dr Wong was of the opinion that these changes were not consistent with a traumatic brain injury particularly as it had been extremely mild. Various strategies were suggested and Dr Wong was to review Ms Miles a few months later. In March 2011 Ms Miles developed severe persistent frontal headache and was further investigated with CT scanning of her brain. She was found to have a large left-sided glioblastoma multiforme grade 4 (GBM4). Dr Demeduik immediately arranged her admission to the neurosurgical unit at the Alfred Hospital.

27. Ms Miles underwent craniotomy and resection of the GBM4 localised to the left fronto‑parietal region on 2 April 2011 (operation report). Following surgery she was said by her treating surgeon, Mr John McMahon, to have developed right hemianopia and mild dysphasia. Following surgery she underwent radiotherapy to the residual tumour followed by chemotherapy. She had several epileptiform seizures and in 2012 commenced the anti‑epileptic Keppra and remains on this medication. She is regularly reviewed with MRI’s at six to nine monthly intervals. The MRIs have been stable with no evidence of recurrence. There have been episodes of headache which Mr McMahon believes are related to the surgery and he has recommended that the CranioFix be removed.

28. Ms Miles has been anxious to pursue alternative treatments and has attended various therapy meetings and undergone treatment in Spain and Thailand. She has also been involved in two MVAs which created further stressors but despite this she has still been certified fit to drive.

29. Ms Miles returned to work with the ATO in early 2007 in accordance with a structured return to work programme. She did have some difficulties with her work performance and took 12 months to achieve near full-time employment. She ceased work in the office for an unknown period of time and worked from home. In 2014 she was retired on medical grounds.

30. From early 2006 she has consulted Dr Nick Demeduik as her general practitioner and his records have been provided covering the period from March 2006 to the present. It is possible that Dr Demeduik saw and treated her at an earlier date as he is her next door neighbour.

    EVIDENCE BEFORE THE TRIBUNAL

    Ms Miles

31. The Tribunal had been informed prior to Ms Miles commencing her evidence that she suffered from occasional episodes of aphasia when she could not speak at all and that she had difficulties in reading. The Tribunal took note of these complaints although the hemianopia from which she suffers and as described by Mr McMahon, her treating neurosurgeon, should not affect central vision and the aphasia according to her psychiatrist is possibly a conversion disorder.

32. Ms Miles’ evidence has been summarised under the BACKGROUND TO THE APPLICATION. Not surprisingly she had poor recall of the events of 2006 and her inpatient treatment at the Alfred Hospital and Cedar Court. She could recall the sensation of having sand in her mouth and the difficulty she experienced in cleaning her teeth because she was wearing a neck brace in the form of a Philadelphia Collar. She described to the best of her memory the sequence of dental events with Dr Razbash diagnosing a temporomandibular joint disorder and then performing several crown replacements which according to Ms Miles increased her jaw pain.

33. Ms Miles remembered being referred to Dr Besley who prescribed an occlusal splint, followed by treatment by Dr Vijay John who removed two teeth. Dr Besley then inserted four crowns and performed implants replacing those done by Dr Razbash in 2007. Years later Dr Nelson had performed a gingival graft and removed tooth 17. The bulk of Ms Miles’ dental treatment was performed in 2013 by Dr Fast. In retrospect Ms Miles felt it would have been better if she had had all her teeth removed and replaced with dentures, however she was never given that choice.

34. In cross-examination Mr Woulfe presented Ms Miles’ claim form for PTSD lodged in 2003. Ms Miles agreed that was the diagnosis, that she required the attention of a psychiatrist but denied that she had felt stressed. She said she recovered from that episode within a few months describing herself as a resilient individual who accepted adverse events and got on with her normal life.

35. It was pointed out that in the month after the MVA and in various consultations with Dr Demeduik and other medical practitioners there had been no mention of direct trauma to her face nor did she complain of pain in her teeth. In response she said the pain was in her jaw not her teeth. Similarly, there was no mention of facial trauma in the claim form she completed on 25 September 2006. She first mentioned jaw pain to Dr Demeduik on 7 December 2006 and told him that this had resulted from bone radio-necrosis due to her exposure in the Chernobyl reactor accident.

36. Ms Miles could not recall that the first time she mentioned direct trauma to her teeth was when she saw Dr Razbash on 18 December 2006. Ms Miles said it was Dr Razbash who had told her that she was grinding her teeth and she had conveyed this to Dr Demeduik when she saw him on 21 January 2007.

37. Ms Miles agreed that she had been in conflict with her husband for many years and had been the subject of domestic mental and occasional physical violence for the entire 27 years of her marriage. There had also been difficulties with other close relatives and on one occasion this had resulted in physical violence when her home was trashed by guests. There had been attendances to an Emergency Department in relation to these events and also attendances at court but Ms Miles insisted that none of these events had been stressful. Similarly, she said that the MVA in which she was involved on 5 July 2007, resulting in her being charged with culpable driving, had not caused her any stress or anxiety.

1. As cross-examination progressed, Ms Miles became less able to understand the questions posed and her answers were frequently unresponsive. Her lack of recall she believed was due to being unconscious while in the Alfred Hospital. The Tribunal challenged her on this evidence as the hospital records do not record that she was ever unconscious. She insisted that she was in and out of consciousness throughout her stay. She also claimed that she had informed the nursing staff of the sensation of having sand in her mouth, despite this not being entered in her records. She believed she was in the Alfred Hospital for a period of two weeks when in fact it was for six days. It was brought to her attention that the entries of the nursing and medical staff at Cedar Court were also devoid of any reports of a sand sensation in her mouth or that she required assistance in brushing her teeth. In reply she said that she had obtained the help of visiting friends in caring for her teeth as the nursing staff were too busy.

2. Mr Woulfe brought Ms Miles’ attention to the compensation claim form she completed on 25 September 2006 wherein there was no mention of any facial trauma or dental or jaw pain. She denied filling out the form and said it was completed by a nurse at the Alfred Hospital. She was certain that it was not in her handwriting.

3. Mr Woulfe took Ms Miles to various entries, in particular Dr Demeduik’s records and those of Cedar Court. She was referred to specific pages but seemed to have difficulty interpreting what she read. She agreed however that there had been a diagnosis of PTSD made in 2003 and that she had been in conflict with her then employer, the Department of Defence. She agreed that she had not mentioned any dental pain until it actually started some time in December and in doing so rejected her original statement that it was earlier.

4. Ms Miles said that her reference to Chernobyl exposure had not been a serious comment as she was well aware she did not have radio-necrosis of her jaw. Ms Miles believed that the first inkling she had that she had suffered trauma to her teeth was when it was suggested by Dr Razbash, the first dentist to tell her that she was grinding her teeth.

