Paxman and Comcare
[2011] AATA 703
•11 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 703
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2007/4434
GENERAL ADMINISTRATIVE DIVISION ) 2008/5654 Re SHEONA PAXMAN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms Regina Perton, Member
Dr Roslyn Blakley, MemberDate11 October 2011
PlaceMelbourne
Decision The Tribunal affirms the decisions under review.
[sgd] Regina Perton
Member
COMPENSATION – physical and psychiatric conditions – previously accepted conditions – whether ongoing health conditions still work related
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14, 16, 19, 29
REASONS FOR DECISION
11 October 2011 Ms Regina Perton, Member
Dr Roslyn Blakley, Member1. Sheona Paxman worked for Commonwealth agencies from the mid-1990s onwards. She suffered a number of workplace injuries, which Comcare accepted as compensable. The most recent injury occurred in 2000, resulting in an accepted claim for neck and lower back pain. In 2006 Comcare accepted liability for a claim for an adjustment disorder.
2. Comcare paid Ms Paxman’s medical, household and other expenses until 18 July 2008; when it determined that it was no longer liable for the payments because Ms Paxman’s health issues were no longer attributable to the workplace injuries. Ms Paxman requested a reconsideration of that determination on 23 July 2008. Comcare affirmed the initial determination on 9 October 2008. Ms Paxman lodged an application with the Tribunal on 9 December 2008 (Application number 2008/5654). She believes that her current medical conditions remain related to her workplace injuries and that Comcare should continue to pay for related expenses.
3. Ms Paxman sought funding for lapband surgery in December 2006 on the basis that weight gain was attributable to her workplace injuries. Comcare refused the request on 8 January 2007 and affirmed this determination on review on 17 August 2007. Ms Paxman lodged an application with the Tribunal on 5 September 2007 (2007/4434). In late March 2011 Ms Paxman advised the Tribunal that she had undergone the surgery through the public health system. She stated that she therefore no longer wished to seek funding from Comcare for the surgery. On that basis, the Tribunal does not need to consider the evidence and issues arising from that application for review.
4. The issue for the Tribunal is whether Ms Paxman’s current health issues are still attributable to her workplace injuries.
LEGISLATIVE BACKGROUND
5. Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides for compensation for injuries:
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.
6. Section 5A(1) of the SRC Act provides a definition of injury:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
…
7. Section 16 of the SRC Act concerns medical expenses:
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
…
8. Section 19 of the SRC Act provides for compensation payments for incapacitated employees.
9. Section 29 of the SRC Act provides for payment of household services to an injured employee. There are a number of factors considered in deciding whether a person is eligible for those payments.
MS PAXMAN’S HEALTH, INJURIES AND DISABILITIES
10. Ms Paxman’s first reported workplace injury occurred in the mid-1980s when she worked for Leader Newspapers. She bent over to pick something up and experienced a sharp back pain. She subsequently found she could not move properly. She sought medical assistance and then spent some two weeks lying down. Physiotherapy and the prescription of anti-inflammatory medical medication were recommended. It appears that it took Ms Paxman some months to recover.
11. 0n 28 August 1995 while employed with the Department of Defence in South Australia, Ms Paxman lodged a claim for compensation for depression/anxiety. She stated in her claim that she had suffered from the condition since April or May 1995 and that it resulted from work pressures and a failure to obtain an interview for a position that may have resulted in a promotion. Ms Paxman alleged that she had been discriminated against on the basis of an incorrect presumption about her marital status and/or her gender. Ms Paxman was hospitalised for a time. Liability was accepted for her condition until 15 September 1997.
12. On 7 December 1995 Ms Paxman lodged a claim for compensation for a jarred back. The injury arose from an incident on 30 November 1995 when her foot slid along a painted white line on a road and fell, exacerbating her lower back complaint. She was still working for the Department of Defence at that time. Comcare accepted liability until 26 August 1997.
