Moten and Comcare
[2004] AATA 540
•21 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 540
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/379
GENERAL ADMINISTRATIVE DIVISION )
Re SHARON NANCYE MOTEN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member KL Beddoe Date 21 May 2004
Place Brisbane
Decision
The Tribunal decides:
(a) the decision under review is set aside;
(b) the respondent is liable to compensation, in terms of section 14 of the Safety, Rehabilitation and Compensation Act 1988, for the hyperextension injury to the neck suffered on 3 September 1999; and
(c) the respondent pay the applicant’s costs as agreed in this application or, there being no agreement, as taxed by a Deputy Registrar of the Tribunal at Brisbane.
..................(Sgd)......................
KL Beddoe
Senior MemberCATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – headache, back and neck pain – hyperextension injury – claim for compensation - causal condition between condition and applicant’s employment with the Commonwealth – compensable injury
WORKERS’ COMPENSATION – benefits and entitlements - permanent impairment – hyperextension injury and right upper arm regional pain syndrome - application for lump sum compensation for permanent impairment – excessive emotional response camouflaging the actual impairment – unsafe to make an assessment of level of impairment at this time
Safety, Rehabilitation and Compensation Act 1988 ss 14 and 24(1)
REASONS FOR DECISION
21 May 2004 Senior Member KL Beddoe 1. The applicant seeks review of two decisions of the respondent in relation to claims for compensation for permanent impairment. The claims arise out of the two incidents. More particularly, the applicant seeks review of a refusal of a claim for lump sum compensation for permanent impairment in respect of her accepted condition of right upper arm regional pain syndrome (Q2000/1061) and claims for acceptance and lump sum compensation in respect of her headache, back and neck conditions (Q2003/379). The respondent acknowledges that the claim for headache, back and neck conditions is related to the accepted regional pain syndrome.
2. Sub-section 24(1) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) provides that where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
3. “Injury” is relevantly defined in sub-section 4(1) of the act to mean 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.
4. “Permanent impairment” is not defined but “impairment” is defined to mean the loss or loss of the use or damage or malfunction of any part of the body or of any bodily system or function or part of such system or function [s4(1)].
5. “Permanent” means likely to continue indefinitely [ s4(1)].
6. For the purpose of determining whether an impairment is permanent regard is to be had to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters [s24(2)].
7. At the hearing Mr Hume appeared for the applicant and Mr Clark appeared for the respondent.
8. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the “T” Documents in each application. Further documents were tendered and marked as exhibits.
9. Oral evidence was given by the applicant; her husband; Ms Muckel; Dr Blight, rehabilitation physician; Dr J A M Moten, medical officer; Dr C M Moten, general practitioner; Mr Zemaitis, psychologist; Dr Barton, consultant occupational physician; Dr Ludolph, surgeon and Dr Likely, psychiatrist.
10. The applicant made a claim for rehabilitation and compensation dated 28 July 1999 in respect of complex regional pain syndrome affecting right hand and forearm arising from an accident on 15 May 1997.
11. By letter dated 5 October 1999, the delegate of the respondent notified the applicant, in effect, that liability was admitted for “right upper limb regional pain syndrome”.
12. The applicant made a claim for compensation for permanent impairment by a claim dated 28 October 1999.
13. By letter dated 17 March 2000, a delegate of the respondent notified the applicant that the claim for permanent impairment was refused because the applicant does not suffer a “physical impairment” as a result of the accepted condition. Following a request for reconsideration, that decision was affirmed, notified on 17 October 2000, and is the reviewable decision relevant to the application for review lodged on 3 November 2000 (Q2000/1061).
14. The applicant made a further claim for rehabilitation and compensation dated 30 June 2000 in respect of “Neck and Back injuries as a consequence of right upper limb regional pain syndrome”. The applicant elected for weekly incapacity payments and noted the discharge on medical grounds from the Army.