5. It became necessary for Ms Miles to have occasional five-minute breaks in the cross-examination process. The Tribunal noted that her proficiency in the English language deteriorated when she became agitated as did the construction of her sentences. For example she stated that she had enrolled at Adelaide University in a PhD course: I was studying the professor.

6. Ms Miles could not recall several episodes when she was taken to the Emergency Department at the Alfred Hospital. The first of these had been on 18 February 2007 when she suffered an episode of hyperventilation and the second on 5 July 2007 followed a MVA. Ms Miles denied that she became anxious over the court case or the driving charge.

7. Where expert medical opinion had been obtained and did not mention any injuries to Ms Miles’ teeth, she said that this was because they had neglected to record what she had told them, rather than that she had neglected to tell them that she had been subjected to facial trauma. 

8. As cross-examination by Mr Woulfe progressed, Ms Miles became increasingly agitated and to a degree confused. In her evidence she explained her headaches of 2008, these having been assessed as part of her anxiety state, were in her opinion the beginning of the glioblastoma. She had read literature that stated GBM was caused by trauma and takes up to six years to reach a size where it produces symptoms. Previously she had attributed the GBM to the TMS treatment she underwent in 2010 for depression. This was despite the fact that she had a brain MRI prior to the TMS and the MRI was then normal. In her evidence before the Tribunal, Ms Miles said she had the TMS treatment for a period of two to three months. Dr Wild had said the treatment would take two to three weeks.

9. Ms Miles was taken to the report of Dr Gerschman who saw her on 25 August 2009 at the request of Comcare. Ms Miles believed she had seen Dr Gerschman with regard to her teeth grinding and he had recommended the use of splints and offered to treat her in this manner.  She was taken to his description of the MVA included in the report. She said this was inaccurate, in that he merely stated that she had been struck by a four wheel drive vehicle while crossing an intersection. She then expanded on the mechanism of the accident which is the first time the Tribunal had heard her describe these events. She said:

   ... when the car struck me I was looking at the car when it was approaching and was pushed in the pathway of the car by public, I was in the front row and the car failed to stop, but I was already on the road. ... I remember being in the air, I remember all my life in those seconds and I believed I'm going to die. ... I remember myself in two cars, I was in between two cars on the ground. ... I remember falling and I remember when I opened my eyes I was in between two cars that were parked in - it was PricewaterhouseCoopers, two cars and I was in between two cars and my head was in between two cars. I also remember that the driver briefly stopped and came out and looked at me ... there were two or three people in the car.

   She was asked if the driver had spoken to her. She said he had not, he looked at [her] and drove off. She was still lying on the ground surrounded by people. She confirmed that no one recorded the registration number. It was brought to Ms Miles’ attention that this description was in conflict with that reported by Dr Wild. Ms Miles said Dr Wild’s report was in fact correct in that she had her handbag on her arm and her handbag was later found on the hubcap of the wheel with the handles torn off. She believed that she had been dragged by the car although she could not remember it.

10. As cross-examination progressed Ms Miles had increasing difficulty in reading and understanding what was written in the reports of Dr Demeduik. She would challenge the entries that recorded what she had said in the history given and did not seem to recognise that they were records of what she had said. At the request of counsel the Tribunal’s associate sat in the witness box with Ms Miles in order to find the page references relevant to the questions asked by counsel.

11. Ms Miles was highly critical of Dr PJKI’s two reports provided to the Tribunal, one written in 2007 and the other in 2010 as they were almost identical. She did not seem to understand that they could not be otherwise as he had not seen her since October 2006. She was asked about her attitude towards Dr PJKI and described it as being a long boiling animosity between of us for years.

12. In re-examination by Mr Lamb it was clarified to both the Tribunal and Mr Woulfe’s satisfaction that the handwriting in the workers’ compensation claim form, completed on 25 September 2006, was not that of Ms Miles. It had been completed by an unknown party and signed by Ms Miles.

13. In light of Ms Miles’ stress, confusion and some inappropriate comments, the Tribunal has summarised the areas relating to the conflict with Dr PJKI and the interpretation of Dr Demeduik’s records under BACKGROUND TO THE APPLICATION.

    Doctors Nelson and Howe

14. Doctors Nelson and Howe gave concurrent evidence, with Dr Howe participating by telephone. Prior to them giving their evidence, the parties were presented with new imaging of Ms Miles’ teeth, this having been performed apparently by Dr Nelson some two weeks previously. The images were sent electronically to Dr Howe in Sydney. Thus, the Tribunal had imaging before and after the MVA, including the recent 2017 films.

15. The Tribunal noted that the films were of quite different quality and asked both dentists to comment on whether this difference was one of exposure, i.e. the dosage of x-rays and the duration of their application, or whether it represented actual differences in the bone density of the mandible and maxilla at those times. Both Dr Howe and Dr Nelson were of the opinion that there was a combination of factors in that the bone density had improved in 2017 as infected teeth had been extracted allowing the bone to repair. There were also differences in radiological technique, including exposure.

16. Mr Lamb first questioned Dr Nelson and then asked Dr Howe to comment. It was pointed out to both dentists that Dr PJKI had provided reports which they had seen estimating the amount of bone absorption in relation to the subject teeth. Dr Nelson went through the 2006 films estimating the percentage of loss on both the medial and lateral borders of the teeth, in particular teeth 17, 15, 14, 25 in the upper jaw, 46, 47, 45, 44, 43, 41 and 42 in the lower jaw, as well as 31 and 32. In general the figures provided by Dr Nelson were less than those reported by Dr PJKI, with the exception of teeth 31 and 32 which had very severe bone loss, and 41 which was estimated to have 100 per cent bone loss.

17. Dr Nelson addressed the general state of the molars and premolars and said all of them had been extensively restored and tooth 46 had been root-filled. Dr Nelson found no evidence of any missing enamel from the crowns of the teeth, the restorations appeared to be intact and there was no evidence of root fractures. Dr Howe agreed with Dr Nelson’s interpretation, although he noted that tooth 36 had undergone pulpotomy. Dr Nelson informed the Tribunal that the technique of enlarging the films converted what is normally an arc to a two-dimensional depiction. This produced distortion in some areas and had to be factored in to the estimations that were made.

18. Both Dr Nelson and Dr Howe addressed the latest x-ray and commented on the changes. The teeth that had been removed or replaced with an implant were identified. Dr Nelson commented on the fact that the crown lengths of the upper jaw anterior teeth appeared to be normal. In chronic long term bruxing some wear on the canines was to be expected but here there was only some loss of enamel from tooth grinding on the incisors. As the 2017 films were of superior quality it was possible for Dr Nelson to make more accurate estimates of the residual bone loss. In relation to the teeth in question in this matter he estimated a 60 per cent loss of bone in relation to tooth 42, 70 per cent in tooth 32 and between 5 and 20 per cent in tooth 27.

