Panetta and Comcare
[2008] AATA 451
•30 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 451
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600351
GENERAL ADMINISTRATIVE DIVISION ) Re PETER PANETTA Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr P A Staer, MemberDate30 May 2008
PlacePerth
Decision The Tribunal sets aside the reviewable decision of the respondent, dated 4 October 2006, and, in substitution therefor, decides that:
· the respondent is not liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) to the applicant in respect of his neck condition;
· the respondent is liable under s14(1) of the SRC Act to pay compensation to the applicant in accordance with that Act in respect of his psychiatric condition, namely, major depressive disorder.
The parties have leave to file submissions in relation to the costs of these proceedings within 14 days of the date of this decision. In the event that no such submissions are filed within that period, the Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
..............[sgd S D Hotop].................
Deputy President
CATCHWORDS
COMPENSATION - Commonwealth employees - applicant suffered injury in course of employment by Commonwealth in September 1988 - applicant claimed compensation for injury to back and shoulders - respondent accepted liability to pay compensation to applicant for "dorsal and lumbar strain" - in February 2006 applicant claimed compensation for injury to neck and "mind" resulting from incident of September 1988 - applicant suffers from neck condition and major depressive disorder - applicant's neck condition not causally related to incident of September 1988 - respondent not liable to pay compensation to applicant in respect of neck condition - applicant's chronic back pain resulting from September 1988 back injury a significant factor contributing to contraction of major depressive disorder - applicant's major depressive disorder contributed to in material degree by applicant's employment by Commonwealth - applicant's major depressive disorder an injury resulting in impairment - respondent liable to pay compensation to applicant in respect of major depressive disorder - reviewable decision set aside
Compensation (Commonwealth Government Employees) Act 1971 (Cth), s5(1), s27(1) and s29
Safety, Rehabilitation and Compensation Act 1988 (Cth), s4(1), s14(1) and s124(1A)
REASONS FOR DECISION
30 May 2008 Deputy President S D Hotop
Dr P A Staer, Member
Introduction
1. Peter Panetta (“the applicant”), who was born in 1944, was employed by COMCAR, within the (former) Australian Department of Administrative Services, as a driver from 1987 to 1991. He was ultimately retired by the Department of Finance and Administration on the ground of invalidity in June 2001.
2. On 30 September 1988 the applicant made a claim for compensation in respect of an injury to his “back and shoulders” which he claimed had been sustained by him on 16 September 1988 in the course of his employment when he was helping another person to lift a patient. In a workers’ compensation “First Medical Certificate” issued by Dr J Bateman on 16 September 1988 the stated provisional diagnosis was “dorsal and lumbar strain”.
3. In October 1988 Comcare (“the respondent”) accepted liability to pay compensation to the applicant in respect of an injury described as “dorsal and lumbar strain” sustained by him on 16 September 1988 (see T253, p 411).
4. A workers’ compensation “Progress/Fitness Medical Certificate” issued by Dr Bateman on 11 April 1989 referred to the applicant’s injury of 16 September 1988 and noted that he was “still suffering from upper back, neck and shoulder pain”. The respondent subsequently paid compensation to the applicant in respect of the cost of medical treatment to his back and neck, including a cervical spine fusion at C6/7 on 26 June 1989, up until 2006.
5. In February 2006 the applicant made a fresh claim for compensation in respect of injuries which he claimed were sustained by him as a result of the abovementioned incident of 16 September 1988, namely:
“neck – cervical fusion C6/7 disc due to injury on 16-09-88 shoulders dorsal back & low back & mind”.
6. On 14 August 2006 a delegate of the respondent made a determination:
·noting that liability to pay compensation to the applicant had previously been accepted in respect of “dorsal and lumbar strain”;
·denying liability to pay compensation to the applicant in respect of any neck condition, shoulder condition, or psychological condition.
7. On 4 October 2006 a review officer of the respondent made a reviewable decision affirming the determination of 14 August 2006,
8. On 30 October 2006 the applicant applied to the Tribunal for review of the reviewable decision of 4 October 2006.
The Issue and the Tribunal’s Determination
9. The issue for the Tribunal’s determination is whether the respondent is liable under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) to pay compensation to the applicant in respect of a neck condition and a psychiatric condition resulting from the injury sustained by him on 16 September 1988.
10. For the reasons which follow, the Tribunal has determined that the respondent is not liable to pay compensation to the applicant in respect of a neck condition but that the respondent is liable to pay compensation to the applicant in respect of a psychiatric condition.
The Relevant Legislation
11. Pursuant to s124(1A) of the SRC Act the applicant is entitled to compensation under that Act in respect of an injury suffered before 1 December 1988 if compensation was, or would have been, payable to him in respect of that injury under (relevantly) the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”).
12. The 1971 Act relevantly provided:
“5(1) In this Act, unless the contrary intention appears –
…
‘disease’ includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development;
…
‘injury’ means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease;
…
27(1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.
…
29(1) Where –
(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment.
the succeeding provisions of this section have effect.
29(2) If –
…
(e) the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears–
(f) the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and
…”
13. The SRC Act, at all material times, relevantly provided:
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
…
impairment means 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.
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; 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), being an aggravation that arose out of, or in the course of, that employment;
…
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.
…”
The Evidence
14. The evidence before the Tribunal comprised:
·the “T Documents” (T1-T295, pp 1-508) lodged with the Tribunal by the respondent in accordance with s37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibits A1-A4 tendered by the applicant;
·Exhibits R1-R11 tendered by the respondent;
·the oral evidence of the applicant, and of Mr B Stokes, Dr J Rosenthal, Dr J Fitch and Dr P McCarthy.
The applicant’s evidence
15. In his Outline of Evidence (Exhibit A1) the applicant referred to his pre-COMCAR employment as a welder, bus driver and taxi driver, and his employment-related injuries, including a neck injury he suffered in 1978 when employed by Sign Supplies as a welder, and a subsequent cervical spine fusion operation at the C5/6 level which he underwent in 1980. He also referred to an incident in 1983 when a “runaway car” hit his car as he was driving home from work as a result of which he “suffered shock and was shaken up “and experienced “some spasms”. He then referred to his commencing work with COMCAR on 25 May 1987 and continued:
“…
38. I had no pre-existing problems, no degenerative condition problems, and no other condition worries. Nothing stopped me from working….
…
42. On 16 September 1988 I was sent out to do a patient pick up as per transport order. … from Home of Peace, Subiaco. When I got there, his wife said a multi-purpose taxi was supposed to come. I told her they sent me. She said he can’t be man-handled, he’s hurting. I called base, I told the booking clerk the story, I was told they can’t get a multi-purpose taxi at this stage, etc. I was ordered to do the job. I requested an orderly – the request was okayed.
43. The orderly put the patient in the car. We took him to 156 Rokeby Road, Subiaco. The orderly picked up the patient in his arms and took him out of the car. I was behind him, it was split second, and I saw the orderly try to get a better grip of [the] patient by heaving him up. I thought he was going to drop the patient, I was trying to get under the patient’s legs so quickly, while doing so, the orderly turned around while I was partially in a squat position. I copped some weight in my arms, pushed me down a bit, at the same time while he, the orderly, was turning. I got whacked by the body of the patient and possibly by the orderly against left side of my head, neck, shoulder area. This was very quick and hard enough to throw me off balance one foot on the footpath and one on the road – a drop of six inches.
44. I tried to explain this as accurate (sic) as possible when I was reviewed by many COMCAR and Comcare doctors and others. By the time the reports came out, many things were distorted and inconsistent to what I was saying. I was always rectifying their reports. Nobody took any notice.
45. I can assure you that I unexpectedly was struck by the patient’s body with force while the orderly was turning around. Enough to lose my balance, etc, to cause this accident. I suffered headaches, neck, shoulders, back pain, etc as per First Doctor’s Certificate.
46. I saw my GP the same day as the accident but Comcare decided only to put down dorsal and lumbar. I am told low back is lumbar. The mind problem came later and was accepted. All major problems came later and much later. I can’t see the problem. I always noted details of events from then on. Reports, certificates, physio, medication, etc. I kept on working. Things were settling down as such with physio, etc. Neck, shoulder blade area, low back. Still worked on with time off for treatment or to see my GP sometimes in my own time in 1988 and 1989 as records show.
…
48. I had to have another fusion later in 1989 at level C6/7. This was paid for by Comcare.
49. From time to time, in 1989 I was called in to the booking office of COMCAR to take down manual booking by phone. Until one day while writing a booking, with my neck flexing up and down and sideways, by the end of the day, I was in slight pain down my arm and at the top of shoulders, shoulder blade area, etc. I went home and took some pain-killers. The next day, I went back to work and was asked again to work in the booking office. After a while, my neck and arm pain got so bad by that time, I had pins & needles down to my fingers. The more I stayed writing bookings and sorting out, the more the pain got worse. I told the staff I had to go. I told them what happened. They knew about the incident of 1988. I was told to go and see the doctor, which I did. This pain was overpowering. Knowing what happened in the past, I was devastated.
50. X-rays were taken and I had time off work. By this time, I was referred to Mr Stokes who organised more tests and later, a fusion at level C6/7 in 1989. Because my upper back and neck was overpowering me with pain and at the same time, with rest and heavy medication, the low back was neglected but in the early stage, I asked Mr Stokes if he can check my back and his exact words were ‘let’s worry about your neck first’. He has stated that he does remember that. I also note, Mr Stokes was asked if he knew my pre-existing back problems, he said no, that’s because there was no injury to work on. Nothing required by him to intervene if there was.
