Pizzano and Comcare - [2001] AATA 32

DECISION AND REASONS FOR DECISION [2001] AATA 32

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/182, A1999/337

GENERAL ADMINISTRATIVE DIVISION       )               & A2000/228
           Re      MARIA PIZZANO
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member W.H. Eyre Air Marshal I.B. Gration AO AFC Dr C. Re

Date22 January 2001
PlaceCanberra

Decision      The Tribunal affirms all the decisions under review.
  (Signed)
  W.H. EYRE
  (Senior Member)
CATCHWORDS
COMPENSATION – motor vehicle accident February 1990 in compensable circumstances – injury to left thigh/hip originally reported and accepted – December 1990 injury claimed to have been to right thigh/hip – Tribunal finds injury was to left thigh/hip – psychiatric conditions claimed as consequence of injury to right thigh/hip and as result of fact of motor vehicle accident – PTSD diagnosed some years after psychiatric treatment commenced – conflicting expert opinion – Tribunal finds psychiatric condition not compensable
Safety Rehabilitation and Compensation Act 1988 s.24
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321

REASONS FOR DECISION

22 January 2001 Senior Member W.H. Eyre Air Marshal I.B. Gration AO AFC Dr C. Re

The applicant seeks review of reviewable decisions made by the respondent on 3 May 1999, 25 August 1999 and 16 June 2000. The decision of 3 May 1999 affirmed a decision that there was no compensable permanent impairment in respect of the applicant's right thigh and hip. The decision of 25 August 1999 affirmed a decision that there was no liability in respect of the applicant's psychiatric condition and no compensable permanent impairment in respect of her psychiatric condition. The decision of 16 June 2000 revoked decisions of the respondent that extended liability from "muscular strain L upper limb due to MVA" to "muscular strain L upper limb and R leg due to MVA" and the extension of liability from that to include the condition "meralgia paraesthetica of the right thigh and trochanteric bursitis". The reasons for that decision of 16 June 2000 were that the review officer was satisfied "… on reviewing the evidence contained in the file relating to this claim, that [the applicant's] left thigh, and not [the applicant's] right thigh or hip, was injured in the MVA on 13 February 1990. The condition of [the applicant's] right thigh appears to be unrelated to [the applicant's] employment with the Commonwealth". The review officer was satisfied that liability for the condition of the applicant's right leg should not ever have been accepted.
The Tribunal has before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), the documents tendered by the applicant (Exhibits A1-A12) and by the respondent (Exhibits R1-R41). Ms Pizzano gave evidence on oath. The Tribunal also heard oral evidence from Dr Brooks, General Practitioner, Dr Matheson, Consultant Neurosurgeon and from Dr Donsworth, Consultant Psychiatrist. Ms Pizzano was represented by Mr Pilkington and the respondent by Mr Wallace.
the injuries
There is no dispute between the parties and the Tribunal finds that on 13 February 1990, in the course of her employment by the ANU, Ms Pizzano was involved in a motor vehicle accident with another vehicle.
On 19 February 1990 Ms Pizzano lodged a claim for compensation (T3). She described the events which led to the injury (T3/7):
"Driving to Canberra Hospital to interpret for my father. Motor vehicle accident, Cnr Lennox Crossing and Lawson Cres. Leg caught under steering wheel. Left shoulder strained due to pressure to steer car & avoid light pole."
Ms Pizzano, in answer to the question on the claim form "What injury/illness are you claiming for?" wrote "Left shoulder & left leg". In answer to the next question on the claim form "What part of the body is affected?", Ms Pizzano wrote "Left shoulder & left upper leg". The medical certificate accompanying the claim form, certifying unfitness from 15 to 17 February 1990, signed by Dr Brooks of Florey Medical Centre, described the reason as "muscular strain L upper limb due to motor accident" (T3A).
On 9 April 1990 the respondent accepted liability for "muscular strain left upper limb due to MVA" (T4). On 14 December 1990 Ms Pizzano wrote to the respondent stating (T9):
"…
The letter dated 9/4/90 which Comcare sent to me did not mention that my right thigh, joint area was also injured.
I am required to provide you with a medical certificate, which I enclose to support the original statement sent to you in February.
…"

The Tribunal finds that on 12, 13 or 14 December 1990, Dr Brooks issued a further medical certificate that accompanied Ms Pizzano's letter of 14 December 1990. It is undated, but certifies unfitness from 15 to 17 February 1990 and gives the reason for unfitness as "muscular strain L upper limb & contusion R hip due to motor accident".

