Paine and Comcare
[2006] AATA 772
•8 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 772
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/55, Q2004/640, Q2004/913
GENERAL ADMINISTRATIVE DIVISION ) Re RAYLENE PAINE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member B J McCabe Date8 September 2006
PlaceBrisbane
Decision The decisions under review are affirmed. ................[Sgd]..............................
SENIOR MEMBER
CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – applicant claims a number of injuries caused by employment – injury to knee – psychiatric condition - contradictory medical evidence – applicant not entitled to compensation
Safety Rehabilitation and Compensation Act 1988 s 4
Dike and Telstra Corporation Ltd [1999] AATA 379
Rodriguez v Telstra Corporation Ltd [1999] FCA 1400
REASONS FOR DECISION
8 September 2006 Senior Member B J McCabe introduction
1. Mrs Raylene Paine injured her left knee at work in a Centrelink records warehouse on 18 December 2001. She has made several claims for compensation in respect of the knee condition under the Safety Rehabilitation and Compensation Act 1988 (the SRCA). Comcare accepted liability for a knee condition but it has since made three reviewable decisions which the applicant has asked the Tribunal to reconsider. Those decisions are:
·5 October 2004: Comcare decided it was not liable to compensate in respect of incapacity or medical expenses as of 19 September 2002 (Q2003/55);
·16 July 2004: Comcare decided the applicant did not suffer a permanent impairment of her left knee (Q2004/640);
·21 October 2004: Comcare decided the applicant’s psychiatric condition was attributable to her employment (Q2004/913).
2. The evidence suggests the applicant does not suffer any ongoing physical problems with her knee. The balance of the evidence also suggests the applicant’s employment has not made a contribution to the development or aggravation of her psychiatric condition. It follows all three of the reviewable decisions should be affirmed. I explain my reasons in more detail below.
the material before the tribunal
3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also tendered in evidence and taken into consideration for the purposes of this decision:
·Report of Dr Pentis dated 12 September 2003 (exhibit 4);
·Report of Dr Pentis dated 25 January 2005 (exhibit 5);
·Report of Dr Mulholland dated 25 May 2005 (exhibit 6);
·Copy of the decision of the respondent dated 5 October 2004 (exhibit 7);
·Report of Dr Morris dated 10 December 2003 (exhibit 8);
·Report of Dr Reddan dated 15 May 2005 (exhibit 9);
·Written statement of Raylene Paine dated 18 August 2003 (exhibit 10);
·Summonsed medical records of Dr Ingamells (exhibit 12);
·Extract of summonsed documents received from Crestmead Medical Centre (exhibt 13, 15 & 16);
·Extract from the applicants employee records (exhibit 14);
·Supplementary report of Dr Mulholland dated 17 February 2006 (exhibit 17);
·Supplementary report of Dr Reddan dated 30 March 2006 (exhibit 18); and
·Statement of Nicole Butcher dated 9 February 2005 (exhibit 19).
4. The applicant also tendered photographs of her leg (exhibit 11).
5. The applicant gave evidence in person. The applicant’s daughter, Mrs Butcher and Drs Pentis, Stoker, and Mullholland also gave evidence. Drs Morris and Reddan were called by the respondent.
6. Mr Dixon of counsel represented the applicant at the hearing. Mr Clark of counsel represented the respondent.
the factual background
7. The applicant was born on 19 September 1954. She was 51 years of age at the time of the hearing.
8. Mrs Paine started working as a clerical assistant at Centrelink’s central filing facility at Morningside in 2000. She had previously lived and worked in the Northern Territory. At Centrelink, her job entailed retrieving files from stacks in the warehouse when they were summoned from various Centrelink offices around Brisbane. When the files were returned to the warehouse, Mrs Paine and her fellow workers would file the documents in their allocated places on the stacks. On 18 December 2001, she was sitting on the floor placing files on the lowest level of one of the stacks. As she rose from the floor, she says she twisted her left knee. She says she immediately felt pain. She reported the incident to the first aid officer and left work. She says it took her about two hours to reach home that afternoon. The trip was very difficult because her car was a manual 4WD. She sought medical assistance in relation to the injury the following day.
9. The applicant says the knee remained painful and swollen over Christmas. She was forced to hobble around her home. She received medical certificates from her doctor in the New Year. I understand she attempted to return to work during this period but she only lasted about 30 minutes before she had to stop because of the pain. She commenced physiotherapy in January 2002, and started hydrotherapy soon after. She had surgery in or around February 2002 while she was under the care of Dr Johnstone. She said the symptoms worsened after the procedure: there was swelling and pain. She says she was bed-ridden for some time after the surgery. When she could get out of bed she was forced to move around on crutches.