13. On 15 June 1998, while working in a call centre for Centrelink to which she had transferred in late 1997, Ms Paxman submitted a claim for strain causing pain to shoulders and neck, also causing severe headaches. Ms Paxman stated that the condition had arisen as the result of sitting in an unsuitable chair at work. Comcare accepted liability for an injury described as muscular and postural strain of cervical spine musculature and shoulder girdles dating back to 21 May 1998 (later amended to 2 April 1998).
14. Ms Paxman left Centrelink for the Australian Taxation Office (ATO) in late 1999. On 13 December 1999 Comcare determined to continue to accept liability for neck sprain until 31 January 2000.
15. On 31 July 2000 Ms Paxman lodged a claim for compensation for flare up of neck and lower back pain, which was the result of picking up an ATO supplied back pack and putting it on her back on 5 January 2000. She stated she was experiencing pain to neck, shoulder, upper and lower back, referred pain down legs and left arm. On 2 August 2000 Comcare accepted liability for aggravation of neck sprain and aggravation of and lumbar sprain. Ms Paxman claimed, and received payment for home help, the hire of a treadmill and gymnasium memberships over subsequent years. Comcare reimbursed her for prescribed medication, equipment assisting her independent living and other treatment including physiotherapy.
16. On 10 September 2001 Ms Paxman underwent a decompressive L5 laminectomy designed to eliminate sciatica.
17. On 22 October 2002 Ms Paxman commenced a gradual return to work program, initially working two hours per day on three days per week. At that stage she had been out of the workplace for some 18 months. By early 2003 she was working three hours per day on three days per week.
18. In February 2004 Ms Paxman was admitted to the Victoria Clinic as a funded inpatient, to allow for a possible change to her many medications. The following month, she was admitted to Knox Private Hospital after taking an overdose of medication but discharged a day later following treatment.
19. On 28 June 2004 Ms Paxman resumed her return to work program, initially working four hours per day on three days a week and then reducing that to three hours on each of the three days. By February 2005 Ms Paxman had been cleared to work almost full-time on 3 days a week and could manage approximately six hours per day. Her work station was set up to accommodate her health issues.
20. In March 2005 Comcare funded Ms Paxman’s attendance at a 5-week course in pain management at the Victorian Rehabilitation Centre, which she completed in May 2005. In October 2005 approval was sought from Comcare for a 10-day inpatient stay at Delmont Private Hospital to monitor Ms Paxman’s mental state. Subsequently, Comcare gave approval for Ms Paxman to continue as an outpatient there.
21. On 4 December 2005 Ms Paxman wrote to Comcare claiming compensation for severe depression as a result of her chronic back pain.
22. On 10 February 2006 Ms Paxman was hospitalised at the Delmont Private Hospital following a deterioration in her condition. She remained an in-patient for some four weeks.
23. On 21 June 2006 Comcare accepted liability for a secondary condition described as adjustment disorder with associated disturbances of emotion and conduct.
24. Ms Paxman was diagnosed with multiple sclerosis during 2006. Ms Paxman said that she experiences symptoms of that disease intermittently. She does not see a specialist regularly for that condition.
25. Comcare received a report dated 25 February 2008 from Dr Tony M Kostos, rheumatologist, whose opinion was that Ms Paxman’s problems related to a chronic pain state. Dr Kostos stated that there was no evidence of a local problem in any part of Ms Paxman’s spine. It was his view that Ms Paxman’s psychiatric status was a significant cause of her incapacity. On 8 April 2008 Comcare wrote to Ms Paxman to advise her that its analysis of the contemporary medical evidence indicated that she no longer suffered from the effects of her compensated workplace injuries.
26. On 18 July 2008 Comcare issued a determination stating that it had no present liability under sections 16, 19 and 29 of the SRC Act.
27. Ms Paxman is no longer working having been superannuated from the public sector on the basis that her health precludes her from continuing to work.