On 19 April 1991 Dr Brooks wrote to the respondent (T17) stating:
"…
May I say at the outset that the confusion which seems to have arisen over the settlement of the claim is due entirely to a "lapsus calami" on my behalf; namely that the left thigh was specified in my original certificate, rather than the right side, which was the area injured in the motor vehicle accident under consideration when she was first seen on 15.2.90 (sic)
This matter being now set aside, I shall attempt to answer the questions posed in your letter.
1.        Injuries sustained in an accident, stated to have occurred on 13.2.90 were:
          Strain of L shoulder girdle
          Contusion R thigh
Stated to have been in transit in normal employment.
The injuries were considered to have been consistent with the stated course and of minor degree. Active exercise was recommended.
She was next seen in relation to any symptoms referable to her accident on 12.12.90.
She complained of pain in the region of the right hip. X rays showed a small lucency in the right femoral neck but a bone scan demonstrated that this was not metabolically active.
She was referred to Dr Colin Andrews for nerve conduction studies and then to Dr KN Chandran who considered that she had no major neurological problem and that her symptoms would subside with time.
When last seen on 1.4.91, in reference to another matter, she stated that her symptoms in the right hip and leg, in addition to those in the right shoulder (sic) were negligible.
In conclusion, my prognosis is that she is unlikely to sustain any long term disability because of the accident."
On 29 April 1991 the respondent found liability for "muscular strain left upper limb due to MVA & right hip and contusion to right thigh and hip" (T17A).
On 14 May 1996 the respondent extended liability to include "meralgia paraesthetica of the right thigh and trochanteric bursitis" (T65). The respondent accepted the opinion of Dr King, Orthopaedic Surgeon, who examined Ms Pizzano at the respondent's request on 15 April 1996. Dr King's report (T54/79) states:
"…
Ms Pizzano … has, in my opinion, sustained soft tissue injuries to the region of the right hip and groin, with the subsequent development of compression neuropathy of the lateral cutaneous nerve of the thigh, a condition known as meralgia paraesthetica and also trochanteric buristis or trochanteric pain syndrome.
…"
On 2 August 1996, Ms Pizzano wrote to the respondent enclosing "a related claim from Dr Tym with explanation for treatment, and medical certificate" (T80). Dr Tym, Consultant Psychiatrist, first saw Ms Pizzano on 26 March 1993 on referral from Dr Leigh, General Practitioner. Dr Tym's initial diagnosis was Recurrent Depressive Disorder with one source of psychological stress stated to have been the motor vehicle accident on 13 February 1990. Dr Tym did not see Ms Pizzano between 26 October 1995 and 26 July 1996. In his report to the respondent dated 4 October 1996 (T96) he stated:
"…
When I saw her on 31.07.96 I concluded that the main reason (not the only reason) for much of her recurrent mental illness was a persisting:-
Post-traumatic Stress Disorder (PtSD)
1CD 10 F 43.1
The existence of this, seemingly precipitated by the motor vehicle accident on 13.02.90, and worsened by the psychological stress of two subsequent deaths – her brother's and her father's in three successive days – had been obscured previously.
…"
Dr Tym also stated that he had seen Ms Pizzano on 27 August 1996, 4 September 1996 and 18 September 1996.
"…
On the last of these occasions she was still taking:-
sertraline 200mg
temazepam 20mg
and her mental state was completely normal-for-her. She has no PtSD symptoms and no depressive disorder symptoms.
…" (Dr Tym's emphasis)
Dr Tym continued:
"Most of the turmoil in her life has now settled. She had recently moved into a new house; her husband has stopped harassing her; her three children stay with her in her new house; she is in control of a relationship with a new prospective partner; she is looking forward to returning to full work.
In my clinical judgement it is reasonable to suppose:-
1.that her time off work between 02.08.96 and 23.09.96 was mainly due to late effects of the motor vehicle accident on 13.02.90;
2.that about half the treatment meted out to her by me between 26.03.93 has been for mental illness consequent upon the motor vehicle accident on 13.02.90.
In my clinical judgement the prognosis, now, for any mental disorder remotely connected with the motor vehicle accident on 13.02.90, is excellent. There is no reason to suppose she will have any significant mental illness at all in the future as long as she remains under occasional psychiatric surveillance.
Although she still has some physical sequelae of the motor vehicle accident on 13.02.90 in my clinical judgement it is highly unlikely that they will impact on her future mental health.
The main problem, in my clinical judgement, mentally, has been the unrevealed, and hence untreated, PtSD. However, sources of psychological stress unrelated to the accident that gave rise to the PtSD continued almost unabated between 1993 and the present.
It is reasonable, in my clinical judgement, to argue that the need for continuing psychiatric surveillance from now on is unrelated to the motor vehicle accident on 13.02.90.
…" (Dr Tym's emphasis)
On 11 November 1996 the respondent determined, relying on Dr Tym's report of 4 October 1996 above, that it would "[disallow] further psychiatric treatment after 08 October, 1996" (T105). The Tribunal notes that this determination made no reference to the report of Dr Duke, Consultant Psychiatrist, who had examined Ms Pizzano at the respondent's request on 13 September 1996. Dr Duke's report dated 9 October 1996 (T98) diagnosed post-traumatic stress disorder (continuing but with diminished effects due to appropriate treatment) and recommended a graduated return to work.
On 19 January 1997 the independent review officer affirmed the decision of 11 November 1996. That decision (T121) refers to Dr Duke's report, and to the fact that Dr Duke advised he did not wish to alter or add to it having read Dr Tym's report, and to a report from Dr Knox, Consultant Psychiatrist, but was that the review officer was not satisfied that Ms Pizzano continued to suffer from a compensable diagnosable psychiatric condition. On 23 December 1998 Ms Pizzano claimed compensation for permanent impairment in respect of "Major Depressive Disorder + Residual Post Traumatic Stress Disorder" (T203). The respondent reconsidered the claims on 25 August 1999 (T215) but was not satisfied of any liability in respect of Ms Pizzano's psychiatric condition, nor specifically of any permanent impairment under Table 5.1 of the Guide. By decision dated 16 June 2000 the respondent affirmed (amongst other decisions) the decision of 25 August 1999.
applicant's submissions
The applicant's counsel acknowledges very significant difficulties, both physical and psychological, pre-dating the motor vehicle accident on 13 February 1990. The applicant submits that it was Ms Pizzano's right leg and hip, not her left leg and hip, that were injured in the motor vehicle accident and that Ms Pizzano was mistaken when she completed the claim form on 19 February 1990 where she described the injury as "Left shoulder and Left leg" and the part of body affected as "Left shoulder and Left upper leg" (T3/8). The applicant further submits that Dr Brooks, General Practitioner, was mistaken in recording in his clinical notes on 15 February 1990 that it was the applicant's left leg that was injured; a mistake that he corrected later by issuing a further medical certificate for 15 - 17 February 2000 describing the applicant as "suffering from muscular strain L upper limb & contusion R hip due to motor accident" (T9A).
The applicant contends that the medical opinion well documents an area of numbness over the right leg, that this causes difficulty walking as it gives way, resulting in falls and problems with driving as exemplified by a minor car accident in 1999 when Ms Pizzano's leg went completely numb preventing her from applying the brakes as required. The applicant contends that Ms Pizzano is unable to go up and down stairs. The applicant seeks compensation pursuant to section 24 of the Safety Rehabilitation and Compensation Act 1988 (the Act) for a permanent impairment of 20% under Table 9.5 of the Guide.
As to Ms Pizzano's psychiatric condition, Mr Pilkington acknowledges a number of traumatic events pre-dating the motor vehicle accident, but contends Ms Pizzano had coped prior to then with the assistance of some counselling. The applicant's submission is that the motor vehicle accident brought back to Ms Pizzano memories of abuse in the past. The motor vehicle accident was said to have been the precipitating event or trigger causing these previous stressors to become predominant. Later stressors also had an effect. The motor vehicle accident was said to have contributed in the past and to some extent to still contribute to rather significant impairment, namely to a permanent impairment of 40% under Table 5.1 of the Guide.
The applicant submitted that even if the Tribunal were to conclude there was no injury to the right leg in the motor vehicle accident, the applicant would still succeed on the psychiatric claim because that illness arises out of Ms Pizzano's reaction to the motor vehicle accident. That is, Ms Pizzano's claim is not predicated solely on the physical injury she received in the motor vehicle accident.
Mr Pilkington asked the Tribunal to bear in mind Ms Pizzano's significant psychiatric injury when assessing her evidence. In particular he observed, prior to examination-in-chief, that Ms Pizzano's memory of certain things was not good and he acknowledged that she had said different things on different occasions which he submitted were explicable by reason of her condition.
ms pizzano's evidence
The Tribunal observed that, when giving evidence-in-chief, Ms Pizzano was slow and paused in giving answers to questions. She was however clear in her evidence that she had asked her supervisor for an early lunch break to attend Canberra Hospital to interpret for her father. She drove down Liversidge Street approaching Canberra Hospital. Approaching a give way sign she observed two cars turning left and proceeded through the intersection. There were no cars to her right. She remembered a bang. She was unsure whether she had collided with a light pole having collided with another car. The windscreen was shattered. She did not lose consciousness. Her right leg was trapped under the steering wheel. Police, ambulance and fire brigade attended. She could not remember how she got out of the car or how long she was at the scene, but was interviewed by the police for quite a while. She could not remember who took her to the hospital, but her husband was there. At the entrance to the hospital she panicked. She could remember saying "I'm okay really. I have to go back to work or I'll lose my job. I'm on probation". She said that although she had not suffered from stuttering before, she remembers stuttering when speaking to the policeman. She said she "felt very traumatised but for some reason just wanted to go back to work". She said, in answer to how was she feeling "traumatised", that she was really concerned about her neck more so than her leg as she was worried she had "done her fusions in". Ms Pizzano explained she had undergone two fusions in 1984. She said she was very shaken up and in a lot of pain, was disoriented and not really sure where she was.
Ms Pizzano's husband had asked her whether she wanted to see a doctor, but she had said "No, I want to go back to work. I'll be fine". She could not remember her work number or who rang her work. When she returned to work she didn't do any. That night at home she felt very distressed. She was suffering pain in her left shoulder and "right smack in the groin of the right leg". She kept getting "recurrences of just hitting something", but could not work out what. She took a lot of Panadol and was sweating a lot.
Before the accident Ms Pizzano said she was a good sleeper, but has since had a lot of problems – not with going to sleep, but with being woken with chronic pain. She could not remember going to work the day after the accident, but she could remember having problems with her memory that day and it was this and another worker's advice that had prompted her to see a doctor and to put in a Workers' Compensation claim form. She said later that she had broken down and started crying that day. She went to Florey Medical Centre on 15 February 1990. She said she could not clearly remember what she had told the doctor, but had told him of a lot of problems with memory and a lot of pain in the right leg and left shoulder.
Ms Pizzano acknowledged that she had described her injury as being to her left leg on the claim form (T3) dated 19 February 1990. She said that was "not correct" but did not know why she had written "left". She acknowledged completing an incident report for her employer on 19 February 1990. This form refers to the injury "as per certificate attached". The Tribunal finds that the certificate attached was that at T3A which makes no reference to the right leg, stating only "muscular strain L upper limb due to motor accident". This is signed by Dr Brooks. Ms Pizzano was adamant in examination-in-chief that she had not injured her left leg but had injured her right.
Ms Pizzano said she had a very good memory prior to the motor vehicle accident and now had a terrible memory. She said she did not retain and remember information given to her but sometimes remembers quite a bit later. Prior to the motor vehicle accident she had paid attention to detail, but now has trouble with telephone conversations and listening to television.
Ms Pizzano told the Tribunal she had extreme pain from shoulder and stiffness, but that had now gone. She said she has extreme pain from her right leg. She explained the pain starts from the side of the right buttock, goes to the groin and extends down the side of her leg to her foot and up her foot. She experiences shooting pains and is in pain all the time. The numbness of the thigh and side of her right leg is present all the time to touch, but sometimes she cannot feel the leg at all. Last year [in 1999] a minor car accident was due to her not being able to feel her leg at all. Ms Pizzano told the Tribunal she no longer drives much though had attempted to teach her youngest daughter to drive earlier this year [in 2000]. She found "objects were flying" at her and she would tell her daughter to stop, though there was, in fact, nothing in front of them. Ms Pizzano said she no longer drives because of the pain in her right leg and because she is fearful of killing someone while driving.