15. Also, by a claim dated 30 June 2000 the applicant claimed compensation and rehabilitation for “headaches as a consequence of right upper limb pain syndrome”, again seeking weekly payments for incapacity.
16. The respondent’s delegate, in making the reviewable decision notified on 17 October 2000, also rejected the claims described by the delegate as for “cervical spine condition” and “headaches”.
17. Following a request for reconsideration the rejection of those claims was affirmed on reconsideration. That was notified by letter dated 22 April 2003 and the applicant sought review in this Tribunal on 29 April 2003 (Q2003/379).
18. I make the following findings of fact:
(a)The applicant was born on 15 June 1974, is 29 years of age and is right hand dominant.
(b)She enlisted in the Australian Army on 18 October 1996 and was discharged, medically unfit, on 1 December 1999, having previously sought to resign on 15 March 1999 and having ceased work with the Army at the time she tendered her resignation.
(c)At the time of discharge the applicant held the rank of Lieutenant, having entered the Army as an education officer with that rank.
(d)The applicant’s first posting was to Townsville where she performed duties as an education officer expert in computer studies, having completed a four year course for a Bachelor of Education degree.
(e)About six months later the applicant was sent on a training course for direct entry officers at RMC Duntroon in Canberra.
(f)The training course was in the nature of an introduction to leadership skills in the Army for direct entry officers and included a fire movement exercise on the Majura military training range.
(g)The applicant participated in this dawn exercise in full battle dress during which she went to ground landing with her right arm on a pile of rocks while attempting to take up her firing position, thereby suffering a cut to her right hand and trauma to her right arm.
(h)Notwithstanding the injuries, the applicant continued in the exercise after having the wound dressed by a medical officer also participating in the exercise.
(i)The applicant suffered increased pain and inflammation to the arm, received medical treatment, was taken off the continuing exercise and confined to the lines for two to three days when she resumed participation in the exercise.
(j)Subsequently, Dr James Moten, who was also on the training course, observed the applicant’s arm and told her that she should seek further medical attention at the RAP, which resulted in the arm being put in a plastic brace for the rest of the course (two weeks).
(k)After the course the applicant resumed her duties as an education officer but was still suffering physical limitation and pain because of the arm condition and was having continued treatment, including physiotherapy and hydrotherapy with continuing conflict between the workload expectations of her superiors and her capacity to perform her computer-based duties.
(l)As a result of the medical conditions the applicant had problems doing her work and was sometimes put on restricted duties with continuing medical attention until the time of her discharge from the Army.
(m)The applicant suffered an injury to her neck in September 1998 while playing basketball in the course of her duties.
(n)The applicant married her husband (also an Army Officer) in September 1998, there are two children of the marriage, and, since the applicant’s discharge, she has accompanied her husband on two overseas postings to United Kingdom and Germany amounting to two years absence from Australia (2001-2002).
(o)The elder child was born in February 2000, that is, within three months after the discharge from the Army.
(p)Following the overseas postings the applicant’s husband was posted to Puckapunyal.
(q)Since moving to Puckapunyal the applicant has been running a successful small business which conducts an internet web-site and self-publishes a book detailing web-sites with particular reference to families.
(r)Since discharge from the Army the applicant has suffered continuing incapacity in the right arm which manifests in many ways, including sitting at a desk, difficulty driving a car, with household and domestic tasks and, she says, walking on other than flat even ground, but not so as to prevent her doing tasks such as packaging books, bookwork, filing, using a touchpad on her computer.
(s)In the course of her evidence the applicant agreed that she had to cope with significant stressful life events before and after her discharge in December 1999.
(t)The applicant was required to work long hours at the computer from time to time but I am not satisfied that this was constant in her Army employment, it being apparent that she also undertook other duties including physical training and sporting activities.
(u)In the course of cross-examination, the applicant agreed that her symptoms worsened from the time she commenced studying for a masters degree at the end of 1998 as approved by the Army.