51. The lower back, mid back and shoulder area, etc, got worse. After the operation, things started going down hill. I can’t remember when I told Mr Stokes about my back. He decided to do tests. Dr Gee was involved also. I reiterate, I always mentioned my lower back, neck, mid back, shoulders, arm etc. I had cortisone injections off and on. I was in and out of hospitals. In past years I noted stressed as early as 1989/90 and that got worse onwards. After injection, physio, tractions, manipulation, medications, pilates, various work-hardening exercises, etc, on and on. These was (sic) organised by COMCAR and ordered by Comcare and their doctors. Nothing was working. My back got worse. An epidural was performed and cortisone injections were performed numerous times on different parts of my body.
52. I was terminated from graduated return to work in 1991.
53. In 2001 I was retired on an invalidity pension…
54. I did not have any problems with depression or stress prior to my 1988 COMCAR incident.
55. I was not receiving any treatment for depression and so far as I recall had not been referred for psychiatric assistance or anything of that kind.
56. I have had prior accidents as set out above but did not suffer from any diagnosed depressive conditions so far as I was aware. I certainly was not taking any psychiatric medication and I thought I was just having some problems with accident I had been involved in.
57. It was not until the COMCAR incident, the subject of my claim against the Respondent, where I began to suffer from chronic pain of the kind I have been experiencing since then.
58. Prior to that I had a motor vehicle accident and a workers’ compensation accident and a very minor motor vehicle accident. None of them in my view caused stress beyond normal stress.
59. I have however been suffering terribly from the chronic pain in my back and neck since the COMCAR incident.
60. Since the COMCAR incident in September 1988 I have not been able to return to meaningful work were as (sic) prior to that incident I had work capacity apart from the period I was off work after the [1978] accident.
61. From 1983 or thereabouts I have worked full-time in various employment as is set out above. On some occasion (sic) I was working two jobs at a time.
62. It is not the case that I have misled anyone in any of my claim forms and when I have seen doctors although sometimes I get confused by the amount of questions they ask me I tried my best to answer them accurately.”
16. In his oral evidence-in-chief the applicant described the circumstances in which he suffered injury in the incident of 16 September 1988 as follows:
“… And when we got to the Rokeby Road in Subiaco – there was a doctor’s place there – I opened the door, the orderly went and picked him up in his arms. I was standing behind. And he’s trying to grab a better grip of the patient, and I thought he was going to drop on the footpath, so I went so quickly – a split second – to get under, give him a hand. At the same time Casey (sic) heaved him up and came down. I was in a squatting position. I copped some weight And at the same time he turned around, and I got whacked across the neck and shoulders, putting me off balance, which – I had one leg on the footpath and the other leg on the road – which there was – at the time, and it still is, and it was disputed – it’s a six inches drop. So, I ended up with a slight headache, some pain around the shoulder blade area. …” (Transcript, p7)
Asked where he had pain at the time of that incident, the applicant said:
“Well, I had a headache and – in the neck – the shoulder blades area, and along the – you know, down – in the back – in the back area”. (Transcript, p8).
Asked whether he had previously had neck pain, the applicant said that he had, and added that it was about 10 years previously when he had a cervical fusion performed by Mr Stokes. He said that his neck pain gradually diminished after that. He confirmed that he was not experiencing any physical symptoms immediately before the incident of 16 September 1988.
17. In response to questions from the Tribunal regarding the incident of 16 September 1988, the applicant said that he “got whacked”, when in a squatting position, by “part of [the patient’s] legs and part of the body of the orderly, his shoulder area”. His evidence continued:
“ … It was just enough to try to get under, and enough to hit me on the side of my neck and shoulder area, which threw me off balance. I did not fall; I did not hit the footpath.
Right. When this is happening, has the orderly actually got the patient right out of the car, or is he still just getting out of the car? --- Out of the car.
…
So any involvement you had was after the patient was out of the car, right, and clear of the doors? --- Yes.
Right. And so you’re semi-squatting, and somehow the orderly has bent over, far enough for his shoulder to hit you in your neck? --- Yes.
But he didn’t hit you hard enough for you to lose balance and fall? --- I lost my balance; one foot in the footpath and one foot in the road. That’s when my back problem started, my neck problem.” (Transcript, p15).
18. In cross-examination the applicant acknowledged that he had had a degenerative condition in his neck since 1978/1979 but he said that he had not been made aware of that by medical practitioners until later. He agreed that he was aware of that in 2005.
19. The applicant described his present symptoms as “stiff neck … pain in the neck” and “stiffness, aching pain” in the mid back and lower back. He confirmed that he also has pain in the shoulder blades and that he gets headaches at times. It was put to the applicant that the clinical notes of his former general practitioner, Dr Bateman, record that he was complaining of similar symptoms from 1978 to 1987. The applicant did not dispute that the clinical notes recorded that information.
20. It was put to the applicant that the “First Medical Certificate” issued by Dr Bateman on 16 September 1988 following the relevant incident does not mention neck or shoulder pain, and that the first reference to neck pain in Dr Bateman’s notes following that incident does not occur until 3 April 1989. His evidence in response was as follows:
“And it wasn’t until April of ’89 that Dr Bateman started saying that you were telling him that you are now getting pain into your neck? --- Well, if he didn’t put that down, but I suffered – that’s how it started off. I started off with a headache. That’s why I went, and I remember that I took some Panadols.
…
Well, it wasn’t until seven months after the incident on the 16th, or nearly seven months after the incident on 16 September 1988, that you started telling Dr Bateman that you were having pain in your neck? --- I told him on the day that I got – the way that I injured myself, that I copped it on the neck and shoulder area, and my back. What he put down – that’s – I can’t – I can’t help. That’s the dispute. I have seen a certificate prior to that or whatever, I can’t remember.
…
Now, is it possible that you didn’t tell him about the pain in your neck until the beginning of April 1989? --- No. I did say it but he put down that that pain is coming from – because the pain was going, radiating to the dorsal area and shoulders there, that’s the only thing I can put it down to and, from then, that day on, Comcare … decided to put down ‘dorsal’ and ‘lumbar’, because every time I used to put down anything for claiming or whatever, it was always ‘neck and back’.
‘Shoulder and back’, that’s what you put in your claim? --- Shoulder and back, whatever. I mean, you’re getting pain the shoulder area and that thing there – I’m not a doctor to understand and I have to leave it up to them. Now I understand it was coming from the neck.
And it was coming from the neck because you had degenerative changes in your neck which you’d had for 10 years? --- To warrant my cervical fusion; the second one? To warrant – to put me off work completely? To warrant the pain and suffering? To warrant the injections – cortisone injection in my neck? After? I never had any injection to my neck prior to the 1988 – back or neck or dorsal or anywhere else, not even when I was in hospital for pethidine injection for pain.” (Transcript, pp 37, 38)
21. The applicant was referred to a questionnaire form which he completed on 23 January 1989 for the purpose of entry into a superannuation scheme (Exhibit R8). In that form the applicant indicated that (inter alia):
·in 1978 he suffered a “neck injury” and subsequently had a cervical fusion;
· in 1988 “after lifting patient” he suffered “lower back pain – dorsal”;
and Dr Lee, a Commonwealth Medical Officer, made the following corresponding comments (as recorded in that form):
·“Lifting a heavy sign (when he was working as a welder) resulted in headaches & stiff neck & paraesthesia. Had cervical fusion – Mr Stokes – in 1980. Condition resolved after operation.”
·“Sept 1988. Developed low back pain after lifting a patient. Had physiotherapy for 2 weeks and Panadol. Asymptomatic.”
The applicant confirmed that he saw a Commonwealth Medical Officer on that occasion and that he answered his questions to the best of his ability.
The evidence of Mr Bryant Stokes
22. Mr Stokes has been practising as a neurological surgeon since 1970. He first saw the applicant in 1978 and subsequently performed C5/6 fusion on him in 1980. He also saw the applicant in 1986 and on various occasions in 1989, 1990, 1991, 1997, 1998, 1999, 2000, 2001, 2002 and 2003. Reports prepared by Mr Stokes in relation to those consultations are included in the T Documents.
23. In a report dated 10 May 1989 to Dr Bateman, Mr Stokes stated:
“Thank you for asking me to see Peter Panetta whom I saw on the 2nd of May. I note that I last saw him some three and a half years ago. I also note that recently there is evidence to suggest that he may have hypoparathyroidism
His main problem commenced in September of last year when he was suddenly called upon to support a patient who he thought was falling after being unloaded from a Commonwealth car of which he was the driver and he got a twisting injury to his neck and since then has developed pain in his neck and down the left arm in the left C6 or C7 dermatome distribution. He is finding his symptoms quite severe.
When I examined him today he moved and sat with his neck slightly flexed and his neck movements were severely restricted. He tended to support his left arm.
The only neurological abnormality I could really detect today was some diminution of the left triceps jerk and some patchy pin prick blunting over the left index and middle fingers.
It is highly likely that he has some disturbance at the C6/7 disc space which is narrowed on x-ray as I think that his fusion at C5/6 is quite sound.
Certainly there seems not much doubt that some acute event has occurred at the time of this injury in September, 1988. He is still attempting to work and found that the period of time in which he was doing clerical work in the course of his employment exacerbated his symptoms, presumably because he was behind a desk with his neck bent doing paper work.
…” (T10)
24. In a follow-up report of 29 May 1989 Mr Stokes stated:
“ …
The EMG … shows only a mild C6/7 radiculopathy of indeterminate age with very mild denervation
… I am sure the symptoms are arising from the C6/7 disc space and have been significantly disturbed by his injury in September of last year.
