Muhlhan and K & S Freighters Pty Limited (Compensation)
[2016] AATA 42
•1 February 2016
Muhlhan and K & S Freighters Pty Limited (Compensation) [2016] AATA 42 (1 February 2016)
Division
GENERAL DIVISION
File Numbers
2013/6760 & 2013/6742
Re
Bruce Muhlhan
APPLICANT
And
K & S Freighters Pty Limited
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 1 February 2016 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Miss E A Shanahan, Member
COMPENSATION – pre-existing physical and psychiatric conditions – persisting symptoms – escalation of symptoms whilst in the employ of the respondent – claimed further injury – failure to reveal past history and workers’ compensation claims – question of wilful and false representation and s24 liability – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1991
Cases
Comcare v Porter (1996) FCA 562
Comcare v Amira (1996) FCA 1438
Jordan v Australian Postal Corporation (2007) FCA 2028
Martin v Australian Postal Corporation (1999) FCA 655
National Australia Bank v Georgoulas (2013) FCA 1412
Secretary, Department of Employment and Workplace Relations v Comcare [2008]
FCA 52
Kennedy and Comcare [2015] AATA 334.
REASONS FOR DECISION
Miss E A Shanahan, Member
1 February 2016
Initially there were two claims before the Tribunal, one for permanent impairment relating to Mr Muhlhan’s hernia repairs and continuing groin pain (2013/6742) and the second (2013/6760) a claim for a major depressive disorder (MDD), due to restraining a right inguinal hernia repair.
The respondent in a primary determination dated 23 October 2013 accepted liability for the psychological condition (T6). On its own motion the respondent reviewed this decision. It determined that there was no liability to pay compensation under s 24 and s 27 of the Safety, Rehabilitation and Compensation Act 1991 (the SRC Act) in relation to a major depressive disorder, based on the reports of Associate Professor Brazenor and Associate Professor Mendelson. The respondent has since raised the argument that s 7(7) of the SRC Act is attracted and that liability should be denied on the basis that Mr Muhlhan made a wilful and false representation that he had not previously suffered from a depressive disorder.
Mr Muhlhan lodged an application with the Administrative Appeals Tribunal for review of this decision on 19 December 2013.
Mr Muhlhan was represented by Mr Ternes of counsel, instructed by Maurice Blackburn solicitors. The respondent was represented by Ms Anne McMahon of counsel, instructed by Clarke Legal. The Tribunal was provided with the documents lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) assigned Exhibit R1. Both parties tendered further documentation a list of which is appended to this decision.
Mr Muhlhan, Dr Justine Birchall, Dr Epstein and Associate Professor Mendelson gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
In October 1999, Mr Muhlhan lodged a WorkCover Victoria claim for hernia left groin. The injury giving rise to this condition occurred on 27 September 1999 when Mr Muhlhan lifted a neatly folded 20 kilogram tarpaulin from the ground to his truck. At the time Mr Muhlhan was working as a truck driver for O’Shea and Bennett Sales Pty Ltd and had been in their employ for seven months. According to the employer his health during that time was poor (Exhibit R5) and he had taken six days of sick leave in August and September due a bout of the flu associated with a persistent cough.
Following the injury of 27 September 1999 Mr Muhlhan did not miss work and did not consult his general practitioner until 30 September 1999. Dr Birchall, his general practitioner, diagnosed bilateral inguinal hernias and referred him to Mr Ken Farrell for a surgical opinion.
Mr Farrell saw Mr Muhlhan on 25 October 1999. He noted that the applicant had experienced stressful life incidents for the past one to two years, in terms of his job with Armaguard, his marriage breakdown and a period of unemployment. Mr Farrell diagnosed bilateral inguinal hernias, the left being larger than the right, and recommended that surgery was the appropriate treatment.
Prior to approving the surgery, Mr Muhlhan’s then insurer obtained reports from Mr P Battlay, general surgeon, who noted two previous workers’ compensation claims, one in 1980 for severe facial injuries secondary to an explosion and a right shoulder problem suffered while working for Armaguard. Mr Battlay diagnosed bilateral indirect inguinal hernias. He agreed that a surgical approach was indicated.
Mr Farrell performed bilateral hernia repairs on 10 January 2000 and found that his original diagnosis was correct in that both hernias were direct inguinal hernias. Both hernias were repaired in the same manner with a prolene mesh patch, stapled into place reinforcing the posterior wall of the inguinal canal. Postoperatively, Mr Muhlhan developed haematomas in both groins. This was an extremely uncommon occurrence and Mr Farrell could only postulate that it was associated with the prophylactic subcutaneous heparin given over the perioperative period. The haematoma in the right groin area was dealt with by needle aspiration of the blood clot but the left side had to be surgically evacuated. This was performed in Mr Farrell’s consulting rooms.
Mr Muhlhan continued to complain of pain in both groins for several months after the operation but the wounds healed well and the pain seemed to be settling. In November 2000 he was again seen because of the sudden onset of pain in his left groin. On examination a definite lump was found at the midpoint of the hernia repair scar. This was very tender and Mr Muhlhan pleaded with Mr Farrell to do something about it. The left hernial repair was re-explored on 6 December 2000 and found to be a mass of scar tissue through which the ilioinguinal nerve was passing and was entrapped by a staple. The scar tissue was resected and the staple removed. Mr Muhlhan recovered well from this procedure and returned to work.
He presented in May 2002 with chronic right sided groin pain, which according to Mr Farrell occurred after lifting a heavy door but is said by others to have followed a bout of sneezing. While he was tender in the right groin there was no evidence of a recurrent hernia. An ultrasound of the right groin was reported to show changes consistent with the presence of an inguinal hernia. After further consultation with another surgeon, at the request of the insurance company, surgical repair was advised and carried out by Mr Farrell on 3 July 2002. At this procedure a nodule of dense fibrous tissue was found at the deep inguinal ring beside the spermatic cord and was interpreted as herniation of some extra peritoneal fat. It was removed and as the original repair was found to be sound, no further surgical steps were required.
Following this procedure, Mr Farrell was uncertain if Mr Muhlhan would ever return to heavy work in the timber industry and seems to have advised against such a course of action.
Mr Muhlhan was referred to Mr Stephen Blamey on 27 March 2003 for persistent right groin pain and on examination was found to be tender over the right pubic tubercle. No hernia was detected on either side. Mr Blamey discussed Mr Muhlhan’s past history with Mr Farrell leading him to make a diagnosis of neuralgia due to nerve entrapment. On 12 May 2003 Mr Blamey operated on Mr Muhlhan’s right groin, removing the mesh and staples. Following this, the neuralgic pain was said to have improved.
Mr Muhlhan saw Mr Maurice Brygel on 1 April 2003 for assessment of the right groin pain. Mr Brygel obtained the history of constant right groin pain with radiation of a burning and shooting sensation to the inner right thigh. This shooting pain also occurred with erections. Mr Brygel advised no heavy lifting and considered truck driving might be deleterious.