19. Dr Howe agreed with these estimates but also noted that tooth 23 had been re‑endodontically treated. He was of the opinion that all the crowns on the teeth were new crowns. He also noted that the upper jaw anterior teeth had been veneered. Ms Miles indicated that this was correct. This veneering was not part of the claim.

20. Both doctors were asked if there was evidence of any physical damage to the teeth. They were both of the opinion that there was no such evidence in the original radiograph taken before the MVA nor could they detect any evidence of physical trauma in more recent films, although it was noted that Dr Razbash had reported that she had restored the teeth she believed to be fractured but these did not include teeth 17 and 47.

21. Dr Nelson was asked if it was possible that bruxism occurring after the MVA could be responsible for the wear and tear on the teeth reported by Dr Razbash some two months after the accident. Dr Nelson thought it was possible, given the fact that Ms Miles had complained of tooth pain in late December 2006, whereas her dental records prior to the accident did not record any facial pain. Dr Nelson felt this could account for cracks and damage to the restorations and new damage to other teeth but could not put the likelihood any higher than a possibility.

22. The dentists were asked about the malocclusion that Ms Miles was said to have after the MVA. Dr Nelson considered that very unlikely and agreed with the Tribunal’s suggestions that people were born with the propensity for malocclusion rather than acquiring it. However an accident could move teeth into a different position so that the bite was different. Dr Howe was essentially in agreement, particularly as prior to the accident there was no reporting of any malocclusion. Similarly, Dr Razbash and those dentists treating Ms Miles in the first year or so after the accident had not noted any malocclusion. Ms Miles had been provided with an occlusal splint by Dr Razbash but the purpose was to prevent grinding not change the occlusion.

23. In comparing the pre-accident films with post-accident films Dr Nelson stated that tooth 17 had a pre-accident chronic problem which he doubted would have changed. Similarly tooth 25 had periodontal disease that was irretrievable, 47 had not changed at all and the lower incisors 31, 32, 41 and 42 were, to use his terminology, hopeless anyway.  In summary he agreed that if there were any changes they were minor. Dr Nelson felt there was a considerable amount of infection present but it was difficult to quantify. After direct questioning by Mr Lamb he agreed that periodontal disease could be further impacted on by bruxism but he preferred to say that the bruxism exacerbated the condition but had not caused the condition.

24. Dr Howe also addressed the two sets of x-rays taken 11 years apart. In his opinion the bone loss was as bad pre-accident as it was currently and teeth 32 and 42 had not suffered any increase in bone loss as a result of the MVA. Tooth 17 had been removed but when it was treated it hadn’t suffered further bone loss and 47 had some gum disease but no more than it had prior to the accident.

25. Mr Woulfe asked Dr Howe how long gum infection takes to result in bone loss. Dr Howe explained that acute infections can produce changes within a few days as can the impaction of foreign bodies but in the sort of gum disease that Ms Miles had, bone loss took a significant amount of time, measured in years. He was of the opinion that Ms Miles problems were related to her temporomandibular joints and as reported by Dr Fast, were short-lived and she had recovered totally. Based on his reading of all the reports and viewing the imaging, he concluded there was no evidence of any direct traumatic injury to any of Ms Miles’ teeth.

26. In his report of 20 January 2017, Dr Howe had said that, in addition to two others, teeth 17, 31 and 41 had a long term hopeless prognosis. His opinion was based on the August 2006 OPG. Dr Howe confirmed his opinion and Dr Nelson was asked if he agreed. As tooth 17 had been extracted, Dr Nelson confined himself to commenting on 27, agreeing this tooth had a hopeless prognosis. He could not be certain regarding 25 and 42 as had there been reasonable bone presence on the other surfaces of the tooth it might have been amenable to periodontal treatment. He agreed that such information was not available in 2006. While he considered the 2006 film to be of inferior quality he thought it was possible but not probable that physical trauma to the teeth had occurred in the MVA.

27. Dr Nelson went on to explain that vertical root fractures usually occurred in people aged 55 or older and more commonly in root filled teeth. With bruxism it was more likely that the individual would damage the top part of the tooth rather than the root.

28. Dr Nelson eventually rejected the suggestion that the wearing of a Philadelphia Collar would interfere with one’s ability to brush their teeth. It was agreed that even if it did interfere it would not produce any changes in the short term. Neither Dr Nelson nor Dr Howe could explain Ms Miles’ complaint of the sensation of sand or particulate matter in her mouth. This was not a complaint they had heard of in association with bruxism.

29. Questions were asked, based on anatomical considerations, as to whether it would be possible to damage the teeth as a result of sustaining a blow to various areas of the skull. Dr Howe and Dr Nelson refrained from making a comment or giving an opinion.

30. The Tribunal asked whether it was possible that Ms Miles’ prescribed anti-epileptics, originally Dilantin and then Keppra, had contributed in any way given both cause gingival hypertrophy and according to MIMS, Keppra is associated with an increase in general dental disorders. Both were of the opinion that these medications were not relevant in Ms Miles’ case.

    Dr PJKI

31. Dr PJKI provided two reports, the first dated 1 November 2007 and the second on 7 July 2010. As he last saw Ms Miles on 7 October 2006 these two reports are basically identical in their description of Ms Miles dentition. Dr PJKI also provided the report of the Australian Health Practitioners Registration Authority (AHPRA) which had investigated a complaint lodged against him by Ms Miles. She alleged sexual harassment, both verbal and physical, of herself while in his dental chair and at other times. The complaint was lodged on 14 November 2016. The investigation by the Authority found that the allegations were not supported by any of the evidence produced. The Medical Board of Australia sitting on 8 February 2017 determined not to take any further action (Exhibit R12, assigned by the Tribunal).

32. In his letter of 7 July 2010, Dr PJKI outlined his treatment of Ms Miles from 1995 until October 2006. He said Ms Miles was a heavy smoker, always stressed, overworked, had occlusal awareness and a degree of nocturnal bruxism due to stress. She had mild to moderate periodontal disease of the lower front teeth and posterior sites, multiple heavy restorations, root canal treatment of teeth 37 and 46, generalised mild gingival recessions, many heavily restored teeth and some caries and abrasions.