… ” (T11)
25. On 31 July 1989 Mr Stokes reported to Dr Bateman that the applicant had “satisfactorily undergone anterior cervical fusion at C6/7” on 26 June 1989 (T14), and he subsequently reported on 1 February 1990 as follows:
“I saw Peter Panetta on the 1st of February. He is progressing reasonably satisfactorily and the recent x-rays of his cervical spine have shown the fusion at C6/7 to be successful and the previous fusion at 5/6 is intact.
He is still complaining of neck postural pain and also I think is quite significantly depressed which is not helping his situation.
…” (T31)
26. In a report dated 12 September 1991 to Dr Bateman, Mr Stokes commented:
“… I think that Peter is somewhat exaggerating his symptoms but he certainly does get very distressed and depressed by them.” (T90)
27. Mr Stokes provided a report, dated 27 November 2007, to the applicant’s solicitors, for the purpose of the present proceedings, in which he stated:
“… I first treated Mr Panetta in 1978 when he had a workers’ compensation claim for a neck injury which resulted in an anterior cervical fusion at C5/6.
His progress was reasonably satisfactory from that time although he did have some intermittent neck pain but he was able to cope satisfactorily and indeed did obtain a position in working with Comcar and he was able to work unimpeded as my records indicate from 1981 to 1988.
On the 16th of September 1988 while working for Comcar he had an incident in which he was supporting a heavy patient, with an orderly, getting out of the vehicle and in doing so he had a wrenching movement to his neck which resulted in continuing neck pain. Subsequent investigations indicated that the C6/7 disc had been injured and he underwent an anterior cervical fusion at C6/7. He also indicated that he had a painful back at the same time but that the neck symptoms overshadowed his lumbar spine complaint.
Currently on clinical examination Mr Panetta has some limitation of neck movements and more recently has had some difficulty with swallowing due to an osteophyte in the cervical spine.
As regards his low back he certainly does have facet joint pain and some mild instability in his lower back. I believe that most of this is due to issues associated with continuing degeneration.
I do not believe he is capable of working at this stage in any capacity for which he is normally trained inasmuch that he cannot do lifting or work of that nature being a welder.
On the 22nd of April 2004 I wrote to his previous lawyers, … and stated that in my view I considered Mr Panetta has a permanent disability of thirty percent (30%) in his cervical spine and that fifteen percent (15%) of that in my view related to the incident that occurred on the 16th of September 1988 when he was employed by Comcar.
I consider that the incident in 1988 produced a further rotational injury to his neck and also of his lumbar spine.
As regards his lumbar spine, I believe that Mr Panetta has a disability of twenty percent (20%) in his lumbar spine and that 90% of that is related to degenerative changes and 5% related to the incident in 1988. There is evidence of advancing degenerative changes in his cervical and lumbar spine and for that reason I do not believe that he can continue to function in any useful employment capacity at the moment.
There is certainly a large number of the population who do have degenerative changes in their cervical and lumbar spine and who do not produce symptoms until there is some rotation or other type of stress to the spine which may occur, and I believe the 1988 injury has been a promoting factor on top of early degenerative changes.” (original emphasis) (Exhibit A3)
28. In his oral evidence-in-chief Mr Stokes, when asked whether he had a note or a description of how the applicant sustained a neck injury in the COMCAR incident of September 1988, said:
“As far as I can recall and I’m not too sure whether I actually have that, I’d have it in a letter, he was assisting a patient in the course of his duties and there was an orderly and he slipped with his foot on the kerbing and he twisted his neck as he tried to support the patient. That’s what he told me, words to that effect.” (Transcript, pp 66-67)
He confirmed that the applicant’s presentation to him on 2 May 1989 was consistent with that history. He added:
“The C6/7 disc was confirmed to have been undergoing degeneration and probably with a relatively acute tear in the annulus, although in those days we didn’t have access to good MRI scanning so it was pretty difficult to be sure of the – but there was no doubt there was a change in the C6/7 disc and the symptom pattern was certainly compatible with that being the cause of the pain generally.” (Transcript, p67)
29. In cross-examination Mr Stokes gave the following evidence:
“And so it’s a – so in part, is your conclusion based on a temporal relationship being reporting of trauma and then immediate onset of symptoms referable to that disc? --- Yes.
If there was a delay of some six or seven months between reporting of – sorry, between the trauma and then reporting of symptoms in the neck and into the arm, do you think that that would create some doubt as to the relationship ---? --- Reporting to who?
To the general practitioner? ---If the pain was significant enough at the time then a general practitioner – the patient would have almost certainly gone to a general practitioner, but that’s not all that actually happens, you get ligamentous injury around the neck, you get a tear in the annulus, which is already the site of some degeneration, so we need to add that into this equation, and then over a period of time swelling takes place and inflammation and often there is a progression in the neck pain and symptoms, over some time, several months. It’s a typical example in a whiplash injury in a motor vehicle accident that someone has some minor neck discomfort and then it gradually worsens, particularly when its on top of an osteoarthritic change in the neck.
For the moment, if you can assume that there was an immediate reporting to a general practitioner of pain in the lower back and what is referred to as the dorsal spine, so pain in the dorsal and the lumbar spine referring into the leg ---? --- I’ve seen many patients over the years who have had multiple pain sites and they often only complain about the site which is giving them the most symptoms at that time and do not mention the others...
But the history you tell me you took was that there was an immediate concept of pain in the neck and into the arms. What I’m asking you is, at least according to the contemporaneous records, there is no reference of immediate pain in the neck and into the arms and that first reference of the pain in the neck and in the arms doesn’t appear until April 1989, so that’s some six or seven months after? --- Well, I can only go by the history given to me by the patient.
Well, I’m asking you if you accept the history I’m just giving you? --- Well ---
Does that create an element of doubt as to how you attribute the apparent trauma to the disc disruption at C6/7? --- Well, according to the patient he did have neck pain at the time of the incident recording (sic), but how severe it was at the time I don’t know, but it can increase in severity as time goes by as I’ve just said and his general practitioner would be the best person to ask that question to. It doesn’t throw any concern in my mind because I’ve seen that story so often.
Does it – if you accept the history, if you ignore what you have been told and just for the moment hypothetically accept the history I’m giving you, that there is no reported symptoms in the neck and into the arm until seven months after the incident? --- It depends on – the question I have thought I had already answered, it depends upon the severity at the time whether a patient would go and see a doctor and I can’t ask that question – or answer that question, you need to speak to the patient more accurately or his GP. What can happen is that you can get increasing pain as time goes by from this type of injury. If the story is correct he did have pain when he did what he did to his neck with the patient, that may well have passed off a bit and become bearable until it gradually worsened over a period of time.
Now ---? --- I think we have to take into the equation also that this patient does have some degenerative changes in the neck of osteoarthric change.
And is it fair to say, at least in one of your reports, you refer to the degenerative changes in his cervical spine as being significant? --- Yes, that’s true.
And in multiple levels? --- Correct.
C4/C5, C5/C6, C6/C7? --- Correct.
And those changes were present prior to the incident in September 1988? --- Correct.
And are you aware of the x-rays which were done in April 1989 which said that there were no changes present – there was no ---? --- They were plain x-rays though, they weren’t the other studies that we did.
But those x-rays compared x-rays done in July 1987? --- Correct.
Except there hadn’t been any change? --- Correct.
…
So – but in terms of the pathology that presented, so you observed changes in the disc at C6, C7? You said well that accounts for the symptoms there now? --- That accounted for the symptoms of which he complained at the time I saw him.
And then you had – you were given a history of trauma. Is it that – is it your conclusion that the history of trauma then explains the change in the disc pathology? --- That was my view, yes.
Is it possible that the disc pathology could have been simply the fact that this person has severe degenerative changes in his cervical spine? --- It is possible, yes.
And it’s really the conclusion that you reached is based on the history of these symptoms coming on immediately at the time of the trauma? --- That is correct.
So if perhaps that history is incorrect and there was symptoms referable into the arm before, would that give you some doubt as to the relationship or the cause of that trauma, being the explanation for then the ongoing ---? --- I’ve just said earlier, it depends on where in the arm that relationship was.
Yes. Now, I accept that, but if they are the same ---? --- If they’re the same that is likely to be so, yes.
Yes? --- But if there was a pre-existing issue at C6/7, and I’ve already said there’s degenerative changes in the neck which involved all of those vertebrae, then the magnification that appeared to have occurred in the history given to me is at the C6/7 level following this incident and all I can go on is a man who is allegedly to be working, had some twisting injury to his neck and then would appear to have had ongoing symptoms although you’ve pointed out there was a gap period in which he didn’t seek attention for those symptoms and that is not unreasonable if there were other symptoms which were causing his attention, but that’s as much as I can say to assist you.” (Transcript, pp 70-71, 73)
The evidence of Dr John Rosenthal
30. Dr Rosenthal, Physician in Legal and Rehabilitation Medicine, provided a report, dated 24 January 2007, to the respondent’s solicitors for the purpose of the present proceedings. In that report Dr Rosenthal commented on the applicant’s cervical spine condition prior to his employment with COMCAR as follows:
“Mr Panetta clearly had pre-existing degeneration in the cervical spine prior to his employment with Comcar. The earlier C5/6 discectomy fusion procedure was seemingly necessitated by work practices aggravating pre-existing degenerative change at the C5/6 level. Disc protrusions do not occur in normal discs unless the external forces are very great. It would follow therefore that he had cervical degenerative change predating his initial work injury with Sign Supplies.