Mr Blamey saw Mr Muhlhan again following the claimed further injury and strain of the right groin on 14 August 2006. Mr Blamey found no evidence of recurrent hernia, there being only local tenderness over the pubic tubercle and right groin. There was no indication for surgical intervention. Dr Birchall re-referred Mr Muhlhan to Mr Blamey, who saw him again on 15 June 2007 for what was described as severe disabling pain. Given the failure of Mr Muhlhan to respond to rest and analgesia, further consideration of surgery was requested. Mr Blamey expressed his reluctance to intervene. He considered there was a small possibility of making the situation worse and only a modest possibility of improving it. However, Mr Muhlhan and Dr Birchall were both in favour of further surgical exploration. Mr Blamey eventually agreed to proceed, although prior to doing so, he informed Mr Muhlhan that it was possible, depending on the intraoperative findings that he might have to undergo orchidectomy. The Tribunal presumes this relates to the close anatomical relationship of the spermatic cord to the deep and superficial inguinal rings and the inguinal canal. Surgery was undertaken on 30 July 2007 and at operation the spermatic cord was found to be grossly fibrosed. Orchidectomy was deemed necessary. Postoperatively Mr Muhlhan was said to have lost the deep unpleasant pain in his right groin. He was advised to avoid heavy lifting and climbing activities for two years.
The course and treatment of Mr Muhlhan’s bilateral inguinal pain and post-repair right neuralgic pain radiating to the inner surface of his thigh has been detailed at this stage of the decision as the evidence indicates that at no time did he have a recurrence of his direct inguinal hernias repaired in January 2000. All other procedures were, excepting the removal of haematomas in the immediate post-operative phase in the year 2000, performed in an effort to elucidate the cause of his persistent groin pain.
Mr Muhlhan claims that the loss of his right testis, despite the pre-operative warning that this was a possibility, was devastating. He felt he was no longer a complete man. This was despite the fact that he had suffered from erectile dysfunction for the preceding 15 years and before his divorce had required intra-penile injections to obtain an erection. Mr Muhlhan says he has not been involved in any sexual relationships since the orchidectomy because he would not like any woman to see that he has only one testis. It is not clear to the Tribunal why he has not availed himself of the insertion of a testicular prosthesis.
In November 2005, Mr Muhlhan experienced central chest pain radiating to his neck on several occasions and eventually saw his doctor. He was referred to a cardiologist and underwent coronary angiography. This revealed a 99 per cent obstruction to his right coronary artery. He underwent stenting of this vessel with an excellent result. At the time he forbade his general practitioner Dr Birchall from notifying VicRoads, his employer or any member of his family of his condition. Mr Muhlhan reminded Dr Birchall that in 2003 he had been depressed and had been treated with the anti-depressants Cipramil and then Zoloft. He did not wish to take time off work as he felt unemployment had contributed to his depression in the past. As he was also experiencing difficulties with regard to his daughter, he commenced counselling sessions.
Throughout 2007, Dr Birchall recorded continuing groin pain and depression. Various anti-depressants were trialled but do not appear to have been beneficial. In January 2008, Dr Birchall referred Mr Muhlhan to Dr Tony Zeeher a general practitioner in her group. Dr Zeeher has a particular interest in psychiatry. Dr Zeeher described Mr Muhlhan’s condition as a major depressive illness with a full spectrum of symptoms resulting from post-operative stress and complications (T15, page 50). He believed that Mr Muhlhan was angry regarding his loss of self-respect with the inability to do a job and had lost his self-esteem following his orchidectomy leading to impotence and loss of libido. Anti-depressants were again prescribed and Dr Zeeher saw Mr Muhlhan on a weekly basis until 20 January 2012. Mr Muhlhan continued to see Dr Birchall at least once a month.
While the nature of Mr Muhlhan’s right groin pain has not, according to the clinical notes, changed in character, Dr Birchall changed her diagnosis to one of neuropathic pain from late 2010. Lyrica was commenced in 2008, presumably stopped and then reinstituted in 2013. The change in diagnosis appears to correlate with Mr Muhlhan’s referral to Dr Vivian, a pain specialist, who undertook radio frequency ablation of the right posterior T12, L1 and L2 nerve roots in November 2010 and again in February 2011. The first of these procedures was very beneficial in that it completely ablated the thigh pain but not the groin pain. However, the pain recurred after six months and the second procedure was only effective for three to four weeks.
Throughout the entire period Mr Muhlhan had ongoing conflicts with his daughter and his ex-wife and her new husband. They continue to the present time.
On reaching the age of 65 Mr Muhlhan says he was sacked by K & S Freighters. He shifted from East Bentleigh to Phillip Island to live as his daughter, her husband and four children live on the Island. He says he did so because rents were less, however he also shifted in the hope of repairing his strained relationship with his daughter. He rents his house from his daughter and her husband.
Mr Muhlhan states he continues to suffer from severe pain in his right groin radiating to his thigh both on the inner and anterior aspects. His sleep is disturbed and never exceeds four to five hours per night. He can perform most of the activities of daily living but cannot follow his one and only hobby of fishing, nor can he garden. He has not formed any close relationships, particularly with any women, since relocating to Phillip Island. He remains he says, depressed and has little outside contact except for his monthly visits to his general practitioner and his fortnightly visits to his sister. Mr Muhlhan does occasionally babysit for his daughter and more recently supervised his teenaged grand-daughter while the parents were holidaying in Queensland.
Mr Muhlhan’s treating general practitioner is adamant that the depression he suffered in 2003 and intermittently thereafter was of a different nature to his current psychological disorder which is said to be, by some psychiatrists, a major depressive disorder.
Mr Muhlhan has never been referred to a psychiatrist or a clinical psychologist for treatment and the only psychiatric opinions provided to the Tribunal have been for medico-legal purposes.
EVIDENCE BEFORE THE TRIBUNAL
Mr Muhlhan
In his evidence, Mr Muhlhan described the episodes wherein he states he injured his right groin when working for K & S Freighters. The event of 14 August 2006 occurred while unloading Coca Cola at Safeway, Broadmeadows. He was required to lift a heavy gate on rollers that prevented the stock from rolling within the truck and on lifting the gate he noticed pain in his right groin. He remained at work but on light duties as he had trouble getting in and out of the truck.
Mr Muhlhan said that prior to 2006 he drank very little alcohol but after the injury he increased his intake as it helped him to sleep. After he ceased working he had imbibed more heavily as this helped with the pain. He described his reaction to the operative procedure of July 2007 wherein his right testis was resected and his hernial repair tissue, that is, the mesh was removed and replaced with new mesh sutured in place rather than stapled, as being devastating. He agreed that the possibility of an orchidectomy had been discussed before the operation. He said that while the pain in his groin had been better after the procedure this improvement was short lived. After he ceased work he felt useless and what he described as letdown. Mr Muhlhan stated that it had been his plan to keep working until he could no longer physically cope with work.
In response to a question from the Tribunal regarding the distribution of his right groin pain, he stated that it radiated from his right groin to his right knee over the front of his right thigh and that it was sharp and stabbing in nature, although that in the inner thigh was predominately a burning sensation. This description is the same as that given to Mr Brygel in 2003.
In order to cope with his pain he said he now spent most of his time lying on a couch. He described himself as being angry, snappy, depressed and unable to control his feelings. Having initially drunk to excess he had ceased in 2008 with the help of Dr Zeeher. Mr Muhlhan stated that his memory was bad and his concentration poor, although he did say that he only remembered the bad things.
While his relationship with his daughter remains precarious, he sees her once a week or fortnight and sees the children slightly more often. Mr Muhlhan described his daily activities and lack of any interest in doing most things and his total lack of confidence in terms of sexual relationships which made him feel weak, unmanly and angry. He was unable to recall having any emotional or psychological problems prior to 2007. He claimed that prior to 2007 he led a good life, was happy and contented.