33. He outlined the treatment he had provided over 11 years as being regular dental cleaning and fluoride application, oral hygiene instruction and multiple composite and several amalgam restorations for abrasions and caries. Root canal treatments had been performed on tooth 16 in March 2000, tooth 25 in January/February of 2001 and tooth 27 in August 2002. A crown with a post and core had been inserted to tooth 25 in 2001. In October 2005 he had treated Ms Miles for acute periodontal infection of teeth 31 and 41. Dr PJKI had recommended that teeth 31, 41, 42 and later 17 and 27 should be extracted due to advanced periodontal disease. He also recommended referral to a periodontal specialist. Ms Miles had later attended a periodontist and had her lower front teeth splinted (31, 32, 41 and 42) and this in his opinion caused additional significant bone loss. As at his last examination of 13 July 2006,  prior to the MVA, Ms Miles had advised him that she wished to proceed with extensive dental treatment and as a preliminary to this he ordered an x-ray. The X-ray of 9 August 2006 revealed the following:

    ·teeth 18, 16, 26, 38, 48 missing;

    ·root canal fillings teeth 25, 27, 37, 46;

    ·tooth 25 post and crown;

    ·tooth 36 large crown restoration with pins;

    ·small periapical radiolucency of tooth 25 and large periapical radiolucency mesial roots 46;

    ·impacted tooth 28;…

    Dr PJKI estimated the bone loss as depicted in this X-ray as:

    Alveolar bone loss as follows:

    ·tooth 17 bone loss of up to 90%

    ·tooth 15 distal bone loss 100%

    ·upper front teeth horizontal bone loss 20 to 35%

    ·tooth 25 bone loss up to 25%

    ·tooth 27 bone loss of 75 to 85%, furcation radiolucency

    ·tooth 37 bone loss of 25%, furcation radiolucency

    ·tooth 36 bone loss of 20%, large pin retentive restoration, narrow neck of the tooth

    ·teeth 35,34 bone loss of 20%

    ·tooth 33 bone loss of 25%

    ·tooth 32 bone loss of 50%

    ·tooth 31 bone loss of 85%

    ·tooth 41 bone loss of 100%

    ·tooth 42 mesial bone loss 100%, distal bone loss 75%

    ·teeth 43,44 some horizontal alveolar bone loss

    ·tooth 45 large coronal restoration, bone loss of 25% to 35%

    ·tooth 46 root canal fillings, large coronal restoration, periapical radiolucency, small furcation radiolucency, alveolar bone loss of 25%

    ·tooth 27 bone loss of 25%

    ·substantial alveolar bone loss of left and right maxillae beneath the sinuses

    ·No other bone abnormality was visible.

1. At no time had Dr PJKI detected any cracked roots in Ms Miles’ teeth and he was of the opinion that the car accident had not caused any fractures. Dr PJKI further opined that Ms Miles stressful lifestyle would have contributed to her nocturnal bruxism and the latter had existed for years prior to the MVA.

2. In his evidence before the Tribunal Dr PJKI said he had qualified as a dentist in the Ukraine in 1984 and his qualifications were recognised when he came to Australia. The Tribunal has checked his registration with AHPRA. He was first registered in Australia on 30 November 1994.

3. In examination-in-chief by Mr Woulfe, Dr PJKI confirmed the contents of both the 2007 and 2010 reports including his opinion that Ms Miles had suffered from nocturnal bruxism arising from constant stress for years prior to the MVA. In the course of his evidence he revealed that an x-ray had been performed on 15 October 2005 and was done in the setting of acute periodontal infection. Apparently this x-ray is still in existence. Neither party had viewed this film. Dr PJKI said no one had contacted him in relation to obtaining the radiograph. The August 2006 imaging was provided as was an enlarged photocopy of that OPG.

4. Mr Lamb objected to the provision of the 2005 radiographs claiming that his instructors had been informed that these records had been destroyed. Dr PJKI requested that he be permitted to speak directly to the Tribunal and leave was granted. He explained that a couple of weeks prior to the hearing he had received a telephone call but the caller did not identify themselves. They asked if he could provide assistance in the case of Ms Miles. He did not receive any written requests. While Dr PJKI was speaking Mr Woulfe was handed an affidavit signed on 19 September 2017, attesting to the applicant’s solicitors having telephoned Dr PJKI on 31 August 2017 and at the doctor’s insistence had identified themselves as being Ms Miles’ solicitors, following which he declined to provide any assistance.

5. Counsel discussed the matter between themselves and agreed to proceed on the basis of the August 2006 OPGs alone. Mr Woulfe took Dr PJKI through his estimates of the percentage loss of alveolar bone outlined above and the doctor confirmed that his estimates were never exact but in a range, such as his estimate of 25% bone loss would be a range of 20 to 30 or perhaps 15 to 30.

6. Based on his inspection of Ms Miles teeth in July 2006 and in October 2006, Dr PJKI was certain that the MVA had not caused any physical trauma resulting in damage to her teeth.

7. Dr PJKI was asked what he had been told of the mechanism of the accident. He said that Ms Miles told him she was coming from her place of work for a lunch break and a car moving out of a parking spot collided with her and she was hit by this four wheel drive’s side mirror. The mirror had struck her in the face area but she had not described the exact region. He said Ms Miles had told him that he should write a report to enable her to obtain maximum financial benefits from the accident. Dr PJKI said he had refused to do so as he could find no evidence of damage and was not prepared to provide a false report. Dr PJKI had not seen Ms Miles since that day.

8. Dr PJKI was unable to comment on the possibility of whether or not Ms Miles experienced increased bruxism following the MVA. At no time had he noted any malocclusion of Ms Miles’ teeth and he did not agree that the wearing of a Philadelphia Collar would interfere with the ability to clean one’s teeth. He confirmed that Ms Miles had on occasion complained of toothache.

9. Dr PJKI confirmed that the AHPRA investigation had concluded that the allegations Ms Miles had made were unfounded including the allegations that he had had a sexual relationship with a patient in lieu of her paying dental fees.

10. In cross-examination Mr Lamb suggested that there was bad blood between Dr PKJI and Ms Miles. The doctor agreed that while he might dislike Ms Miles, it did not affect the truthfulness of his evidence. He considered it to be quite normal that he had resented the complaint made about him as it was unfounded.

11. Mr Lamb challenged Dr PJKI’s report that Ms Miles was a heavy smoker, suffers from continual stress, occlusal awareness, bruxism and periodontal disease as he had not recorded this data in his clinical notes. Dr PJKI agreed that he had not written this in his records nor had he recorded the state of her teeth at the last visit on 7 October 2006. He informed the Tribunal that he had been criticised by AHPRA for his poor record keeping. Having since attended a course in record keeping his notes were now, as he put it, impeccable.

12. Given the absence of written records Dr PJKI agreed with Mr Lamb that there may not have been evidence of bruxism present in 1995 as he could not recall an exact date but he was 100 per cent certain that she was suffering from bruxism well before the MVA. As a result of the Tribunal’s comments Mr Lamb agreed to desist from this line of questioning as it was a matter more appropriately dealt with in submissions. Mr Lamb suggested to Dr PJKI that his evidence regarding Ms Miles asking him to change his records or his statement was untrue. Dr PJKI again affirmed his evidence.

    DOCUMENTARY EVIDENCE

13. There is a vast amount of documentary evidence arising from Ms Miles treatment at the Alfred Hospital, Cedar Court and Brighton Rehabilitation Services and her subsequent attendance on numerous dentists. The relevant sections of the Alfred and Cedar Court documents have been referred to under BACKGROUND TO THE APPLICATION.

