Morton and Comcare
[2005] AATA 930
•26 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 930
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/34
GENERAL ADMINISTRATIVE DIVISION ) Re CIVA MORTON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb Date26 September 2005
PlaceCanberra
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that in the period from 6 January 2001 to the present date:
(i) Ms Morton did not continue to suffer from the injury “sprain to unspecified site of back” (“the compensable injury”); and
(ii) Ms Morton’s pain symptoms (described as fibromyalgia or a neurogenic pain disorder) and depression did not arise from her employment and were not materially contributed to by the compensable injury, and she is not entitled to compensation therefor.
There are no orders in relation to costs. Liberty to apply within seven days.
..............................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - unspecified back sprain injury - cessation of employment - pain disorder - fibromyalgia - depression - conflicting medical evidence - injury in the context of disease – commonsense test – inference of probable cause not open – symptoms of pain and depression not related to work injury – reviewable decision purports to cease liability into the future – decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 7, 14, 16, 19, 67
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533.
Chappel v Hart (1998) 156 ALR 517 at 523
Commonwealth v Beattie (1981) 35 ALR 369
Commonwealth Banking Corporation v Percival (1988) 9 AAR 206
Hannaford v Telstra Corporation Limited [2005] FCA 1298
Lees v Comcare (1999) 56 ALD 84).
Re Liu and Comcare [2004] AATA 617
Re Riley and Comcare [2005] AATA 23
Seltsam Pty Ltd & Anor v McGuiness [2000] NSWCA 29
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 at 328
REASONS FOR DECISION
26 September 2005 Mr S. Webb 1. By this application Civa Morton is seeking review of the Comcare decision to affirm a primary determination purportedly ceasing Comcare’s liability to pay compensation in relation to a work-related but unspecified back sprain.
2. The matter came on for hearing before me in Canberra on 30- 31 May and 17-19 August 2005. Ms Morton was represented by Mr C. Ryan, counsel. Comcare was represented by Mr D. O’Donovan, counsel. Ms Morton, Dr Garth Eaton (Occupational Physician), Dr Hugh Veness (Consultant Psychiatrist), Dr Andrew Brook (Rheumatologist), Dr Ross Mellick (Consultant Neurologist), Dr Neil McGill (Consultant Rheumatologist), Dr Peter Stevenson (Consultant Physician), Dr Jan Eriksson (General Practitioner) gave oral evidence. The Tribunal had before it documents prepared pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“T” documents). Materials were tendered and labelled for identification during the hearing.
factual context
3. The factual background to this application is not in dispute and I find as follows.
4. Ms Morton is 53 years old (born: 19 March 1952).
5. Ms Morton is divorced and has two adult children. She assumed parental responsibility for her grandson, Atreyu, from soon after his birth in 1992. Atreyu has experienced behavioural and psychological difficulties for which medical treatment has been obtained.
6. In 1986 she commenced study for a degree in Geography, later transferring to Ecology. She completed that degree in 1991 in Canberra. In or about 1994 she moved to Perth and was employed at the University of Western Australia, lecturing and tutoring in Earth Sciences. Ms Morton returned to Canberra in or about April 1997.
7. On or about 20 October 1998 she commenced employment as a Laboratory Assistant with the ACT Department of Education and Community Services (“the Department”)(Exhibit A14).
8. On 22 April 1999 Ms Morton injured her back while pushing a trolley in the course of her employment at the Belconnen High School.
9. On 28 April she completed a compensation claim form in relation to “muscle sprain to back” (T5).
10. On 24 May 1999 Comcare determined that it was liable to pay Ms Morton compensation in relation to “sprain of unspecified site of back” sustained on 22 April 1999 (T19).
11. On 20 November 2000 Comcare informed Ms Morton of its intention to cease compensation payments and inviting any additional medical evidence (T213). Ms Morton made a written response on 17 December 2000 (T218) and Dr Brook provided a medical report dated 13 December 2000 (T217).
12. On 4 January 2001 Comcare “…determined that on and from 6 January 2001, Comcare is no longer liable to pay compensation for your claim under any provision of the Act…” (T220).
13. On 5 February 2001 Ms Morton requested additional time in which to tender additional information for reconsideration (T222). The request was granted (T223). On 29 March 2001 Ms Morton requested additional time in which to tender further information (T224). On 9 May 2001 Ms Morton requested reconsideration of the 4 January 2001 determination (T226).
14. On 13 August 2001 an Independent Review Officer (“IRO”) issued a reconsideration decision affirming the determination dated 4 January 2001 (T232).
15. On 28 January 2004 Ms Morton applied to the Administrative Appeals Tribunal for review of the reconsideration decision dated 13 August 2001 (T1) and for an extension of time in which to apply (T2).
16. On 17 March 2004 the Tribunal granted Ms Morton an extension of time in which to apply.
issues for determination
17. At the outset the scope of issues in dispute in these proceedings was agreed.
18. Following Re Liu and Comcare [2004] AATA 617, the reviewable decision will be set aside as it purports to cease liability from 6 January 2001 and into the future and, therefore, cannot stand. As counsel for Ms Morton made clear, the proceedings are not joined on the basis of that technicality alone, the substantive issue being Ms Morton’s claims in relation to alleged sequela of the index injury in the form of “physical injury being neurogenic pain disorder or fibromyalgia” and “non-physical disease, being depression” (Transcript, 30 May 2005, p4).