The Medical Evidence
28. Dr Yvonne Greenberg, a psychiatrist, provided a report dated 3 June 2009 at the respondent’s request and gave oral evidence at the Tribunal hearing. Dr Greenberg provided a comprehensive history of Ms Paxman’s employment, personal and medical history based on reports by and records of previous health practitioners and her interview of Ms Paxman. Dr Greenberg, in giving her diagnosis and opinion, stated:
Ms Paxman now appears to be grossly dysfunctional, unproductive, and dependent on horrendous quantities of medication, both analgesics, psychotropics and drugs to offset the side effects of her analgesics etc. She also receives an enormous amount of clinical care from medical, psychiatric and psychological practitioners and hands on remedial people.
Perusal of her general practitioner notes from 1984 onwards show that she has had a multitude of illnesses not related to work injuries either at Leader newspapers or at any of the Commonwealth government departments….
She had behaviour problems as a teenager. She played truant from school in year 11 and did not complete her education. She reports an abusive childhood...
The clinical course and her response or lack of response to treatment cannot be explained simply on the basis of a depressive illness or clinical anxiety.
In my opinion Ms Paxman now has a somatoform disorder with chronic pain as a predominant feature. Her current state is superimposed on personality factors with probable unmet needs or intrapsychic problems which are either constitutional or derived from her problematic early life….
There is a vast literature of somatoform disorders and somatization syndromes. These diagnostic labels are defined in the DSM4. Somatizing behaviours can occur in people with psychiatric co-morbidities and/or personality problems. Sufferers commonly have very caring relatives and choose carers who are supportive. They often take multiple medications without benefit and frequently have difficult early lives where they are deprived of the caring they need and sometimes histories of abuse.
I think it makes sense that episodes of injury, suffering or disappointment could cause exacerbation of unwellness in Ms Paxman. This phenomenon has been well described in somatizers as a whole.
29. Dr Greenberg pointed out that Ms Paxman had told many interviewers that she had no past history of psychiatric illness and that she had a satisfactory early life. She noted that other assessors had elicited contrary information.
30. Dr Greenberg maintained her opinion of Ms Paxman’s psychiatric condition in oral evidence, namely that her current condition was not due to a workplace injury.
31. Dr Tony Kostos gave oral evidence in which he maintained the view given in his report of 25 February 2008, namely that Ms Paxman’s experience of pain was not due to an ongoing problem with her back as the result of her workplace injuries. In particular, Dr Kostos was firmly of the opinion that Ms Paxman’s current problems were not related to her employment with the ATO. In his report, which followed an examination five days earlier, Dr Kostos stated:
It would appear as though this woman did develop left-sided sciatica at some stage because this was successfully treated by her lumbar surgery.
However it is quite apparent the rest of her problems relate to a chronic pain state and I don’t believe there is any evidence of a local problem in any part of her spine.
32. In his oral evidence, Dr Kostos expressed his concern about the number of medications Ms Paxman is taking and the side-effects that commonly result. He went on to state:
I don’t believe that the Applicant requires any further treatment for her back and apart from surgery she has had excessive treatments in the past which really haven’t made any difference to her.
...
I also note that her treating doctors were very confident that she had discogenic pain, but this was excluded by her normal discograms.
Therefore I don’t believe that the Applicant requires any further treatment for her back other than to be reassured that the abnormalities seen on her investigations are irrelevant to her current presentation.
…
This woman claims to be limited in all physical activities, including sitting and standing. However I think that psychiatric issues are the main determinant of her ability to return to work rather than physical factors.
From the physical point of view alone I don’t believe she is incapacitated for work but I think she would find it very difficult to work on a regular basis because of non physical factors, and in particular because of her beliefs.
Under cross examination, Dr Kostos disagreed with the opinions given by Dr S K Vallipuram, one of Ms Paxman’s treating doctors.
33. Dr Vallipuram, specialising in anaesthesia and pain management had provided a report dated 5 July 2008. He stated that he had first seen Ms Paxman in December 2005, at her general practitioner’s request, to see if he could assist her with management of her chronic pain. He provided a history of her physical injuries and noted that by August 2006, he advised Ms Paxman that she was better reviewed by her psychiatrist and he should play a secondary role in her care. He next saw Ms Paxman in February 2007, when she told him she had been diagnosed with multiple sclerosis and that her main problems at that time were ongoing depression, the multiple sclerosis and progressive weight gain. Dr Vallipuram gave the opinion that the pain experienced by Ms Paxman, was, on the balance of probabilities, due to her employment but provided a limited explanation for that view.