Under cross-examination Mr Muhlhan agreed that in 1980 he had suffered a major injury at work resulting in a fractured skull, loss of teeth and facial fractures and had been off work for 12 months. He had received a lump sum permanent impairment payment. Additionally, when he worked at Armaguard as a firearms trainer and also taught company policy and occupational health and safety, he had suffered an injury to his right shoulder and wrist when undergoing a course in restraint. Surgery to the right shoulder had been required and this had been the subject of a WorkCover claim. He had resigned from Armaguard after his marriage had broken up and he drank to excess for some months after the separation.
Mr Muhlhan agreed that the statement he had signed in 1999 in his claim against O’Shea and Bennett to the effect that he had never before lodged a workers’ compensation claim was false.
In relation to Ms McMahon’s questions regarding his psychological status in 2002-2003, the provision of rehabilitation after his hernia repair and his visits to Mr Blamey and the advice given in addition to his visits to various surgeons for medico-legal purposes, he responded that he could not recall any of these events. Nor could he recall his medication in those years but was able to give evidence regarding his re-employment after O’Shea and Bennett which he obtained through an agency called Trojan. He could not recall informing them that he had had previous workers’ compensation claims but he agreed that his general practitioner had said that he had notified the agency but not further employers. He had obtained a job with Guy Lee Transport and according to Dr Birchall, she had made him sign a statement that he had told her not to tell this employer of his workers’ compensation prior claims. Mr Muhlhan could not recall having instructed Dr Birchall in that manner. He did however recall forbidding Dr Birchall from informing VicRoads of his coronary artery disease and stenting of the right coronary artery.
In respect to his drinking of alcohol and the various entries made in the general practitioner’s notes, going back to March 2006, Mr Muhlhan said he no recollection of these events.
Mr Muhlhan agreed that he was considering further radio frequency ablation of his T12 to L2 posterior nerve roots but had not yet arranged this and stated that it takes a long time to set up an appointment date. He denied that he was delaying this procedure in order to make his claim more substantial. Mr Muhlhan said he had not sought work since he was retired in April 2007 as he did not believe he was capable of working, nor could he retrain as a forklift driver as had been suggested. His efforts to acquire computer skills had not been successful.
Dr Justine Birchall
Dr Birchall gave her evidence by telephone. She has been Mr Muhlhan’s general practitioner since 1999 and had provided the entire existing clinical record relating to Mr Muhlhan. This was incomplete, in that before 2003 they had kept all records in hardcopy but since that date records were held on computer and the hardcopy records had been destroyed. Dr Birchall was adamant that in 2003 Mr Muhlhan was suffering from reactive depression and that after 2007 and the loss of his right testis he developed a major depressive disorder. She was of the opinion that his contact with and treatment by herself and Dr Zeeher was the only way he could survive in what was a very difficult period for him.
Dr Birchall gave evidence that in her opinion Mr Muhlhan’s reactive depression had resolved by 26 August 2003. She explained the failure to refer him to a psychologist or a psychiatrist as being due to Mr Muhlhan’s total rejection of the presence of any psychiatric disease and that she had had to work her magic to get him to take Zoloft and Avanza.
Dr Birchall confirmed that she had required Mr Muhlhan to sign a paper to the effect that she had been directed to refuse to give WorkCover data to future employers. She did so because he was desperate for work. Dr Birchall reiterated that between August 2003 and August 2007, Mr Muhlhan did not express any symptoms suggestive of depression.
In cross-examination Dr Birchall could not recall details of Mr Muhlhan’s employment with Guy Lee or what he had told them or Trojan regarding his previous workers’ compensation claims. This was despite record entries she had made to that effect on 31 October 2003. Similarly, she stated that his pain prior to 2007 was not neuropathic despite Mr Brygel’s description in April 2003 as it being of a shooting and burning nature.
Dr Birchall agreed that she has certified Mr Muhlhan fit to drive large trucks, despite his coronary artery condition, his neuropathic pain and his depression, all of which she stated had no effect on his ability to drive. Earlier in his illness she had advised him against driving. Dr Birchall regarded Mr Muhlhan as a manual worker untrained in anything else. She claimed to be unaware of his employment as an occupational health and safety worker at Armaguard where he was also an instructor of staff in the law and use of firearms. She did agree that Mr Muhlhan had as she described it fallen off the wagon in relation to his drinking on several occasions but he had eventually stopped drinking alcohol.
In her evidence Dr Birchall placed a high degree of emphasis on the effect of the right orchidectomy on Mr Muhlhan from a psychiatric point of view. She described it as having a very negative effect on his masculinity and confidence. She had recommended that he see an endocrinologist specialising in erectile disorders and male sexuality but Mr Muhlhan had refused to see a male and would only see a female doctor and to date no such female expert had been identified. In Dr Birchall’s opinion there was no effect on Mr Muhlhan’s ability to cope with the activities of daily living. She agreed that Mr Muhlhan was no longer receiving any psychiatric counselling or consultation, including seeing Dr Zeeher, who is not a psychiatrist, and that no medication was being provided.
Dr Michael Epstein – Consultant Psychiatrist
Dr Epstein has seen Mr Muhlhan on two occasions and has provided three reports in all. Based on the history obtained from Mr Muhlhan on 11 November 2010 Dr Epstein made a diagnosis of a MDD as a consequence of ongoing pain and discomfort arising from recurrent right inguinal herniae. This had been added to by the development of his heart condition and while his work capacity was primarily limited by his physical condition, there was also a psychiatric component. In 2010, Dr Epstein assigned a psychiatric impairment of 20 per cent. This was based on Mr Muhlhan’s reactions to the stresses of daily living, a marked disturbance in his thinking and a definite disturbance in his behaviour.
The opinion provided on 16 May 2014 (Exhibit A3) was to the same effect. He disagreed with Associate Professor Mendelson’s opinion that Mr Muhlhan had a chronic adjustment disorder with mixed anxiety and depressed mood and his assessment of a 10 per cent impairment. Once more Dr Epstein assessed the psychiatric impairment at 20 per cent.
In his last report dated 7 October 2015 (Exhibit A4) Dr Epstein increased his whole person impairment (WPI) on psychiatric grounds to 25 per cent. He appears to have done so on the basis of the non-economic loss (NEL) questionnaires completed by Mr Muhlhan and Dr Zeeher dated 18 January 2011 and 30 May 2012. From the reports received and the information given to him by Mr Muhlhan in 2014, Dr Epstein thought his quality of life had diminished markedly giving rise to the question of whether he needed supervision and direction in the activities of daily living. It would appear that it was this latter consideration that caused Dr Epstein to increase his WPI rating to 25 per cent.
In his evidence before the Tribunal, Dr Epstein said he had been influenced in his prognostication by the answers to the NEL questions which indicated that Mr Muhlhan was living an isolated, reclusive pattern of life that revolved around his right groin and thigh pain. This affected his thinking in terms of his memory and concentration and he experienced intermittent suicidal ideation. On further questioning Dr Epstein determined that Mr Muhlhan required company at least once a week, as currently he was isolated except for seeing his general practitioner once a month. He confirmed his original diagnosis of a MDD there having been a change in symptoms in 2007 after the development of chronic pain and the loss of his right testis leading to his inability to work. Dr Epstein said he regarded Mr Muhlhan as a man of his time given he would not acknowledge that he had a mental disorder.