19. During the course of the applicant’s evidence I formed the impression that she was trying to tailor her evidence to her case rather than provide a frank response to questions. I also formed the impression that she was seeking to exaggerate aspects of her evidence.
20. In response to a question from Mr Clark, the applicant said “No, never had back trouble” and in response to another question “I’ve never had any back trouble” (p54 Transcript). However, at pages 55-56 of the Transcript the following is recorded in the course of the applicant’s cross-examination:
“Q: Well, did you have back symptoms - - -? A: It was permanent.
Q: - - - as early as July of 1997?--- A: Well, I don’t recall, I’m sorry. I’m trying to but I am saying to you that my arm has always been the focus of everything that comes off of that. I’m more concerned about the fact that I can’t use my arm.
Q: Well, it says here, ‘Examination of the back produces distress’ – even touching skin?---A: Yes.
Q: Was your back that bad, was it?---A: It must have been yes. I have a raw feeling. Maybe it was, yes. It must have been. He’s obviously written it down.”
and at page 72 of the Transcript:
“Q: That would appear to be an in-patient record summary?---A: Yes, from Dr McKenzie.
Q: In respect of your admission to the Enoggera Base Hospital on 21 July [1997] till discharge on 24 July; right?---A: Yes.
Q: It says there your:
Symptoms are variable and include blotchy discolouration, glove type anaesthesia and radiation of pain up her arm and down her back.
So were you having back pain at that time?---A: Yes.
Q: I see?---A: Yes.
Q: How pronounced was the back pain?---A: I cannot remember the back pain being the focal point. There is – it’s always been, as I said earlier, my arm that has been such a disturbing factor. But, in an episode, obviously, then, that obviously happens. So it’s been – that’s some period ago, and if that’s what’s written down there, that must have been – the condition I must have been feeling at the time.”
The Medical Evidence
21. Army medical records show that the applicant attended RAP on 15 May 1997 with three injuries:
(a) laceration to right hand said not to require sutures;
(b) swelling of the left knee said to be caused by injury at PT;(c) blisters on right foot.
22. An x-ray report was requested, the requesting medical officer describing the incident as:
“Member was going to ground during field training and landed on (R) hand: tender along 4th and 5th metacarpal”.
The resulting x-ray report was, “Normal findings. No fracture or dislocation seen”.
23. On 2 July 1997, the applicant attended at 2 Field Hospital. She reported increasing pain with some association with psychological stressors at work. She was referred to a neuro-surgeon, Dr Redmond. Dr Redmond reported that the symptoms increased with activity but he could not find any neurological signs.
24. The applicant was then referred to Dr Yaksich at the Belmont Hospital Pain Clinic. There the applicant was assessed by a hand therapist and by Dr Yaksich, consultant neuro-surgeon (T33/214-6). He concluded there were signs of chronic pain syndrome but rejected, as unlikely, a diagnosis of reflex sympathetic dystrophy.
25. That view was shared by Dr De Wytt, neurologist, who saw the applicant and made a report dated 17 July 1997 (T33/219). However, Dr Ness, orthopaedic surgeon said in a report dated 19 March 1999 that he thought there was a recurrence of her pain syndrome (prev. reflex sympathetic dystrophy) (T33/199).
26. In a report dated 13 April 1999, Dr Hooper, staff specialist anaesthetist at Townsville Hospital, said that on examination his impression was that the applicant suffered chronic regional pain syndrome type 1. He went on to say that whether or not there was a sympathetically maintained pain element to it remained to be seen (T33/191). In a further report dated 25 May 1999, Dr Hooper reported that the applicant was much improved since a stellate ganglion block had been administered on 29 April 1999 (T33/190 and T33/180).
27. That improvement seems to have lasted until September 1999. Clinical notes from that time show several relevant attendances for physiotherapy through to time of discharge (T33/164-172). In that regard Dr Money, general practitioner, reported on 2 November 1999 that the applicant had been diagnosed with chronic regional pain syndrome affecting her right upper arm, had been receiving regular physiotherapy and would almost certainly require ongoing physiotherapy if the “symptoms flare up again” (T10).