10. The applicant’s knee began to lock during the course of 2002. The knee was manipulated under general anaesthetic in September 2002. Mrs Paine says she did not feel any different after the procedure: she says the pain and swelling continued, and she began to feel like a zombie as a result of the pain killers and sedatives she was taking. She said her physiotherapy program was not working.
11. Mrs Paine says there has been little improvement in her condition since 2002. She says she cannot walk very far and experiences constant pain in the knee, although the pain occasionally radiates up and down the leg. She says her knee can swell up to twice its usual size as a result of walking around the house or other non-strenuous activity.
12. The applicant participated in a graduated return to work program in 2003 notwithstanding her pain. She says she lasted a week. She was assigned to a Centrelink office rather than the storage facility where she worked before. It is possible the nature and location of the return to work program was part of the explanation for its failure.
13. 2003 was a bad year for the applicant. She said she was taking a large number of painkillers and she became depressed, intolerant and irritable. She said she felt angry about what had happened to her. She was unable to sleep and did not eat properly, although she gained weight. She said her concentration and memory were affected. She could not complete her household chores without assistance from her daughter. She said she could not use a car, and public transport was difficult to access from where she was living. Mrs Paine claimed she was formerly an active person but she became unable to ride horses or jog. She said she must now be careful in her dealings with her grandchildren who might injure her in the course of boisterous play.
14. Mrs Paine lost her job with Centrelink at the end of 2003. Her dismissal was not connected with her injury. She claims she does not understand why she was fired but chose not to challenge the decision.
15. The applicant says her personal circumstances and incapacity became an issue in her marriage during this period. Her lack of an income also became a source of difficulty. Her husband has been ill for some time. He suffered a heart attack in 2002. Their relationship was stormy. The materials before the Tribunal include a reference to an assault the applicant experienced at the hands of her husband in 2001. In her evidence, she suggested her husband was difficult to live with although he was a long distance truck driver who spent a lot of time on the road, away from home. The applicant said relations became so tense during 2003 as a result of her problems that she and her husband separated for a time. The applicant moved in with her daughter. The applicant and her husband have since resumed cohabitation but the applicant makes it clear it remains a difficult relationship.
16. The applicant said she always cooperated with the doctors who examined her. She insisted she did whatever Drs Martin and Morris in particular told her to do. She also gave evidence that on or about 10 December 2003 – the day she says she was scheduled to see Dr Morris – her daughter took photographs of her leg which she says showed swelling. I accept at least one of the photographs appears to show swelling. The photographs were tendered into evidence. Mr Dixon asked Mrs Paine why she took the pictures. She replied airily that she was just finishing off a roll of film, and had no other motivation. When Mr Clark asked her about the pictures in cross-examination, she was forced to concede she did not see a doctor on 10 December 2003 when she claims the pictures were taken. She admitted she had seen Dr Morris on 9 December 2003. She then claimed the pictures were developed on that date. But Mr Clark pointed out the back of the pictures suggested the pictures were developed on 31 December 2003. Mrs Paine then recalled there may have been two sets of photographs.
17. The applicant’s daughter did not shed much light on the question when she gave evidence. She repeated her mother’s claim that the leg would swell up to twice its ordinary size on occasions. She says the appearance of the leg on those occasions was almost comical. She said it was her idea to take the pictures so she could show them to her friends on the internet.
18. Mrs Paine’s account of the photographs did not ring true. She changed her story several times when challenged. It was not clear if she was attempting to conceal something, or if she was just a poor historian. Either way, I thought she made for a poor witness. She did not have a clear recollection of events, and she was capable of selective recall. Ms Butcher’s account added to the confusion over the circumstances in which the photographs came into being. Even so, I accept at least one of the photographs did suggest Mrs Paine’s knee was swollen relative to the other knee. That evidence appears to be consistent with Mrs Paine’s story. Unfortunately, the pictures were not shown to any of the medical experts. It is difficult to know what weight to give the evidence in those circumstances.
19. The applicant’s tendency towards selective and self-serving recall was also on display when she was asked about her previous medical history. She denied receiving medical attention in respect of her knee before the accident at work in December 2001. Yet during cross-examination she was confronted with the notes of her former treating doctor in the Northern Territory, Dr Ingamell. The notes were made on 17 April 1990: exhibit 12, p 4. They refer to left knee and groin pain occurring intermittently since December 1989. Mrs Paine says she did not recall experiencing those symptoms in 1990. Given the doctor’s notes suggest the pain was experienced over at least four to five months, I find myself unable to accept the applicant’s evidence on this point.