It is likely that degenerative change was present in the cervical spine at levels other than C5/6. It should be further considered that a congenital or surgical fusion will predispose the adjacent level to accelerated degenerative change. It is common therefore patients who have had a single level cervical discectomy and fusion to later require a further procedure at an adjacent level.”
He noted that the applicant “presents as a very anxious and stressed individual” and he described the applicant’s current cervical spine condition as follows:
“The diagnosis is post two level cervical fusion from C5 to C7 leaving him with restricted neck movement, headaches and some mild residual radicular upper limb pain without there being any hard neurological signs”.
As regards the applicant’s history of the COMCAR incident of 16 September 1988, Dr Rosenthal stated:
“On the 16th September 1988, Mr Panetta said he assisted an orderly at the Home of Peace, getting an impaired patient out of the vehicle. He could not give me any precise detail as to how an injury might have occurred. He said he was thrown off balance but didn’t fall. He suggested he might have been struck by some part of the patient’s body but again, he could not be specific. He could not tell me if or how he might have helped the orderly to support the patient.”
As regards the question whether there is a causal relationship between the applicant’s current cervical spine condition and his employment with COMCAR, Dr Rosenthal opined as follows:
“Notwithstanding that I am not totally convinced that the Comcar incident had any significant trauma potential, if there was some causal relevance, it relates to aggravation to an underlying and pre-existing condition. I have already remarked about the vulnerability of a cervical segment adjacent to a fusion.
…
If it is accepted that the Comcar incident somehow aggravated the situation by causing a different radicular pain pattern, it would follow that the condition has not fully resolved because a subsequent discectomy fusion procedure became necessary.
…
Unless it can be demonstrated radiologically that some anatomical change has occurred following the Comcar incident, I wouldn’t be particularly supportive of this being a significant factor. I again draw your attention to the timing of the onset of the changed radicular pain pattern, noting that this has not been precisely determined.”
Finally, Dr Rosenthal commented on the applicant’s presentation as follows:
“Mr Panetta presents as an anxious man with significant spinal pathology and a compensation agenda. The observation of other doctors, including his own treating specialists, imply some degree of enhancement or functional overlay. He does seem to have a tendency to adopt the chronic sick role. It is likely motivation would be reduced in this totality of circumstances.” (Exhibit R10)
31. In cross-examination Dr Rosenthal acknowledged that the applicant has “very significant spinal pathology” and “significant impairments”, and he said that the only issue is that of causation.
32. Dr Rosenthal also accepted that, at the time of the COMCAR incident of September 1988, the applicant’s cervical spine was in a “vulnerable position” and there was a “lower injury threshold” by reason of the C5/6 fusion procedure in 1980 but he did not accept that the applicant’s cervical spine had been “irretrievably damaged” by that fusion procedure. His evidence continued:
“It’s not irretrievably damaged, but because there is a fusion the mobile segments adjacent to that fusion are more susceptible to accelerated degenerative change. That is why often people who have had a fusion at one level come to fusion at a second level. You also have to bear in mind that prior to the Comcar incident it had already – degenerative change had already been demonstrated at the level above where he had the fusion. So you’ve got two components of increased vulnerability: the fusion and the presence of pre-existing change that’s already there.
So it might have had to be a terribly significant incident to cause a further problem? (sic) --- Well, it would have needed to be significant because if your proposition is that something happens that becomes – that absolutely necessitates the second procedure that changes the complete status of radicular pain and the mechanical integrity of that C6-7 segment, then it needs to be a significant event. It needs to be an event that has trauma potential and there needs to be a corresponding acute clinical onset of the problem. Now, he didn’t see Mr Stokes until eight months after this incident. And the other problem I have ---
So what’s the significance of that in your view? --- What’s the significance of the eight month delay?
Yes? --- Well, I would have thought that if the Comcar incident had caused significant anatomical disruption of the C6-7 segment as to then be deemed to be a proximal cause of the next fusion procedure, I think there would have been an acute clinical event with the onset of severe radicular pain in close time proximity to the Comcar event. …” (Transcript, pp 148-149)
33. Dr Rosenthal said that he had been unable to “get a clear indication of what happened in the Comcar incident”, and he added:
“Now, for me to certify causation I need to be able to identify an accurate history of what occurred. Now, I can’t do that.”
Asked by the Tribunal whether he was saying that he was not in a position to express an opinion on causation, Dr Rosenthal responded:
No, I’m not. I’m not saying that, but what I’m saying is that the diversity of medical reporting that what occurred on the day is such, and that the reported symptomatology associated from it is multi focal. But I’m saying there isn’t clear, there isn’t clear evidence that an event occurred of sufficient traumatic significance as to change the neurological and mechanical status of his C6-7 vulnerable segment. If I had been able to see a consistent history and if I had been able to see that immediately following this, you know, he had, you know, severe pins and needles down the arm and pain and so on, that’s persuasive evidence that an event occurred. But I can’t certify causation just because it’s a wish or belief of a plaintiff.” (Transcript, p151)
34. Asked by the Tribunal whether he would require evidence of significant symptomatology immediately following the COMCAR incident before he would be prepared to certify a cause and effect relationship between them, Dr Rosenthal said:
“Within a week. Sir, if we take the proposition that the Comcar incident is the sine qua non of the ultimate requirement for him to have the C6-7 fusion, that infers that there has to have been an acute anatomical event. It’s not sufficient in my experience of medical causation to talk about some subtle influence that later became apparent. It needs to be established that within reasonable time proximity, and I would say reasonable time proximity of one week, you would want to clinically see the onset of C7 radicular pain and compromise of his pre-existing clinical status, because his counsel has suggested that he was well and relatively asymptomatic prior to this incident. So I’d like to see historical, clinical evidence from a GP, whoever saw him in close time proximity saying that this event did occur and that the mechanism of injury was this. Either he was neck twisted or whatever happened, but I’m confronted with a diversity of doctors reporting histories and it’s not my job to say which one is right and which one is wrong, it’s just my proper role to say that the diversity of historical reporting creates significant uncertainty in terms of what was the mechanism of injury and what actually happened on the day, as opposed to what is an ultimate consequence of his widespread degenerative change throughout his spine – neck.” (Transcript, p153)
The evidence of Dr Jane Fitch
35. Dr Fitch, Consultant Psychiatrist, provided a report, dated 22 March 2004, to the applicant’s former solicitors as follows:
“…
In answer to your questions:
Question (a) The date of examination:
My psychiatric assessment was conducted on 12th March, 2004. The interview lasted approximately 85 minutes.
Question (b) Psychiatric symptoms and condition:
Mr Panetta was working as a driver for the Commonwealth Transport and Storage Group. On 16th September, 1988 he was assisting a disabled client out of the car when he incurred a neck injury. Since that time he has suffered chronic pain and has not been able to work. He also described significant psychiatric and psychological symptoms that have developed as a result of the chronic pain and loss of functioning. These symptoms include:
1. Low mood: Mr Panetta described feeling very low. He said he was often teary. He was irritable and quick tempered. This had impaired his relationships with his family. This was out of character compared to his usual personality.
2. Poor sleep: Mr Panetta described initial insomnia lasting two to three hours. He also had early morning waking at 4.30am. His sleep was impaired by pain but also brooding negative thoughts.
3. Reduced energy levels: Mr Panetta described his energy levels as being ‘down the drain’. He was always tired and lacked his usual drive.
4. Poor appetite and weight loss: Mr Panetta said he did not have the same appetite or enjoyment of food and had lost much weight.
5. Poor attention and concentration: Mr Panetta said he found concentrating more difficult. He now lost track of subjects whilst he was talking. He used to have a very good memory as required by his driving.
6. Suicidal ideation: Mr Panetta told me that he ‘wanted to do myself in’. He had told his general practitioner this. He saw little reason in living with chronic pain and being unable to work. He has not ever acted on these suicidal ideas.
7. Negative cognitive shift: Mr Panetta told me that his mind tended to brood on negative thoughts. He was very worried and anxious about his future. He was embarrassed and mortified at having a mental health problem and having to see a psychiatrist.
8. Anxiety: Mr Panetta described anxiety symptoms with panic attacks and muscle tension.
9. Social withdrawal: Mr Panetta felt uncomfortable in social circumstances as he was no longer working. He found it very difficult disclosing to others his problems. His wife had separated from him twelve months previously because of his irritable mood.
These symptoms developed after the work accident and chronic pain. They have gradually increased in intensity over the years. I note that Mr Stokes comments on Mr Panetta’s distress and depression in September, 1991. Ms McCashney’s report in September, 1990 also describes his very high levels of anxiety impairing his concentration and learning. In the more recent SCAMP discharge report of December, 2001, Mr Panetta is identified as ‘feeling down’, having social withdrawal, hypersensitivity and negative cognitions.
…
Question (c) Whether client suffering from recognisable psychiatric condition and whether attributable to injuries sustained on 16th September, 1988:
My clinical opinion is that Mr Peter Panetta has Major Depressive Disorder. He described symptoms consistent with the DSM IV TR criteria for this illness… This disorder has been chronic and of moderate severity.
I believe that the Major Depressive Disorder can be directly attributable to the chronic pain and reduction in functioning caused by the work accident of 16 September, 1988. There was no past history of previous psychiatric disorder or vulnerability to mental health problems.
Mr Panetta’s perfectionist tendencies and heavy investment in his occupational role means that his inability has been a significant psycho-social stressor precipitating depression. A vicious cycle has developed between the chronic pain and depression with stress, pain and loss leading to anxiety, sadness and depressive illness and resultant worsening of pain and functioning.