19. The issues for determination by the Tribunal are:
(a)Whether Ms Morton continued to suffer from the effects of her compensable injury on 6 January 2001 or thereafter to the present date;
(b)Whether the symptoms of pain and depression that Ms Morton has experienced from 6 January 2001 to the present were materially contributed to by her compensable injury or her employment.
legislation and law
20. Ms Morton’s application rises for consideration under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
21. Comcare is liable to pay compensation to an employee in respect of an injury if the injury results in incapacity for work or impairment (s14), or requires medical treatment (s16). Subject to certain exclusions that are not relevant in these proceedings, “injury” is defined to include a physical or mental injury arising out of or in the course of the employment, or an aggravation of such injury, or a disease. “Disease” means any ailment or the aggravation of such ailment that was contributed to in a material degree by the employment (subs4(1)). I note the disease provisions of the Act at s7.
22. There are no claims for compensation pursuant to s16 (medical treatment) or s19 (incapacity) on foot in these proceedings.
findings on material questions of fact
23. Considering the documentary and oral evidence, I make the following findings of fact.
24. Ms Morton has a history of depression and pains in various parts of her body that pre-date her employment by the Department in October 1998. It is not necessary to set out in detail Ms Morton’s medical history as established by the various medical reports and clinical notes in evidence. For present purposes it is sufficient to find that Ms Morton’s medical history includes:
(a)clinical depression with suicide ideation as a teenager that was treated with antidepressant medications (Exhibit A12);
(b)persistent epigastric problems (Exhibits R3, R5 and R7);
(c)symptoms that may be consistent with Raynaud’s disease (Exhibit R3);
(d)hysterectomy, left oopherectomy, endometriosis prior to 1998 (Exhibits R3, R5, R7);
(e)hereditary angiooedema (Exhibit R3);
(f)complaint of “going cross eyed” in February 1997 (Exhibit R5);
(g)complaints of aching joints and possible adenitis (Exhibits R3, R5 and R7); and
(h)suspected Hashimoto’s Disease (Exhibit A12).
25. Ms Morton sustained a whiplash injury in a motor vehicle accident in September 1985 for which she was compensated. She gave evidence that she was not injured in two subsequent motor vehicle accidents. However, on 15 January 1987 Dr Smith noted that Ms Morton was involved in a motor vehicle accident and recorded “aching neck, back & arms - tenderness cervical, thoracic and lumbar spine – painful limit of movement at spine – neurological [signs] upper & lower limbs…” (Exhibit R7). Nonetheless, Ms Morton’s evidence was that she experienced neck and back pain for many years after the 1985 injury.
26. That evidence is supported by the clinical notes of her treating general practitioners over time: Dr Smith (Exhibit R7), the Okley Medical Group (Exhibit R5) and Dr Wareham and Dr Eriksson (Exhibit R3). The clinical notes of Dr Smith and the Okley Medical Group indicate a history of aching joints and pains in the upper body and limbs since 1979. In the period from 9 April 1996 to 3 April 1997 the clinical notes of the Okley Medical Group record 21 attendances by Ms Morton in relation to upper body pain (Exhibit R5). Ms Morton had difficulty recollecting consultations with medical practitioners in relation to such symptoms since 1996, and deferred to the clinical notes in evidence. When cross-examined in relation to her history of pain symptoms, she agreed that she experienced pain in her neck, shoulder and back for many years prior to her injury in April 1999. Her evidence was that such symptoms were susceptible to exacerbation by minor lifting or twisting events, such as carrying a shoulder bag or lifting her infant grandson. I accept that evidence and find that Ms Morton suffered from a long-standing chronic pain disorder prior to her injury on 22 April 1999.
27. By her own account Ms Morton obtained treatment for pain symptoms in her neck and back and other parts of her body prior to commencing employment by the Department. Such treatment included physical manipulation and the prescription of medications for pain management, such as Digesic and Voltaren Rapid. That evidence is supported by the aforementioned clinical notes. The clinical notes of Dr Wareham reveal that Ms Morton was obtaining treatment for such pain in 1997 and 1998 (see records dated 28 August 1997, 12 March 1998 and 24 April 1998, Exhibit R3). I note in passing that Digesic medication was prescribed on each of those occasions, contraindicating Dr Eriksson’s note on 12 March 1998 that “previous 100 [Digesic] lasted 5 years”. It is reasonable to infer that Dr Eriksson’s note merely recorded what she was told by Ms Morton. However, the clinical notes of the Okley Medical Group indicate that Ms Morton was prescribed Digesic 100 on 12 December 1996 and Digesic 50 on 2 July 1996, as well as 6 prescriptions for Voltaren Rapid from 2 July 1996 to 6 December 1996 (Exhibit R5).
28. On that evidence I am satisfied and find that Ms Morton obtained medical treatment in relation to frequent symptoms of neck and back pain, epigastric pain, pain in her head that she described as “sinus pain”, aches in various parts of her body and issues with her vision in the years prior to her employment by the Department in October 1998. I note that the clinical notes record her complaining of aching hip and knee joints in October 1998 and aching knees in November 1998 (Exhibit R3), at a time concurrent with the commencement of her employment. Ms Morton attributed the pain in her hips and knees at that time to “posture”.