14. Ms Miles has been treated by the dentists Dr Razbash, Dr Besly, Dr John, Dr Krishna, Dr Ito, Dr Shah, Dr Fast and Dr Nelson. Doctors Razbash, Shah and Ito have considered that her symptoms are due predominantly to temporomandibular joint disease. However, in 2007 Dr Razbash extracted tooth 28 and crowned 5 teeth that had undergone previous restoration. She also prescribed a splint to prevent further nocturnal bruxism damage. Later in 2007 Dr Besly extracted teeth 15, 27, 36 and 46 and said that there had been a root fracture in teeth 15, 36, and 46. Dr Besly replaced these teeth with dental implants. It was recorded that by 16 April 2010, all TMJ symptoms had resolved.  Dr Besly had seen Ms Miles on the referral of Dr Razbash and apparently relied on the clinical history provided by Dr Razbash.

15. In his lengthy report Dr Besly concluded that:

    ... it would be difficult to attribute or exclude trauma of the accident (both physical and psychological) as a material contributing factor to the aggravation or acceleration of any underlying or pre-existing TMJPD. ...

    In terms of whether the MVA had made a material contribution to the aggravation or acceleration of an underlying or pre-existing injury or disease, Dr Besly provided a great deal of information on the causes of dental deterioration throughout life:

    ...forces of greater magnitude or directed in a vector different to functional forces can cause fracture of both the crown and roots of teeth. This damage can be evident immediately.... or... can become evident over years as cracks propagate ...or allowing bacterial ingress [and periodontal infection].

    He was not prepared to affirm or exclude any trauma from the accident as a material factor in the temporomandibular joint pain dysfunction and did not comment directly on whether the MVA had produced any injury to the teeth.

    Dr Vijay John

16. Dr John saw Ms Miles at the request of Dr Razbash and performed an assessment of tooth 36 which had been crowned. He examined the tooth using an operating microscope. This revealed a crack line which led him to advise that the tooth should be extracted and an implant undertaken. Dr John saw Ms Miles again in September 2007 at the request of Dr Besly who sought his opinion regarding teeth 46 and 27 which he believed had also fractured. Dr Besly was contemplating extraction and implant replacement of teeth 16, 26, 36 and pending Dr John’s assessment, teeth 27 and 46. Dr John advised extraction and implant replacement of both of the latter given periodontal involvement of tooth 27 and the root fracture in tooth 46. He agreed that 25 should be extracted as attempts to salvage the tooth were unlikely to succeed. Dr John did not make any comment as to the contribution of the MVA to Ms Miles’ dentition.

    Associate Professor Jack Gerschman

17. Professor Gerschman provided an opinion dated 18 October 2009 at the request of the respondent. Professor Gerschman made a diagnosis of pre-existing bruxism aggravated by the MVA as a result of the increased anxiety and depression. At the time he saw her there were no symptoms or signs of temporomandibular joint dysfunction. He considered that pre-existing dental conditions were the most likely cause of her tooth fractures and periodontal disease. He advised the use of a splint to reduce ongoing bruxism.

    Dr Georges Fast

18. Dr Fast treated Ms Miles between March 2013 and August 2015. In all Dr Fast performed over $75,000 worth of dental treatment which included routine assessments; multiple new crowns; multiple implants including the four teeth 31,32 41 and 42 which had ultimately been removed, and number 47; and teeth 25 and 17 were  crowned. Dr Fast provided a report on 27 November 2015 outlining his treatment and commenting on any cause. He noted that Ms Miles had been referred to him by one of his patients in order to sort out what he called a dental mess of monumental proportions. He had received a report of past treatment from Holistic Dental, which he said he was unable to make any sense out of. Initially he ground down some of the old crowns so that her upper and lower teeth contacted appropriately. This had relieved most of her headache and neck ache.

19. Dr Fast found it necessary to remove several of the existing crowns as they had been cemented in place rather than using a screw technique which allowed the crowns to be removed, repaired and replaced. He found it extremely difficult to determine what treatment might have been required as a result of the accident and which problems were pre-existing, given that many of the problems were in his opinion caused by unusual dentistry.

    Dr Eugene Nelson

20. Dr Nelson gave evidence in person having provided reports of his treatment of Ms Miles in 2013 and more recently. Dr Nelson is a periodontist. Ms Miles had been referred to him by Dr Fast because of the periodontal infection. Dr Nelson recommended that she have a connective tissue graft to the muco-gingival border relating to teeth 32 and 42. This was undertaken and resulted in healing of the area.

    Dr David Wiesenfeld – Oral and Maxillofacial Surgeon

21. Dr Wiesenfeld saw Ms Miles in May 2013 to assess whether or not it was possible to replace tooth 25 with a fixture (implant). Apparently, the tooth had fallen out during her post-glioblastoma resection radiotherapy. Dr Wiesenfeld was reticent to advise fixture placement given there may have been significant radiation to the left maxilla. However in July 2013 he inserted a fixture at the tooth 25 site.

    The clinical records of Dr Nicholas Demediuk relating to Ms Miles

22. These have been referred to under BACKGROUND TO THE APPLICATION and in relation to other reports received. Of particular relevance in the matter before the Tribunal is the entry of 3 May 2006 where he describes Ms Miles as being extremely stressed and that she wears a neck brace at home at night. He regarded the wearing of a neck brace as unnecessary, discussed the matter with her and has stated discouraged brace. In the period leading up to the accident there are several more entries relating to intra-family stress, counselling and the referral to a psychologist.

23. Dr Demediuk did see Ms Miles on the day of the accident and recorded that she had a sore neck, shoulder and back of the head and she felt weak in the left thigh. He has not detailed the actual mechanism of the accident, except to say she was a pedestrian hit by a four wheel drive in the city at 3.30pm. Physical examination was essentially normal except for minor grazes on the dorsum of the hand, a red mark on the left wrist from her watchband being ripped off but otherwise physical examination, including a full neurological examination, was normal. He diagnosed shock and instructed her to come back if her condition worsened.

24. On 7 December 2006, three months after the MVA, she complained of pain in the right shoulder and informed Dr Demediuk that she had suffered radio-necrosis of the jaw from Chernobyl. Prior to this there had been no mention of any jaw or dental problems. In January 2007 she complained of teeth grinding and informed him she was having five crowns replaced. On 8 February she complained of jaw pain that Dr Demeduik considered to be neuralgic in nature. He referred her to Mr Besly, a dentist, for further treatment. The notes record the two MVAs in which Ms Miles was involved and the resultant charges of culpable driving arising from the first of these.

25. In 2008 Ms Miles informed Dr Demediuk that she was travelling to Phuket in Thailand for dental treatment. In particular several crowns were to be inserted.