Ms Pizzano told the Tribunal that prior to the motor vehicle accident she had played squash, gone running and for long walks. Now the maximum time she can walk is about 10-15 minutes. She said she does not use the steps at home but enters through the garage as she had tripped on the steps and finds them very difficult. In the 4 years she has lived in her home, she has once or twice walked up and down the hill that adjoins.
Ms Pizzano's evidence is that flashbacks of abuse started a good 2 months after the motor vehicle accident. This included a man shouting very loudly. Immediately after the motor vehicle accident she would hear a bash all the time. She could not make it out. She would see a pole and a shatter. Still she has flashbacks, the last about a month before the hearing, though she said this "was more of a nightmare" where she saw "just shatter and white". She pictures that she is struck.
Ms Pizzano said that prior to consulting Dr Tym, Consultant Psychiatrist, in March 1993, she had lengthy sessions of counselling with ANU Health Service. She could not remember what was discussed with the counsellor.
Ms Pizzano's evidence is that she cannot shop alone. In the past she had panic attacks, but now a person from Respite Care takes her shopping and assists her with that task. The children do their own grocery shopping. Ms Pizzano said she had difficulty cooking because of memory and focussing on the task problems. She said she had dropped a saucepan and burned herself. Ms Pizzano said she cooks a meal about once a month. Prior to the motor vehicle accident cooking was a pleasure for her, as was entertaining. Her appetite was previously good but now she eats to fill an emptiness.
In cross-examination, Ms Pizzano stated that her memory problems arose immediately after the motor vehicle accident and are the same now as then, but are more severe now. She said that in the first week after the motor vehicle accident her memory problems were so bad she could not do her work properly. She said she had complained about her problems to her supervisor, Wilma Russell, who had given her work to do that was different from her normal work. She said that she worked as part of a team but after the motor vehicle accident, and for a very long time thereafter, did only a minority of that work.
Mr Wallace put to Ms Pizzano that she, in fact, had no problems with memory and suggested that some of her answers demonstrated that. Ms Pizzano disagreed. She also indicated on several occasions that she did not understand Mr Wallace's questions and that he was getting her confused. As to some details from the past evident in her answers, she explained she had problems maintaining information, but there were a lot of areas she could remember.
More particularly, Ms Pizzano, when questioned about why she had described her injury on the claim form as to her left leg, said her left leg did not get injured and she got the legs mixed up when completing that form. She said she was "obviously traumatised at the time". She could not remember filling in the form and only saw it when Dr Donsworth, Consultant Psychiatrist, showed it to her.
Ms Pizzano demonstrated the pain area to the Tribunal. She said that in 1975 she had calf pain. Asked whether – apart from that – she had experienced right leg pain before the motor vehicle accident, she replied "not that sort of pain". She had lower back pain previously, but no leg pain. Asked whether she had hip/groin pain prior to the motor vehicle accident, Ms Pizzano referred to a bone graft for neck surgery but could not remember the year of that surgery. She described that pain as "just normal pain that stopped".
Ms Pizzano said she could not remember specifically asking Dr Brooks to note that her injured leg was her right leg rather than her left. She said she had gone back to see him with chronic pain. Asked whether it was for compensation, Ms Pizzano said she had gone so she could get her right leg treated by the physiotherapist. She thought Dr Brooks would know what leg had been injured as he had examined her soon after the motor vehicle accident. Asked whether she had been having physiotherapy treatment from mid February 1990 to October/November 1990 for her shoulder, Ms Pizzano replied she thought it was for both. She was clear that all through there was pain in her right leg the whole time.
Ms Pizzano reiterated that prior to the motor vehicle accident she had not suffered right leg, right hip and right groin pain. She denied that she had given up sport and an active life before the motor vehicle accident and said "I can prove that by my children". She reiterated that mental confusion had not been present before the motor vehicle accident and that she did not have, or could not remember having, sleeping problems prior to the motor vehicle accident. Asked whether she had undertaken stress management counselling before the motor vehicle accident, Ms Pizzano referred to counselling from her family priest and a counsellor from Mental Health with whom she talked about her husband's abuse.
Ms Pizzano also testified that she:

could not recall seeing Dr Sharma at the Florey Medical Centre on 15 January 1990 and could not remember telling him she was suffering from mental blocks, confusion, disorientation (compare Exhibit R10 at 15 January 1990).
could not remember complaining to him of pains in the stomach that affected her right leg, problems that were worse with her menstrual cycle (compare Exhibit R10 at 15 January 1990).
could not remember suffering back pain and pain in the legs in 1986 (compare Exhibit R10 at 19 August 1986, 21 August 1986).
could not remember going to Calvary Hospital for low back pain and right leg and sometimes left leg pain (compare Exhibit R12, 10 March 1987; Exhibit R13, diagram, March 1987; Exhibit R15, March 1988; Exhibit R16, March-April 1988).
denied having given up sport before the motor vehicle accident, notwithstanding suffering from chronic fatigue syndrome before the motor vehicle accident (compare Exhibit R9, 7 November 1989).
did not suffer from reactive depression in 1989, but was sad (compare Exhibit R9; Exhibit R41 – Dr Macfarlane to Dr Gavaghan).
could not recall seeing Dr Hillman, Gastroenterologist, in 1985 and discussing her stomach, left shoulder and depression (compare Exhibit R11).
did not believe she had sleeping problems before the motor vehicle accident (compare Exhibit R10 at 15 January 1990; 23 January 1990).