29. Plainly, Dr Eriksson and other doctors giving evidence in this case in relation to the diagnosis and aetiology of Ms Morton’s symptoms are reliant on the history given by Ms Morton. That is not to say that clinical observations have no relevance. Ms Morton’s primary symptoms are the experience of pain in various parts of her body. Pain is a subjective phenomenon. The clinical notes and observations of the medical practitioners who have treated or examined Ms Morton indicate the extent of her complaints and related phenomenon, such as tenderness, at the particular time. Ms Morton expressed difficulty recalling the details of her symptoms and treatments prior to April 1999 when giving her oral evidence in chief and under cross examination. Aspects of her evidence were contradictory, concerning pain symptomatology and medications for example, and were inconsistent with contemporaneous medical evidence and histories taken by examining doctors. I accept that her difficulties with concentration and memory may be related to her use of opioid medication (OxyContin), as indicated by Dr Veness (Exhibit A12). That being so, I am satisfied that her uncorroborated evidence may be unreliable and must be treated with caution.
30. On 22 April 1999 Ms Morton sustained a back strain injury pushing a trolley at the Belconnen High School in the course of her employment. I accept her evidence that the trolley veered off course on its wheels, requiring her to exert lateral pressure with a twisting motion in order to steer the trolley. Ms Morton described the circumstances in her claim for compensation (T5, folio 12). She attended Dr Wareham later that day at a pre-arranged appointment in relation to other matters. I accept that evidence and so find.
31. It is necessary to carefully consider the clinical notes of Ms Morton’s treating doctors immediately after injury. Dr Wareham noted that the incident “caused pain → neck to [?] spine … in past manipulation helped settle quickly OE [on examination] pain/tight neck muscles – no localised tenderness – mild restricted movement – no neuro signs … rest…” (Exhibit R3). On 27 April 1999 Dr Eriksson reviewed Ms Morton and diagnosed “muscle sprain” and noted:
“Review re injury 5 days ago at school, pushing heavy trolley, ? was slightly painful while pushing trolley, but noticed more severe pain straight after, low back, thoracic and neck. Certain movements e.g., reversing in car, still very painful. Overall ? slight improvement. Sleeps at night with 1 Digesic. No particular arm pains.
…
O/E: No particularly tender spots down spine, neck rotation 45-60° R and L, reduced flexion/extension. Good forward flexion at LS spine.”
I am satisfied that that evidence provides an accurate and complete record of the signs and symptoms complained of by Ms Morton at that time. I accept Dr Wareham’s diagnosis of muscle strain and so find.
32. On 28 April 1999 Ms Morton described her symptoms after the incident in a claim form for compensation in the following terms (T5 folio 11):
“17(a) … I have pain in my lower back through to the top of my spine. I have pain in the base of my skull and across my upper back. Also some headaches.
(b) What part of the body is affected (eg lower back)?
Lower back →upper back some of the middle part is not affected, base of skull and across upper back. Head.
(c) In your own words describe how this injury now affects you…
I cannot do the following without experiencing pain: driving a car, lifting, housework, reaching, sitting, writing. Unable to wear multi-focal glasses.”
33. Ms Morton was cross-examined about the pain she experienced before the incident with the trolley and thereafter. Ms Morton’s evidence was that the pain before was different and was “not in the same place”. She gave evidence that the earlier pains were “… more up here [in the cervical spine] and in the base of the skull ...” with some radiation of pain and pain in her shoulder “when I was carrying a child and things like that” (Transcript 30 May 2005, p99). However, considering the history of pain distribution as recorded in the clinical notes of Ms Morton’s treating doctors prior in the years prior to the injury in April 1999, and Ms Morton’s ambiguous evidence, I am reasonably satisfied that Ms Morton’s post injury symptoms were broadly consistent with symptoms she had experienced at various times prior to the injury as a result of her pre-existing pain disorder.
34. On 4 May 1999 Dr Eriksson reviewed Ms Morton and noted (Exhibit R3):
“Review back, pain much less intense, although still there most of the time, mid and low-thoracic, and neck, into R shoulder. R shoulder/chest/arm still hurts even with writing.
O/E: Occasional tender vertebrae mid and lower thoracic, R side of neck muscle tension.”
On 11 May 1999 Dr Eriksson reviewed Ms Morton and noted (Exhibit R3):
“Was progressing well, only some aches not bad pain, until yesterday, carried 1.3 kg of apples and two small items from the shops and noticed more pain neck and upper back again, has eased a bit now, but some pain R arm today.
O/E: Slightly tender low cervical and upper thoracic spine, shoulders good ROM.”
That evidence reveals that Ms Morton complained of pain radiating into her right shoulder, chest and arm two weeks after the injury on 22 April 1999. I note Ms Morton’s oral evidence that she experienced pains in her right arm, shoulder and right foot at the time of her injury but omitted to include them in her compensation claim form. That is consistent with the letter she wrote to Comcare on 14 August 1999 in which she stated (T60 folio 87):
“1. I hurt my right arm and hand in the accident and I am still in pain in my right arm and hand, as well as tingling and I am beginning to experience similar problems in my left arm and hand. I have weakness in my right hand…
2. I have had tingles in my right foot since the accident. They have increased sometimes to where I am experiencing bad pins and needles. I am also experiencing some pains in my right leg. My left foot is also getting tingling sensations and I am also getting pain in my left leg but these are not as bad as those in my right leg and foot.”