28. The respondent obtained a medico-legal report from Dr Barton, consultant occupational physician dated 17 February 2000 (T14) and a supplementary report dated 30 April 2001 (T24). Dr Barton recorded a history generally consistent with the material before the Tribunal. Upon examination, Dr Barton concluded that the described impairment was psychological rather than physical, with perceived loss of movement of the shoulder and perceived loss of movement/use of the right arm. Dr Barton also concluded that, in as much as the applicant believes she has a problem with her right arm, her claimed condition would be impacting on her ability to work. In his supplementary report, Dr Barton essentially disagreed with a report by Dr Blight dated 14 June 2000 and affirmed, in effect, that the applicant had “an exceedingly strong illness belief”.
29. In his oral evidence Dr Barton said that unlike Dr Blight he had not found evidence of muscle wasting in the right arm. He accepted there was functional loss of the right arm but he had not detected objective deficiencies.
30. Dr Barton said, in effect, that the applicant’s ongoing problems (however diagnosed) started with her accident on the Majura Range and resulted in impairment for psychological reasons. He did not accept that the applicant suffers from regional pain syndrome but did accept that there was functional loss of the right arm with an impact on her ability to work generally.
31. Document T16 is a copy of a medico-legal report by Dr Blight, a rehabilitation physician dated 14 June 2000 and addressed to the applicant’s solicitor. In her report Dr Blight sets out a history generally consistent with other material before the Tribunal.
32. Dr Blight diagnosed a complex regional pain syndrome (stage 1–2) as a result of an injury to the applicant’s right elbow and wrist, when “she went to ground” on 15 May 1997. Dr Blight said that the condition is permanent and stable.
33. Dr Blight also found that the applicant sustained a hyperextension injury to her neck on 3 September 1999 (1998 is the correct year) while playing basketball.
34. That injury was also described by Dr Blight as permanent and in her opinion aggravated the complex regional pain syndrome injury previously suffered. Dr Blight found the condition to be stable.
35. She assessed the applicant’s whole person impairment as follows:
Right Arm Condition 30% (Table 9.4)
Right Shoulder 10% (Table 9.1)
Cervical Spine 10% (Table 9.6)Thoraco-lumbar Spine 5% (Table 9.6)
36. The neck injury was also responsible for recurring headaches according to Dr Blight. She attributed this to the initial injury and subsequent postural changes and stress levels caused by the initial injury. Dr Blight described the headaches as permanent and stable. She assessed whole person impairment as 10% (Table 13.1) as a result of the headaches condition.
37. In her oral evidence Dr Blight confirmed her opinion that the applicant was suffering the accepted condition complex regional pain syndrome. She also confirmed that ultrasound examination of the right elbow had been normal with no abnormality likely to cause the applicant’s symptoms. She also confirmed the neck injury and said that the headaches condition arose from the complex regional pain syndrome but developed subsequent to the development of the complex regional pain syndrome which itself had developed at some time after the accident on Majura Range.
38. Documents T25 and T30 are two reports by Dr Ludolph, a surgeon who saw the applicant while she was living in Germany. Both reports are addressed to the Australian Government Solicitor. Dr Ludolph examined the applicant on 28 May 2002 relying, at least in part, on information and a history supplied by the applicant. The original reports, Exhibit 1 in the German and English languages and Exhibit 2 in English, which are before the Tribunal, include a number of colour photographs taken on Dr Ludolph’s instructions. While there was some controversy before me as to the taking of the photographs, I have come to the conclusion that they do not assist me in coming to a decision in this matter. It follows that the alleged adverse circumstances in which the photographs were taken is not a matter to which I can give any weight.