In cross-examination Dr Epstein clarified the information he had available to him and that he was unaware that Mr Muhlhan had stopped seeing Dr Zeeher in 2011 and was not receiving any psychiatric treatment. This was particularly relevant as Dr Epstein had based his later report on Dr Zeeher’s completion of the NEL document. Dr Epstein said his last report had been based on the NEL data as that was what the instructing solicitor requested. Dr Epstein was provided with evidence from Mr Muhlhan that he had looked after his grandchildren, he regularly attended the supermarket where he had been propositioned by a woman and that his treating general practitioner had not recommended that he needed any assistance in the activities of daily living. Based on that information Dr Epstein agreed that he probably did not require assistance in the daily activities of living and it was more likely he could not be bothered doing some of these activities. In response to the Tribunal’s question, he stated that: Mr Muhlhan might need a kick in the behind.
Dr Epstein had no knowledge of Mr Muhlhan’s long standing erectile dysfunction or that he had continuing conflict with his ex-wife and her new partner. He pointed out that he and Associate Professor Mendelson had used different criteria to determine the WPI rating, Dr Epstein regarded the American Medical Association criteria as, to quote, rubbish and said that if the Australian Medical Association Guide had been used by both he and Professor Mendelson their assessment would most likely have been the same.
Dr Epstein stated that if the Tribunal believed that Mr Muhlhan did not require supervision in the activities in daily living, then his WPI rating would be 10 per cent. I asked Dr Epstein several questions; in particular what would be the effect on the MDD if Mr Muhlhan’s right inguinal pain was completely controlled. Dr Epstein said the severity of the MDD would improve by 50 to 75 per cent but not totally abate. Dr Epstein also opined that antidepressant treatment and cognitive behavioural therapy by a psychologist at the current time would not be of benefit, but treatment by a psychiatrist early in Mr Muhlhan’s presentation might have been effective. Dr Epstein supported the use of Lyrica both as an antidepressant and an effective medication for neuropathic pain or a chronic pain syndrome.
Associate Professor Mendelson
Associate Professor Mendelson had provided reports in relation to Mr Muhlhan on 26 April 2013 (T36), 6 March 2015 (Exhibit R2), 25 May 2015 (Exhibit R3) and 15 October 2015 (Exhibit R4). In both the reports and his evidence Associate Professor Mendelson said that Mr Muhlhan did not meet the diagnostic criteria for MDD in accordance with either the ICD (International Classification of Diseases) or the Diagnostic and Statistical Manual of Mental Disorders Edition IV-TR (DSM-IV-TR). He made a diagnosis of an Adjustment Disorder with anxious and depressed mood. He attributed this to persistent groin pain, Mr Muhlhan’s perception that he had been unfairly sacked, his poor relationship with his daughter and his concern in relation to his ischaemic heart disease.
In Associate Professor Mendelson’s opinion Mr Muhlhan had been self-sufficient in the activities of daily living. He agreed that originally he had assessed Mr Muhlhan’s WPI rating on a psychiatric basis alone as 10 per cent. He had however considered that if the physical condition was not related to work and as a corollary any mental condition was not work-related such a rating was not attracted.
Associate Professor Mendelson had only received the general practitioner’s clinical notes shortly before the hearing. He said he had been unaware of Mr Muhlhan’s earlier depressive features and diagnosis by his general practitioner with the prescribing of anti-depressant medication. Taking those matters into consideration Associate Professor Mendelson had reduced the WPI rating from 10 per cent to 5 per cent in relation to the contribution of work factors.
In response to a question from the Tribunal, Associate Professor Mendelson agreed that there was a 40 per cent rate of depression following acute myocardial infarction and unstable coronary artery disease producing angina. He also regarded the conflict with Mr Muhlhan’s daughter as an ongoing stressor.
Associate Professor Mendelson stated that he had not been given any history by Mr Muhlhan that suggested his psychiatric symptoms impacted on how he performed in the community. Apart from saying that life was not really worth living he had not been able to identify any thought disturbance, nor did he believe Mr Muhlhan’s reclusiveness was pathological.
RELEVANT DOCUMENTARY EVIDENCE
Dr John Roth, Consultant Surgeon.
Dr Roth saw Mr Muhlhan in March 2007 and found no evidence of a recurrent hernia on either side. He did notice decreased sensation of the right thigh which in his opinion was in the distribution of the ilio-inguinal nerve. He made a diagnosis of entrapment or a neuroma of this nerve resulting in persistent pain. He found Mr Muhlhan fit to work with restrictions on lifting, pulling and pushing and attributed the pain initially to events of 2000 and later that of 2006.
Dr Anthony Sheehan, Consultant Psychiatrist
Dr Sheehan saw Mr Muhlhan at the request of the insurer and provided a report on 1 February 2008. Dr Sheehan diagnosed a single episode of MDD. Based on the history given to him by Mr Muhlhan he advised there was no past history of any psychiatric disorder or symptoms and no family issues. In addition to diagnosing MDD, Dr Sheehan also determined that Mr Muhlhan was suffering from alcohol abuse and was currently unable to work but might be fit to resume within three months. Dr Sheehan was under the impression that Mr Muhlhan was seeing a psychologist.
DR DAVID GRAS, OCCUPATIONAL HEALTH PHYSICIAN
Dr Gras reported to the employer on 20 October 2008 (T19, p70). He had been asked to perform a work assessment. He stated that liability had been accepted regarding the strain to the right groin of 14 August 2006, with secondary depression and alcohol abuse. He noted that Mr Muhlhan had been certified as unfit for work since 9 January 2008.
The history he was given by Mr Muhlhan was that his operation on 24 July 2007 had been complicated and that he had required a further operation to remove his right testis. He also said he was being treated by a psychologist, was taking antidepressant medication and claimed that his bilateral hernia repairs in 2000 had been fine and had not been associated with any problems or symptoms until the so-called strain of 2006. Mr Muhlhan was said to be improving since commencing using Lyrica. He was however drinking one to two bottles of red wine per day and had been imbibing at this rate for the past twelve months. Dr Gras considered him to be very depressed with a sense of loss relating to his job, his family and his self-esteem.
Dr Gras had been told by Mr Muhlhan that he had been a truck driver since the age of 18 and had no other transferrable skills. On examination Dr Gras detected what he stated to be signs related to alcohol abuse and while it is not clear from his report these appear to be impaired balance, the presence of a tremor and emotional volatility as evidenced by Mr Muhlhan crying, developing muscle rigidity and shaking during the consultation.
Dr Gras diagnosed chronic right inguinal pain radiating to the right thigh, MDD, moderately severe alcohol dependence and controlled cardiovascular disease. He advised that Mr Muhlhan could not do any manual job including driving and as he had no other skills he was permanently unfit for work.
Associate Professor Graeme Brazenor, Neurosurgeon
Associate Professor Brazenor provided three reports to the employer K & S Freighters having seen Mr Muhlhan on one occasion in May 2013. He had reviewed all the data provided and sought further reports from treating doctors before reaching his final opinion. The history he was given was incorrect to the extent that Mr Muhlhan said he had never suffered any sexual dysfunction prior to the orchidectomy in 2007. The only treatment that had been of benefit was the radiofrequency neurotomy of T12-L1/L2 nerve roots.