26. From July 2014, Dr Demediuk has recorded sporadic episodes of expressive dysphasia lasting up to half an hour and leading to marked anxiety. This recurred in August 2015 and an MRI was performed but did not reveal any recurrence of the glioblastoma. However an EEG showed epileptiform activity. It was noted that Dr Wild had felt these episodes of dysphasia and aphasia may be a conversion disorder.

    RELEVANT LEGISLATION

27. Section 14 of the SRC Act provides for the compensation for injuries and states:

    14  Compensation for injuries

    (1)Subject to this Part, Comcare 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. ...

    And in relation to medical expenses in s 16 states:

    16  Compensation in respect of medical expenses etc.

    (1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

    (2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.

    (3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.

    (4)...

    (a)if the employee has paid the cost of the medical treatment—to, or in accordance with the directions of, the employee; or  ...

    The definition of an injury as per the date of injury in September 2006:

    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.

    SUBMISSIONS

28. Mr Lamb identified the issue as being whether the dental treatment provided was relevant to the compensable injuries accepted by Comcare pursuant to s 14 of the SRC Act.

29. He submitted that the only objective evidence before the Tribunal were the x-rays and OPGs and their interpretation by Doctors Howe and Nelson, particularly in relation to bone absorption, was to be preferred as they had the greater expertise in this field and Dr PJKI lacked such expertise. Additionally, Dr PJKI’s contemporary clinical records were inadequate and he himself had agreed that this was the case.

30. Mr Lamb urged the Tribunal to rely on Ms Miles’ recollections of her status before and after the MVA. Prior to the accident she had not suffered from dental pain, bruxism or a sensation of sand in her mouth. These symptoms had been present after the MVA. She had told all of the reporting dentists and her general practitioner she had a blow to the left side of head which she localised to either the jaw or behind the ear. Only Dr PJKI had reported a history of a direct facial blow told to him by Ms Miles.

31. Mr Lamb contended that Ms Miles’ errors with respect to time and dates were a result of her glioblastoma multiforme and its treatment and implied that the Tribunal should make concessions for this memory loss. In particular it was argued that the lack of entries relating to the teeth in the Alfred Hospital records and those of Cedar Court possibly or probably reflected that the tooth related complaint was considered minor in comparison to her other physical conditions.

32. Mr Lamb identified the first reporting of pain in the teeth as 15 November 2006 and did so based on the entry in the Outpatient Clinical notes of Brighton Rehabilitation Service which mentions toothache in describing the pain in Ms Miles’ elbow due to her ulnar nerve injury. Mr Lamb noted that the respondent had accepted that Ms Miles suffered from PTSD on 20 December 2006.

33. Having addressed the evidence before the Tribunal, Mr Lamb contended there were four possible avenues by which Ms Miles’ teeth had been injured as a result of the MVA of September 2006. These were:

    (i)direct trauma to the teeth;

    (ii)an increase in her level of bruxism as a result of her anxiety, particularly the PTSD that followed the MVA;

    (iii)occlusion difficulties, and

    (iv)an increase in periodontal disease associated with her stated inability to clean her teeth properly over a period of some weeks.

34. Mr Lamb cited the reports of Dr John and Mr O’Brien and possibly those of Dr Nelson, who initially considered that direct trauma and an increase in bruxism had or may have followed the MVA.

    Mr Lamb addressed the concept of the phrase in relation to citing the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 where, in paragraph 87, the High Court considered the expression in relation to as being extremely wide. This interpretation had been adopted by the Full Court in Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472. Both of these decisions have been followed in the Administrative Appeals Tribunal decision in Re Manns and Comcare [2012] AATA 462 and others.

    The Respondent

35. Mr Woulfe first addressed the evidence before the Tribunal, submitting that there was:

    ·no evidence establishing direct trauma to the teeth;

    ·no evidence of change in Ms Miles’ bruxing habit;

    ·no evidence to support a change in her oral hygiene after the MVA; and

    ·no evidence of the existence of malocclusion before or after the MVA.

    In other words none of the applicant’s four pillars underlying her case were established.

36. Mr Woulfe referred specifically to the entry in Exhibit A3 from the Rehabilitation Service. This was headed Right Elbow and read right elbow – s- toothache – when has pressure. All other entries clearly related to the right elbow and the right fifth finger. Mr Woulfe declared this entry to be beyond his comprehension. He drew attention to Dr Razbash’s report of December 2006 which referred to recurrent joint pain and the wording indicating that this was not the first episode of jaw pain. Dr Razbash referred to a blow to the left side of the face or the left side of the head, particularly in the temple area, but identified the only abnormality in the left-sided dentition as being at tooth 28, which is not a subject of this application and is described as an un-erupted wisdom tooth. The expert opinions of Doctors Nelson and Howe had been in Dr Nelson’s case that direct trauma was possible but not probable and in Dr Howe’s case there was no evidence of a traumatic event directly involving the dentition.

1. With regard to the issue of bruxing, Mr Woulfe drew attention to the absence of any entry reporting the symptom of sand in the mouth anywhere in the medical records, the existence of pre‑accident x-ray evidence of wear of teeth facets, the timespan between the accident and the reported occurrence of sand in the mouth being in the dentists’ opinions too short a time for any bruxing increase, if such a sensation was associated with this process. Ms Miles had a long history of anxiety arising from continuing family interrelationship conflict and the diagnosis of PTSD in 2003 and again in 2006.

2. Dr Razbash reported treating teeth 45, 46, 35, 36, 37 and 15 for changes that might be attributable to bruxing. None of these teeth are the subject of this application.

3. Doctors Nelson and Howe both opined that there was no evidence of malocclusion before or after the MVA.

4. In terms of the oral hygiene pillar, Mr Woulfe submitted there was no supporting evidence that the wearing of a Philadelphia Collar affected the ability to clean one’s teeth, there was well documented pre-existing periodontal disease and Dr Nelson only considered any such relationship to be a possibility. The hospital records state that the collar was removed on 28 September 2006, some 19 days after the MVA. There was evidence before the Tribunal that Ms Miles had been obsessive in cleaning her teeth for many decades and that she had worn a collar at night well before the MVA. The reason for the collar was unknown.

5. Mr Woulfe contended that Ms Miles was not a credible witness, citing as an example, her denial of long-term symptoms of PTSD following her claimed 2003 workplace harassment.  He contrasted this with the evidence of Dr PJKI who he submitted was a very credible witness and the only individual who had seen her professionally before and after the MVA and was thus in the best position to assess any damage to her teeth.

6. Mr Woulfe drew the Tribunal’s attention to the fact that Ms Miles did not lodge her complaint with AHPRA until November 2016, despite her claim that the events on which her complaint was based occurred prior to 2006. She appeared to have delayed until after Comcare made its reviewable decision denying liability for the dental treatment of the seven nominated teeth.