Ms Pizzano said she could not recall the details of the motor vehicle accident as she had given them to various doctors. Clearly these accounts differ. The Tribunal notes Dr King's report (T5/74): "… Ms Pizzano told me that in the course of her employment on 13 February 1990 at 11.00am under clear and dry conditions, she was the driver of a Sigma station wagon. On crossing an intersection, a collision occurred with a vehicle approaching from the right". Dr Brook, Rheumatologist, understood: "… It was a head-on collision" (T82/115). Dr Whiteford, Consultant Psychiatrist, recorded "… and Ms Pizzano said she was struck from the right when driving her car across an intersection in Liversidge Street" (T196/274). Dr Duke, Consultant Psychiatrist, recorded: "… She was struck from the left hand side by a vehicle which she thinks may have been overtaking two others which she did not see" (T98/145). It appears that Ms Pizzano described the accident as "a head on accident" to the ANU Workers' Compensation Officer on 28 August 1996 (T109/163). In her oral evidence Ms Pizzano was adamant that there had been no vehicle to her right (see paragraph 20 above) and did not suggest the collision had been head-on.
Ms Pizzano's evidence is that the only time since the motor vehicle accident she could recall being free of right hip and leg pain was when she had undergone a hysterectomy and had been given morphine. (The Tribunal notes that the hysterectomy was in July 1998). Ms Pizzano denied Mr Wallace's suggestion that in about 70 consultations between June 1991 and December 1995 she had not complained about right hip and leg problems because they were not problems. The Tribunal finds that the Florey Medical Centre notes (Exhibit R10) for 1 April 1991 state: "R leg feels OK. Shoulder OK". The next reference to the right leg – after numerous consultations – is on 12 December 1993 "Fell off stool while spring cleaning Õ LBP Õ pain down back of R lower limb".
Ms Pizzano denied she had improved markedly following Dr Tym's treatment. She told the Tribunal she did not like Dr Tym and was never comfortable with him – however, he bulk billed and for this reason, she continued to see him. Ms Pizzano said she could not remember writing to Dr Tym on 13 May 1993 telling him it was "absolutely fabulous to be feeling so normal again" and to thank him "for being so caring, patient and understanding". The letter (Exhibit R21) was however signed by the applicant. Similarly, Ms Pizzano could not recall Exhibit R22, a letter from her to Dr Leigh of the ANU Health Centre, dated 13 May 1993 stating "… counselling with Dr Tym is going very well. He had put me on … Prozac 20 … Dr Tym is a very caring man and has been a tremendous help for me. I am feeling so much better and am happy with my progress. I will continue to visit Dr Tym". Nor could Ms Pizzano recollect writing to the respondent on 20 November 1996 complaining about Dr Tym's report of 4 October 1996 (T108/160-161). She could however remember going through that report with someone – her sister, she thought – and referring to death notices she had at home to correct dates Dr Tym had given.
Ms Pizzano said she did not remember a time, including April 1994, when she had reported being "happy", "healthy", "sleeping well", "all phobias gone" and not taking any drugs. The medical notes from Florey Medical Centre (Exhibit R10 for 13 April 1994 and 29 April 1994) contain these references and for 16 July 1994 state "alone + walking + happy".
The Tribunal has not set out all Ms Pizzano's evidence, nor referred to all the documentation that is before the Tribunal that, in the Tribunal's assessment, proves various things that Ms Pizzano told the Tribunal she could not remember. The documentation also shows, in the Tribunal's considered opinion, numerous matters where Ms Pizzano has not given a consistent account to those to whom she has related events (in particular of the circumstances of the motor vehicle accident) and also shows a much more equivocal progression of the effects of that motor vehicle accident than her oral evidence would have it.
ms pizzano's credibility
The Tribunal does not believe that Ms Pizzano came to the Tribunal happy to lie about what had happened to her in order to advance her claim for compensation. Nonetheless, "credibility" is not a matter of such a narrow compass and the Tribunal must, at the end of the day, be satisfied as to the elements of entitlement under the Act, having regard to the reviewable decisions before it.
The Tribunal is conscious of Mr Pilkington's warning that patience and understanding are required in dealing with Ms Pizzano's evidence, given Ms Pizzano's difficulty in remembering what has happened and her significant psychiatric problems. The Tribunal's task is, however, to find connection between the motor vehicle accident in February 1990 and the conditions claimed to relate to that event. In the circumstances of this case, both the physical condition and the psychiatric condition claimed to be compensable turn on Ms Pizzano's accounts given to medical practitioners over the years and on her evidence to the Tribunal.
The Tribunal accepts that Ms Pizzano has had major difficulties, including of abuse as a child by her father and a brother, emotional (and early in the marriage, physical) abuse by her ex-husband and other family problems. The medical notes and Ms Pizzano's oral evidence refer also to other health problems and operations unconnected to the matter before the Tribunal. Clearly, Ms Pizzano has experienced numerous distressing events in her life and is to be sympathised with.
The matter is also complicated by the fact of conditions that predated the motor vehicle accident. In this regard, the Tribunal observes that Ms Pizzano had reported problems with her right hip area and leg prior to the motor vehicle accident (Exhibits R15 and R16 Calvary Hospital physiotherapy records of March 1988 refer to "1 year history of lumbar pain … Pain – lower back Õ R hip posterior aspect of leg … constant. Worse at night"; "Patient presented with a recurrence of back and R leg pain"; Exhibit R17 "Much improved since last … No leg pain. Slight ache in hip" and "continues to improve. Some pain in R buttock yesterday"; Exhibit R10 - On 12 December 1990 Ms Pizzano gave the doctor at the Florey Medical Centre a history of "R hip pain – 1-2 yrs"). With respect to her psychiatric health Ms Pizzano had received counselling, possible depression had been noted and anti-depressants prescribed (Tryptanol in May 1985; Dothiepin on 15 January 1990 and Prothiaden) before the motor vehicle accident. Of course entitlement does not require that a condition must have arisen for the first time by the accident or must have happened to a person with no problem in the area complained of prior to the accident.
the medical evidence relating to the physical injury
Dr Brooks' clinical notes (Exhibit R10) for 15 February 1990 originally read:
"On 13.2.90 driving car & collided with anor. Painful L shoulder and L leg.
Pain down outer side L thigh (hit by steering wheel on upper ant. thigh)
No neck pain.
O/E bruise L thigh over LCNT.
Paraesthesia over distribution of N.
Tender over L scapula elevators, rhomboids, L triceps.
…
All in keeping with wheel grip & sudden stop."
Dr Brooks altered the references to "L leg" and "L thigh" to read "R leg" and "R thigh". Dr Brooks wrote on the side of the notes: "These notes altered because incorrect side recorded on thigh". The Tribunal finds that the alteration was made on 12, 13 or most likely on 14 December 1990 (on which last occasion Dr Brooks saw Ms Pizzano and recorded "Pain in R thigh"). The Tribunal accepts Dr Brooks' evidence that he would not have made the alteration if he had been in any doubt that he had made a mistake. Nonetheless, Dr Brooks was seeing 25-30 patients a day at the time, was working 5 or 6 days a week and some 10 months had passed before the notes were amended to substitute right for left.
The Tribunal notes that Dr Brooks saw Ms Pizzano after 15 February 1990 on 10 July 1990, 14 November 1990 and 21 November 1990, but no reference was made in the notes to the injured leg or thigh. The Florey Medical Centre notes (Exhibit R10) next refer to the "R hip pain 1-2 years" on 12 December 1990, then on 13 and 14 December 1990.
Various consultations followed from the end of December 1990 in relation to the right hip and leg including with Dr Chandran, Dr Andrews, Dr Danta and Dr Brook. The Tribunal sees no need to recount all the material relating to this except to observe that Dr Morris, on referral from Dr Bobba of the Florey Medical Centre (T10/15), opined Ms Pizzano was suffering from trochanteric bursitis, but was not optimistic about the success of operating (T99/150). He operated on 10 January 1997 (T156/217) and on 23 June 1997 reported (T156/218):
"… She was to eventually come to excision of her trochanteric bursa which has largely settled this area down, but she still suffers from intermittent sciatica which is being helped with physiotherapy … I believe that Mrs Pizzano's sciatica and trochanteric bursitis were directly a result of her injury back in 1990 and the symptoms have been evident in varying degrees since that time".

(Ms Pizzano wrote to Dr Morris on 29 August 1997 asking him to reconsider "his report", which the Tribunal infers was this report, in the light of reports from Dr Brooks and Dr King, stating she had "lost her job" and was in "severe [financial] hardship". Ms Pizzano, in cross-examination, could not recall writing that letter (Exhibit R37). The Tribunal notes that Ms Pizzano accepted a voluntary redundancy offer and her employment ceased from 1 July 1997.

On 13 May 1998 Dr Morris reported to the respondent that he had further reviewed Ms Pizzano in August and November 1997. He wrote (T188/261):
"…
I think it is likely that the meralgia paraesthetica and the trochanteric bursitis that Mrs Pizzano experienced was in fact a manifestation more of her sciatic nerve irritation with irritation of branches distributing to those areas … I am not sure at this stage whether the sciatica is compensable or the trochanteric bursitis, but I believe at this time that Mrs Pizzano's predominant injury is one of sciatic nerve irritation rather than the trochanteric bursitis or meralgia paraesthetica. I think it is likely, however, that in the past Mrs Pizzano did have trochanteric bursitis probably related to the fact that she was not walking properly due to intermittent sciatic nerve irritation …
As things stand at the present time, though, I believe that Mrs Pizzano continues to suffer from sciatica and is likely to continue with that condition in the foreseeable future."
Dr Danta, Neurologist, opined on 9 February 1996 that "The patient seems to have sustained a soft tissue injury to the right hip region and now has meralgia paraesthetica, right trochanteric bursitis and backache with right sciatica" (T47/63). Dr Danta reviewed Ms Pizzano on 22 November 1999 and assessed a permanent impairment under Table 9.5 of the Guide at 20% (Exhibits A3, A3A).
Dr White, Neurologist, examined Ms Pizzano on 15 September 2000. His report (Exhibit A5) notes "She saw Dr Brooks at Florey and apparently complained of pain in both legs but her right leg was worse. She also complained of her cervical pain". This is inconsistent with Dr Brooks' clinical notes in respect of the neck (paragraph 46 above) and Ms Pizzano's oral evidence to the Tribunal that both legs were not affected. Dr White commented:
"…
Mrs Pizzano presents a complex series of problems, the main features of which are
1.        Depression
2.        Pain in the distribution of the right lateral cutaneous nerve of thigh
3.        Pain and disability consistent with trochanteric bursitis.
It would appear that all of these came on after a significant motor vehicle accident in which there appears to have been mechanical trauma to the right inguinal region and a concomitant post-traumatic stress disorder.
…"
Back in December 1992 Dr Tuck, Consultant Neurologist, reported: "I am satisfied that there is no neurological disorder. … I doubt that there is any serious organic disorder and I think that the emotional trauma that Mrs Santosuosso (as Ms Pizzano was previously known) has experienced in the last few years are probably playing a major part in her symptoms" (Exhibit A10). Dr Tuck also noted "she denies any numbness or paraesthesias".
Dr Hopkins, Orthopaedic Surgeon, on 30 May 2000 diagnosed "Soft tissue strain of the right hip anterior structures and trochanteric bursa which now presents, in my opinion, as a Chronic Pain Syndrome. I can find no evidence to suggest that she has a lumbar disc lesion or any nerve root or peripheral nerve lesion in the lower leg and therefore cannot explain the non-anatomical symptoms she experiences down the side of her right leg" (Exhibit R6).
In 1996 Dr King, Orthopaedic Surgeon, examined Ms Pizzano at the respondent's request and stated "Ms Pizzano … has, in my opinion, suffered soft tissue injures to the region of the right hip and groin, with the subsequent development of compression neuropathy of the lateral cutaneous nerve of the thigh, a condition known as meralgia paraesthetica and also trochanteric bursitis or trochanteric pain syndrome" (T54/79). He considered those conditions consistent with the motor vehicle accident as described to him. He could find no inconsistency in regard to Ms Pizzano's history or clinical features.