On examination Associate Professor Brazenor could find no evidence of hernia recurrence but did notice that the inguinal regions bulged, a normal finding in many people. The only tenderness he could elicit was at the base of the right scrotum which when palpated caused Mr Muhlhan to leap as if struck. In May 2013 Associate Professor Brazenor stated that the right groin hernia problems were well established before August 2006 and the history suggested nerve entrapment in scar tissue. This conclusion was supported by the fact that radiofrequency neurotomy had provided relief.
Further reports including those from Dr Vivian and Professor Teddy who were concerned regarding the radiofrequency neurotomies and the diagnosis of a neuropathic state were provided and having read these Associate Professor Brazenor concluded that the events of 14 August 2006 had not made any material contribution to Mr Muhlhan’s symptomatology. He was of the opinion that any minor trauma such as sneezing could have given rise to the pain complained of. Associate Professor Brazenor did not believe the clinical state was any different post 14 August 2006 than it would have been if the event of that date had not occurred.
In his third report of 14 October 2013 (T48) Associate Professor Brazenor answered a series of questions and reinforced his previous opinion that Mr Muhlhan’s pre and post 14 August 2006 impairment was the same, reflecting the fact that he had had four surgical procedures in his right inguinal canal.
Dr Birchall’s Clinical Records relating to Mr Muhlhan
Dr Birchall provided some 97 pages of her clinical records and a DVD record which includes letters to referring doctors, some replies and opinions from treating specialists and copies of the VicRoads certification she completed between 2008 and 2012 stating that Mr Muhlhan was fit to drive heavy transport vehicles. The Tribunal was told that Mr Muhlhan had cancelled his licence in 2014.
On 12 December 2007 Dr Birchall had commenced treatment of Mr Muhlhan with the anti-depressant Lexapro as his mood was low and he was ruminating about his lost testis. On 28 December 2007 she recorded that Mr Muhlhan had fallen while at the farm he part-owned resulting in a severe escalation of his right groin pain, preventing him from sleeping and causing him to go back on the grog. She assessed the poor sleeping as due to his lowered mood not his groin pain. The entry dated 9 January 2008 states that Mr Muhlhan was trying to get a pay-out so can find another job. Did this last time had WC issues and mood improved when he found a way out.
In April 2008 having lost weight as a result of dieting Mr Muhlhan complained of breast enlargement. Dr Birchall attributed this to weight loss, ascribed his loss of libido and impotence to depression but to allay his fears had his serum testosterone levels measured. These were normal. On 14 May 2008 Mr Muhlhan reported a fall in the shower resulting in a further exacerbation of his right groin pain and a similar exacerbation occurred after he walked up a hill in the city. Mr Muhlhan required treatment with Tramal SR 100 mg twice daily for two months. He determined that analgesics only controlled acute episodes of pain and not the chronic background groin pain. He ceased analgesics and commenced Lyrica.
Dr Zeeher, general practitioner, saw Mr Muhlhan regularly but regrettably rarely made entries during consultations other than counselling provided. Other major features of these notes have been referred to under BACKGROUND TO THE APPLICATION.
Reports from General Surgeons’ to the Insurer and the Applicant’s Solicitors
Several reports have been received, notably from the late Mr Robert Marshall wherein he determined that there probably was a recurrent right inguinal hernia in 2006 and attributed this to the work incident of August 2006. Mr John Cox saw Mr Muhlhan in early 2007 and found no evidence of any recurrence, the only abnormal finding being tenderness over the right pubic tubercle. Mr Muhlhan was also seen by Mr Maurice Brygel, general surgeon, who found no evidence of recurrent inguinal hernia following the incident of 2006. These documents were contained in the workers’ compensation application file (Exhibit R5).
RELEVANT LEGISLATION
The SRC Act provides for the compensation for injuries sustained in the workplace and in particular those relating to liability, medical expenses the amount of compensation to be provided and permanent impairment lump sum settlements. These are contained in the following sections;
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.
(2)Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
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.
Note:Compensation is not payable under this subsection in relation to certain defence‑related claims (see Division 2A of Part XI).
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
19 Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
24 Compensation for injuries resulting in permanent impairment
(1)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.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard 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.
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
27Compensation for non‑economic loss
(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non‑economic loss suffered by the employee as a result of that injury or impairment.
Liability was accepted for the so-called injury of 14 August 2006.
The respondent has raised the issue of Mr Muhlhan having made wilful cross-representation that he had not previously suffered from the same condition for which he was now claiming liability. Section 7(7) states:
7 Provisions relating to diseases
...
(7)A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
The SRC Act defines an injury in s 5A and a disease in s 5B;
Section 5A states:
5A Definition of injury
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
and section 5B states:
5B Definition of disease
(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
...
(c)any predisposition of the employee to the ailment or aggravation;
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
Prior to 23 April 2007 the employment was required to contribute to the ailment or its aggravation to a material degree.
SUBMISSIONS
Mr Ternes submitted that the key issue was whether or not s 7(7) applied and if not whether the permanent impairment suffered by Mr Muhlhan as a result of his psychiatric disorder was 10 per cent or more. Mr Ternes summarised the evidence before the Tribunal and relied in particular on that of Mr Muhlhan’s general practitioner Dr Birchall, that of Professor Davis regarding the diagnosis of a chronic pain syndrome and Dr Sedal who had made a diagnosis of damage to the genitofemoral and ilio-inguinal nerves in Mr Muhlhan’s right inguinal canal.
It was contended that regardless of the date when the Tribunal might find such injuries to have become permanent they were contributed to by Mr Muhlhan’s employment to a material degree or a significant degree, depending on the timing. Mr Ternes argued that Mr Muhlhan’s psychiatric disorder prior to 2007 and particularly in 2003 had been an adjustment disorder, whereas that diagnosed in 2007/2008 by the general practitioner, by Dr Sheehan in 2008 of MDD, single episode, and Dr Epstein in 2010 was a major depressive disorder. It was argued that the adjustment disorder diagnosed in 2003 had resolved by 2007 and certainly before Professor Mendelson saw Mr Muhlhan and provided his opinion.
Should the Tribunal find that in fact the psychological disorders were a similar disease, it was contended that Mr Muhlhan’s evidence was not wilfully false in that it was not dishonest and had been influenced by factors such as his lack of insight into his mental state and his claimed poor memory.
While Dr Epstein had provided a WPI rating on psychological grounds of 20 to 25 per cent, it was clear that regardless of the level, Mr Muhlhan exceeded the legislative requirement of a 10 per cent impairment rating based on both Dr Epstein and Professor Mendelson’s evidence relating to the stressors of daily living, his lack of judgement and social withdrawal in addition to minor distortions of thinking as evidenced by his anger, temper and suicidal ideation.
Professor Mendelson had initially determined a WPI of 10 per cent but in his later report of 6 March 2015 had reduced this to five per cent taking into consideration non-work related factors. Mr Ternes submitted that this was impermissible at law it having been determined that where a condition’s cause was multifactorial it was not possible to separate the degree of contribution of each particular causative factor. (Comcare v Amira (1996) FCA 1438, Martin v Australian Postal Corporation (1999) FCA 655 and Jordan v Australian Postal Corporation (2007) FCA 2028). Similar arguments were advanced in relation to the NEL documentation of 2012.
