Newton-Edwards and Comcare
[2008] AATA 1102
•10 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1102
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 200600234
GENERAL ADMINISTRATIVE DIVISION ) Re MICHELLE NEWTON-EDWARDS Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr M.D. Miller AO, Member
Date 10 December 2008
Place Canberra
Decision
1. The reviewable decision of Comcare made 19 December 2006 is affirmed
..............[signed]....................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – permanent impairment – several impairments - whether any or all impairments suffered permanent – whether impairment/s ‘likely to continue indefinitely’ - decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24
Comcare Australia v Filla (2002) 115 FCR 163
Fazlic v Milingimbi Community Inc. (1982) 150 CLR 345
Filla v Comcare (2001) 115 FCA 144
REASONS FOR DECISION
INTRODUCTION
1 Ms Newton-Edwards was injured in 2003 whilst she was employed by the Australian Broadcasting Corporation. She suffered bilateral tunnel syndrome. Comcare has accepted liability to compensate Ms Newton-Edwards for this injury.
2. Ms Newton-Edwards claims that the injury has resulted in three impairments all of which are permanent and in respect of which she is entitled to compensation. These are:
·pain and paraesthesia in both arms and hands;
·depression caused by the pain;
·headaches caused by the effects of the injury.
3. Comcare accepts that Ms Newton-Edwards suffers from the first two of the above conditions. It does not accept that the injury has caused her to suffer headaches.
4. Comcare denies that the injury has resulted in any permanent impairment of Ms Newton-Edwards and therefore denies any liability to compensate her in respect of the injury under section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) . Subsection 24 (1) of the Act provides:
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.
5. In section 4 of the Act “impairment” is defined as:
the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
THE ISSUES
6. The following issues arise for determination;
1)what impairments (if any) have resulted from the injury;
2)are all, or any, of those impairments permanent;
3)what is the degree of any impairment/s found to be permanent?
EVIDENCE AND FINDINGS OF FACT
7. Comcare has conceded that Ms Newton-Edwards suffers pain and paraesthesia in her arms and hands and depression as a result of the compensable injury of carpal tunnel syndrome and that these conditions satisfy the definition of impairment in the Act. We are satisfied on the evidence before us that these are appropriate concessions to be made.
8. Unless otherwise stated the following findings of fact are made on the basis of the evidence of Ms Newton-Edwards. We are satisfied of the facts found on the balance of probabilities.
Upper limbs, shoulders and neck
9. Since suffering the injury at work Ms Newton-Edwards has experienced “pins and needles” in her hands, numbness in her finger-tips and a feeling of tightness in her wrists. She has suffered pain in her wrists and forearms which has spread up to her shoulders and neck.
10. Ms Newton-Edwards has undertaken various treatments including physiotherapy, acupuncture, stretching, hydrotherapy and yoga. She has taken medication for pain. Acupuncture initially gave some relief from the pain but later became less effective.
11. In 2004 Dr Madden referred Ms Newton-Edwards to Dr Roberts, Orthopaedic Surgeon, for advice in relation to her problems with her hands and arms. In the opinion of Dr Roberts Ms Newton-Edwards was suffering from mild carpal tunnel syndrome. He discussed with Ms Newton-Edwards the treatment options for this condition and the possible complications which could arise from surgical intervention. Dr Roberts recommended injections of cortisone as a “first-line treatment”.[1]
[1] Ex.A12.
12. For reasons to which we shall refer later Ms Newton-Edwards has not undergone either the cortisone injections or surgery to her wrists. When he gave evidence Dr Roberts said that because of the time which has elapsed since Ms Newton-Edwards injured her wrists cortisone injections will no longer be effective treatment for her condition. However in his opinion these injections can still be used as a diagnostic tool. The effectiveness or otherwise of the injections in relieving Ms Newton-Edwards' symptoms in the short term would indicate the likely effectiveness of surgery as a treatment. Dr Roberts gave evidence that he continues to recommend that Ms Newton-Edwards receive the cortisone injections and that he would offer surgical treatment to Ms Newton-Edwards if the injections were of benefit to her.