Associate Professor Oakeshott examined Ms Pizzano at the respondent's request on 1 September 1998. He reported (T197/288):
"…
I could not identify any condition in regard to her right hip region that could account for the pain that she complains about in her right leg. I consider that this pain is related to her psychiatric condition and could best be explained by her treating psychiatrist. I consider that there is no underlying organic lesion that could explain this symptom in her right leg and right thigh region. …"

He thought Ms Pizzano had suffered a soft tissue injury but, the Tribunal infers, psychiatric effects had overtaken that physical soft tissue injury. Associate Professor Oakeshott noted (T197/288):

"She does appear to have a permanent loss of touch sensation over the front of her right thigh which I consider is related to her previous injections into the nerve in her right groin region."

Dr J. Matheson, a Fellow of the Royal Australasian College of Surgeons, Australian College of Rehabilitation Medicine, Royal Australasian College of Physicians, Consultant Neurosurgeon, examined Ms Pizzano at the respondent's request and provided a report dated 24 July 2000 (Exhibit R4). He also gave oral evidence to the Tribunal. It is useful to set out his evidence in some detail.
In his report, Dr Matheson noted the history of Ms Pizzano's injuries and resulting symptoms:
"… At the time of the accident she had trapped her left leg under the steering wheel. She had bruising to both thighs laterally, although she could not describe it accurately she said she had forgotten the distribution. Both legs were painful. Her neck was painful … this had been an old problem which was stirred up in the accident. … Her neck settled down rapidly and did not worry her and went back to the old state it was in, her left leg also rapidly improved and caused her no problems. She just hung on to persisting right leg pain. She claims that this has never gone away, the whole leg is painful although she localises it more to the lateral hip area. The whole leg goes numb on her and again it is not localised. …"
Dr Matheson conceded during his evidence that he may have made an error in stating that Ms Pizzano's left leg was trapped under the steering wheel at the time of the accident, and that he should have written "right leg". With respect to Ms Pizzano's symptoms, he said that no organic condition, including trochanteric bursitis would cause the whole leg to go numb. Trochanteric bursitis was normally cured by surgery, and while he conceded that Ms Pizzano could have suffered this immediately after the accident, he said it would not have persisted for 9 years and that it was not present when he examined her in July 2000.
Dr Matheson saw the results of Ms Pizzano's investigations, including a bone scan, cervical spine x-rays, pelvic x-rays, lumbar spine x-rays and lumbar MRI scans and, other than evidence of previous bone graft surgery, there were no abnormalities. He said that there were inconsistencies in his examination of Ms Pizzano, such as her inability to raise her leg whilst she was lying down, despite being able to do this same movement while she was seated. He also did not believe her complaint of reduced sensation in the right leg. Dr Matheson concluded in his report that sensory testing over the right leg revealed sensory loss which was incomplete, was not in an organic distribution and which he considered ingenuine.
Dr Matheson's report concluded:
"There is no evidence of any residual disability from this motor vehicle accident. There may have been some thigh bruising at the time which has long since resolved. … She has now ceased working on the grounds of apparently a psychiatric disorder. … Her disorder is a somatised one without an organic basis to it. Some of her background would suggest a Munchausen's Syndrome.
…
Her only incapacity is psychiatric and does not relate to this accident."
Dr Matheson explained in evidence that he considered Ms Pizzano had Munchausen's Syndrome because she has sought medical treatment for conditions that did not exist and has had operations for conditions that do not exist.
In cross-examination, Dr Matheson explained that the condition of meralgia paraesthetica involves entrapment of the lateral cutaneous nerve of the thigh at the level of the anterior superior iliac spine, which is situated at groin level, but 10 cm away from the midline. He said that the notes of the treating general practitioner stated that Ms Pizzano had given a history of lateral thigh pain and bruising over the thigh after the accident. He considered this to be a long way from the anterior superior iliac spine.
When questioned about other medical reports received into evidence, Dr Matheson did not agree with the 1996 report of Dr King that Ms Pizzano had developed persistent meralgia paraesthetica and trochanteric bursitis. Professor Oakeshott had considered that Ms Pizzano's numbness at the front of her thigh was a permanent condition, but Dr Matheson noted Ms Pizzano herself had said it was intermittent. Dr Matheson also disagreed with Dr Hopkins' conclusions that Ms Pizzano suffered a soft tissue strain that now presented as a chronic pain syndrome because, in his view, a soft tissue injury is a self-limiting condition.
Dr Matheson referred to the view of Dr Morris, the treating surgeon, who thought Ms Pizzano would continue to suffer from sciatica following the surgery to relieve the symptoms of trochanteric bursitis. Dr Matheson considered that nerve conduction studies performed on Ms Pizzano (suggesting S1 nerve root impingement causing sciatic symptoms) were inconclusive as they depended on Ms Pizzano's co-operation. He said that S1 nerve root involvement can be associated with sciatica and numbness down the front of the leg, but believed there was no hard, neurophysiological evidence to support this diagnosis. In answer to questions from the Tribunal, Dr Matheson said that had Ms Pizzano's groin been trapped under the steering wheel in the accident, he would expect any bruising that occurred to resolve unless there was an underlying abnormality, such as a hernia, which Ms Pizzano did not have. He said that Ms Pizzano had no evidence of meralgia paraesthetica when he examined her, nor any evidence of damage to the femoral nerve to explain her symptoms.
The Tribunal has set out the medical opinions (albeit not all of them before the Tribunal) at some, and perhaps unnecessary, length. It has done so in order to demonstrate that although there is evidence that supports Ms Pizzano's claims, the medical opinions vary and there is considerable evidence in favour of the conclusion that the numbness and pain distribution now complained of are not organic.
Most importantly, the medical evidence is premised on Ms Pizzano's assertion that it was her right thigh/hip area that was injured in the motor vehicle accident, not her left.
The Tribunal has already indicated that it accepts Dr Brooks' evidence that he would not have altered his notes had he been in any doubt that he had recorded the wrong leg. Nonetheless the Tribunal does not take him to be saying he had an independent recollection when he altered his notes of the leg that had been injured. This is hardly surprising given the number of patients he had seen in the intervening period. Moreover, "L" appeared in 4 entries before 3 were changed to "R".
Moreover, Ms Pizzano on 19 February 1990, 6 days after the accident, completed the claim form (T3) and described the injury as to her "left shoulder and left leg" and the part of the body affected as "left shoulder and left upper leg". That is, she recorded the left leg twice.
The Tribunal thinks it unlikely that both Dr Brooks and Ms Pizzano made, independently, the same mistake. Also the gap between the February statements and the likely date of "correction", some 10 months later in December 1990, does not assist in reaching a conclusion that both Dr Brooks and Ms Pizzano had made the same mistake. By December – with no consultations raising leg problems – Dr Brooks had no independent recollection of the leg injured. The Tribunal is conscious that the respondent initially accepted Dr Brooks' explanation of mistake and until June 2000 both Ms Pizzano and the respondent had proceeded on the basis that Ms Pizzano's right leg had been injured. This is unfortunate, but the Tribunal, on the balance of probabilities, finds that it was Ms Pizzano's left thigh that was injured in the motor vehicle accident on 13 February 1990. There is no evidence before the Tribunal that would warrant, on the balance of probabilities, a finding that both legs were injured in the motor vehicle accident.
the psychiatric injury
A consequence of this finding is that the claims with respect to Ms Pizzano's psychiatric condition, insofar as they relate to effects of her right leg/hip conditions, also fail.
Nonetheless Ms Pizzano was clearly involved in a motor vehicle accident that occurred in compensable circumstances and the Tribunal must consider whether there is a compensable psychiatric injury arising therefrom (or aggravated thereby) in particular, major depressive disorder and post-traumatic stress disorder.
The Tribunal has made passing reference above to the distressing events of abuse suffered by Ms Pizzano as a child and to emotional abuse during her marriage, including physical abuse early in the marriage. The Tribunal accepts that Ms Pizzano also suffered from some postnatal depression (T196/275). Although Ms Pizzano received some counselling with respect to psychological or emotional difficulties and was, on occasion, prescribed anti-depressants, the Tribunal accepts that specialist psychiatric assistance was not sought until 1993 when, in March of that year, she first saw Dr Tym.
Accepting that a gastroenterologist is not expert in psychiatric conditions, the Tribunal notes that in May 1985 Dr Hillman thought Ms Pizzano had medical problems that included depression (Exhibit R11). The Tribunal has already referred to Dr Tuck's report of 21 December 1992 (Exhibit R18). He notes therein her cervical surgery in 1983 and 1984. He also notes, apparently from the history given to him:
"… In early 1989 her sister and father were in a serious road traffic accident. Soon after that she had difficulty walking and aches and pains all over. She felt tired but managed to cope with her work which at that time was part time. In November 1989 she started her present job. In February 1990 she was involved in a major motor vehicle accident. Thereafter she developed various phobias and the diagnosis of chronic fatigue syndrome was made. In November 1990 her father and brother died within five days of each other from heart problems. Another brother had died of heart disease some years earlier.
…"