However, if she did experience such symptoms on 22 April 1999 she did not report them to Dr Wareham, only reporting them to Dr Eriksson on 4 May 1999. On balance I am satisfied that Dr Wareham’s clinical notes provide an accurate description of the signs and symptoms Ms Morton was experiencing on the days she was examined and so find. It appears that Ms Morton attributed all her subsequent symptoms to the April 1999 injury, but that does not mean that such attribution is well founded. It is necessary to consider the symptoms immediately consequent upon injury in the context of pre-existing disease and related symptomatology.
35. Ms Morton’s injury was a localised muscle strain with associated pain. The contemporaneous clinical notes indicate that her muscle strain symptoms diminished in the two weeks following the incident on 22 April 1999, to the extent Dr Eriksson noted “some aches not bad pain” in the days prior to 11 May 1999. On the basis of Dr Eriksson’s note, it appears that Ms Morton suffered an exacerbation of symptoms carrying a 1.3 kilogram bag of apples and other items on or about 10 May 1999. That occurrence is consistent with similar events in the history of her pain disorder. Ms Morton’s own evidence was that she previously experienced “flare ups” of pain carrying a child or a shoulder bag.
36. It is convenient to note that Ms Morton claimed she had experienced pain symptoms pushing trolleys in the course of her employment prior to April 1999. That may be so, but there is no independent evidence before me that she reported such incidents or obtained medical treatment as a result. Her evidence was that she would take a Digesic and would recover sufficiently over night to continue with her domestic and employment duties. There is no medical evidence before me pointing to Ms Morton’s injury in April 1999 being the result of the cumulative effect of minor trauma. I am satisfied that it was not.
37. I am reasonably satisfied that Ms Morton exhibited a pattern of pain symptomatology over a long period of time before the injury on 22 April 1999. In those circumstances it is perhaps not surprising that Ms Morton’s pain symptomatology persisted thereafter, despite the optimistic prognosis of Dr Eriksson and Ms W. Moss, physiotherapist, at that time. On 21 May 1999 Dr Eriksson noted that Ms Morton’s condition was “improving”. On 28 May 1999 Dr Eriksson recommended massage treatment and expected “resolution of symptoms over a period of 8 weeks” with a return to full duties (T20) and noted “ongoing discomfort in [neck and lower back] with some numbness in legs.” (Exhibit R3). On 3 June 1999 Ms W. Moss, physiotherapist, reported that Ms Morton’s symptoms “responded well to treatment and she was discharged to continue her self management” (Exhibit A2).
38. The clinical notes of Dr Eriksson and Dr Wareham (Exhibit R3) and of Dr L. Fox (Exhibit A15) and related documents (see, for example, Exhibits A4, A5, A8, A9, A11, A13 and A16) indicate the progress of Ms Morton’s reported symptoms over time from 4 June 1999 to 18 September 2004.
39. On 29 June 1999 Dr Eaton reported “…there is a considerable element of neuropathic pain” and recommended that Ms Morton “…see one of our clinical psychologists for assistance with pain management and adjustment to injury.” (T41). In his oral evidence Dr Eaton confirmed that Ms Morton’s complaints of pain in June 1999 were not in a dermatonal pattern, indicating that there was no neural compromise. Dr Eaton’s stated opinion was that the widespread symptoms complained of were not consistent with a musculo-ligamentous strain and were “more likely to be related to the nervous system”, that is a neuropathic pain disorder. Dr Eaton’s evidence was that his physical examination of Ms Morton in 2004 was normal and he did not observe tender points sufficient to diagnose fibromyalgia at that time.
40. On 16 November 1999 Dr G. Griffith examined Ms Morton and reported that she had suffered an aggravation of cervical and lumbar spondylosis and a musculo-ligamentous strain of the soft tissues of the cervical, mid-thoracic and lumbar spine, subsequently causing minor anxiety and depression (T99 folio 136). Dr Griffith reported (T99 folios 134-135):
“In the course of [the trolley incident], [Ms Morton] became aware of general discomfort in her back in the interscapular and cervical region. It did not radiate to the arms.
…
It later spread to do so,...
The claimant was also concerned by what she described as a tingling sensation in the right middle, fourth and little toe… The pain extended to the lumbar region… The low back pain was aching in nature, did not radiate to the buttock.
…
… she still has physical symptoms, in particular tingling with both hands, with aching discomfort in the fingers and tingling of the soles of the feet, more marked on the right than on the left when walking. A cause has not yet been determined…
She complains in addition of a global headache which is aching in nature, proportional to her level of cervical pain. There is some radiation of pain to the right shoulder girdle, and thence downward into the upper arm.
…
… She reports problems with her vision, which has occurred since this incident…
Prior Medical/Social History
She reported that she suffered a previous whiplash type injury in 1985 which settled over two to three years…”
41. I am reasonably satisfied that Dr Griffith, who was not called to give evidence, was not aware of the long history of Ms Morton’s pain symptomatology prior to April 1999. I note that Dr Griffith reported that there was no radiological or clinical evidence of nerve root compression and no focal points of tenderness in the musculature of the paravertebral region that could be expected to explain Ms Morton’s symptoms. He diagnosed aggravation of cervical and lumbar spondylosis but considered that further radiological investigation of her cervical spine may be warranted (T99 folio 137). That diagnosis was made in the absence of subsequent investigations and is not consistent with the weight of the medical evidence.