20. The applicant also claimed to have no clear memory of being treated for depression following a back injury at work during the 1990s. The injury was referred to in the summonsed notes. The notes refer to suicidal ideation and a prescription for Zoloft. Interestingly, the notes include a report suggesting the applicant’s psychological problems inhibited her recovery from the work-related injury. These notes suggest the applicant had a parallel experience a decade ago. She claims not to recall it.
21. I do not accept the applicant is a credible witness. Her evidence about her condition must be treated with caution. I must also be careful when considering the reports of medical experts who have relied on her self-reports as the basis for an opinion. Where possible, it is appropriate to prefer diagnoses based on objective evidence.
22. The applicant’s orthopaedic surgeon after the injury in 2002 was Dr Johnstone. His reports are contained in exhibit 15. He arranged for an MRI of Mrs Paine’s knee. The MRI revealed “significant horizontal cleavage tear of the posterior horn of the medial meniscus” (letter of 14 February 2002). He performed an arthroscopic procedure on 28 February 2006. His report of that date suggested the procedure went well. His report in relation to the manipulation of the knee under general anaesthesia on 19 September 2002 suggested the knee moved easily. His last report on 23 September 2002 noted the applicant was continuing to experience pain but added: I was unable to find any significant physical reason for her discomfort. He went on to say he thought the pain and swelling might be connected to a chronic pain condition.
23. Dr McMeniman’s report of 22 July 2002 did not identify any objective evidence of significant physical problems with the knee. He arranged for further radiological investigation but reported on 5 August 2002 (exhibit 16) “there is no major pathology…being overlooked.”
24. The applicant was examined by Dr Martin, an orthopaedic surgeon, on 14 May 2002 at the request of Comcare. The report can be found at document T31. It says:
Mrs Paine presents in a bizarre fashion. Her presentation is not consistent with an organic condition of her left knee. The fact that she states that she was unable to flex her left knee prior to surgery, is strongly in favour of a non-organic condition.
25. This is strong stuff, but it is essentially consistent with the findings of Drs Johnstone and McMeniman. Mr Dixon criticised Dr Martin’s report. He said Dr Martin failed to have regard to the history. He also criticised the fact that the opinion was offered before the manipulation of the knee (ie, before the second surgical intervention). I accept Dr Martin may not have considered the applicant’s history in great depth, but given my observations of the applicant’s credibility as an historian it is not a criticism that carries much weight. I accept he was aware that the applicant had undergone an arthroscopic procedure in respect of the tear. In any event, I am satisfied Dr Martin focused on the objective evidence available to him and reached a conclusion that was properly open – a conclusion consistent with the opinions of the applicant’s own experts.
26. Dr Morris is an orthopaedic surgeon retained to examine the applicant on behalf of the respondent. He saw the applicant on 9 December 2003. His report dated 10 December 2003 is exhibit 8. He measured the circumference of each calf muscle and noted they were the same. He also measured the circumference of each thigh. They were the same. He did not report any swelling. After observing her move about the surgery, he concluded:
There is certainly not a great deal wrong with her knee. The fact that the circumference of her calf and thigh is exactly the same a year after the incident would make it difficult for there to be any organic pathology present inside her knee.
27. Dr Morris went on to say that “[o]rthopaedic treatment will not help her” and recommended that she undergo psychological counselling. He also opined that her condition at that point was not the result of her employment. Mr Dixon criticised these conclusions. He said Dr Morris did not spend much time with Mrs Paine. He also said Dr Morris did not conduct tests like asking the applicant to walk grades and steps.
28. Dr James, a pain specialist, examined the applicant in February 2003 (exhibit 16). He reported that the knee was swollen.
29. The applicant also consulted Dr Pentis. Dr Pentis said he was able to make the applicant’s knee lock so she could not move it past 20 degrees. He observed swelling. He said there was muscle wasting although he did not take any measurements. In his first report dated 12 September 2003, he estimated the impairment of the knee under the Comcare tables was in the order of 7.5%. He said in his oral evidence that the applicant scored 10% permanent impairment – perhaps even 20% if Mrs Paine’s oral account of her difficulties was accepted. In his written report of 3 October 2006 (document T16, exhibit 3) Dr Pentis suggested the impairment might be zero given the knee was successfully manipulated under anaesthetic. But he explained in his oral evidence that manipulating the knee under anaesthetic is easier because the applicant is not placing any weight on the joint. He added there may be some undetected damage in the knee, although that conclusion is difficult to accept in light of the radiological evidence. I also note Dr Pentis’s written report of 12 September 2003 suggests the applicant should recover; he was unable to identify a particular problem with the applicant’s knee.