The Tribunal has already noted that Dr Tuck recorded "she denies any numbness or paraesthesias" and his conclusion that there was no neurological disorder.
dr r. tym

The Tribunal thinks close attention should be given to Dr Tym's views as he was the first psychiatrist to treat Ms Pizzano and did so for a considerable period. In his report to Dr Leigh of 7 April 1993 (Exhibit R19) Dr Tym makes reference to Ms Pizzano's "life-full of distressing events" and family history of psychological problems. He wrote:
"…
She appears to have had been experiencing mood (affective) symptoms since 1989. They seem to have masqueraded as CFS for a year. Following an MVA in January 1990 (sic) she has had more obviously depressed moods and additional anxiety symptoms, with over-valued ideas of being followed when out, developing into near – agrophobia at times.
…
She does not have Post-traumatic Stress Disorder as a result of the MVA.
…"
On 7 May 1993 Dr Tym wrote to Dr Leigh (Exhibit R20) reporting:
"She appears to have made a complete ('100 percent') psychological and somatoform recovery on fluoxetine 20mgs for four weeks. I would expect she is one (of the majority?) of sufferers from so-called CFS who recover, fully, when treated, fully, with an anti-depressant. I think the MVA was just an additional non-specific psychological stressor and did not produce Post-traumatic Stress Disorder, luckily for her.
…"
On 4 April 1995 Dr Tym wrote a letter in response to a letter asking him "to comment of (sic) the marriage of" Ms Pizzano and her husband (Exhibit R30). He stated he had seen Ms Pizzano on 16 occasions from 26 March 1993. He stated:
"…
In my clinical judgement she had been suffering a mild form of mental disorder, viz:-
Recurrent Depressive Disorder, current episodes mild
… (ICD IO)
the first episode was in 1989.
…"

Dr Tym refers to Ms Pizzano's emotional and physical domination by her husband. Although one might – perhaps – expect no reference to the effects of the motor vehicle accident in such a letter, it is nonetheless pertinent to note:

"Her mental disorder has responded dramatically well to safe, non-addictive, non-disinhibiting and non-cognitive impairing anti-depressant medication. She continues to take the medication. With cognitive psychotherapy her self-esteem, self-confidence and assertiveness have reached appropriate levels."

The Tribunal has set out passages from Dr Tym's report of 4 October 1996 (T96) at paragraph 10-12 above and does not repeat them here. Of interest is how he came to diagnose post-traumatic stress disorder in July 1996 (6½ years after the motor vehicle accident and after at least 16 consultations and his initial opinions that Ms Pizzano did not suffer from post-traumatic stress disorder as a result of the motor vehicle accident):
"…
On 31.07.96 examination of her visual systems she revealed certain abnormal visual perceptual abnormalities – forms of visual perceptual instability – that are, in my clinical experience, only seen in persons exhibiting Post-traumatic Stress Disorder. (Dr Tym's emphasis)
From her account of constantly returning intrusive memories of the certain incidents – some whilst in the car accident on 13.02.90, and, hearing of her father's death whilst attending her brother's funeral – which are always associated with senses of vividly 're-living' the incidents and re-experiencing the original distressing emotional concomitants of the incidents – of 'fear', panic and of being 'out of control' – and from her account of her attempts to avoid these intrusive memories being evoked, the diagnostic criteria or guidelines for 'Recurrent Specific Memories' – the quintessential features of Post-traumatic Stress Disorder – are, in my clinical judgement, fully satisfied.
In my clinical judgement abnormal clinical features contained in the rest of her overall clinical presentation fully satisfy the remaining necessary criteria … for the diagnosis of a co-morbid Post-traumatic Stress Disorder in addition to a (co-morbid) recurrent depressive disorder.
She was told (Tribunal's emphasis) of the nature of this psychiatric disorder of memory – PtSD – and of the nature of the only likely chance (Dr Tym's emphasis) of its being eliminated – by Eye Movement Desensitisation and Reprocessing (Dr Tym's emphasis). She was told (Tribunal's emphasis) that it is the psychiatric consensus that PtSD does not become eliminated spontaneously and does not respond to any other form of treatment – drugs, relaxation, hypnotism, 'talking' or, except in rare cases, desensitisation …
She was treated with EMD&R on 07.08.96, 13.08.96, 15.08.96 - and by 19.08.96 she no longer had PtSD.
…"
The Tribunal accepts Dr Donsworth's evidence that Dr Tym put a good deal of importance on some criteria not generally shared by the community of psychiatrists in diagnosing post-traumatic stress disorder.
The Tribunal notes that Dr Tym's late diagnosis of post-traumatic stress disorder was accompanied by an explanation of the disorder and Dr Tym's opinion that the only likely chance of successful treatment was Eye Movement Desensitisation and Reprocessing. Very clearly Ms Pizzano was upset by Dr Tym's report to the respondent (T108/160-161D) and began to see another psychiatrist. The Tribunal does not accept Ms Pizzano's evidence that she was "always uncomfortable" with Dr Tym and had only continued to see him because he bulk-billed. The Tribunal finds that, on the balance of probabilities, Ms Pizzano's dissatisfaction with Dr Tym was due to his report to the respondent of 4 October 1996 and the respondent's decision of 11 November 1996 (T105), made relying on that report.
dr w. knox
Dr Knox, Consultant Psychiatrist, on 2 December 1996 diagnosed post-traumatic stress disorder (comorbid) Generalised Anxiety Disorder and Depression (T113). On 4 December 1996, Dr Knox wrote to Dr Leigh (Exhibit A8; Exhibit R31):
"… I have the reports of Dr Robert Tym, 4 October 1996, and Dr Michael Duke, 9 October 1996, Psychiatrists. These reports are conflicting in that Dr Tym, the treating psychiatrist, believes that Ms Pizzano's Post-traumatic Stress Disorder has resolved, while Dr Duke sees it as ongoing, but "diminished due to appropriate treatment".
As everybody appreciates in this matter there are a good many other factors, past and present which have no doubt contributed to Ms Pizzano's disturbed psychiatric health. Her ongoing pain and physical disability are also stressors for her.
…
I found there to be high levels of anxiety in this lady, and I think there is a prima facie case for diagnosing continuing Post-traumatic Stress Disorder at this time. Despite Dr Tym's confidence that Post-traumatic Stress Disorder is readily cured by eye movement, desensitisation and reprocessing, many cases of PTSD respond only partially or not at all to this or other treatment.
Much of the psychological disability in this lady which predated her accident has effectively been aggravated by the physical and psychological consequences of her accident. Later in the same year she suffered the death of a brother and father within a five day period. These losses added to her anxiety. There is a component of depression but I don't see this as major presently. …"