42. On 28 April 2000 Dr Brook examined Ms Morton and reported (T164):
“On clinical examination there is no evidence of any important musculoskeletal or neurological disease. She is tender in the soft tissues widespread and in the distribution one expects in fibromyalgia including the flexors, the first interspace, the proximal extensors, the upper trapezius, mildly in the cervical and lumbar spine and rather diffuse, both trochanteric regions and the medial part of the knee.
…
I agree with [Dr Eriksson’s] diagnosis of fibromyalgia. The genesis of this condition is not know but it often follows spinal injuries usually the most useful literature being after motor vehicle accidents.”
On 5 April 2001 Dr Brook reported that (T227):
“There have been questions about the motor vehicle accident in 1985. She had some neck pain which settled probably over several weeks. In the 18 months following that accident she had two other trivial motor vehicle accidents one of which she was hit on the side and another in the rear but there was no symptoms after these accidents at all.”
43. The history taken by Dr Brook in relation to Ms Morton’s pain symptomatology after the motor vehicle accidents is not supported by the contemporaneous and subsequent medical evidence (Exhibits R7 and R5). It is necessary to consider Dr Brook’s comment that “[Ms Morton] did not have fibromyalgia symptoms between the motor vehicle accidents and the episode in April 1999” and his observations about the traumatic causation of fibromyalgia (T227 folio 353) in that context. I have found that Ms Morton did suffer from a chronic pain disorder at least since the motor vehicle accident in 1985 (there is some evidence that she suffered from back pain from 1979 (Exhibit R7)) and that that pain disorder was symptomatic to the time of her injury.
44. Dr Brook gave oral evidence that he found no evidence of musculo-skeletal injury or neurological disorder on examination of Ms Morton in April 2000. His evidence was that while the incident in April 1999 was unlikely to cause fibromyalgia or the widespread pain symptoms Ms Morton complained of, he could not rule it out as a possible cause, but “it was not possible in terms that it is probable”.
45. The preponderance of the expert evidence is that there is no musculo-skeletal or neurological injury in Ms Morton’s case to explain her symptoms. I prefer the evidence of Dr Brook and Dr McGill, consultant rheumatologists, Dr Mellick, consultant neurologist, and Dr Stevenson, consultant physician, in that regard. I note that Dr Veness and Dr Eaton gave evidence that Ms Morton suffers from neuropathic pain. I can find no compelling evidence to support that proposition. Dr Veness is a psychiatrist and Dr Eaton is an occupational physician, both with clinical interest and experience treating pain conditions. However, weighing the evidence, I am satisfied that the evidence of Drs Brook, McGill, Mellick and Stevenson is persuasive and carries more weight.
46. Furthermore, their evidence is consistent with the long history of Ms Morton’s symptomatology, at least since the motor vehicle accident in 1985, and is substantially consistent with the report by Professor Cohen (Exhibit A10). Despite reporting that Ms Morton’s “predicament began around ANZAC Day in 1999”, which I am satisfied it did not, Professor Cohen reported that:
“…Ms Morton does not fulfil the published criteria for “fibromyalgia” which in any case is merely a synonym for widespread pain. She does not present with convincing signs to suggest enhanced nociception. By contrast – and especially taking into account her exhibited behaviour at this Clinic on which I have not commented in detail – I suspect that the cognitive and affective dimensions of her presentation far outweigh the somatic…
…
…I consider that Ms Morton’s behaviour was determined much more by psychological and social factors that by any underlying disturbance of nociception…”
47. On 26 September 2000 Dr McGill examined Ms Morton and reported (T198):
“I think her symptoms have a psychological basis and are a reflection of her personality and the psychological stressors that have been part of her life. There is no evidence of any physical disorder, related to her work or otherwise.”
48. In his oral evidence Dr McGill stated that he found no evidence of any physical disorder in Ms Morton to explain her complaints of widespread pain. His stated opinion was that the symptoms of pain were likely to be a reflection of psychological stresses and distress. Dr McGill gave evidence that the trolley incident was within the realm of activity of normal living that may have caused localised muscle strain but not the widespread symptoms of pain Ms Morton complained of. His opinion was that it was improbable the trolley incident in April 1999 was materially causative of Ms Morton’s pain symptoms which were more probably the product of a pre-existing condition. That evidence is substantially consistent with the evidence of Dr Mellick who examined Ms Morton and reported on 9 November 2000 (T210):
“… I obtained no history which established the probability of a distribution of symptoms arising on an organic basis. It was also evident from the history described that the chronic pain syndrome, which is the appropriate designation of the clinical picture as it now presents, began in the distant past prior to the incident in April 1999 and that its pattern over the years has been characterised by “flare ups and aggravations.
…
The nature of the symptoms described and the distribution is characteristic of the phenomenon of Somatisation giving rise to a chronic pain syndrome.”
49. Dr Mellick gave oral evidence that he found no evidence of organic pathology to explain Ms Morton’s complaints of pain. His stated opinion was that somatization was a probable explanation in the absence of neurological disorder. Dr Mellick stated that any muscle strain caused by the trolley incident in April 1999 would have resolved by May 1999 and that such a strain would play no role in a process of somatization.
50. I note in passing that Dr Mellick reported that “Mrs Morton also said that she was troubled to the best of her recollection by pain involving her “bottom” only after the [trolley] incident.” (T210 folio 309). That report is not consistent with the history obtained by Dr Griffith.