39. In essence, Dr Ludolph reported that he could find no signs of “Sudek’s dystrophy” which he noted as being “CRPS”. In oral evidence Dr Ludolph affirmed his reported conclusion. In that oral evidence (taken through an interpreter) Dr Ludolph said that the symptoms complained of by the applicant were not consistent with the claimed condition. In response to questions from Mr Hume, Dr Ludolph said he could not find anything connected to the accident (May 1997). He did think some sort of psychological problem was possible, pointing out that he is a surgeon and not a psychiatrist.
40. Mr Zemaitis, clinical and organisational psychologist, provided a report to the Army dated 7 April 1998 (T33/209-12) and a report to the applicant’s solicitor dated 1 May 2003 (Exhibit D). He also gave oral evidence. From the time of initial referral in August 1997 to the final consultation in July 1999, Mr Zemaitis saw the applicant on more than sixteen occasions. He considered that the applicant had an adjustment disorder with mixed anxiety and depressed mood arising from the initial injury on the Majura Range.
41. After the initial consultations in 1997, the applicant was said to be feeling a lot more positive regarding her future in the Australian Army (Exhibit D) although Mr Zemaitis said that he did not think that the pain (in the right arm) was ever totally eliminated but was relieved with the psychological treatment.
42. The applicant was referred to Mr Zemaitis again in March 1998 when the applicant reported severe emotional distress at the way she was being treated by a senior officer and with concerns about her workload, including that she was feeling overwhelmed by the workload. She responded to four sessions of psychological intervention.
43. The Army referred the applicant to Mr Zemaitis again in March 1999. He says that the referral stated that the applicant was experiencing some distress secondary to recurrence of right arm overuse syndrome and regional pain syndrome. After counselling sessions the applicant is said to have reported to Mr Zemaitis on 7 April 1999 that she was feeling better. The intervention continued until 20 July 1999 when the applicant again said that she was feeling somewhat improved in her general psychological functioning but the pain condition was not improving.
44. Mr Zemaitis expressed the view, in his report (Exhibit D), that the psychological symptoms were directly caused by the ongoing pain and associated symptoms following her injury on the Majura Range.
45. In his oral evidence Mr Zemaitis said that he recollected problems with the applicant’s workload which were said to be aggravating the initial injury – a view with which Mr Zemaitis agreed. It is also apparent from Mr Zemaitis’ evidence that there were other aggravating factors which were not work-related and clearly of a domestic nature. However, Mr Zemaitis was of the opinion that the relevant aggravating factor was overuse of the right arm in her work duties.
46. Evidence was also given by Dr Likely, consultant psychiatrist. Dr Likely made a report addressed to Dr Simpson at Lavarack Barracks and dated 11 May 1999 (T33/184-5).
47. In referring the applicant to Dr Likely, Dr Simpson had written:
“This Army Education Officer with background history of right hand/wrist injury May ’97, leading to a regional pain syndrome, had a recurrence of diffuse right neck and upper limb pain earlier this year.
This has made no significant progress with rest, physiotherapy and pool exercises. She felt unwell on Voltaren and found that Tofranil made her too drowsy as did amitriptyline even at low doses. Stellate ganglion block performed by Dr Hooper at TGH Pain Clinic appears to have failed. Reaction to examination is somewhat excessive and she has developed symptoms such as shortness of breath, diarrhoea, metrorrhagia and insomnia which could suggest an associated anxiety disorder. She is [sic] attended psychologist Robert Zemaitis.” (T33/187)
48. Dr Likely responded to Dr Simpson’s referral by letter dated 11 May 1999. That response included the following:
“Lt Moten pointed out that the onset of her physical symptoms was associated with a number of other significant problems in her personal life, including illness to family members and a common theme running through her account was one of her efforts in the Army being undervalued by her peers and supervisors. She noted that her symptoms had recurred earlier this year when she was on a course in Brisbane and again felt that a comment made by a superior officer regarding the fact that she should not have children, since she had ‘a few good years left in me yet’, crystallised for her a view that had been evolving over the last few years that the Army did not value her as an individual but rather as a ‘pawn’. This precipitated her decision to resign from the Army.