13. In the opinion of Dr Roberts it is common for persons suffering carpal tunnel syndrome to experience referred pain in the forearms. It is unlikely that pain in the arms above the elbows is a result of the syndrome, but he was unable to determine this without the diagnosis which could be provided by the injections.
14. Dr Roberts is an experienced orthopaedic surgeon with particular experience in treating carpal tunnel syndrome. We accept his evidence.
15. Dr Le Leu, Occupational Physician, assessed Ms Newton-Edwards in July 2004 for the purpose of providing an opinion as to her fitness to return to work. He re-assessed her at the request of Ms Newton-Edwards' solicitors in December 2007. In his report of 9 December 2007 he confirmed that Ms Newton-Edwards continued to suffer from carpal tunnel syndrome and diagnosed her as suffering migraine headaches which worsened in 2004.[2] He expressed the opinion that “in view of the length of time that she has had the condition it is less likely that any interventional treatment, whether open surgery or endoscopic or whatever, will alter her situation.” [3]
[2] Ex.A7
[3] Ex.A7.
16. When he gave evidence Dr Le Leu said that in his opinion surgical treatment was likely to relieve Ms Newton-Edwards' symptoms if done early enough. He said it was unlikely he would have ever told Ms Newton-Edwards that she should not have surgery. When he assessed Ms Newton-Edwards he did not gain the impression that her depression contributed to her decision not to proceed with surgery. In his view carpal tunnel syndrome may cause pain extending to the arms and shoulders.
17. Ms Newton-Edwards gave evidence that she has decided not to have the cortisone injections and/or surgical treatment of her carpal tunnel syndrome. She gave a number of reasons for this decision:
· the cortisone injections would provide only temporary relief of her symptoms;
· she does not believe that surgery would resolve the problems in her arms;
· in 2002 she had a “terrible experience” with unrelated surgery which had been described to her as a ‘simple, routine operation”;[4]
[4] Ex.A1.
· a number of physical therapists have recommended that she not undertake the surgery and have advised her of negative outcomes of surgery;
· in 2004 Dr Le Leu had advised her that it would be better for her anxiety and depression to be controlled prior to surgery;
· Ms O’Hagen, an Occupational Therapist employed by her Rehabilitation Provider had cautioned her to “consider surgery very carefully”;[5]
· in 2005, Dr Pascall, Occupational Physician, who examined her on behalf of her employer, was of the opinion that it was not likely she would be symptom-free after surgery;
· in 2006 Dr Eaton, Occupational Physician, who examined her on behalf of Comcare, was of the opinion that surgery may give some relief of her symptoms in her hand it would not relieve the pain in her arms, shoulders and neck or her depression;
· Ms Thompson who supervised her exercise program at Fit-To-Manage had recommended that she not have surgery;
· she was concerned as to the risks of the surgery having a negative outcome as discussed with Dr Roberts;
· she was reluctant to undergo treatment which involved anaesthesia as it had taken extended periods for her recovery from anaesthesia in the past;
· acupuncture had given her some relief;
· she had become more hesitant about surgery following complications arising from unrelated surgery she underwent approximately six weeks prior to this hearing;
· there was no reason to have the cortisone injections as she did not intend having surgery;
[5] Ex.A1.
Ms Newton-Edwards did not explain why she did not undergo the cortisone injections as a form of treatment when initially recommended by Dr Roberts.
18. Ms Newton-Edwards told us that she recalled telephoning Dr Roberts in late 2005 to seek his recommendation as to where she should go to have the cortisone injections, although she does not recall his advice. Her intention at the time is confirmed by a reference in a report from the Rehabilitation Provider dated 2 December 2005 that Ms Newton-Edwards was prepared to consider the injections and was seeking a recommendation from Dr Roberts.[6] She was unable to recall why she did not proceed with the injections at this time.
[6] Ex.R2 T64.
19. In cross-examination Ms Newton-Edwards was pressed as to when she decided that she would not have surgical treatment, as a consequence of which she decided that there was no reason to have the injections. After some reluctance to indicate a time she said that she reached this conclusion about the time she saw Dr Eaton and he expressed his opinion to her. This was in November 2004.[7]
[7] Transcript 14.10.08 p-53.