51. Dr Veness gave oral evidence that Ms Morton was suffering from neuropathic pain and was not suffering from a psychiatric condition that would explain her pain symptoms. His opinion was that Ms Morton was rendered susceptible to such pain by the motor vehicle accident in 1985. She suffered a pain syndrome after the motor vehicle accident but “it cleared up” and her present symptoms of pain and depression are entirely the result of the incident with the trolley in April 1999. Dr Veness acknowledged Professor Cohen’s expertise in relation to pain but articulated his disagreement with Professor Cohen on this occasion (see Exhibit A10). I have found that Ms Morton’s pre-existing pain disorder did not “clear up” and was symptomatic prior to her injury on 22 April 1999. For that reason I am not persuaded by Dr Veness’ conclusion and prefer the conclusions of Drs Brook, McGill and Mellick.
52. I note the report of Dr Stevenson dated 24 June 2004 (Exhibit R2). Dr Stevenson gave oral evidence that he found no evidence of neurological injury or neurological pain on examination of Ms Morton. His stated opinion was that the forces involved in the trolley incident in April 1999 were not sufficient to cause trauma to the spine or neuropathic pain. That conclusion is consistent with the weight of the medical evidence (Drs Brook, McGill and Mellick).
53. The weight of the medical evidence is that Ms Morton’s complaints of diffuse pain symptomatology affecting most parts of her body except the “…lower anterior chest and abdomen…” (T164 folio 229) have continued to the present without significant change. I note the reports of Dr Veness (Exhibit A12), Dr Eriksson (Exhibit A16) and Professor Cohen (Exhibit A10) in that regard.
54. Ms Morton is claiming depression is a psychological sequela of her physical injury. For reasons that will appear, I do not agree. I accept that her depressive disorder is multifactorial and is materially contributed to by her pain disorder, but I do not accept that her pain disorder is materially contributed to by her injury on 22 April 1999. Dr Griffith reported that Ms Morton “… has also been significantly depressed due to stress, which she attributes largely to problems with processing of her claim…” (T99 folio 134). Dr Eriksson first reported symptoms of depression in March 2000 and prescribed antidepressant medication. Dr Eriksson referred Ms Morton to Dr Veness in December 2003 (Exhibit A9) and reported on 29 February 2004 that her symptoms of depression were ongoing (Exhibit A16, see also reports by Dr Veness at Exhibit A12).
consideration
55. In making this decision I have carefully considered all of the evidence, the submissions of the parties, the relevant caselaw and legislation.
56. That Ms Morton sustained an injury in the form of a muscle sprain to an unspecified site in her back is not in issue in these proceedings. Comcare determined to accept liability for that injury pursuant to s 14 of the Act and there has been no subsequent reconsideration of that determination pursuant to s 62 of the Act. It is not open to me, therefore, to review that determination or to find facts that are inconsistent with the facts found for the purpose of making that determination (Hannaford v Telstra Corporation Limited [2005] FCA 1298; Lees v Comcare (1999) 56 ALD 84).
57. The question to be determined is whether on 6 January 2001 and thereafter to the present date Ms Morton’s symptoms, however labelled, arose out of her employment or were contributed to by that employment in a material degree that is greater than de minimus. The claimed sequela of depression must also be considered. As will appear, I am reasonably satisfied that the requisite connection is not made out as a matter of probability rather than mere possibility. The existence of the relevant causal connection is to be determined according to common sense ideas and not by philosophical or scientific theories of causation (McHugh J in Chappel v Hart (1998) 156 ALR 517 at 523).
58. It appears that Drs Wareham, Eriksson, Eaton, Griffith, Brook and Veness were not fully apprised of the detailed history of Ms Morton’s pain symptomatology and treatment in the years preceding her injury in April 1999, as revealed by the clinical notes in Exhibits R5 and R7. Those clinical notes must be considered in relation to the contemporaneous clinical notes of Dr Wareham and Dr Eriksson and the oral evidence of Ms Morton. The weight of that evidence compels me to find that Ms Morton suffered aches and pains in various parts of her body, including in her head, neck, right shoulder and arm, upper back, lower back, hips and knees, for many years prior to April 1999 and that such aches and pains were, from time to time, susceptible to flare-up on normal daily activity, such as carrying a shoulder bag, in the absence of physical trauma.
59. I am not persuaded by the evidence of Dr Eaton and Dr Veness that Ms Morton’s claimed injury had any material effect on the progress of her pre-existing pain disorder. I prefer the evidence of Drs Brook, McGill, Mellick and Stevenson. Their conclusions concerning Ms Morton’s pain disorder are broadly consistent with the conclusions of Professor Cohen, who is acknowledged to be an eminent expert in the field of pain disorders, whereas the conclusions of Dr Eaton and Dr Veness are not. Furthermore the combined specialist expertise of Drs Brook, McGill, Mellick and Stevenson and the confluence of their opinions in relation to the causation of Ms Morton’s pain is more persuasive than the opinions of Dr Eaton and Dr Veness.
60. I am reasonably satisfied that Ms Morton does not suffer from a neuropathic pain condition involving disturbed nociception or neurological injury. I accept Professor Cohen’s evidence in that regard. I also accept Dr McGill’s evidence that the incident with the trolley did not involved sufficient force to cause neurological injury. If Ms Morton’s pain disorder is appropriately labelled as fibromyalgia (Drs Eriksson, Eaton and Brook), I accept Dr Brook’s evidence that muscle strain, such as that Ms Morton suffered in the injury on 22 April 1999, is unlikely to materially contribute to fibromyalgia or to a neurogenic pain disorder.