34. Dr Paul Kornan, consultant psychiatrist, provided a report dated 26 November 2009. He had seen Ms Paxman only once in 2006 and at that time was of the view that her psychiatric condition was secondary to the accepted injury. His final comments in his 2009 report were:
I read Dr. Greenberg’s report, and agree with her that there is a lot of pre-existing psychopathology with this woman. She has had numerous disappointments in life …In general terms, I see the bulk of her difficulties producing psychiatric symptoms as being unrelated to her actual back injuries, in the sense that one would have expected her to have psychiatric difficulties even had the back injury not occurred.
35. Dr Bernadette Trifiletti, occupational physician, provided a report dated 18 June 2008. In her clinical findings, Dr Trifiletti stated:
Ms Paxman walked with a slow steady gait with a walking stick. She was an obese woman who appeared visibly depressed. Speech was intelligible but generally slowed. She had good eye contact and rapport was established. There was no restriction of neck and spinal movement on general examination…
36. Dr Trifiletti’s assessment was:
Whilst Ms Paxman does have symptoms of chronic pain of longstanding duration and Multiple Sclerosis the overwhelming disability is associated with severe major depression which is debilitating and treatment resistant.
37. Dr George Osianlis, psychiatrist, provided a report dated 26 February 2009 to the applicant’s then solicitor. He indicated that he had been treating Ms Paxman since 9 June 2005. Dr Eva Leung, her general practitioner, had referred Ms Paxman for the management of depression. Amongst other things, Dr Osianlis stated:
Ms Paxman developed neck, shoulder and back pain as a result of a fall at work in 1996 and reinjured her back in 2000 after carrying a backpack laden with papers, tax manuals and a laptop computer. Ms Paxman has had a wide range of therapeutic interventions including medication, physiotherapy, spinal injections and spinal surgery in 2001.
Despite the above, the pain has been chronic.
As is common with chronic pain patients, Ms Paxman developed a comorbid depressive illness.
The course of her depression too has been chronic.
Prior to her back injuries and chronic pain, there had been no history of mental illness.
There is no family history to make her genetically vulnerable to depression and there are no lifestyle factors such as alcohol or drug abuse to contribute to depression.
I have diagnosed Ms Paxman with:
·Major Depressive Disorder
·Pain Disorder
In 2006 matters were complicated by the diagnosis of Multiple Sclerosis – this seems not to be affecting her functioning to any significant extent at present.
The depression and pain problems have been chronic. Ms Paxman has ongoing pain and low moods despite intensive treatments.
2006 was an annus horribilis with many hospitalisations because of her depression. Ms Paxman has a history of overdosing and suicidal ideas.
In my view, Ms Paxman has chronic injuries secondary to her work. Her prognosis for a recovery and return to her previous work is poor.
Her injuries have and continue to impact her ability to function and enjoy life. The injuries have also impacted upon her marital relationship.
In my view, Ms Paxman continues to suffer from the negative consequences of her initial physical injuries and the secondary psychiatric conditions. My opinion is that her problems are related to her work as a Public Servant, latterly at the ATO.
…
Her treatment…
…has helped her to enjoy a significant period of stability following a difficult 2006.
Despite her total and permanent incapacity regarding her work at the ATO, Ms Paxman was able to enjoy holidays, write and practise a pantomime and also allowed her to consider positive options for her future.
Treatment will be needed indefinitely.
38. Dr Peter G Smith, consultant psychiatrist, provided reports to the ATO, including a report dated 4 May 2007 [PST22, p. 56]. Dr Smith reported a five year history of moderate depressive symptomology. He was unaware of any past psychiatric history. He determined she was unfit for work.
39. The Tribunal had before it many other medical records from various hospitals and treating medical practitioners from 1995 onwards.