She does describe some non-specific anxiety symptoms, including a sense of apprehension, some muscle tension, occasionally hyperventilation and some other non-specific symptoms, including insomnia, feeling constantly keyed-up and on edge, but relates this to her feeling of a perception in that some way ‘failed’. She now associates this feeling of failure and guilt with anything to do with the Army and describes an increase in her anxiety symptoms when she is exposed to any cue that reminds her of demise, for example even attending LBMC.
There have also been other intercurrent stressors in her life this year, in that her home was burgled recently, whilst her husband was away, and this caused her considerable stress.
She did not describe however a cluster of symptoms which would fall into any of the discreet categories of anxiety, nor does she report a pervasive depressed mood or any neurovegetative concomitants of such.”
Later in the letter the following appears:
“Lt Moten’s premorbid personality seems to be characterised by obsessive compulsive traits, together with a driven feeling and a need to achieve and be validated. This premorbid personality structure has been severely dented by her recent experiences.
Mental state examination showed Lt Moten to be a casually groomed woman who looked her stated age. She was polite, friendly and cooperative with the interviewer, maintaining good eye contact throughout. She spoke spontaneously and appropriately. Her speech was somewhat pressured. Her mood was one of dysphoria. Her affect was reactive and appropriate. Thought content showed some cognitive distortions, consistent with anxiety and themes of having failed in her military career. There were no depressive cognitions nor any delusions however, There were no abnormalities of thought form, stream or possession. She denied any perceptual disturbances. She denied any suicidal or homicidal ideation. She appeared to be a woman of average, or above average intelligence who was cognitively intact. She developed good rapport with the interviewer and had good insight into her difficulties.
Lt Moten describes a variety of non-specific anxiety symptoms, which do not fulfil any of the DSMIV criteria for a discreet anxiety disorder. In my opinion there is no Axis I mental disorder present, rather her symptoms represent an adjustment to her circumstances and would benefit in my opinion from further cognitive and behavioural interventions. These should take the form of relaxation training, respiratory training, cognitive restructuring and structured problem solving. There may also be a place for psychotherapeutic work, in order to address Lt Moten’s need for validation and her feelings of having failed in her military career. With a combination of these cognitive, behavioural and expressive interventions, I would expect Lt Moten’s symptoms to be self-limiting and their propensity to recur under further stressful situations should be reduced. To these ends I feel that it would be helpful for her to continue to see Robert Zemaitis for the cognitive and behavioural interventions, but perhaps referral to a Psychotherapist for the expressive part of the psychotherapy would be helpful.”
49. In his oral evidence Dr Likely said, in effect, that his letter to Dr Simpson was contemporaneous to his consultation with the applicant. He affirmed his view that there was no Axis 1 mental disorder present when he examined the applicant, thereby disagreeing with Mr Zemaitis that the applicant was suffering an adjustment disorder with mixed anxiety and depressed mooed.
50. Dr Likely said in evidence that he did not form the view that the applicant was exhibiting abnormal illness behaviour which he said was not really a diagnosis but reflects an excessive reaction to physical symptoms.
51. Rather, said Dr Likely, the applicant’s personality was characterised by her obsessive compulsive traits so that she needed to be a perfectionist with the need for everything to be done absolutely perfectly and for her efforts to be valued by others.
52. Dr Likely recommended further intervention by Mr Zemaitis and (perhaps) referral to a psychotherapist. While the applicant continued to see Mr Zemaitis, I have been unable to establish that she was referred to a psychotherapist.
53. Dr C M Moten is a general practitioner and also the applicant’s father-in-law. Dr Moten provided a report to the applicant’s solicitor dated 23 April 2003 (Exhibit C) having previously provided a less detailed report dated 9 January 2003 (T28). He also gave oral evidence.