61. It is immaterial for present purposes whether the label ‘fibromyalgia’ constitutes a medical diagnosis or a description of symptoms of pain that cannot be explained in terms of musculo-skeletal injury or neuropathology. The weight of the evidence is that Ms Morton does not suffer from a neurogenic pain disorder. Furthermore, the expert evidence is that the aetiology of fibromyalgia or similar chronic pain disorders is not well understood and remains controversial in mainstream medical science. I accept Dr Brook’s evidence that (T217 folio 327):
“Fibromyalgia occurs in three settings in the general population. Probably the greatest number arise insidiously with no obvious precipitating cause. A small minority follow an infectious disease. A further group follow spinal injuries which in practice in our community are mostly motor vehicle accidents. The mechanism by which fibromyalgia arises is not known.”
Dr Brook’s oral evidence was that a compounding effect of minor trauma was unlikely to contribute to fibromyalgia.
62. On that evidence I am compelled to reject submissions for Ms Morton that her compensable work injury and the preceding symptoms she allegedly experienced pushing trolleys had a compounding effect that resulted in or aggravated a chronic pain disorder. I note that Dr McGill gave evidence that fibromyalgia does not arise from a force insult to the body.
63. I do not accept that the localised muscle strain injury was an operative cause of the widespread pain symptomatology Ms Morton complained of in the weeks and months following her injury. I note that the symptoms and effects of injury Ms Morton claimed in the compensation claim form she lodged on 1 May 1999 are significantly different from those she reported to Dr Wareham on 22 April 1999, as recorded in Dr Wareham’s clinical notes. I prefer Dr Wareham’s evidence on that subject. It is plain enough that Ms Morton attributes her various symptoms over time since April 1999 to her injury. However, her belief is not compelling evidence that such attribution is warranted in the circumstances; it is contrary to the weight of the medical evidence and it is not supported by the contemporaneous clinical notes concerning the progress of her pain disorder over time and her injury related symptoms in 1999.
64. In that regard this case must be distinguished from that of Re Riley and Comcare [2005] AATA 23. In Riley’s case there was little evidence concerning the locus of his pain prior to injury, but sufficient to indicate that the locus of pain was different after injury. That is not the case here. The evidence is plainly that Ms Morton complained of and was treated for widespread aches and pains over a long period of time, from at least 1985. Similar and more widespread complaints and symptoms continue to the present day. Unlike Riley’s case, there is no causal nexus between the injury and the widespread symptoms subsequently attributed to it. The causal nexus established on the evidence is between the injury and pain related to a muscle strain, which resolved soon thereafter.
65. It is not in issue that Ms Morton’s symptoms of muscle strain in her neck and upper and lower back as a result of the incident with the trolley on 22 April 1999 are compensable. It is necessary, however, to distinguish between those symptoms and the on-going and subsequent symptoms of her pre-existing pain disorder as it progressed over time.
66. It is well established that the symptom of an injury is part of the injury for the purposes of compensation (Commonwealth Banking Corporation v Percival (1988) 9 AAR 206; Commonwealth v Beattie (1981) 35 ALR 369) and if pain arising from an underlying condition is increased or intensified or returns as a result of employment such a change may constitute a compensable injury in the particular circumstances (Tippett v Australian Postal Corporation (1998) 27 AAR 40; Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533. However, as Finklestein J made clear in Tippett v Australian Postal Corporation (supra) at 27 AAR 44, following the Full Federal Court judgement in Commonwealth v Beattie (supra),:
“[There is] a very important and perhaps obvious distinction [to be drawn] between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that the worker has suffered an aggravation of his or her pre-existing injury.”
67. In this case Ms Morton suffered a frank injury in employment that caused her to suffer pain that was additional to any pre-existing symptoms she may have been suffering as a result of her pre-existing pain disorder. That increase in pain was employment related and was a compensable injury. However, her pre-existing disease caused her to suffer pain that was not related to her activities in employment for which she was prescribed Digesic by Dr Eriksson and others prior to injury. Once her pain symptoms consequent upon injury subsided and the mechanism of injury-related pain causation resolved, the remaining pain she suffered is not compensable unless it is found to be materially contributed to by her injury. Unfortunately for Ms Morton, I am satisfied that her remaining and persistent pain symptomatology is not materially contributed to by her work-related injury. It follows, therefore, that her on-going pain symptoms are not compensable.
68. The test that must be applied is that of reasonable satisfaction on the balance of probabilities. I pause to note that in some cases, probable causation may be inferred in the particular circumstances, on the basis of common sense, if the medical evidence does not rule out such a finding (Seltsam Pty Ltd & Anor v McGuiness [2000] NSWCA 29 ; Chappell v Hart (supra)) . Dr Brook’s evidence that the possibility that fibromyalgia may be caused by minor trauma cannot be ruled out is not sufficient to establish, in this case, that such genesis was probable. Nor is the possibility of a causal connection left open by Drs McGill and Mellick in any meaningful sense. Simply because a cause cannot be ruled out, as in this case where the aetiology of fibromyalgia or Ms Morton’s chronic pain disorder is unknown and controversial, does not mean that it must be ruled in, especially if the weight of the expert evidence does not point to minor trauma being a probable or likely cause of Ms Morton’s persistent symptoms in all of the circumstances.