   TRIBUNAL’S DELIBERATIONS AND DECISION

7. It is clear from the content of Ms Miles evidence that the development of the cerebral malignancy in 2011 following which she underwent craniotomy, post-surgical radiotherapy and chemotherapy had substantially contributed to her poor recall of the MVA of 8 September 2006 and subsequent events.

8. The Tribunal has determined not to place major reliance on the mechanism of the accident as described in Ms Miles’ statement of evidence dated 17 July 2017. She has given varying reports of the actual details of the MVA over the past 10 years.

9. The Tribunal relies on Ms Miles’ statement of 24 September 2006, appropriately witnessed by a Mr Michael Bourchier, signed by Ms Miles and himself and later certified as a true copy by Vesna Brozinic on 18 October 2006.

10. Ms Miles stated:

    On Friday 8^th September 2006, I left work at exactly 3.30pm. I work at Casselton Place, 2 Lonsdale Street, Melbourne. I was going to catch the 3.38pm train to Richmond. I crossed over Lonsdale Street at the corner of Spring Street. After I crossed over, I was attempting to cross Spring Street to Parliament Station. There were two cars that were stationary waiting to turn left into Lonsdale Street from Spring St. One of the cars was about half a body length into Lonsdale St.  The crossing was clear though, I walked out between the two cars. The crossing lights were orange. I stepped out...

    She saw what she described as a golden metallic coloured four wheel drive coming up Spring Street towards Lonsdale Street. She estimated that the driver was advancing at high speed, she was hit by the car and blacked out. She states when she came to she was lying on the road on her left side. She recalled seeing a car wheel, a stationary vehicle and objects of hers on the ground. These were her watch and her ID pass. Someone helped her up and she sat on the steps of the Price Waterhouse Coopers building in Spring Street. A small crowd collected around her, she was approached by someone described as an older man with a broad Australian accent who said, Don’t be scared of me, I was just a passenger in the car. Ms Miles said she assumed that he had been a passenger in the four-wheel drive.

11. Ms Miles rejected the offers of pedestrians to call for an ambulance as she was keen to get home as soon as possible. Her 10 year old daughter was home alone, there having being problems with the routine pickup of her daughter from school. Ms Miles recovered sufficiently to cross the road to the station and board the train. She believes she blacked out or fell asleep on the train and recalled being woken by another passenger shaking her and asking which station was her destination. She got off at the station in Gardenvale and walked to her home. 

12. In the 2006 statement she declared that she had seen her general practitioner, who was her next door neighbour, immediately after she got home and was reassured all was well. Overnight she felt unwell and commenced vomiting. She was seen the next day at a St Kilda medical centre, was given a letter and told to attend the Alfred Hospital, Accident and Emergency Department. Ms Miles described her injuries as documented above. There is no mention of any injuries to her face or teeth.

13. A very similar description of the accident was given to Dr Ramage the occupational health physician who saw her on 18 December 2006. Neither Mr Lamb or Mr Woulfe addressed this document. Dr Ramage records that Ms Miles said that the four wheel drive hit her on the right shoulder and she fell forward landing on her left side. She told him she sustained a skin graze to her left hip and bruising to her left upper arm. All her major symptoms were in relation to the right shoulder. Ms Miles told Dr Ramage she had recently consulted her dentist. In fact, she had consulted Dr Razbash the same day and as a result was late in arriving for her appointment with Dr Ramage. 

14. Ms Miles told Dr Ramage that she had pain in the temporomandibular joints and had been told she was grinding her teeth and clenching her jaw. She informed him that a tooth protector was to be made for her to wear at night to minimise grinding. Ms Miles also told Dr Ramage that she had been diagnosed with some PTSD however she did not believe she had any psychiatric disorder and her current stress and anxiety were due to a lack of sleep. She denied any past history of stress or a psychiatric disorder.

15. Neither member of counsel addressed the Alfred Hospital medical records. These are voluminous and consist of three large volumes. The Tribunal has decades of experience in navigating such records.

16. Ms Miles presented to the Alfred Hospital, Accident and Emergency Department on 9 September 2006 at 20:48. Her son brought her to the hospital but left shortly thereafter. He did tell the Triage staff that his mother was very vague and not her normal self. He said she had vomited three times on the way to hospital. The notes made record the accident of Friday 8 September at 15.30 and that she was hit on the right side by the vehicle. She was said to have poor recall of the events. She complained of neck pain, pain at the base of the skull, the right shoulder and the right ring and middle fingers. She also complained of pain in the left wrist.

17. Physical examination was normal, except for abrasions on the right hand and a scalp haematoma on the right side of the back of the head in the region of the occiput. Her Glasgow Coma Score was normal at 15/15 and her pupil reactions were also normal. Blood sugar estimations were normal as was a chest x-ray. In view of the reported neck pain a Philadelphia Collar was fitted as a precaution. It was planned to undertake CT or MRI scanning of the skull and cervical spine. The Emergency Department Registrar administered intravenous Maxolon for the vomiting, an intravenous line was inserted and the decision was made at 23:40 to admit her under the Trauma Team.

18. These notes confirm that the direct trauma was all to the right side of the body and this is further supported by the presence of a scalp haematoma on the right side. Following admission, Ms Miles was observed for a period of six days before being transferred to Cedar Court Rehabilitation Hospital. During that time there are no entries regarding any problems with her teeth, it was noted that she was very anxious, that she slept poorly and spent many hours on the telephone.

19. These contemporaneous medical record entries and the statement of events made by Ms Miles on 24 September 2006, indicate there was no direct physical trauma to her face or to the left side of her head.

20. Both members of counsel made submissions in relation to the entry in the Brighton Rehabilitation Service records dated 14 November 2006. These entries deal with all of the physical conditions- the right shoulder, the cervical spine, the right elbow, the right ring finger and the right knee. Under the heading R Elbow the entry is - ^S  toothache – when has pressure starts shaking and may get P & N in ring and 5^th finger. The Tribunal takes the P & N to be an abbreviation for pins and needles and the description of toothache as being a similarity for the pain being experienced by Ms Miles in her right elbow. To the Tribunal’s knowledge many patients have great difficulty in describing their pain and health professionals and in particular medical practitioners are taught to obtain approximately 12 features to describe pain and where patients are unable to give a description, similes are used. Toothache, being a commonly experienced pain, is frequently one such simile.

21. This entry regarding the physical injuries was made by Kerry Rieve the physiotherapist at Brighton Rehabilitation Services. She has signed the entry and also sent a letter by email to Comcare regarding this examination. In her entry entitled Plan, Ms Rieve has written; ? anything for elbow ache.

22. Mr Lamb had relied on this entry as being a reference to toothache in the teeth. Mr Woulfe made only the comment that its significance was beyond his comprehension. The Tribunal does not consider this particular entry to be of direct relevance or carry any weight in the assessment of Ms Miles’ dentition. Dr Robyn Hunter and Dr Palit, respectively the rehabilitation physicians at Bright Rehabilitation and Cedar Court, do not report any toothache or any abnormality of the teeth.