In relation to the question of applicability of s 7(7) of the SRC Act Mr Ternes relied on the decision of Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52 wherein Madgwick J stated that this section of the SRC Act should not be applied liberally as it could be considered draconian; Comcare v Porter [1996] FCA 562 where it was determined that the representation made by the applicant must be objectively false and National Australia Bank v Georgoulas [2013] FCA 1412. Perry J addressing this question in Georgoulas determined that:
... where the employee has made a wilful and false representation that he or she did not suffer, or had not previously suffered, from the “disease” which is the subject of the claim.
He determined;
[t]hat was a question of fact and beyond the power of the Court to review.
In Georgoulas;
as the Tribunal found that [she] did not suffer from any psychological condition before 2009. This question [regarding s7(7)] was, with respect, irrelevant.
Miss McMahon submitted that the application of s 7(7) was attracted and was the relevant section of the SRC Act for consideration by the Tribunal.
Miss McMahon referred to the recent decision by Deputy President Hack in the matter of Re Kennedy and Comcare [2015] AATA 334 where Deputy President Hack addressed the five relevant issues that needed to be considered, these being;
(a)What does the evidence demonstrate about Mr Kennedy’s history of depression?
(b)What representations were made?
(c)Were they for purposes connected with Mr Kennedy’s employment or proposed employment with the Commonwealth?
(d)Were the representations false?
(e)Were the representations wilful?
Ms McMahon addressed each of these in turn in relation to Mr Muhlhan. She submitted that there was well documented evidence of the presence of depression in Mr Muhlhan’s medical records kept by Dr Birchall, she having diagnosed him with depression in 2003. Throughout 2003 Dr Birchall had made entries in the record almost monthly documenting continuing depression and did so again on 25 November 2005 following Mr Muhlhan’s coronary artery stenting and expressed concern regarding the possibility of a recurrence of depression.
In 2002 Dr Battlay had diagnosed ilioinguinal nerve damage in the right inguinal canal. Mr Brygel had described the presence of burning and shooting pains in Mr Muhlhan’s right groin and upper and inner thigh in April 2003 and had noted that Mr Muhlhan’s right testis was tender.
Ms McMahon contended that Mr Muhlhan had made misrepresentations, the first of which was to Dr Sheehan, the psychiatrist, in January 2008 when he denied any past history of psychiatric symptoms or a disorder and denied having made any previous workers’ compensation claims. He had told Dr Sheehan that he did not drink alcohol despite the fact that in December 2005 and March 2006 his clinical notes constructed by Dr Birchall report excessive drinking of whisky, half to one bottle a day. In the history given to Dr Sheehan all Mr Muhlhan’s psychological symptoms, alcohol use, insomnia and the like were new events consequent upon the injury of August 2006.
Mr Muhlhan had also denied any past psychiatric history when seen by Associate Professor Mendelson in 2013. Ms McMahon contended that this evidence given to various doctors was false, could not be accepted as being forgetfulness and had in fact been wilful. Ms McMahon also commented on Dr Birchall’s repeated entries of depression from 2003 which had not been defined as being reactive, this diagnosis having only been made in the course of her evidence before the Tribunal.
Dr Birchall had stated that Mr Muhlhan did not accept that he was depressed and she had repeatedly had to tell him this was the case. Mr Muhlhan had reported to the rehabilitation provider that he was depressed. It was noted that Mr Muhlhan had never been referred to a psychiatrist or a psychologist for diagnostic purposes or treatment. His only contact with psychiatrists had been in the medico-legal capacity. While Dr Zeeher had treated him with counselling for some four years he had determined in October 2011 that Mr Muhlhan was no longer depressed, later writing that his mood was good throughout 2012 and 2013. Dr Zeeher stopped seeing Mr Muhlhan in late 2011 because of his clinical improvement.
As to the question of Mr Muhlhan’s honesty, Ms McMahon drew the Tribunal’s attention to many examples wherein he had obtained ongoing VicRoads certification to drive a heavy commercial vehicle at the same time he was being certified as being totally and permanently impaired. She also referred to how he had forbidden Dr Birchall from revealing details of his cardiac health issues, his past worker’s compensation claims and had exaggerated his then clinical status in completing his NEL questionnaire.
In the event that the Tribunal determined that s 7(7) was inapplicable or its requirements not met in this matter, Ms McMahon contended that the Tribunal must then look at the injury and determine its exact nature. This would involve consideration of the disabling right groin pain which was first reported in November 2002 and persisted throughout 2003, at which time it was labelled neuralgia prior to Mr Muhlhan’s employment by K & S Freighters.
TRIBUNAL DELIBERATIONS
Mr Muhlhan’s claim for lump sum payment in relation to permanent impairment and non-economic loss is based on his depressive disorder, be it an adjustment disorder, a major depressive disorder single episode or chronic MDD, as being a sequelae of his physical injury, namely his chronic right groin pain.
The parties have identified the issues before the Tribunal correctly as being the application of s 7(7) of the SRC Act, where for purposes connected with his employment, the employee made a wilful and false representation that he did not suffer or had not previously suffered from the disease he is claiming under the SRC Act. Should the Tribunal find that s 7(7) is not applicable the Tribunal would be required to review the entire history of the claim, acknowledging that liability under s 14 was accepted for Mr Muhlhan’s claimed injury to his right groin of 14 August 2006, in order to determine whether there had been a significant contribution by employment to the development of firstly the groin pain and secondly the depressive disorder manifest in late 2007.
The Tribunal has elected to deal with these two issues in the reverse order to that delineated by the parties.
On the evidence before it, the Tribunal finds it is clear that Mr Muhlhan’s bilateral direct inguinal hernias when diagnosed were attributed to his employment with O’Shea and Bennett as a truck driver some six years before he commenced work with K & S Freighters. In 1999 the hernias were accepted as work related under state legislation and bilateral repair was undertaken in early 2000. Both repairs involved the same surgical technique of reinforcing the posterior wall of the inguinal canal with a prolene mesh. This mesh provides a skeleton for the laying down of fibrous tissue the aim of which is to strengthen the posterior wall of the inguinal canal. The mesh is either sewn into place using a choice of various sutures or stapled.
The incidence of chronic groin pain following mesh repair of inguinal herniae is reported in the surgical literature to be approximately 15 per cent and this incidence accompanies prolene mesh repair as well as repair with biological mesh. (Australian New Zealand Journal of Surgery, Volume 85, Issue 12, page 90, Fang, Z et al, Biological mesh v synthetic mesh in open inguinal hernia repair: system review and meta- analysis).
Mr Muhlhan has undergone a total of three surgical procedures in his left groin, namely the initial repair, the evacuation of the haematoma in the post-operative phase in 2000 and the removal of a nubbin of fibrous tissue and a staple entrapping the ilio-inguinal nerve which was undertaken on 6 December 2000. Mr Muhlhan has not experienced any further pain or problems with his left groin. In total he has had four procedures on his right groin, the first of these being the original direct inguinal hernia repair again with insertion of a prolene mesh. There is no evidence whatsoever that he has ever had a recurrence of his hernia. All surgery undertaken has been to identify the cause of and hopefully relieve his episodic but ongoing groin pain.