…” (T256)
36. Dr Fitch also provided a report, dated 27 April 2007, to the applicant’s solicitors as follows:
“…
I reviewed Mr Panetta for the purposes of preparing this updated report on April 23rd 2007.
…
Current Psychiatric Symptoms
…
On this most current review, Mr Panetta admitted to a variety of continuing psychiatric symptoms. He sleeps poorly, tending to wake with worrying and brooding. He is also disturbed by chronic pain and finds it difficult to resettle. His appetite fluctuates according to his mood. He says he tends to eat more if he is stressed but then may lost interest in food.
He describes fluctuations in his mood rather than ‘mood swings’. He said his mood worsened when his pain was bad. He then became irritable and found it difficult to get on with people. He would tend to withdraw and avoid social contact.
He said on these days he did not want to go out or talk to anyone. He had been advised not to stay at home and mope and he found it helpful to try and keep his mind off his pain and worries.
He admitted to tearfulness saying he now cried ‘at the drop of a hat’. This was very out of character for him and he felt embarrassed.
He admitted loss of pleasure in daily activities. He used to love going to the beach and enjoyed gardening. Whilst he complied with hydrotherapy and physiotherapy he did not experience comfortable levels of enjoyment or pleasure.
Mr Panetta described feelings of anxiety, particularly when he experienced pain in his chest on breathing. This may happen at night or when he is lying down. He becomes quite panicky, feeling that he can’t breathe and worried that he will be stuck on his own unable to get up or get help. He does not describe full blown panic symptoms or social phobic avoidance.
He described his sadness regarding his self esteem which he said was very low. He said he felt rejected and injured and unemployable. He clearly felt stigmatized by this and his perception was reinforced by the reactions of others both socially and in the medicolegal process.
Mr Panetta described considerable frustration regarding his restricted activities. He said whilst he continued to see his grandchildren he would avoid seeing them on his ‘bad days’. When he did see them he was unable to pick them up or carry them about or play physical games with them. This was difficult as they were aged between two and eight years.
Similarly his son has asked him to accompany him to football matches, but he has declined the vast majority of these invitations as it is simply too painful for him to attend and sit for protracted time.
It was clear that he felt very embarrassed about the effect of his injury and subsequent psychiatric disorder on his masculinity and sense of self. He told me with some embarrassment how he had tried to meet new friends through a social dating service – but only tried twice because of rejection due to his lack of employment and ill health. This added to his sense of rejection and stigmatization, as well as reducing his sense of masculinity.
…
Mental State Examination
...
Whilst he expressed considerable frustration and loss of faith in doctors, he was compliant with my questioning. He impressed as a sincere man who spoke with intensity and emotion but was not overly dramatic, histrionic or embellishing of his symptoms.
His presentation was entirely consistent with my previous assessment interview of him some three years before,
His speech was of normal rate, rhythm, volume and form. There was no disorder of content. There were no psychotic features or suicidality. The content was somewhat anxious and depressive. There was no evidence of paranoia or overly self referential thinking.
His affect was flat. He did smile in a rueful wry fashion when he referred to how gardening ‘used to be his life’. However for the majority of the interview he was sad and worried in his facial expression. At times his eyes moistened but he did not overtly cry.
Cognitively there is no gross dysfunction. Mr Panetta was unable to be exactly precise regarding circumstances of some events twenty years ago but this does not constitute evasiveness or cognitive dysfunction.
In terms of insight, Mr Panetta was keenly aware of the stigma of his losses and diagnoses. However he seemed to have a reasonable understanding of what activities aggravated his pain and the interplay between pain, anxiety and mood. Whilst he tried not to personalise the difficulties of the medicolegal process he found this difficult given the highly personal, pointed and derogatory comments contained in some of the reports.
Clinical Diagnosis and Formulation
Mr Panetta was functioning well in his role as a chauffeur for Comcar when he incurred a neck injury in 1988. He subsequently developed chronic pain and has not worked since. He developed low mood with anxiety, tearfulness, anhedonia, social withdrawal, irritability, negative thinking and insomnia
These symptoms are consistent with DSM IV–TR Criteria for Major Depressive Disorder…
These symptoms have fluctuated in intensity and severity, being impacted upon by chronic pain as well as social and occupational consequences of the physical injury and the psychiatric disorder. However they have not remitted over many years.
Prior to the injury in 1988, Mr Panetta had had previous injuries that did not impact upon his mood – probably because he was able to return to an occupational role which is highly protective. There is no evidence of pre-existing psychiatric disorder or personality disorder prior to the injury in 1988.
Differential Diagnosis
Possible differential diagnoses that must be considered in a case of mood disorder in the context of chronic pain and medicolegal processes include the following:
1. Adjustment Disorder with Depressed mood
…
An Adjustment Disorder must begin within three months of a stressor and last no longer than six months. This is inconsistent with the natural history of Mr Panetta’s illness.
2. Personality Disorder
…
It is my opinion that Mr Panetta’s history, Mental State Examination and collateral history are inconsistent with a diagnosis of personality dysfunction or Personality Disorder.
3. Malingering
Mr Panetta has been entirely consistent in his presentation over my two reviews. Review of his many assessments by a wide variety of Clinicians over many years show him to be consistent in his presentation on each occasion.
Moreover, Mr Panetta is a man who has prided himself on his occupational role and performance. His distress and low mood are intensified by his loss of employment role and status. This is a chronic loss and continues to affect him socially. I do not believe that he lacks motivation to return to work or benefits from the sick role. It is my opinion that he would much prefer to be fit for work and be functioning occupationally.
As such, it is my opinion that Mr Panetta’s presentation, level of disability and distress and duration of symptoms are inconsistent with a diagnosis of malingering.
4. Somatoform Disorders
Somatoform Disorders are usually present in early adulthood with a history of abnormal illness behaviour related to bodily complaints. This is inconsistent with Mr Panetta’s personal history and clinical presentation.
Relationship of Psychiatric Disorder to the Index Work Accident
It is my opinion that Mr Panetta’s Major Depressive Disorder directly relates to his workplace accident. He has no previous history of psychiatric disorder or vulnerability to same. The onset of his symptoms began after the accident.
There is a known association between Chronic Pain and vulnerability of Major Depression as well as loss of occupational role and precipitation of Major Depression. Both of these conditions impacted upon Mr Panetta as a consequence of the index accident.
…” (original emphasis) (Exhibit A4)
37. In her oral evidence-in-chief Dr Fitch confirmed that, in addition to her examinations of the applicant on 12 March 2004 and 23 April 2007 following which she prepared the abovementioned reports, she reviewed him for approximately 30 minutes on 13 March 2008. She added that she did not find anything on that occasion which would cause her to alter the views previously expressed by her in those reports.
38. In cross-examination Dr Fitch confirmed that her understanding was that the applicant had no history of diagnosed psychiatric disorder prior to the COMCAR incident of September 1988. She said that she was unaware that the applicant’s general practitioner had, in the period 1980-1988, occasionally noted his anxiety state and his being very depressed. She added, however, that her understanding was that the applicant’s general practitioner had not previously referred him to a psychiatrist for treatment. She also noted that the referral letter to her from the applicant’s current general practitioner, Dr MrCorkill, dated 2 March 2004, referred to the applicant’s “past medical history”, previous kidney stones, chronic workers’ comp back injury, cervical fusions” and did not mention depression.
39. In response to questions from the Tribunal, Dr Fitch confirmed that the applicant’s chronic pain, to which she referred in her reports as resulting from the COMCAR incident of September 1988 and as being a contributing factor to his contracting Major Depressive Disorder, comprised both back pain and neck pain.
The evidence of Dr Peter McCarthy
40. Dr McCarthy, Consultant Psychiatrist, provided a report, dated 15 January 2007, to the respondent’s solicitor following an examination of the applicant on that date. In that report Dr McCarthy set out that applicant’s social and employment history, including the 1978 employment injury and the 1988 COMCAR incident, and continued:
“Further progress and History of Psychiatric Symptoms
Mr Panetta claims that prior to 1988 he had never suffered from any anxiety or depression whatsoever. He says that he was ‘tough as nails’, that he was a ‘workaholic’ and that he used to ‘jump for joy of life’. When I referred to possible comments in the medical notes, he added that the doctors might have put down anything at the time. Mr Panetta says that with his surgery and post-operative course he suffered anxiety, stress and trauma. He says he became depressed in 1991 because of the pain and suffering. He initially was not able to describe what he meant by depression but eventually said that he did not want to go anywhere or see anybody, he was not happy and no longer ‘jumped for joy’. He cannot recall whether he was suicidal although he says he became anxious. He was unable to describe what he meant by anxiety but eventually said that at times he would ‘lose it’. This refers to losing his temper. He says that since that time he has remained at home and initially had physiotherapy, massages and exercise treatment. He recalls seeing the psychiatrist, Dr Jane Fitch, although I see from the documentation he did not see her until 2004. He did not mention he had seen the psychologist, Kay McCashney, in 1991 for counselling directed at vocational redirection but did say he had seen a psychologist for assistance with his pain. Mr Panetta does not recall whether he was suicidal during this time. Mr Panetta says that he recovered completely and absolutely from all his accidents prior to 1988 and that all his aches, pains and stress are entirely and exclusively attributable to the Comcar incident of the 16/09/1988. Since 1991 Mr Panetta has remained at home under the care of his local doctor. As I mentioned above he separated and divorced from his wife and family around 2002 and now little (sic) contact with either his children or his five grandchildren.