It appears from Dr Whiteford's report (T196/277) that Ms Pizzano was treated by Dr Knox between December 1996 and April 1997.
dr h. whiteford

Dr Whiteford, Consultant Psychiatrist, saw Ms Pizzano at the request of her solicitors, on 5 August 1998. In his report (T196/277) he notes:
"…
From May of 1997 she was treated by Dr Tony Lee at Deakin following an admission to the Psychiatric Unit at Calvary Hospital for a week on 22nd May, 1997. Following this admission she has been treated as an outpatient at the Belconnen Mental Health Service with periods of brief rehospitalisation. She reports having undertaken a course for anxiety control and group therapy to help deal with the childhood sexual abuse and at the time of preparing this report was an inpatient at the Calvary Hospital under the care of Dr John Saboisky.
…"
Dr Whiteford reports (T196/279):
"Maria Pizzano is a 40 year old divorced woman who last worked in May, 1997. She has a history of intermittent psychiatric disorder extending back in to her adolescence. This appears to have commenced following her being exposed to physical, emotional and sexual abuse in childhood and has been compounded by an equally abusive marital relationship.
Despite these problems Ms Pizzano managed to engage in remunerated employment and her condition had improved to the point where she gained full time employment with Australian National University in 1989. Subsequent to a motor vehicle accident in 1990 Ms Pizzano developed a range of physical problems in her right hip and leg which are identified by the relevant medical specialists. She also developed a depression with associated post-traumatic stress disorder which has required virtually continuous psychiatric treatment.
Mental state examination on 5th August, 1998 confirmed evidence of clinically significant anxiety and depressive symptoms.
It is my opinion that Ms Pizzano continues to suffer from a major depressive disorder with associated anxiety from a residual post traumatic stress disorder.
…
2. At present your client describes a wide range of depressive and anxiety symptoms with concurrent somatic manifestations.
…
5. It is my opinion that your client had a pre-existing vulnerability to the development of anxiety and depressive symptoms arising out of early childhood abuse and neglect compounded by being in an abusive marriage. From the information available to me, it appears that her pre-existing condition was significantly exacerbated by the motor vehicle accident. It is the opinion of five psychiatrists, Dr Michael Duke, Dr Robert Tym, Dr William Knox, Dr Tony Lee and Dr John Saboisky (Calvary Hospital) that she developed post-traumatic stress disorder which, in their opinion, is clearly related to the motor vehicle accident. I concur with their opinion.
…"

Dr Whiteford assessed a 40% impairment under Table 5.1 of the Guide, stating that Ms Pizzano's condition had deteriorated in recent years, but was now relatively stable with no prospect of further improvement in the foreseeable future.
In a letter to Dr Leigh dated 11 February 1998, on her referral of Ms Pizzano to him, Dr Whiteford wrote (Exhibit R38):
"… She gives a history of recurrent major depressive disorder with suicidal ideation, generalised anxiety with marked somatic symptoms. She appears to have had significant psychiatric problems since 1989. It is difficult to identify a specific trigger although the onset of her symptoms appears to have been associated with her father's death."
(The Tribunal notes that Ms Pizzano's father died on 13 November 1990 (T108/160))

This letter was written some months before the report of 18 August 1998 at T196, but makes no mention of post-traumatic stress disorder.
dr p. cullen

Dr Cullen, Psychiatrist, first saw Ms Pizzano on 17 May 1999 on referral from Dr McIntyre. He wrote to Dr McIntyre on 20 May 1999 (Exhibit A7; Exhibit R39):
"…
She gave a history, with which you are no doubt familiar, of chronic depression. This seems to have begun in its present form in 1990, but there was an earlier history of depression eg in the form of post-natal depression.
Following a car accident in 1990 in which she suffered a leg injury she developed chronic pain, but of more importance to her were recollections of sexual abuse which she alleges occurred with her father between ages 2 and 8 and with her brother about age 13.
In the course of the intervening years she has seen a fair cross section of Canberra psychiatrists, and has had several hospital admissions in depressed and self-destructive states of mind. …
Her response to a variety of antidepressants (and other) medications has been unsatisfactory and she has suffered unacceptable side effects.
…
Maria is chronically dysthymic, and the currently frequent diagnosis in her case is one of Borderline Personality Disorder. As is unfortunately also frequent she is recurrently disappointed with what help is on offer (ie CrisisTeam, Case Managers, Psychiatrists and medications).
…"
The Tribunal observes that this letter makes no reference to post-traumatic stress disorder. The Tribunal notes Dr Tym had reported excellent effects with medication (Exhibit R20 – May 1993; Exhibit R30 – April 1995) and that on 16 November 1999 Dr Cullen, writing to Dr McIntyre (Exhibit R40) also reported: "She has done well over the past 5 months since I first saw her. Her improvement coincided with the reintroduction of Prozac. The last time she took it a variety of unusual side effects were attributed to it". He also reported: "She continues to experience episodes of anxiety, confusion and disassociation which are part of her Borderline state and unlikely to resolve completely. Her physical disabilities are undoubtedly problems and it would be unwise to ignore her fears of driving resulting from leg weakness". This letter too makes no reference to post-traumatic stress disorder.
On 1 December 1999 Dr Cullen reported to the applicant's solicitors (Exhibit A4):
"…
Diagnostically Mrs Pizzano has multiple disorders. The early abuse in my opinion affected her personality development leading to a fragility and vulnerability to develop psychiatric illnesses in reaction to a variety of circumstances, to persistence of these disorders, and to treatment resistance. The symptoms of Post-traumatic Stress Disorder are no longer prominent in my view, but she is suffering from Chronic Dysthymic Disorder (DSM IV 300.4) intermittently from Major Depression (DSM IV 296.3) and Chronic Pain Disorder (DSM IV 307.89).
I have treated her supportively and given her the antidepressant Prozac with some benefit.
Her prognosis as indicated above is not good, with persistence of mood disorders, pain and disability as the likely future. There is also a suicidal risk in the long term. I would agree with Dr Whiteford's assessment of last year that she has a 40% disability as on the basis of table 5.1." (Tribunal's emphasis)