30. I have already referred to the existence of the photos which purport to show a swollen knee. I do not accept Mrs Paine’s account of when the photos were taken. Her daughter’s evidence did nothing to clarify the issue. The circumstances in which the photos were taken are also unclear. As I have already noted, it is difficult to know what weight I should give the photos because they were not shown to or evaluated by the medical experts. Nonetheless, they are consistent with the references to swelling in the reports of Drs Pentis and James.
31. This is one of those difficult cases where the medical evidence is contradictory. The medical experts called by both sides were obviously competent and had done their jobs properly. Dr Pentis found some evidence of an ongoing problem: swelling and muscle wasting (although I think the evidence about muscle wasting ought to be treated with caution because Dr Pentis did not take measurements) and locking of the knee. Even so, he was unable to identify the source of the problem. Against that is the evidence of the doctors called by the respondents who insisted that they were unable to identify any permanent damage to the knee. They said the cause was not organic. The radiological evidence supports their conclusions in relation to the absence of organic damage.
32. I prefer the opinions of Drs Morris and Martin in light of the radiological evidence. I do not accept the applicant has an ongoing problem with her knee. I think Comcare was right to decide that it was no longer liable to make incapacity payments in respect of the applicant’s left knee after 19 September 2003. Comcare’s decision that the left knee was not permanently impaired should also be affirmed.
does the applicant suffer from a pschiatric condition attribtuable to her employment?
33. The applicant claims she has developed a psychiatric condition as a result of her injury at work. She relies on the opinions of Drs Stoker and Mulholland.
34. Dr Stoker is a psychologist. He says the applicant suffers from chronic adjustment disorder with mixed depressed and anxious mood. He also referred to a pain disorder associated with psychological and physical factors. I have difficulty with Dr Stoker’s evidence because it became apparent during the course of his oral evidence that he had not been provided with important details of the applicant’s history. For example, he was not aware that the applicant experienced psychiatric symptoms in the past, and he was not told the applicant experienced marital problems which include instances of domestic violence. When he was told of these matters during the course of cross-examination, Dr Stoker properly conceded the validity of his conclusions might be affected. I do not think I can attach great weight to Dr Stoker’s evidence in those circumstances.
35. The applicant also called Dr Mulholland. Dr Mulholland is a psychiatrist. His first report is dated 25 May 2005 (exhibit 6). That report offers a diagnosis of chronic adjustment disorder with depressed mood. He says (at p 15) that the condition is “a consequence of the total circumstances of her life over the past few years.” He declined to diagnose a pain disorder associated with psychological factors. He also considered and rejected diagnoses of other forms of somatoform disorders, such as a conversion disorder.
36. It became apparent Dr Mulholland had not been acquainted with aspects of the applicant’s history during the course of his oral evidence. He did not know of the previous psychiatric history or other aspects of her medical history in the Northern Territory. The report did not refer to the domestic violence incidents.
37. Dr Mulholland was asked to review his report during an adjournment in light of the additional information. He was also provided with a copy of Dr Reddan’s report dated 15 May 2005. Dr Mulholland’s supplementary report (exhibit 17) is dated 17 February 2006. In that report, Dr Mulholland opined that the applicant suffered an undifferentiated somatoform disorder that has been present for a long period. He said the workplace injury in 2001 provided a focus for the condition and has resulted in “significant symptomatology and impairment in respect of the left knee”. In that sense, her knee injury aggravated the underlying condition. He added that somatoform disorders were very difficult to treat.
38. Dr Reddan prepared two reports on behalf of the respondent. The first is dated 15 May 2005 (exhibit 9) and the second report (which includes comments on Dr Mulholland’s supplementary report) is dated 30 March 2006 (exhibit 18). Dr Reddan agrees the applicant suffers from a somatoform disorder. She agrees the underlying condition has existed for some time and certainly pre-dates the knee injury. She insisted the applicant’s knee injury did not cause, contribute to or aggravate the somatoform disorder. In the course of her oral evidence, she explained the applicant’s problems were in her psyche, not her knee. She explained the disorder manifested itself on this occasion as a “reaction to the knee injury of December 2001”.
39. Dr Reddan sought to explain her opinion by reference to an example drawn from the world of physical medicine. She pointed out that many people develop angina. Angina – a feeling of constriction or suffocation, often accompanied by pain - can present when a person undertakes strenuous activity. Angina may be a symptom of coronary heart disease. Dr Redddan explained that the angina did not cause the coronary heart disease, and strenuous activity did not aggravate the underlying condition. She said the same principle applies here. The knee symptoms are now the product of the psychiatric condition. Any treatment or activity in respect of the knee will not affect that underlying condition or change its course.