23. The Tribunal has in considering all the evidence, done so on the basis that Ms Miles’ GBM4 was sited in the left fronto‑parietal region, this being the site described by Mr McMahon who resected the malignancy. The Tribunal acknowledges that the Alfred Hospital notes and letters authored by Dr Cher, Ms Miles’ oncologist, frequently refer to it as parietal or temporo-parietal. While the siting of the tumour is not of direct relevance to this decision, it explains the neuropsychological test results performed by Dr Wong in December 2010, indicating frontal lobe pathology. The GBM had not been diagnosed until early April 2011. The resection of part of the left frontal lobe may have some relevance to Ms Miles’ psychiatric status and to her current difficulties in comprehension, language and memory. The Tribunal has not had the benefit of an opinion of a neurosurgeon or neurologist to address these possibilities.

24. There are some errors throughout the documentation in relation to the GBM4, occasionally the 4 being said to refer to staging and at other times to grading. To the Tribunal’s knowledge it is a GBM Grade 4 the grading being a histopathological assessment of the degree of malignancy, a 4 being the most de-differentiated form of GBM.

25. Throughout all of the medical records Ms Miles is described as being stressed and very anxious. In 2003 she was diagnosed with PTSD or an adjustment disorder. An anxiety disorder was diagnosed in September 2006 at Cedar Court and on 1 December 2006, Frauke Boelsen, the clinical psychologist who had seen her at Cedar Court, provided a follow-up letter stating that as Ms Miles’ acute stress disorder symptoms had persisted for more than one month he had changed the diagnosis to PTSD in accordance with the instructions in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR).

26. This psychologist had not been provided with any past history of stress, anxiety or PTSD. He or she had considered Ms Miles to have been a highly functioning individual both on a personal and professional level.

27. In 2007 Dr Wild had confirmed the diagnosis of PTSD. He subsequently diagnosed a major depressive disorder although he believed her PTSD symptoms had improved. The depressive disorder was attributed to several other factors in Ms Miles’ personal life, driving charges she had experienced and the breakdown of her marriage, followed by a difficult divorce. Dr Wild opined that the bruxism following the MVA was contributed to by her psychiatric condition. In the history given to him by Ms Miles, she had denied any pre‑accident problems with bruxism or muscle tension relating to her jaw. However, Dr Wild was not prepared to comment in terms of any relevant literature as he said this would be stepping outside his area of expertise.

28. In relation to the bruxism, Ms Miles has denied tooth grinding or clenching prior to the MVA. It is however reported by Dr PJKI that she has always been an anxious individual with evidence of tooth grinding since he first treated her, though he could not say it was present in 1995. It is noted that all dentists have commented on the extensive heavy duty fillings that pre-existed the MVA. The Tribunal is reliant on the expert opinions in relation to this question and both Doctors Nelson and Howe are of the opinion that the MVA and the subsequent PTSD are not significant or material contributing factors, Dr Howe believing the MVA had no role in aggravating or increasing bruxism and Dr Nelson considered it to be a possibility but rejected that it was a probability.

29. Mr Lamb has submitted that malocclusion occurring after the MVA is a possible avenue relating to her dental problems. Dr PJKI had never noted any evidence of malocclusion pre-MVA and the expert opinions of Doctors Nelson and Howe are that there had been no malocclusion demonstrated following the MVA. It is noted that Dr Fast reported some minor occlusal problems. These he attributed to the post MVA crowns inserted over several years and according to his report he filed these down and corrected any occlusal problems.

30. The fourth and final avenue proposed by Mr Lamb was an increase in the periodontal difficulties in the form of infection leading to bone absorption. The Tribunal has been provided with pre and post MVA x-rays of Ms Miles’ dentition and both Doctors Nelson and Howe, along with Dr PJKI have commented, particularly with respect to the bone absorption in relation to teeth 31, 32, 41 and 42. These teeth have been extracted and replaced with a denture with very obvious bone restoration radiologically. 

31. Dr PJKI gave evidence that there had been periodontal infection requiring treatment prior to the MVA but this only involved one or two teeth. It would appear from the dental reports between 2006 and 2015 that these periodontal problems were most prevalent from 2010 onwards by which time there had been a great deal of dental intervention. The experts have rejected the proposition that there has been an exacerbation, aggravation or a causal relationship between the MVA and periodontal infection.

32. The Tribunal can find no evidence in any of the medical records and in particular, any that is supported by the experts Dr Nelson and Dr Howe, relating Ms Miles’ dental disease affecting teeth 15, 17, 25, 35, 32 36, 37 42 and 47 to any of the consequences of the MVA of 8 September 2006 and the accepted conditions of torn ligaments, cartilages and bruising to her elbow, shoulder, neck and head; neck sprain; PTSD; injury to right ulnar nerve, rotator cuff syndrome and unilateral brow ptosis (left).

33. At no time has Comcare accepted liability for any dental treatment although, over a period of some six years determinations were made to accept payment in relation to dental treatment pursuant to s 16 of the SRC Act. None of these determinations have been submitted to an authorised review officer review and therefore there are no reviewable decisions in relation to the previous dental treatment for which s 16 payments were made.

34. The Tribunal affirms the decision under review. 

I certify that the preceding 140 (one  hundred and forty) paragraphs are a true copy of the reasons for the decision herein of:

Miss E A Shanahan, Member

....[sgd]....................................................................

Associate

Dated: 26 February 2018

Dates of hearing:	18 - 20 September 2017
Counsel for the Applicant:	Mr Paul Lamb
Solicitor for the Applicant:	Ciltra Henderson
Solicitors for the Applicant:	Henry Carus Lawyers and Associates
Counsel for the Respondent:	Mr Peter Woulfe
Solicitor for the Respondent:	Claire Tota
Solicitors for the Respondent:	HBA Legal

ATTACHMENT

Applicant

A1Wanda Miles Statement dated 18 July 2017 with amendments

A2Dr Nelson's report dated 17 December 2015.

A3Extracts of Cedar Court documents and a report by Dr Razbash of 21 December 2006.

Respondent

R1T-Documents (3 volumes)

R22003 Claim for Rehabilitation with Comcare and attached documentation by Dr Greenberg.

R3Clinical notes produced by Dr Demediuk on 15 December 2016

R4Summons material of Dr PJIK received on 18 September 2017.

R5Alfred Hospital Records relating to Ms Miles received on 24 August 2017.

R6Epworth Hospital records received by summons on 23 August 2017.

R7Report of Dr Howe dated January 2017.

R8Report of Dr Howe dated 20 March 2017.

R9Original dental scans from Dr PJIK.

R10Images by Dr Georges Fast.

R11CD labelled Disc A containing imaging from Holistic Dental – Dr Razbash, Dr Figdor, Dr PJIK, and the explanation provided for image labelling.