40. In a report dated 1 April 1998 written to Ms Paxman’s lawyer, her then general practitioner, Dr Lorraine Baker, stated that she had seen Ms Paxman (then McBain) on 31 January 1997 following her return to Melbourne from Adelaide. Dr Baker noted that Ms Paxman had a fall at work on 3 December 1995. Dr Baker noted that an MRI had shown degeneration of the L4/L5 disc space and some early degenerative changes in the L4/L5 joint. Dr Baker referred Ms Paxman to an orthopaedic surgeon and to the Arthritis Foundation for hydrotherapy. She noted that by April 1997 Ms Paxman was well. She noted that since August 1997 Ms Paxman’s depression had been in remission, on Zoloft, and associated with an improvement in her personal life. Dr Baker noted that there had been some exacerbations of back pain in December 1997 and March 1998 and that Ms Paxman had not been exercising nor had she continued hydrotherapy. Dr Baker finished her report by stating:
In my opinion Sheona suffers little or no permanent impairment for her current occupation. I believe her obesity and failure to maintain an appropriate exercise/hydrotherapy regime contribute significantly to the frequency of recurrence of back pain.
I understand that there are factors in her life which make compliance difficult, but they are not work related.
41. Records from the Glenside Hospital in South Australia indicate that Ms Paxman was admitted in July 1995 as a voluntary patient following a referral for anxiety/depression. The provisional diagnosis on 23 July 1995 was situational crisis/depression but three days later on discharge, the principal diagnosis was adjustment disorder with depressed mood. The notes indicate that Ms Paxman had been seeing her general practitioner for about six weeks in relation to work-related stress. The interview notes also indicate that Ms Paxman had received counselling in her teenage years. Ms Paxman had indicated that she had received counselling in her teens following a suicide attempt.
42. The medical records of Mr Charles Huson, who treated Ms Paxman between 2000 and 2004, provided evidence that she had a somewhat difficult childhood with considerable parental conflict. Her father, a ship’s captain, was away from home for considerable periods. She has a sister and a brother. She is not close to the brother. Ms Paxman and her sister both faced difficulties during their teenage years that had a lingering impact on them. They were not close for a while but are now. Mr Huson recorded a number of issues that Ms Paxman had at the time, which included her dealings with Comcare.
43. The differences in the opinions of medical practitioners are apparent. There is also conflicting evidence concerning the extent of Ms Paxman’s mobility and social interactions. In her initial oral evidence, Ms Paxman said that she found it difficult to walk more than 100 metres; and, in any case, she would need to stop on the way if she walked that far. She said that she did not go out often. She said that in the previous seven days, she had been out to see two doctors but nowhere else. Ms Paxman said that she occasionally visits friends or family. She and her husband visit his mother for dinner, fortnightly or monthly.
44. Asked by Comcare’s counsel if she went shopping, Ms Paxman said that her husband has done all the shopping for the previous nine years. She said that she very rarely went to the shops although she did drive to and from the chemist by herself about twice a month. Ms Paxman said that the last time she had been to a supermarket was about six months earlier with her husband. She could not recall the last time she had been to the supermarket by herself but she may have done so in January or February 2010 to buy summer fruits. She stated that her husband did probably 99 per cent of our grocery shopping.
45. In terms of home-based activities, Ms Paxman said that she made greeting cards, scrapbooks and undertook quilling. Ms Paxman is a consultant for a company called Kaszazz, which provides products and training in the craft. She created a website promoting the Kaszazz workshops she ran at her home. She agreed that she attended a Christmas in July all day workshop at her team leader’s house in late July 2010.
46. Ms Paxman said that the only domestic activity she did around the house was an occasional bit of cooking, making scrambled eggs or the like that could be made quickly. She said that she cannot stand for long. Ms Paxman said that she does not do any cleaning.
47. Ms Paxman acknowledged her involvement from 2001 to 2003 in a theatre company as creative director but said that the theatre company is no longer in existence. She said she enjoyed going to the theatre but sitting in the seats can be awkward.