69. What is required was plainly put by the Full Federal Court in the case of Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 at 328: “… the question is whether there has been a “contribution”…”. The ‘contribution’ contended for by Ms Morton is that the injury caused pain that has persisted to the present day. This, it was submitted, represents an unbroken chain of causation. I do not agree.
70. The muscular strain injury Ms Morton sustained on 22 April 1999 occurred in the context of pre-existing disease. In order for Ms Morton to succeed in her claim the chain of causation to which her counsel referred as unbroken must be between her employment by the Department and the symptoms that are claimed to be compensable. I am satisfied that that chain of causation is not established as a matter of probability on the evidence.
71. The compensable symptoms of injury must be distinguished from the non-compensable symptoms of pre-existing disease. The weight of the evidence is that:
(a)Ms Morton suffered from a pain disorder prior to her injury on 22 April 1999;
(b)that pain disorder caused symptoms of aching and pain in various parts of her body that would flare up from time to time;
(c)the forces involved in pushing an unwieldy trolley were not sufficient to cause neurological injury, but did cause a muscle strain injury in relation to which Comcare accepted liability;
(d)the direct effects of the muscle strain resolved over a period of weeks, but symptoms of aching and pain emerged in various parts of Ms Morton’s body;
(e)the symptomatology of pain increased in intensity and distribution in the months after the injury;
(f)Ms Morton suffered depression in March 2000 that was in all likelihood causally related to the increase in her pain symptomatology.
72. Did Ms Morton’s injury cause or materially contribute to aggravate or accelerate her pain disorder? The evidence is, on balance, that the possibility of such contribution cannot be ruled out, but that such a possibility is not probable or likely in the circumstances. In the absence of persuasive evidence, such conjecture does not emerge by inference from opaque possibility into the more sharply focussed lens of probability. The weight of the expert evidence does not permit such an inference in the circumstances of this case.
73. The weight of the expert medical evidence is that a muscle strain injury would not give rise to fibromyalgia or a neurogenic pain disorder. Nor is there evidence that such an injury could, as a matter of probability, materially contribute to a somatic pain disorder. I note and accept the evidence of Dr Mellick concerning the “…complex interaction of social, cultural and constitutional factors…” in the genesis of the “phenomenon of Somatisation”, which “…does not rest upon the occurrence of a specific injury or of any other medical organic abnormality physical or psychiatric.” (T210 folio 314).
74. That being so, weighing the evidence and applying the common sense test, I am reasonably satisfied that the effects of Ms Morton’s injury on 22 April 1999 resolved within weeks of the index injury, in all likelihood prior to a subsequent incident involving a bag of apples on or about 10 May 1999, and ceased in any event before 6 January 2001, her symptoms thereafter being the product of her pre-existing pain disorder as it progressed over time. I am reasonably satisfied on the balance of probabilities that Ms Morton’s injury on 22 April 1999 was not an operative factor in any meaningful sense in the development, aggravation or progress of her pain disorder thereafter.
75. The issue of depression as a claimed sequela of the injury can briefly be dealt with. The weight of the evidence is that Ms Morton’s depression is multifactorial, in all likelihood being materially contributed to by stresses in her life that are unrelated to her previous employment by the Department as well as by her chronic pain symptomatology and possibly, by her own account to Dr Griffith, by the compensation process. None of those matters are within the ambit of compensable injury under the Act. I am reasonably satisfied that the injury Ms Morton sustained on 22 April 1999 was not a material factor in the genesis or progress of the depressive condition that was identified by Dr Griffith in December 1999 and was treated by Dr Eriksson in March 2000 and subsequently by Dr Veness.
76. That being so, the substantive issues in dispute in this application are not resolved in Ms Morton’s favour. The decision under review must be set aside as it purports to deny future liability without authority. However, the decision of this Tribunal is that the effects of Ms Morton’s work-related injury ceased prior to 6 January 2001 and the symptoms she has experienced thereafter to the present date are not the result of that injury.
77. The question of costs was discussed with counsel at the outset of the hearing. Counsel for Ms Morton sought to reserve her position, so there will be liberty to apply in that regard. In the circumstances, however, I note that the authorities are well known to the parties and the matter would not have progressed to hearing on the technical issue alone concerning the words of the reviewable decision offending against the established authorities (Re Liu and Comcare (supra); Australian Postal Corporation v Oudyn (2003) 73 ALD 659). I note those issues were discussed by the parties at the first and second preliminary conferences to the extent that it cannot now be said that that issue remained on foot thereafter other than as a technicality. That being so I make no orders in relation to costs pursuant to s67 of the Act. If orders are sought, there is liberty to apply within seven days of the date of this decision.
decision
78. The decision under review is set aside and in substitution thereof the Tribunal decides that:
(a)in the period from 6 January 2001 to the present date Ms Morton did not continue to suffer from the injury “sprain to unspecified site of back” (“the compensable injury”); and
(b)Ms Morton’s pain symptoms (described as fibromyalgia or neurogenic pain disorder) and depression did not arise from her employment and were not materially contributed to by the compensable injury, and she is not entitled to compensation therefor.
(c)There are no orders in relation to costs. Liberty to apply within seven days.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed:
AssociateDate of Hearing 30-31 May and 17-19 August 2005
Date of Decision 26 September 2005
Counsel for the Applicant Mr C Ryan
Solicitor for the Applicant Mr David Lander, Lander & Co
Counsel for the Respondent Mr D ShannonSolicitor for the Respondent Mr R McLean, Deacons
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