54. With respect, the reports were clearly written to support the applicant’s case and I have taken the view that they should not be given any weight vis-à-vis the reports of the independent medical specialists. I have come to that view because not only is there a family relationship but there have been times when the applicant has lived with her parents-in-law. It is, of course, entirely reasonable that Dr Moten is supportive of the applicant’s claim but the relationship means I should give careful consideration to the weight I give to his evidence.
55. Dr Moten observed that the applicant was having physical problems with her right arm and he also observed, in particular, that she had disturbance of her autonomic nervous system resulting in colour changes and changes in functioning of the arm. He said that physical activities are likely to provoke the condition.
56. Dr Moten gave evidence about his observation of symptoms exhibited by the applicant explaining that although he did not get involved as a medical practitioner he did observe and discussed with the applicant the exhibited symptoms, as might be expected to occur in a friendly family situation.
Consideration
57. The applicant makes two claims:
(a)a claim for lump sum payment for permanent impairment in respect of the accepted condition of upper right arm regional pain syndrome; and
(b)a claim for acceptance of liability to pay compensation and payment for permanent impairment in respect of conditions of the cervical spine, thoracic spine and headaches.
58. The difficulty is that the claims for physical injury are almost submerged under a dense somatization disorder exhibited by the strong emotional responses of the applicant.
59. These emotional responses have been considered by Dr Likely in particular who was unable to discern a diagnosable psychiatric condition but found a premorbid personality characterised by obsessive compulsive traits.
60. I am satisfied that the applicant became increasingly dissatisfied with her employment in the Army after the Majura Range incident. Listening to her evidence I gained the impression that she was a keen and enthusiastic officer at the commencement of her Army career.
61. Following the accident on the Majura Range primarily, but also the accident playing basketball, she found it increasingly difficult to cope with her duties, in particular the demands of her superiors, at times when she was feeling unwell. That she was feeling unwell during service can and should be attributed primarily to the two accidents which she suffered in the course of her employment, and I so find.
62. I am satisfied there were physical symptoms from the two injuries. I am also satisfied that there was an excessive emotional response to those injuries and the symptoms have continued because of that excessive response caused by the applicant’s personality traits.
63. I accept Dr Likely’s evidence that there is not a diagnosable psychiatric condition in this case. It follows, in my view, that I cannot be satisfied that the accepted condition of right upper arm regional pain syndrome is a permanent condition. I have come to that view because I am satisfied that the condition is likely to continue only because of the excessive emotional response and that response depends, in my view, upon the applicant’s dissatisfaction with her Army service – something which must fade with time – but in any event, not relevant to finding an injury as defined.
64. I am satisfied that the applicant suffers a continuing incapacity in terms of section 14 of the Act because of the injuries sustained in the basketball accident. Once again, I am satisfied there is an excessive emotional response to that injury but that is irrelevant in deciding whether there is an injury arising in the course of the applicant’s employment by the Army.
65. In that regard I accept the diagnosis by Dr Blight of hyperextension injury to the applicant’s neck.
66. As with the claim for right upper arm regional pain syndrome, there is an issue as to the excessive emotional response to the condition which, in my view, makes it not possible to assess permanent impairment. Dr Blight assessed permanent impairment at 10% under Table 9.6 but that is, in my view, an unsafe assessment while excessive emotional response camouflages the actual impairment.
67. For these reasons I will affirm the decision under review in application Q2000/1061.
68. In application Q2003/379 I will set aside the decision under review and substitute a decision that Comcare is liable to pay compensation to the applicant in respect of the hyperextension injury suffered on 3 September 1999 in terms of section 14 of the Act. There will be the usual order for costs in this application.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe
Signed: Sarah Oliver
AssociateDates of Hearing 18, 19 and 26 August 2003
Date of Decision 21 May 2004
Counsel for the Applicant Mr R Hume
Solicitor for the Applicant D'Arcys Solicitors
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Australian Government Solicitor
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