48. When Comcare’s counsel asked if she remembered going to the supermarket on specified dates in late July 2010, she said it was possible. She doubted she would have been two days in a row. She later conceded that she had bought some items when she went to the Christmas in July workshop. She also conceded that she sometimes goes to the McDonald’s restaurant near her doctor’s surgery.
49. After the initial cross-examination, counsel played a DVD of covert surveillance of Ms Paxman’s activities between 21 and 28 July 2010 and provided the investigators’ notes.. Just before the DVD commenced, Ms Paxman said that, during the most recent adjournment, her husband reminded her of an accident earlier that year which had prevented him from driving for some time and she had therefore been driving him around. When asked why she had not mentioned that during earlier cross-examination, she said she had forgotten about it.
50. The surveillance footage showed Ms Paxman and her husband, who was driving, leaving home on Wednesday 21 July 2010 and travelling to various locations including a chocolate factory and a fast food outlet. Ms Paxman remained in the car for most of the time. On Thursday 22 July 2010 the investigators noted Ms Paxman leaving home in the car alone at 9.52 am to a shopping centre but surveillance was then lost. She returned home at 2.31 pm.
51. The surveillance footage showed that on Saturday 24 July 2010 Ms Paxman drove away alone from her home at 9.48 am to a supermarket. She bought some items which she carried in a shopping bag to the car. Ms Paxman then travelled to another person’s home where her car remained parked. At 4.22 pm Ms Paxman returned to her vehicle, placed items in the car and then stood conversing with another person for quite some time before driving back to the supermarket, making some purchases and then driving home.
52. The surveillance footage showed that on Sunday 25 July 2010 Ms Paxman drove away from her home at 2.38 pm to a supermarket, where she parked in a disabled parking space. She went into the store, selecting various items that required a range of movements including leaning forward and raising her arm to retrieve items. She left at 2.55 pm and drove to a fast food outlet. She went into the restaurant, had a meal and a drink and then returned home.
53. The surveillance footage showed that on Wednesday 28 July 2010 at 11.12 am Mr Paxman drove his wife to a medical clinic, with Ms Paxman using her husband as support to walk into the clinic. Upon leaving the clinic, Ms Paxman was still presenting in a restricted manner. They then drove to a McDonald’s restaurant drive-through and then headed home.
54. Soon after the Tribunal watched the DVD, the hearing was adjourned for the day. On the following morning, Ms Paxman was re-examined by her sister, who was assisting her, about the previous day’s evidence. Ms Paxman described in detail her theatre-related activities between 1999 and 2003. In relation to her Kaszazz activities she stated that she had started as a consultant in 2009 and gave details of what happened at workshops she conducted and the preparation required. Ms Paxman said that she had brought her diary with her, enabling her to now provide better details of her recent activities than she had the previous day.
55. In relation to her visits to the supermarket during the surveillance period, Ms Paxman said that she should have remembered that her husband had a motorcycle accident in April 2010 and that he shattered his shoulder and needed surgery. Ms Paxman said that he had been provided with assistance with cooking, cleaning and personal care through the Transport Accident Commission (TAC). Ms Paxman said that while her husband was in hospital and subsequently a rehabilitation facility, family members assisted her. Ms Paxman said that she visited her husband in hospital every day for the almost three weeks he was there and in rehabilitation. She said that her husband had been permitted to start driving again in July 2010.
56. Ms Paxman said that when her husband returned home, TAC-funded assistants cooked for them. She said her role was to drive her husband to the supermarket and back. He would do the shopping. She said her husband would unload the shopping with his right arm.
57. Ms Paxman said that her mother had a serious fall in mid-May 2010, with subsequent adverse health consequences. She said that she drove to visit her mother while she was in hospital and continued to visit her at a rehabilitation facility. Ms Paxman said that she had calculated the approximate distance she would need to walk to visit her mother and that it was probably 400 or 500 metres. Ms Paxman said that she is able to walk for longer than she can stand and indicated that her knees were now troublesome; which she attributed to her weight. Ms Paxman said that her doctor had suggested she walk more and rest for a time and she does so.