20. Sometime in the period of about 6 weeks before the hearing of this matter (which commenced on 14 October 2008) Ms Newton-Edwards spoke to Dr Roberts by telephone. During that conversation she told him that she was considering having the cortisone injections.[8]
[8] Transcript 16.10.08 p-12.
Depression
21. In 2004, as a result of the ongoing pain in her hands and forearms Ms Newton-Edwards was having difficulty in sleeping and her appetite decreased. She began to feel anxious and depressed. She was emotional and tearful and had memory problems. She suffered mood swings and only socialized with immediate family members.
22. Since 2004 Ms Newton-Edwards has continued to suffer periods of depression in which she still experiences anxiety and feelings of depression, sleep disturbance and difficulties with her memory. These periods occur approximately monthly and can last several days. When she suffers an episode of depression Ms Newton-Edwards is unable to effectively communicate with others.
23. In 2004 Ms Newton-Edwards consulted a psychologist, Ms Hayes, who diagnosed depression. Ms Hayes taught Ms Newton-Edwards techniques to help with controlling the periods of depression when they occurred. Ms Newton-Edwards continued to consult Ms Hayes regularly until 2007 when Comcare ceased to pay for these consultations.
24. In February 2008 Comcare’s decision to cease payments was set aside but Ms Newton-Edwards has not sought to resume treatment by Ms Hayes nor has she sought alternative treatment for her depression. Her explanation for not continuing to consult Ms Hayes was Comcare’s ceasing payments and that she felt that she had learnt the techniques Ms Hayes had to offer. In July 2007 Ms Newton-Edwards told Dr Glaser that she was not receiving psychological treatment because of a lack of funding.
25. In August 2004 Dr Lieu, Ms Newton-Edwards' general practitioner, prescribed anti-depressant medication for Ms Newton-Edwards, but she did not take it. She said that her reason for not taking the medication was that she had received advice to try to relieve her depression by relaxation.
26. In April 2006 Ms Newton-Edwards was assessed by Dr Glaser, Consultant Psychiatrist. He diagnosed Ms Newton-Edwards as suffering an adjustment disorder with depressed mood. In his view it was “highly likely that Ms Newton-Edwards' psychiatric state could improve dramatically if she experienced some relief of her physical symptoms.”[9] Also he also was of the opinion that her condition could respond well to further interventions focussing on psychological techniques for pain management and management of her other symptoms.
[9] Ex. R3.
27. Dr Glaser re-assessed Ms Newton-Edwards in July 2007. After that assessment he reported that “it is likely that both her mental and physical conditions will improve substantially after such treatment [of her carpal tunnel syndrome]. Any residual psychological problems are likely to be fairly minor and could easily be dealt with by a further short course of psychological counselling …”[10] When he gave evidence Dr Glaser said that further counselling and anti-depressant medication may assist in relieving Ms Newton-Edwards' psychiatric condition even in the absence of treatment of her physical condition. We accept the evidence of Dr Glaser.
[10] Ex. R4.
Headaches
28. Ms Newton-Edwards says that the pain in her forearms, wrists and hands has caused her sleep to be interrupted and as a consequence of fatigue she has suffered headaches. Further she says that the headaches occur at least once a fortnight and sometimes more often. At times she obtains relief by taking non-prescription medication advised by Dr Madden, her general practitioner, but sometimes they do not. If a headache occurs without notice there is nothing she can do to obtain relief.[11] In the opinion of Ms Newton-Edwards her headaches are not migraine although she experiences nausea, light-sensitivity and dizziness and has difficulty driving a motor vehicle.
[11] Ex.A1.
29. After Dr Andrews examined Ms Newton-Edwards in March 2007 he reported that the headaches suffered by Ms Newton-Edwards seemed to be of a “migraine type” and could be easily treated. He advised Ms Newton-Edwards of this at the time of the examination. Dr Madden later prescribed the medication recommended by Dr Andrews but as at the date of the hearing of this application Ms Newton-Edwards had not taken the medication nor had the prescription filled. Ms Newton-Edwards has experienced two severe headaches in the last six weeks. When asked why she did not take the medication prescribed she said that she was too ill to drive to have the prescription filled. She could not explain satisfactorily why she did not ask her husband to do this for her.
REASONING
What impairments have resulted from the injury?