Current Situation
Mr Panetta now lives alone in receipt of an invalid pension. He says he suffers from severe, daily, back pain, neck pain, shoulder pain and headaches. He says both his shoulders hurt so that he uses the services of a lawn mowing man, a gardener and every two weeks a cleaner. He says he is able to cook for himself, to dress, to toilet and shower himself. He says he lives from day to day because of his severe pain and his depression. He says he has difficulty getting off to sleep and can only sleep two to four hours a day due to pain but he does not volunteer any other cause for his sleep disturbance. He says he is always depressed without variation and later complained of having mood swings. There is no history of elevated mood. He became angry when asked to clarify the meaning of mood swings. He has a poor libido, a poor appetite but a stable weight. He says he has difficulties with his memory and concentration so that he cannot think of words or remember details. Despite that he does his own bills and household administration, he may read the paper and watch television or go for walks. He initially said he suffered from panic attacks; he was unable to describe panic attacks but gave a history of getting uptight, coughing and shouting. He says he does not have many friends. He says he is too depressed to see his grandchildren or have them visit. He says he is able to go out for a drive but he does not describe any source of fun or any hobbies, sports or interests. He is able to shop for himself and there is no history of related panic attacks or agoraphobia. He says the pain makes his shopping difficult. He says he has had self-harm thoughts in the past between the Year 2002 and 2004 but no longer has such thoughts and there is no history of self-cutting. He says he went out to a Singles Club about twelve months ago but found it difficult because people asked him what he did for a living. He says he regularly sees his general practitioner Dr McCorkall (sic)…
…
Mental State Examination
Mr Panetta attended the interview alone and presented as a casually dressed, quite well groomed elderly man. His Mental State Examination was quite unusual. He spoke English well. He was able to sit for over 75 minutes without any evidence of discomfort. He was humourless throughout the interview. He was vague, evasive and avoidant for the entire interview. He was given to indirect answers so that when asked to describe his depression, he would indicate why he was depressed. When pressed for clarification of his numerous symptoms he would raise his voice and in a theatrical sense become quite angry and then would stop, begin crying and whimpering and change again just as quickly. He seemed unable or unwilling to give a direct answer to almost any question. While discussing one matter, out of the blue he suddenly alleged in a loud voice that I was accusing Calabrian people of rorting the system. That comment had nothing whatsoever to do with the matter under discussion. He was defensive, accusatory, and generally uncooperative. There was no evidence of thought disorder nor were there any pathologically abnormal beliefs or perceptions or any other psychotic symptoms. His cognition appeared to be satisfactory for the interview and he was orientated in time, space and person and gave every evidence that he could actually understand the questions. He simply was not prepared or interested in addressing them. There was no suicidal ideation. His insight was poor.
Opinion
In 1991 this man was believed to be sufficiently anxious by the clinical psychologist, Kay McCashney, that he was not then ready to look at alternate vocational options. The notes in many places over the years refer to issues of anxiety in particular. In 2004 when seen by the psychiatrist, Jane Finch (sic), he was felt to be suffering from a chronic Major Depressive Disorder of moderate severity which the psychiatrist thought was directly attributable to the chronic pain and reduction in functioning caused by the work accident of 16/09/1988. …
The man who presented to me in January 2007 was not particularly anxious and was not suffering from a Major Depressive Disorder based on his presentation, appearance and behaviour. If he was taken at his word he would be seen to be suffering from constant global pain and constant severe depression which never varied but nevertheless was characterised by mood swings. He also claimed to suffer from panic attacks but was unable or unwilling to describe them. He did not present as an anxious or depressed man but as a manipulative, evasive, angry, dramatic, uncooperative, hypersensitive, mendacious and defensive man. It is not just uncommon but in fact rare to come across an interviewee who is so unconvincing and unpersuasive in his history. He was so theatrical, evasive and unconvincing that I repeatedly had to stop myself, wondering to myself whether I missing (sic) some subtle presentation of dementia, neuro-psychiatric phenomena or psychosis. I do not believe any of this is the case, although there is the possibility that his extraordinary presentation may be attributable to an early dementia. It may be worth obtaining an MRI of this man’s brain and performing a dementia screen, however, even dementia, a neuro-psychiatric problem or psychosis would not present in such a variable angry, manipulative fashion. It is interesting that he claimed to have a poor memory for so many significant events in his life. Although it may be argued that one can scarcely remember clearly what has happened twenty years ago or even ten years ago, the documentation suggests that he has been over his history so many times with so many people, if he was giving a truthful account of events, it should be quite possible to recall them. An explanation for his claimed poor memory of events may be that it is much harder to recall that which is untrue and variable than that which is true and unvariable.
Given the events in this man’s life, it is likely that he has suffered some degree of anxiety and depression at some time and it may be that between 2002 and 2004 he did suffer from a Major Depressive Disorder with suicidal thoughts, however, that is not the case now. I doubt that he is suffering any specific mood or psychiatric disorder at present. He is chronically unhappy and loney (sic) with perhaps some degree of anxiety and depression but not enough to stop him attending a Singles Club, looking after himself, driving, shopping and attending to his household administration. His claim that he is too depressed to see his grandchildren is highly unlikely to be true and it is rather more likely that he is estranged from his family, has few friends, no source of fun or interest in his life, with chronically poor social supports or life goals, poor self esteem, generalised anger and general unhappiness. I do not think this man is suffering from any degree of psychiatric disorder that may be attributable to the alleged Comcar incident of 16/09/1988.
…
If one accepts that this man suffered from a Major Depressive Disorder of moderate severity in 2004, then he could be said to be now suffering from a chronic Major Depressive Disorder of moderate severity in partial remission. I do not believe that quite describes this gentleman’s psychiatric condition. He is almost ostentatious in his abnormal illness behaviour and certainly suffers some degree of sadness, unhappiness, anxiety and distress and therefore could be said to suffer from chronic fluctuating anxiety and depression which could be best described as a chronic Adjustment Disorder with mixed anxiety and depressed mood. Although that is the diagnosis I would offer for him at present, it is somewhat misleading as it suggests there was some specific event to which this gentleman has had difficulty adjusting. He has had a long history of invalidism, claimed pain and has lost his recreational activities, his social supports, his family, his friends and his interest in life. That is the condition to which he has to adjust but which he has also caused himself. I do not believe that his psychiatric disorder such as it is, is attributable to the Comcar incident or any other specific incident. He is so unpersuasive, manipulative, evasive, angry and almost theatrical at times in his presentation with a significant degree of sensitivity (as indicated in the Calabria comment) it is somewhat difficult to know what to believe from this man’s vague history, and although I accept he may have a chronic orthopaedic condition with some degree of chronic pain, it is likely that personality factors and his current life situation with perhaps a cultural overlay are the main cause of his current psychiatric symptomatology whatever one may believe those to be. He has received little formal psychiatric treatment over the years, appears to have seen Kay McCashney, the psychologist, on several occasions in the early 1990s and saw the psychiatrist, Joan Finch (sic), once. He says he has tried anti-depressants which only cause drowsiness and the lack of any improvement in his claimed symptoms probably reflects personality and social factors rather than some form of treatment resistant depression. It is possible he did suffer a Major Depressive Disorder four years ago but that is not now how he presents, which is a very different picture to that of a genuine chronic severe Depressive Disorder.
…
… I believe that the precise cause of his current psychiatric condition is his personality, social factors and his current difficult situation in life having isolated himself from his family and friends. He did make some attempt to attend a Singles Club twelve months ago but was embarrassed at having to explain the situation. I should add that he refused to fill in Beck Depression Inventory or a Spielberger Trait Anxiety Inventory as he said he could not answer the questions, although he spoke English quite adequately.
…
I do not believe his current psychiatric condition was caused by his employment with Comcar. It is reasonable to believe he may have suffered some degree of depression or anxiety with his claimed injuries and pain at the time but I do not believe that is now the case for the reasons explained above.
…” (Exhibit R9)
41. In his oral evidence Dr McCarthy adhered to, and reiterated, the comments and opinions expressed in his abovementioned report.
Additional medical evidence
42. Clinical notes of the applicant’s general practitioners (including Dr Bateman and Dr McCorkill), in respect of the applicant, for the period from 1976 to 2006 were tendered in evidence (Exhibit R11). The Tribunal notes, in particular, the following relevant clinical notes:
· 16 September 1988:
“DOA 16/9/88
Orderly lifting patient from car and he had to bend down quickly to helpà sudden pain mid dorsal – lumbar spine – weak legs R>LO/E Dorsal/lumbar strain”;
· 23 September 1988:
“Still some pain mid thoracic and pain lumbar spine”;
· 29 September 1988:
“Slight improvement. Keeps up physio each day. Avoid lifting continue with physio”;
· 27 October 1988
“Back
Neck(sic) improved a little.Physio finished at moment”;
· 3 April 1989:
“Since doing office duties pain now at root of neck (L) à shoulder (L) arm à (L) scapula.
Xray.”
43. An X-ray report relating to the applicant’s cervical spine, which appears in the abovementioned clinical notes immediately after the note of 3 April 1989, states:
“Comparison is made with films dated 30.7.87. Again an old soundly united interbody fusion is seen at 5/6 with some residual posterior osteophytic protrusion into the spinal canal and lateral osteophytic protrusion into the C6 foramina. No change is seen at this level.
Mild to moderate disc degeneration is seen at 6/7 with relatively small posterior and moderate anterior osteophytes. There is no encroachment into the C7 neural foramina and little change is identifiable since the last examination.