58. Asked by the Tribunal why her responses to questions about shopping, driving, how far she could walk and her ability to do things outside the home differed considerably from that given on previous days, Ms Paxman said it was due to her poor memory. She said that she had totally forgotten about her husband’s injury. She said that she has to rely on a telephone alarm or write lists to remember things. Ms Paxman said that she had an extremely good memory in the past. She said that she had been a champion on a national quiz program for several days and was frustrated that her memory was now so poor.
ARE MS PAXMAN’S HEALTH ISSUES STILL ATTRIBUTABLE TO THE WORKPLACE INJURIES?
59. Ms Paxman suffered the latest injury for which she received compensation more than a decade ago. Dr Kostos indicated that there is no physical evidence that the pain from which she continues to suffer is related to that injury.
60. There is consensus amongst the health professionals that Ms Paxman suffers from a psychiatric condition. However, there is no agreement as to whether this is a consequence of the physical injuries she suffered in the workplace for which Comcare had accepted liability or due mostly to a combination of other factors.
61. A number of the medical practitioners who have provided reports on Ms Paxman provided opinions on the assumption that she had no psychiatric history prior to the first back injury for which she lodged a claim with Comcare. Dr Osianlis is one of those. However, the information from Glenside Hospital and Dr Baker indicate that this is not the case.
62. Ms Paxman has now been diagnosed with other conditions that impact on her health. In 2006, she was diagnosed as suffering from multiple sclerosis and there is evidence that identification of that condition impacted on her psychiatric condition. There are also many medical reports concerning the issues she has with her weight and their impact on her.
63. The evidence obtained from surveillance of Ms Paxman indicates that either Ms Paxman’s memory is very poor or that she has a tendency to exaggerate her disabilities. Her initial evidence before the Tribunal and the descriptions she gave of her physical limitations differed to quite a degree from that viewed in the surveillance DVDs. She had told the Tribunal and Dr Greenberg (amongst others) that she is unable to go shopping and that she rarely leaves the house. However, it was subsequently revealed that this was not the case.
64. Dr Greenberg undertook a comprehensive analysis of the medical evidence and provided a detailed chronological and medical history. She gave extensive oral evidence. Dr Greenberg notes that this is a very challenging and complex case. She identified, as has the Tribunal, that there are inconsistencies in the history reported by Ms Paxman to various medical practitioners. Her diagnosis and opinion is that Ms Paxman is suffering from a somatoform disorder and somatization syndrome. She notes that Ms Paxman has had psychosocial problems of one sort or another for much of her adult life. Dr Greenberg states that Ms Paxman already had the “condition” prior to any injury on 5/1/2000.
65. In relation to the back injury, the Tribunal accepts Dr Kostos’s evidence concerning Ms Paxman’s back condition, that the cause of her pain is no longer a physical injury. Dr Trifiletti came to a similar conclusion.
66. The Tribunal prefers the objective opinions provided by Dr Greenberg and Dr Kostos to the reports provided by Ms Paxman’s treating doctors, some of which were prepared in the context of assisting Ms Paxman to obtain treatment and support through Commonwealth funding. The Tribunal notes that none of the treating doctors gave oral evidence.
67. The Tribunal is satisfied that Ms Paxman’s health injuries are no longer attributable to the workplace incidents that occurred while she was working with Commonwealth agencies.
DECISION
68. The Tribunal affirms the decisions under review.
I certify that the sixty-eight [68] preceding paragraphs are a true copy of the reasons for the decision herein of:
Ms Regina Perton, Member and Dr Roslyn Blakley, Member
Signed: ………Dianne Eva .........................
Clerk
Dates of Hearing: 19-21 October 2010
Date of Decision: 11 October 2011
Advocate for the Applicant: Self-represented (assisted by her sister)
Counsel for the Respondent: Mr B Dube
Solicitor for the Respondent: Mr R Ternes, Sparke Helmore
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