In 2004, despite no abnormal surgical findings, the mesh was removed in the hope that this would alleviate his pain and initially his symptoms seemed to have improved. In the surgical procedure of 2007, apart from the finding of a grossly fibrotic spermatic cord there was no evidence of a recurrence of a hernia. On this occasion a mesh patch was inserted. Mr Muhlhan’s physical signs have been few and when present have been described as extreme tenderness over the right pubic tubercle (a bone), so extreme that he has been investigated for osteitis pubis (inflammatory changes in the pubic bone) and also for underlying right hip pathology as the relevant experts regarded these as being more likely than any pain related to his past hernial repair. However, the tests performed were negative or showed only minor hip joint changes.
Prior to the incident of 14 August 2006, Mr Muhlhan’s persistent right groin pain with radiation to the right inner and anterior thigh had been well documented by several consultant surgeons (Mr Battlay, Mr Brygel and Mr Blamey). The character of the pain radiating to the thigh has not changed and is the classical description of a neuropathic pain (Tribunal Member’s own surgical knowledge) with the term neuropathic being well defined as arising from a disease or condition of one or more peripheral nerves (Oxford Dictionary current edition). Throughout the post repair period in 2000, clinical signs have been few except for the tenderness over the right pubic tubercle and at the neck of the scrotum. Tenderness of the right testis was first documented by Mr Brygel in 2003 and has been noted thereafter by other surgeons. Based on this evidence Mr Muhlhan has complained of chronic, but varying in intensity, right groin pain radiating to his right anterior and inner thigh, the radiating pain being described by him and recorded by numerous specialists as shooting and burning and thus neuropathic.
The claimed event of 14 August 2006 certified as right groin strain and again presenting as right groin and thigh pain with tenderness over the pubic tubercle and inguinal canal was considered by Associate Professor Brazenor as being a normal variation of his acute pain devoid of pathological and physiological change and could have resulted from a sneeze or such other minor physical insult. Associate Professor Brazenor’s opinion is accepted by the Tribunal.
Mr Muhlhan’s right groin pain and tenderness with neuropathic pain in the distribution of the ilio-inguinal and genitofemoral nerves as confirmed by Dr Sedal and Professor Davis was well established and recorded prior to his employment with K & S Freighters. There is no evidence provided other than his reported increase in pain after moving a gate in his truck on 14 August 2006 to support a pathophysiological change in his right groin. Mr Muhlhan’s description of his groin and thigh given to the Tribunal on 20 October 2015 was the same as that recorded in 2003.
Based purely on the medical evidence before the Tribunal there is no supporting evidence that a material contribution was made to Mr Muhlhan’s right groin pain including the neuropathic radiation to his thigh as a result of the claimed injury whilst in the employment of K & S Freighters. The Tribunal accepts that K & S Freighters did accept liability under s 14 for the claimed strain of the right groin. Strain is not a purely medical term but implies an overstretching of muscle, ligamentous tissue or fascia. As such this is not a permanent impairment.
The physical change which appears to have impacted most psychologically on Mr Muhlhan was the right orchidectomy. He had been forewarned preoperatively that this was a possibility given that he had documented testicular tenderness from 2003 and previous surgery had revealed marked fibrosis in the region of the inguinal canal. Despite being forewarned and accepting this risk, Mr Muhlhan regards the loss of his nut as the major cause of his depression and has since early 2008, repeatedly told specialists, in particular psychiatrists, that he has lost his masculinity and has become impotent since the operation. According to his treating general practitioner’s evidence Mr Muhlhan has had erectile dysfunction with impotence dating from well before his divorce in 1998.
The workplace injury of August 2006 had a similar effect as later injuries when Mr Muhlhan suffered two falls, one in December 2007 and another in May 2008. In June 2008 he experienced an acute exacerbation of right groin pain while walking up a hill to consult his solicitors. These acute bouts of pain responded to conservative treatment but did not alter the chronic deep right groin pain with radiation to the thigh.
Mr Muhlhan’s claim of a secondary psychological disorder arising from the underlying physical disorder is acknowledged by the parties to be a disease as defined in s 5(B) of the SRC Act requiring a significant or material contribution by employment. While the exact diagnosis of the psychiatric disorder is debatable, the evidence is that he suffered from what was called an episode of reactive depression in 2003, was perturbed at the possibility of recurrence of this depression in 2005 when he suffered an acute coronary syndrome requiring coronary artery stenting and in relation to the claimed injury of August 2006 was diagnosed by his general practitioner Dr Birchall in December 2007 as major depression. Two months earlier, in September 2007, Dr Birchall had recorded that he was much improved physically and well psychologically. The Tribunal therefore takes the date of onset of the psychiatric disorder being 12 December 2007 and as a result the contribution by employment to the disease process must be significant.
As previously stated Mr Muhlhan has never been treated by a psychologist or a psychiatrist but was referred to Dr Tony Zeeher by Dr Birchall for counselling and treatment. His initial diagnosis was that of a major depressive illness due to post-operative stress and complications. He considered Mr Muhlhan to have a full spectrum of symptoms although he did not record what these were. Antidepressant medication was commenced as was counselling with a rapid improvement such that by mid-June of 2008, Dr Zeeher considered the depression to be lifting. This had occurred despite Mr Muhlhan ceasing his antidepressants two months earlier. The clinical records relating to Mr Muhlhan indicate that Dr Zeeher last saw and counselled Mr Muhlhan in February 2012.
In early 2008 Dr Sheehan had diagnosed MDD, single episode, and while he then considered Mr Muhlhan unfit to work he thought he might be able to resume his employment within three months. Dr Epstein and Associate Professor Mendelson have seen Mr Muhlhan for medico legal purposes only. Their diagnoses differ, Dr Epstein diagnosing chronic MDD and Associate Professor Mendelson a chronic adjustment disorder. As confirmed by Associate Professor Mendelson a chronic adjustment disorder is what was once known as reactive depression. Dr Epstein had estimated Mr Muhlhan’s impairment rating initially at 20 per cent and more recently 25 per cent. In his evidence before the Tribunal Dr Epstein changed his opinion to the extent that if the Tribunal found there was no need for Mr Muhlhan to have daily supervision and assistance with activities of daily living then his impairment rating would be 10 per cent. Associate Professor Mendelson initially also assessed the impairment rating at 10 per cent but after being provided with further documentation and in particular Dr Birchall’s clinical records he reassessed the rating at 5 per cent.
The Tribunal finds that all of the psychiatric reports referred to are tainted to a degree by Mr Muhlhan giving incomplete or differing histories to consultants in general and in particular to the psychiatrists. In addition only Doctor Epstein and Associate Professor Mendelson had considered the non-economic loss statements, already described by the Tribunal as exaggerated in terms of the description of the effect of the illness on Mr Muhlhan’s capacity for work, daily living and relationships with other persons. It is significant that in the course of his evidence Dr Epstein, in response to a question from the Tribunal, said Mr Muhlhan might need a kick in the behind.
Based purely on the medical data the Tribunal determines that Mr Muhlhan’s work related incident of 14 August 2006, initially diagnosed as a strain of the right groin for which liability was accepted, was an acute exacerbation of his long standing right groin pain present from 2002 and attributed to the repair of a direct inguinal hernia while in the employment of O’Shea and Bennett as a truck driver. This right groin strain was not associated with any pathophysiological changes in the right groin as these were pre-existing. Mr Muhlhan had been certified by Dr John Roth as fit to work with restrictions following his assessment in March 2007.
Throughout the period from 1999 when he was first injured in the employ of O’Shea and Bennett, Mr Muhlhan’s medical and surgical treatment was related to the sequelae of this original injury, these sequelae being of a chronic nature.