…”
44. A workers’ compensation “Progress/Fitness Medical Certificate” issued by Dr Bateman on 24 April 1989 states:
“Since 29/9/88 he has been seen 27/10/88 and then 3/4/89 when back had improved a little but pain had gone up from mid thoracic region to include lower neck and (L) shoulder. He has been seen on 3/4/89, 11/4/89, 18/4/89, 24/4/89.” (T8)
45. Dr Bateman’s letter, dated 11 April 1989, referring the applicant to Mr Stokes, states:
“…
He was lifting patient from a car 16/9/88 à developed sudden mid dorsal pain and then numbness down to (L) arm.” (Exhibit R7)
46. A report of Dr Peter Hollingworth, a specialist in occupational medicine, to the respondent, dated 23 January 1995, refers, inter alia, to the COMCAR incident of September 1988 and the applicant’s neck condition as follows:
“Thank you for referring Mr Panetta who was seen by me on 20.1.95.
…
On that day he had taken a patient to a dentist and had taken an orderly along as well to assist with the transfer of the patient. He said he saw the patient was slipping out of the orderly’s grasp and so went to help. In so doing, he ended up losing his balance and ended up with one foot on the kerb and one on the road. So Mr Panetta never took the patient’s full weight and it was only assisting the orderly.
He said he developed a headache straight away and went to his GP, but kept at work because he was one of the best drivers that Comcar had and was the keenest, always putting in overtime, always obliging. He again could not give me any details as to the time frame, but he said that he later developed pins and needles in the thumb and index and part of the middle finger. He said this was nerve damage and all his head and neck movements would aggravate this and send pain down the fingers. He was referred to Mr Stokes and had an EMG. The EMG showed a mild C6-7 radiculopathy of indeterminate age, in other words they were unable to say whether this had existed long before this so-called minor incident in September of 1988.
…
It would be difficult to say what symptoms actually genuinely occurred because of the assistance which he gave to the orderly who was transferring the patient, or whether these are in fact due to the underlying degeneration which he had already had of sufficient severity to warrant surgery a few years previously.
…” (T116)
47. A report of Dr Andrew Marsden, Occupational Physician, to the respondent, dated 20 August 1996, refers, inter alia, to the COMCAR incident of September 1988 and the applicant’s neck conditions as follows:
“Thank you for your letter of the 22 July 1996 asking me to review Peter Panetta, who came to see me on the 16 August 1996. Thank you for the enclosures to your letter which included a whole series of reports raised by the various specialists to whom he has been referred and these have all been carefully reviewed.
…
He said that on the 16 September 1988 he had to pick up a patient at an old people’s home, in order to take the patient to a dental appointment. He said the patient was a large man who was brought to the car in a wheelchair. He said the person was significantly disabled and he said that he would not be able to take this patient on his own as he would not be able to undertake the transfer at the other end. He said that the orderly agreed to come with him in the vehicle to assist with the transfer of the patient to the dental surgery. He said that the orderly helped him place the patient in the car and then when they reached the dentist the orderly helped him get the man out of the car. He said he was holding the patient particularly on his left arm, and as they were lifting the patient out, the patient twisted, and he was hit over the left side of his head by the patient. He said that he ‘copped the patient’s weight’ as the orderly went off balance.
He said that he suffered a headache and low back pain and also pain across both shoulder muscular groups. He said that he called in to advise Comcar supervision that he had had this incident and he was not prepared to wait for the patient to pick him up after the dental consultation. He said that he took some Panadol and went to see his local medical practitioner. He was advised that he had a probable simple strain of his neck and lower back, and he said that he continued to work. He said that he had occasional “twinges” around his left shoulder blade area and some low back pain. He said that gradually his condition deteriorated, and he started having paraesthesia in his thumb, index and middle fingers on his left hand. He said that he did however continue to work in his full normal duties for several months. This included all the necessary driving and presumably assisting patients in and out of the vehicle as well as handling the luggage of his various passengers in and out of the boot of the vehicle as required. Eventually he saw his local medical practitioner again and said he was referred to Mr Bryant Stokes, Consultant Neurosurgeon. He was sent for an EMG study, and was found to have nerve root interference.
…
Mr Panetta has a previous history prior to this injury of a significant neck strain injury leading to a fusion at the C5-6 level in approximately 1979. He has subsequently had a further injury leading ultimately to a fusion at the C6-7 level under the care of the same neurosurgeon. It is quite clear that he has become generally physically deconditioned and by his own admission spends most of his time sitting about watching television. He has been through various phases of depression.
…” (T141)
48. A report of Mr Philip Hardcastle, Consultant Orthopaedic Surgeon, to the respondent, dated 14 November 2003, refers, inter alia, to the COMCAR incident of September 1988 and the applicant’s neck condition as follows:
“…
Mechanism of Alleged Injury/Sequence of Events:
Mr Panetta told me that on 16 September 1988 he went to pick up a patient from the Home of Peace in Subiaco who was placed in the vehicle by an orderly and driven for an appointment in Subiaco and the orderly took him out of the vehicle. He was standing behind the orderly who was lifting him out and as the orderly swung the patient around, he was struck around the neck and shoulder region. The orderly seemed to have difficulty in getting a better grip on this particular patient so he reached forward to support the patient’s leg. He could not specifically recall the details but said that he was off balance with one leg on the footpath and the other on the road. He recalled developing a sudden, severe pain in his cervical spine as well as a headache and some dorsal pain.
He radioed back to work and he was not exactly sure what occurred then but consulted a medical practitioner shortly afterwards.
He denied any previous problems with his low back although he had some previous neck symptoms of a mild intermittent nature following his previous cervical injury and subsequent surgery.
Initial/Early Treatment Received:
He said that he continued working with some improvement in his symptoms but then he began to notice pins and needles radiating down his left arm in early 1989 and he ceased work as a result of this and his neck pain and went off work.
…
SUMMARY AND ASSESSMENT:
Mr Panetta has longstanding degenerative disease involving his cervical and lumbar spine. The mechanism of injury as described in trying to help support a patient could have caused a minor soft tissue injury to his cervical spine with the sudden onset of immediate neck pain and headaches as described.
…
I would have expected from the mechanism of injury that any injury to his neck would have been relatively minor and would have settled. The situation is complicated though by longstanding pre-existing neck problems including having a fusion.
Certainly the radiological investigations demonstrate multi-level degenerative changes over a wide number of segments above and below this particular fusion.
…
I would only consider one third of his cervical disability related to his work injury as described. Certainly it is no more than this and if anything perhaps slightly less.
I would apportion two thirds to the pre-existing degenerative condition and spinal fusion at C5/6 for the cervical spine.
…” (T249)
Analysis
Is the respondent liable to pay compensation to the applicant in respect of his neck condition?
49. It is common ground that the applicant suffers from a neck condition. The matter in dispute is whether that condition is causally related to his employment with COMCAR. The applicant’s case in short, is that he sustained an injury to his neck in the COMAR incident on 16 September 1988 and he has thereafter suffered, and continues to suffer, pain symptoms in his neck as a result of that injury, and that, accordingly, he is entitled to compensation under the SRC Act in respect of that injury.
50. The applicant chiefly relies, in support of the proposition that there is a causal relationship between the COMCAR incident of September 1988 and his subsequent ongoing neck ailment, on the evidence of Mr Bryant Stokes. Mr Stokes initially expressed such an opinion in his report of 10 May 1989 and he reiterated that opinion in his most recent report, dated 27 November 2007, and in his oral evidence.
51. It is self-evident, however, that the validity of Mr Stokes’ opinion is largely dependent upon the truth and accuracy of the history, regarding the COMCAR incident and the onset of neck pain, on the basis of which he formed that opinion. Mr Stokes’ account of that history was somewhat brief, namely:
· in his report of 10 May 1989:
“…he was suddenly called upon to support a patient who he thought was falling after being unloaded from a Commonwealth car of which he was the driver and he got a twisting injury to his neck…”
·in his report of 27 November 2007:
“… he was supporting a heavy patient, with an orderly, getting out of the vehicle and in doing so he had a wrenching movement to his neck which resulted in continuing neck pain.”
· in his oral evidence:
“… he was assisting a patient in the course of his duties and there was an orderly and he slipped with his foot on the kerbing and he twisted his neck as he tried to support the patient…”
52. The applicant’s own evidence regarding the circumstances of the COMCAR incident of September 1988 and the onset of his, inter alia neck pain is contained in paras 43 and 45 of his Outline of Evidence and in his oral evidence. The Tribunal, having carefully considered that evidence in the context of the whole of the evidence before it, regards the applicant’s account of the circumstances of his sustaining a neck injury in the COMCAR incident as implausible and it does not accept that evidence. In this connection the Tribunal notes that it did not have a favourable impression of the applicant as a witness in that he appeared to be evasive, argumentative and lacking in candour when giving evidence in cross-examination.
53. In seeking to satisfy itself regarding the existence of any relationship between the COMCAR incident and the applicant’s neck condition, the Tribunal regards it as appropriate to place great weight on the contemporaneous documentary material which is in evidence – in particular, the clinical notes made by the applicant’s treating general practitioner, Dr Bateman, who examined the applicant shortly after the incident on the same day, and the workers’ compensation medical certificates issued by Dr Bateman on that day and in the period commencing immediately thereafter.