30. We are satisfied that the symptoms in Ms Newton-Edwards' hands, arms and shoulders and her depression have been properly conceded to be impairments which have resulted from her bilateral tunnel syndrome. For the purposes of this decision it is not necessary to determine whether the depression should be determined to be a separate injury. Comcare did not argue that we should treat it as such.
31. There was no agreement that the headaches suffered by Ms Newton-Edwards have the necessary causal relationship to her employment, although neither party addressed this issue in detail. For the reasons which follow the outcome will be the same whatever our decision on this point and for the purpose of this decision we will assume that the necessary causal connection is established.
Are all, or any, of the impairments permanent?
32. For the purposes of the Act “permanent” means “likely to continue indefinitely.”[12]
[12] Section 4.
33. Subsection 24(2) provides:
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.
34. On the basis of Ms Newton-Edwards' evidence and the medical evidence we are satisfied that the symptoms experienced by Ms Newton-Edwards in her hands and forearms, her headaches and her depression are all consequences of the bilateral carpal tunnel syndrome. This means that if we are not satisfied that the carpal tunnel syndrome is permanent we cannot be satisfied that any of these conditions are permanent within the meaning of the Act. There is some evidence to suggest that the upper arm/shoulder pains are not related to the carpal tunnel syndrome and may be the result of some form of strain injury associated with Ms Newton-Edwards' work. However based on the evidence of Dr Roberts and Dr Le Leu we are satisfied on the balance of probabilities that the symptoms in Ms Newton-Edwards' upper arms and shoulders may be alleviated by treatment of the carpal tunnel syndrome and again, if the latter condition is not permanent we cannot be satisfied that the impairment in the upper arms and shoulders is permanent.
Factors to which regard is to be had under subsection 24(2)
35. We are satisfied that each of the impairments of which Ms Newton-Edwards complains have continued since 2004. Passage of this length of time suggests that the impairments are permanent. We accept the evidence of Ms Newton-Edwards as to when her several symptoms commenced. However taking into account the apparent infrequent occasions on which Ms Newton-Edwards consulted her general practitioners as to possible treatment of her headaches and her failure to take the medication suggested by Dr Andrews and prescribed by Dr Madden, we are not satisfied that the headaches she experiences are of the frequency and severity which she describes.
36. We are satisfied that there is a reasonable likelihood that there will be an improvement in Ms Newton-Edwards' condition in the immediate future. Based on Ms Newton-Edwards' inquiries from time to time as to the means of her receiving the cortisone injections we are satisfied that it is likely that she will undertake this diagnostic procedure. Particularly taking into account the conversation between Ms Newton-Edwards and Dr Roberts within six weeks of the hearing we do not accept Ms Newton-Edwards' evidence that she has decided not to have the injections. We also take into account Ms Newton-Edwards' reluctance to indicate the point at which she says she made such a decision.
37. On the evidence of Dr Roberts there is a likelihood that he will recommend the surgical procedure, depending upon the outcome of the injections. In view of Ms Newton-Edwards' evidence that she can see no point in having the injections unless she is prepared to have the surgery we conclude that in fact she is prepared to have surgical treatment if this is indicated by the results of the injections and the advice of Dr Roberts.
38. Further we are satisfied that there is a likelihood that Ms Newton-Edwards' headaches will improve as a result of her taking the medication prescribed by Dr Madden. Although Ms Newton-Edwards had not taken the medication as at the date of the hearing she said that she intended to do so. On the basis of the evidence of Dr Andrews we are satisfied that it is highly likely that the medication will give her substantial, if not complete, relief from this condition.
39. Counsel for Ms Newton-Edwards conceded that surgical intervention is reasonable rehabilitative treatment for carpal tunnel syndrome and therefore for the impairment arising from that injury. We are satisfied that this is a proper concession. There is no dispute that Ms Newton-Edwards has not undertaken this treatment. In some circumstances a failure to undertake reasonable treatment may support a finding that an injured employee is determined not to accept such treatment and that consequently the impairment is permanent. However this is not the situation here. In our view the availability of reasonable treatment as yet unavailed of supports our conclusion that Ms Newton-Edwards is likely to undergo further diagnosis and subsequent surgery if she is advised to do so.