The episodes of further injury recorded in Mr Muhlhan’s clinical records on 28 December 2007, 14 May 2008 and 27 June 2008 all resulted in an acute exacerbation of his groin pain with the last episode in June 2008 requiring two months medication with slow release Tramal. None of these exacerbations were related to Mr Muhlhan’s employment.
THE APPLICATION OF SECTION 7(7) OF THE SRC ACT
The Tribunal finds that this provision of the SRC Act is attracted and has the effect that the injuries sustained by Mr Muhlhan on 14 August 2006 should not be taken to be an injury for the purposes of the SRC Act. The evidence supports the contention that he has made a wilful and false representation that he did not suffer or had previously suffered from the disease of a depressive disorder or illness.
Historically there has clearly been a reluctance by courts and tribunals to apply s 7(7) of the SRC Act in many cases already referred to in the submissions on the basis that the so called misleading statements made by the applicant or misrepresentations were limited in extent or could be attributed to forgetfulness. Such is not the case in Mr Muhlhan’s claim. There is adequate documented evidence and reports that he had repeatedly denied prior workers’ compensation claims and in his evidence he agreed that the statement he had prepared in his claim for O’Shea and Bennett in 1999 was false.
Mr Muhlhan has agreed that he did not notify his subsequent employers Guy Lee Transport or K & S Freighters, although he claims to have told the agency that obtained the Guy Lee job for him in 2003 had been informed of his prior claims. Despite Dr Birchall’s evidence to the contrary, Mr Muhlhan stated he could not recall that she had made him sign a statement forbidding her to reveal the details of his past workers’ compensation claim to any employer or other authorities such as VicRoads prior to his employment with K & S Freighters. He did however admit that he had forbidden Dr Birchall to inform VicRoads of his coronary artery stenting and the coronary artery syndrome leading to that event. The coronary artery stenting had been undertaken some two months after he joined K & S Freighters as an employee.
Mr Muhlhan in cross-examination admitted to having 20 or more years of erectile dysfunction and that he had required intra-penile injections in order to achieve an erection.
While Dr Birchall had complied with Mr Muhlhan’s instructions not to reveal his previous workers’ compensation claims nor his coronary artery disease to an employer, she had required him to make a signed statement to that effect. She had completed three VicRoads certifications that he met the national medical standard to hold a licence to drive a bus or heavy truck, these being completed on 19 August 2010, 2 May 2012 and 22 April 2014. In each of these medical reports she revealed the presence of ischaemic heart disease, depression and neuropathic right groin pain. On each occasion she described these conditions as having no impact on his ability to drive a bus or heavy truck .In the certificate of May 2012 she described his depression as being currently non-existent, in other words he was euthymic and in April 2014 said he was currently of normal mood and thus there was no impact on driving from a psychological perspective.
From early 2008 onwards there appears to be what might be a pattern in the history given by Mr Muhlhan to various specialists to whom he had been referred for medico-legal purposes. When he saw Dr Sheehan (report 1 February 2008) Mr Muhlhan denied any past history of psychiatric disorders, illness or symptoms and in particular denied any family issues and only a recent loss of libido. He also gave a history of having multiple hernia repairs.
In the history given to Dr Epstein in 2010, he neglected to inform Dr Epstein of any prior erectile dysfunction or to inform him of the continuing conflict with his ex-wife and her new partner and that he not infrequently provided care for his grandchildren. Associate Professor Mendelson had no knowledge of Mr Muhlhan’s past history of a depressive disorder when he saw him in 2013 and only obtained this knowledge just prior to the hearing when he was provided with Dr Birchall’s clinical records.
In October 2008 when assessed by Dr Gras, Mr Muhlhan gave a history of having had hernia repairs in the year 2000, following which he had been asymptomatic in relation to his groin until 14 August 2006. He also gave a history of having had two operations in 2007, the first for a hernia repair and the second for the removal of his right testis. Dr Gras obtained a history from Mr Muhlhan that he had been a truck driver since the age of 18 and had no other skills. In addition to the chronic pain in the groin Dr Gras reported signs of alcohol abuse in the form of a tremor and loss of balance.
Associate Professor Brazenor saw Mr Muhlhan in May 2013 and was given a history of sexual dysfunction since the year 2007 with none prior to that date. Professor Davis, neurologist, saw Mr Muhlhan in December 2014 when he diagnosed neuropathic pain or a complex chronic pain syndrome. He was told that Mr Muhlhan had undergone several surgical hernia repairs in 2001 and 2004 but following the procedure in 2004 had made a complete recovery and was as good as gold until the work related injury in August 2006. Professor Davis was told that Mr Muhlhan’s right testis had been removed because of damage incurred during the operative procedure.
In the non-economic loss questionnaire completed by Mr Muhlhan and Dr Birchall on 30 May 2012, Mr Muhlhan stated I have no sexual function. I have impotency due to the loss of my testis. (T33, p134)
As Mr Muhlhan has on Oath agreed that he has made false statements in relation to prior workers’ compensation claims, has agreed that he has suffered from impotence since the 1990s and has instructed his general practitioner not to reveal certain information to various parties, it is clear to the Tribunal that he has made wilful and false representations in regard to many aspects of his claim but also in relation to his current claim for a MDD. He has provided misinformation to various psychiatrists who have consequently opined that his depression is of post-2006 onset and in the same manner influenced the reports of Associate Professor Brazenor, Dr Gras and the neurologists. That he has done so for the purposes connected with his employment by the Commonwealth is perhaps best explained by Dr Birchall’s record entry of 9 January 2008 which states: Trying to get payout so can find another job. Did this last time had work cover issues and mood improved when he found a way out.
The Tribunal finds that s 7(7) of the SRC Act is relevant to this claim and as a result Mr Muhlhan’s claim for a MDD is not to be taken to be an injury for the purposes of the SRC Act as he has made wilful and false representations that he did not previously suffer from such a disease. A similar conclusion could have been made with respect to the physical injury however liability under s 14 was accepted by the Respondent in 2006.
The Tribunal affirms the decision under review.
I certify that the preceding 121
(one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of
Miss E A Shanahan, Member[sgd]........................................................................
Administrative Assistant
Dated 1 February 2016
Dates of hearing
20 – 22 October 2015
Counsel for the Applicant
Mr Ray Ternes
Solicitor for the Applicant
Mr Ben Bromberg, Maurice Blackburn
Counsel for the Respondent
Anne McMahon
Solicitor for the Respondent
Paul Mentor, Clarke Legal
APPENDIX -
APPLICANT
A1 Statement of applicant dated 27/8/15
A2 GP Management Plan from Eastbound Medical Clinic
A3 Report of Dr Epstein dated 16/5/14
A4 Report of Dr Epstein dated 7/10/15
A5 Clinical notes from Eastbound Medical Clinic
A6 DVD containing medical information
A7 Report of Dr Sedal dated 4/8/14
RESPONDENT
R1 T-Documents
R2 Report of Professor Mendelson dated 6/3/15
R3 Report of Professor Mendelson dated 25/5/15
R4 Report of Professor Mendelson dated 15/10/15
R5 Selected documents from Legal Compensation File
R6 Report of Dr Grossberg dated 20/10/14
R7 Report of Dr Grossberg dated 10/3/15
R8 Report of Dr Davis dated 10/12/14
6
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