54. The Tribunal notes that Dr Bateman’s clinical notes of 16 September 1988 (the day of the incident), 23 September 1988 and 29 September 1988 refer to pain in the mid dorsal (or mid thoracic) and lumbar spine but make no reference to the neck or the cervical spine, and medical certificates issued by Dr Bateman on 16 September 1988 and 29 September 1988 likewise refer to low back pain, dorsal and lumbar strain, and back strain but make no reference to the neck or the cervical spine.
55. The Tribunal also notes that in the initial compensation claim form dated 30 September 1988 the applicant referred only to an injury to his “back and shoulders” sustained on 16 September 1988, and the accompanying witness statement dated 26 September 1988 (by the orderly involved in the COMCAR incident), in describing what the applicant “appeared to be suffering from”, referred only to “back pain” (T5, p30).
56. Another contemporaneous document to which the Tribunal attaches substantial weight is the superannuation questionnaire form completed by the applicant and a Commonwealth Medical Officer in January 1989 (approximately 4 months after the COMCAR incident) in which reference is made to the applicant’s having suffered lower back pain and dorsal pain in the COMCAR incident of September 1988 but no reference is made to his having suffered neck or cervical spine pain in that incident (although reference is made to his having suffered a neck injury in 1978 and having had a cervical fusion in 1980).
57. The Tribunal notes that the first reference to neck pain in the contemporaneous documentary material appears in Dr Bateman’s clinical note of 3 April 1989 in which it is recorded that the applicant, “since doing office duties”, was then suffering pain at the “root” of his neck on the left side. There is, however, no reference in that clinical note to the COMCAR incident of September 1988, although subsequent workers’ compensation medical certificates issued by Dr Bateman and Dr McCoskill, in relation to the COMCAR incident of September 1988, have consistently referred to, inter alia, neck pain.
58. It is clear, on the basis of the medical evidence before the Tribunal, that the applicant has had ongoing neck problems since 1978 when he suffered a neck injury in the course of his employment with Sign Supplies. That evidence – in particular, the clinical notes of the applicant’s general practitioner, Dr Bateman (Exhibit R11) –indicates that:
·in January 1980 the applicant underwent a cervical fusion operation at the C5/6 segment;
·in October 1983 the applicant suffered neck pain and back pain in a motor vehicle accident involving a “runaway car” and a subsequent x-ray of his cervical spine showed a successful spinal fusion at C5/6 and some degenerative disease affecting the C4/5 and C6/7 discs;
·the applicant continued to complain of, inter alia, neck pain throughout the period 1984-1987;
·in July 1987 an x-ray of the applicant’s cervical spine was taken (the report of which is not in evidence);
·in April 1989 the applicant complained of neck pain “since doing office duties” and a subsequent x-ray of his cervical spine showed that, since the last x-ray of 30 July 1987, there had been “no change” at the C5/6 level and “little change” at the C6/7 level where there was “mild to moderate disc degeneration”;
·in June 1989 the applicant underwent a cervical fusion operation at the C6/7 segment;
·the applicant has thereafter continued to complain of ongoing neck pain.
59. Having regard to the whole of the evidence before it, the Tribunal is not satisfied that the applicant suffered an injury to his neck, or an aggravation of his pre-existing degenerative neck condition, in the COMCAR incident of September 1988; nor is the Tribunal satisfied that that incident has made any contribution to his subsequent ongoing neck pain. On the contrary, the Tribunal is satisfied that the applicant’s neck condition and neck pain are entirely due to the degeneration of his cervical spine which was in existence long before the COMCAR incident of September 1988 and which may have been precipitated by the neck injury which he suffered in 1978 and aggravated by the motor vehicle accident in which he was involved in 1983.
60. With respect to the opinion of Mr Stokes that there is a causal relationship between the COMCAR incident of September 1988 and the applicant’s subsequent ongoing neck pain, the Tribunal does not accept that the relevant history obtained by Mr Stokes, on the basis of which he formed that opinion, is true and accurate. In particular, the Tribunal is not satisfied that the applicant:
·suffered a “twisting injury to his neck” (as recorded by Mr Stokes in his report of 10 May 1989); or
·“had a wrenching movement to his neck” (as recorded by Mr Stokes in his report of 27 November 2007); or
· “twisted his neck” (as stated by Mr Stokes in his oral evidence); or
· suffered any trauma to his neck;
in the COMCAR incident of September 1988. Accordingly, the Tribunal has given little weight to Mr Stokes’ evidence and (as stated above) great weight to the contemporaneous medical records (including, in particular, the treating general practitioner’s clinical notes) in concluding that it is not satisfied that there is a causal relationship between the COMCAR incident of September 1988 and the applicant’s subsequent ongoing neck pain. The Tribunal notes that that conclusion accords with the evidence of Dr Rosenthal.
61. The Tribunal notes that, on 3 April 1989, the applicant complained to Dr Bateman of neck pain “since doing office duties” (in the course of his employment with COMCAR) (see paragraph 42 above). There is, however, no evidence before the Tribunal that those employment duties aggravated, or contributed in a material degree to the aggravation of, the applicant’s pre-existing neck condition.
62. Accordingly, the Tribunal concludes that the respondent is not liable under the SRC Act to pay compensation to the applicant in respect of his neck condition.
Is the respondent liable to pay compensation to the applicant in respect of a psychiatric condition?
63. There is a difference of opinion between the two psychiatrists, who provided reports and gave oral evidence in this matter, as to whether the applicant is suffering from a recognised psychiatric disorder and, if so, the appropriate diagnosis of that disorder. Dr Fitch was unequivocally of the opinion that the applicant is suffering from major depressive disorder. Dr McCarthy, on the other hand, appeared to be of the opinion that the applicant presented to him as depressed, anxious and angry but not as suffering from major depressive disorder or any other recognised psychiatric disorder other than, perhaps, a “chronic adjustment disorder with mixed anxiety and depressed mood.”
64. There is, furthermore, a clear difference of opinion between Dr Fitch and Dr McCarthy regarding the existence of a causal relationship between the applicant’s psychiatric condition and the COMCAR incident of September 1988. Whereas Dr Fitch opined that such a causal relationship exists, Dr McCarthy opined that there is no such causal relationship.
65. Dr Fitch saw the applicant on 3 occasions, namely, on 12 March 2004, 23 April 2007 and 13 March 2008. Having carefully considered Dr Fitch’s reports of 22 March 2004 and 27 April 2007 and her oral evidence, the Tribunal is satisfied that she was able to develop a very good rapport with the applicant and was accordingly in a position to conduct a constructive examination of the applicant and to make an accurate assessment of his mental state, and to express a properly informed and valid opinion regarding the cause or causes of his psychiatric condition, and, in particular, the existence or non-existence of a causal relationship between his psychiatric condition and the COMCAR incident of September 1988.
66. Dr McCarthy saw the applicant on one occasion, namely, on 15 January 2007. Having carefully considered Dr McCarthy’s report of 15 January 2007 and his oral evidence, it seems to the Tribunal that Dr McCarthy, despite his professional expertise, failed to develop a rapport or, indeed, any form of constructive relationship with the applicant. In those circumstances Dr McCarthy was, in the Tribunal’s opinion, not well placed to elicit from the applicant all the information necessary for him to make an accurate assessment of the applicant’s mental state and to form a valid opinion regarding the cause or causes of his psychiatric condition.
67. Accordingly, the Tribunal attaches much greater weight to the reports and evidence of Dr Fitch than it attaches to the report and evidence of Dr McCarthy.
68. In the Tribunal’s opinion, Dr Fitch provided, in her reports, a cogent basis for her diagnosis of major depressive disorder in the applicant’s case, and the Tribunal accepts her diagnosis.
69. The Tribunal finds, therefore, that, the applicant suffers from a psychiatric disorder, namely, major depressive disorder.
70. As regards the cause or causes of the applicant’s major depressive disorder, the Tribunal accepts Dr Fitch’s evidence that the applicant’s major depressive disorder is directly attributable or directly related to the “chronic pain” and “loss of occupational role” suffered by him by reason of the COMCAR incident of September 1988. The Tribunal also accepts Dr Fitch’s evidence that the chronic pain suffered by the applicant, which contributed to his contracting major depressive disorder, included back pain resulting from the back injury which he suffered in the COMCAR incident of September 1988.
71. Accordingly, the Tribunal finds that a significant factor which contributed to the applicant’s contracting major depressive disorder was the chronic back pain suffered by him as a result of the back injury which, it is common ground, he sustained in the COMCAR incident of September 1988. The Tribunal finds, therefore, that the applicant’s major depressive disorder was contributed to in a material degree by his employment by the Commonwealth and is, accordingly, an “injury” (being a “disease”), as defined in s4(1) of the SRC Act. The Tribunal further finds that the applicant’s psychiatric “injury” has resulted in “impairment”, within the meaning of s14(1) of the SRC Act.
72. Accordingly, the Tribunal concludes that the respondent is liable under s14(1) of the SRC to pay compensation to the applicant in accordance with that Act in respect of his psychiatric condition, namely, major depressive disorder.
Decision
73. For the above reasons, the Tribunal sets aside the reviewable decision of the respondent, dated 4 October 2006, and, in substitution therefor, decides that:
·the respondent is not liable to pay compensation under the SRC Act to the applicant in respect of his neck condition;
·the respondent is liable under s14(1) of the SRC Act to pay compensation to the applicant in accordance with that Act in respect of his psychiatric condition, namely, major depressive disorder.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr P A Staer, Member
Signed: ..................[sgd Jason Lim].........................
AssociateDates of Hearing 17-19 March 2008
Date of Decision 30 May 2008
Advocate for the Applicant Mr C Prast
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr B Dubé
Solicitor for the Respondent Australian Government Solicitor
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