40. On the basis of the evidence of Dr Roberts we are satisfied that at the time they were first recommended by him cortisone injections were reasonable rehabilitative treatment for Ms Newton-Edwards. We are satisfied also that Ms Newton-Edwards did not undertake this treatment.
41. In relation to the depression we are satisfied on the basis of the evidence of Dr Glaser that there is further reasonable rehabilitative treatment available to Ms Newton-Edwards in the form of medication and/or counselling which will probably improve her condition irrespective of the improvement or otherwise of her physical symptoms. Ms Newton-Edwards has not undertaken either of these treatments.
42. Another relevant matter is that Ms Newton-Edwards has shown a reluctance to accept treatment which she has been advised to undertake. Although her general practitioner Dr Vin Duc Lieu prescribed anti-depressant medication in 2004 when he first diagnosed mild depression, Ms Newton-Edwards declined to take the medication preferring the advice of others to try relaxation first. Despite Ms Newton-Edwards' claim to suffer frequently recurring bouts of depression over four years she has not taken the medication prescribed. The same situation exists in relation to medication for headaches. We note that Ms Newton-Edwards is prepared to take other medication when necessary. We also take into account that one of the reasons given by Ms Newton-Edwards for her decision to cease psychological counselling by Ms Hayes was the decision by Comcare to cease paying for this treatment. However when this decision was set aside Ms Newton-Edwards did not take steps to resume this treatment. She said that she has not done so as she does not understand the nature of the decision setting aside Comcare’s decision and had not been able to clarify this with her solicitors. We do not accept her evidence that this is the reason for not undertaking further psychological treatment.
43. It is also relevant that as at the time of the hearing Ms Newton-Edwards has declined to undergo a relevantly simple diagnostic procedure which would have enabled her treating specialist, Dr Roberts, to provide to her and to the Tribunal advice as to the likely success or otherwise of surgical intervention. Whilst it is entirely the prerogative of Ms Newton-Edwards to decide what procedures she will undergo this is nonetheless relevant to a decision whether an impairment is permanent and whether she is entitled to compensation for that impairment. We have dealt with this issue separately from the question of reasonable rehabilitative treatment as on the evidence of Dr Roberts the injections can no longer be regarded as treatment.
44. Considering all of the above factors we conclude that none of the impairments suffered by Ms Newton-Edwards is permanent as we are not satisfied that any of them are likely to continue indefinitely. This is not to say that at some time in the future some or all of the impairments claimed may be shown to be permanent.
45. During the hearing the parties devoted considerable time and effort in addressing the question of whether Ms Newton-Edwards' refusal to undergo treatment was reasonable. In determining whether an impairment is permanent this is a consideration of minor importance.[13] It is not necessary to decide this question in this matter as even assuming that we decided that Ms Newton-Edwards' refusal is reasonable this would not outweigh the other factors to which we have referred.
[13] Filla v Comcare (2001) 115 FCA 144 at 158. Comcare Australia v Filla (2002) 115 FCR 163.
46. Counsel for Comcare argued that Ms Newton-Edwards has a duty to mitigate the effects of her injury and that if we decided that her refusal to undergo treatment for injury was unreasonable she would not be entitled to compensation for that injury. This would be so even if the injury resulted in permanent impairment in excess of ten per centum whole person impairment. He referred us to the decision of the High Court in Fazlic v Milingimbi Community Inc.,[14] the decision of the Federal Court in Filla v Comcare (supra) and of the Full Federal Court in Comcare v Filla (supra). As we have decided that Ms Newton-Edwards has not suffered an impairment which is permanent it is unnecessary that we determine this question and nothing we have said should be taken to be an approval of the argument advanced.
[14] (1982) 150 CLR 345.
DECISION
47. The reviewable decision of Comcare made 19 December 2006 is affirmed.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W.Constance, Senior Member.
Signed: ..............................................................................................
Peter Horobin
AssociateDate of Hearing 14 – 16 October 2008
Date of Decision 10 December 2008
Counsel for the Applicant Dan Shillington
Solicitor for the Applicant Bill Redpath
Pamela Coward Higgins
Counsel for the Respondent Jack Pappas
Solicitor for the Respondent Geoff WilsonDibbs Abbott Stillman
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