40. I prefer Dr Reddan’s evidence to that of Dr Mulholland in this case because she was able to offer a more coherent explanation of the applicant’s condition. Dr Mulholland was initially operating under an informational disadvantage because the applicant had not told him the whole story. He seemed less certain of his opinion during cross-examination, and he had more difficulty defending his conclusions. I note his opinions did not feature extensively in Mr Dixon’s submissions.
41. The respondent says Dr Reddan’s evidence establishes that the applicant’s underlying psychiatric condition is not connected with her work. I agree. The medical evidence suggests the applicant has suffered from a somatoform disorder since before she commenced her employment at Centrelink. The applicant’s medical records suggest this is not the first time she has experienced otherwise unexplained long-term problems following an accident.
42. Mr Dixon acknowledged the opinion that the condition was not caused by the applicant’s employment but argued that was beside the point. After referring to the definition of disease in s 4 SRCA, he contended that the manifestation of symptoms in the knee – being symptoms of a disease – amounted to a disease in and of itself. He drew an analogy with the decision of the Tribunal in Dike and Telstra Corporation Ltd [1999] AATA 379. In Dike, the applicant suffered from myopia and astigmatism. These conditions were unrelated to her employment, but she experienced discomfort at work using computers as a result of her underlying condition. The Tribunal held Telstra was liable to pay compensation because her symptoms (ie, the discomfort) were made worse and came on more rapidly as a result of her work. Mr Dixon pointed out the Tribunal held that heightened susceptibility to the experiencing of symptoms when performing work tasks amounts to an impairment. He said the situation was the same in this case: the underlying psychiatric condition has become symptomatic in connection with a work-related knee condition.
43. The issue turns on the approach to s 4. Section 4 distinguishes between injury and disease. Section 4 says injury includes a disease. The expression disease is itself defined to be any ailment suffered by an employee, or the aggravation of such an ailment (although the ailment must be work-related in the sense that the employment contributed to the ailment or aggravation to a material degree). An ailment is defined to include “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. The applicant’s somatoform disorder clearly qualifies as a disease. It is clear from my analysis of the medical evidence that the applicant did not develop the disease in the first place because of her work. But was that disease aggravated by her work? If the disease – which would include its symptoms, according to Dike – were aggravated as a result of her work, the applicant would succeed in her claim.
44. The medical evidence does not suggest the applicant’s underlying condition has been aggravated within the meaning of the Act. It has not been made worse or accelerated or recurred. But the condition has become symptomatic following the (now resolved) work-related knee injury. Is that enough?
45. I do not think it is. I think the key lies in the evidence of Dr Reddan. She says the applicant’s problems are unrelated to her knee. Dr Reddan said the applicant’s problem is, in effect, in the applicant’s head. That problem affects the way in which she has responded to the aftermath of the knee injury but the psychiatric condition is the sole explanation for the ongoing pain and other symptoms. The fact the symptoms have presented in the wake of a work-related injury is effectively a coincidence: Dr Reddan says any twinge, ache or bump might have provided a focus for the condition.
46. Mr Dixon sought to rely on the Federal Court’s decision in Rodriguez v Telstra Corporation Ltd [1999] FCA 1400. In that case, an applicant who developed a major depressive order was held to have a workplace injury even though his condition was triggered by events that he plainly misinterpreted. Spender J observed (at paragraph 24):
…if the experience in the workplace and the incidents that occurred during his employment at Telstra had as a response his major depressive disorder, and if the workplace relationship and Mr Rodriguez's perception concerning aspects of that relationship were a material contributing factor to the disease, that is sufficient to entitle him to compensation.
47. I think the situation is different in this case. As I have already pointed out, Mrs Paine’s psychiatric condition was not a response to events in the workplace. It pre-dated those events. I do not accept the original workplace injury was a material contributing factor to the development or aggravation of the underlying psychiatric condition. That injury has long since resolved, and it has effectively been replaced by the symptoms of the underlying psychiatric condition. The medical evidence suggests that condition is proceeding as expected.
48. It follows I do not accept the applicant is suffering from a psychiatric condition that is attributable to her work.
conclusion
49. The Tribunal affirms the decisions under review.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe
Signed: .....................................................................................
Associate Adam RyanDate/s of Hearing 8, 9 February 2006 & 13 April 2006
Date of Decision 8 September 2006
The applicant was represented by Mr Dixon of Counsel.The respondent was represented by Mr Clark of Counsel.
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