dr j. donsworth

Dr Donsworth, Consultant Psychiatrist, interviewed Ms Pizzano at the respondent's request on 18 May 2000. Her lengthy report (Exhibit R5) states:
"…
She could not give me any details of any psychiatric symptoms that she might have suffered after the accident. In answer to all of my questions around this topic, she just said that she could not remember.
…
Ms Pizzano was consistently very vague in the chronology of symptoms of any psychological nature.
…
She said she had had sleep problems and nightmares and was waking in sweats with "cars in front of me". She was unable to tell me when this happened.
However, several questions asked by me left me with the strong impression that any nightmares, or repetitive thoughts of the accident were not a feature of her psychological state until several years after the actual incident.
Concurrently, she was having extremely difficult problems in her marriage. …"
Dr Donsworth "asked her why, if these flashbacks or nightmares had been occurring during the three years when she was seeing Dr Tym, that she had not told him about these until 1996. She said she could not remember". Ms Pizzano told Dr Donsworth she had not agreed with Dr Tym's conclusion that, as a result of EMDR treatment, she had no post-traumatic stress disorder symptoms:
"and as a result, she told me she went to see Dr Knox, because she was getting worse. She said she could not do her job. She said this was because she was in chronic pain. She could not get herself to work. She would get to work late, and be confused and panicky. She said when driving she would see obstacles and pull over and cry.
…"
Dr Donsworth noted on her discharge from Calvary Hospital under Dr Lee on 6 September 1997 "I note that the diagnosis on discharge was Post Traumatic Stress Disorder, Borderline Personality Traits and there was some suggestion of Munchausen behaviour, ie deliberate production of symptoms for obtaining sick role rewards".
Dr Donsworth's interview lasted for two hours. She stated in her report "The overall impression is of a person who is chronically dysthymic, with some agoraphobic symptoms, who sees herself as being helpless and emotionally needy".
Dr Donsworth reported that Ms Pizzano's interview was characterised by her "inability to give a clear history of either her past medical history, or the chronological development of her psychological symptoms after the motor vehicle accident", though "Several times [Ms Pizzano] told me that any psychological symptoms prior to the motor vehicle accident were "different" to the psychological symptoms she experienced after the motor vehicle accident. However, she was unable to describe any particular psychological symptoms attached to the motor vehicle accident until the development of some psychological symptoms some years later, at a time unspecified".
Dr Donsworth refers in her report to Dr Whiteford's report of 18 August 1998, to Dr Duke's 1996 report and to Dr Cullen's report of December 1999 and comments "The theme of all of the psychiatric reports is much the same, ie that Ms Pizzano has chronic psychiatric problems of diffuse nature". Dr Donsworth states:
"In my view, the attribution of these chronic psychiatric problems in a major or material way to the motor vehicle accident is inaccurate, as there is plenty of evidence to show that Ms Pizzano had ongoing psychiatric problems prior to February 1990. Her previous psychiatric problems are similar in almost every respect to the psychological picture presented after February 1990.
As well, the fact that there were no descriptions of specific PTSD symptoms such as flashbacks and intrusive memories until 1996 makes it unlikely, in my view, that the motor vehicle accident was the major stressor on Ms Pizzano's life during these years."
Dr Donsworth refers again to Dr Cullen's report of December 1999 of Ms Pizzano's symptoms and states:
"…
It is my opinion that this constellation of symptoms has been present in Ms Pizzano since prior to the motor vehicle accident, and that these symptoms have developed as a result of her childhood and lifelong traumas.
It is worth noting that Dr Cullen in his report states that the PTSD symptoms are no longer prominent.
…"
Dr Donsworth diagnosed Dysthymic Disorder (DSM IV 300.4); Chronic Pain Disorder (DSM IV 307.9) and Borderline Personality Disorder (DSM IV 301.83). Dr Donsworth stated:
"…
Symptoms were only attributed to the motor vehicle accident by Dr Tym in 1996, and this attribution has been continued by other psychiatrists, although in my view this is a retrospective attribution and should be regarded as questionable.
In my opinion the motor vehicle accident was only one of a very large number of traumas in Ms Pizzano's life, and in the scale of things, I believe that it was only minor compared to the other traumas, particularly as it was not marked contemporaneously by an increase in psychological symptomatology.
…"

Dr Donsworth considered any contribution to Ms Pizzano's psychiatric impairment to have been "minor" and that "most of the psychological effects of the motor vehicle accident have long since ceased".

In her oral evidence Dr Donsworth clarified that she considered Ms Pizzano's level of impairment under Table 5.1 of the Guide to be 10% from all causes and that only 10% of that could be attributed to the motor vehicle accident.
The Tribunal is conscious that a contribution need not be "major" or large to be compensable. Rather, under the definition of "disease" it must have been "contributed to in a material degree" by the employee's employment to be compensable. The Tribunal considers the opinion of the Full Federal Court in Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 to be applicable to the definition of disease in the Act:
"… the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small."
In her oral evidence, asked whether the motor vehicle accident continues to make a contribution to Ms Pizzano's psychiatric impairment, Dr Donsworth replied she "couldn't be sure it could be absolutely ruled out. If any, only a minor contribution". (Tribunal's emphasis). The Tribunal understands Dr Donsworth to be quite doubtful of any continuing effect of the motor vehicle accident but that she had attributed, effectively 1%, as the most – if any – effect of the accident on Ms Pizzano's current level of impairment. The Tribunal understands Dr Donsworth to be also quite doubtful about whether Ms Pizzano ever suffered from post-traumatic stress disorder, given its late diagnosis by Dr Tym (some 3 years or more into his treatment of Ms Pizzano), Ms Pizzano's inability to give her details of the chronology of symptoms and the lack of applicable symptomatology predating Dr Tym's diagnosis.
The Tribunal does not agree with Mr Pilkington's submission that Dr Donsworth had been discredited in her evidence. Dr Donsworth did become a little confused about the meaning of the Guide but, to the Tribunal's mind, this was due to her unnecessarily approaching her task as one that included giving her opinion as to the legal effect of her medical opinion. The Tribunal considers Dr Donsworth's report to have been a careful and thorough professional report although it certainly takes a forensic path that might better be left for those whose task it is to determine the facts and to apply the law to those facts. The Tribunal thinks it was quite appropriate for Dr Donsworth to have approached the interview with Ms Pizzano with awareness that not everything Ms Pizzano would tell her should automatically be accepted as the truth. The Tribunal also observes that Dr Donsworth did not think Ms Pizzano had necessarily deliberately lied and referred to what she thought could be a desire to be treated as a sick person.
Finally, although Dr Matheson is not a psychiatrist, his lifetime association with trauma work, combined with his specialities in medicine, surgery and rehabilitation medicine place him, in the Tribunal's view, in a position where his assessment of a person's response to trauma is relevant. He did not believe Ms Pizzano had post-traumatic stress disorder as a result of her injuries in the motor vehicle accident, despite this having been diagnosed by her treating psychiatrists. His view was that there was a stress syndrome that occurred after trauma, comparable to grieving, but this was self limiting. Dr Matheson's opinion was that once it develops into a syndrome, other issues were involved such as underlying personality. As a matter of law, a victim's predisposition is part of the person and the Tribunal does not wish to endorse that stress conditions perpetuated or arising partly from personality are not compensable. Nonetheless, the Tribunal considers that it should have some regard to Dr Matheson's view that Ms Pizzano did not develop post-traumatic stress disorder, given his experience in trauma related work.
The Tribunal is not satisfied that Ms Pizzano suffered from post-traumatic stress disorder as a result of the motor vehicle accident in February 1990, notwithstanding Dr Tym's diagnosis in mid 1996. In reaching this conclusion, the Tribunal finds itself unable to accept Ms Pizzano's evidence of the effects which she says now followed almost immediately upon the accident. Ms Pizzano's memory is unclear as to numerous matters of relevance and the Tribunal is left in the same position as Dr Donsworth found herself – unable to get a chronology of symptoms that it is comfortable can be relied upon. The Tribunal is also influenced by the fact that Dr Cullen's early letters make no reference to post-traumatic stress disorder and on 1 December 1999, writing to Ms Pizzano's solicitors, he opined "the symptoms of post-traumatic stress disorder are no longer prominent". Similarly, Dr Whiteford initially made no reference to post-traumatic stress disorder and noted that the onset of Ms Pizzano's symptoms appeared to have been associated with her father's death (on 13 November 1990) and on 5 August 1998, writing to the applicant's solicitors, referred to "residual post traumatic stress disorder".
If the Tribunal is incorrect in this conclusion, it would find that Ms Pizzano had in any event recovered by September 1996 as Dr Tym opined. The Tribunal also finds that any effects on Ms Pizzano's depressive disorder of the motor vehicle accident had ceased by that date, as opined by Dr Tym.
The Tribunal has already found that given its conclusion that it was Ms Pizzano's left leg and thigh that had been injured in the accident in February 1990, any psychiatric disorder, notably chronic pain disorder, related to her right hip and leg is not compensable.
The Tribunal would like to say that it is clear to it that Ms Pizzano suffers from considerable psychiatric problems and has had many distressing and unfortunate events in her life. The matters before the Tribunal however depend on whether Ms Pizzano's right leg and hip problems and her psychiatric difficulties are compensable under the Act. It is the Tribunal's view that Ms Pizzano's psychiatric conditions largely contribute to her unreliability as a credible witness. Unfortunately for Ms Pizzano that lack of credibility, not due to deliberate lying on her part, means she has been unable to controvert the views which the Tribunal finds convincing.
For the reasons given above, the Tribunal affirms all the decisions under review.
I certify that the 106 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member W.H. Eyre, Air Marshal I.B. Gration AO AFC (Member) and Dr C. Re (Member)
Signed:         ...........(Signed)...........................................................
  Personal Assistant
Date/s of Hearing  6, 7, & 8 November 2000
Date of Decision  22 January 2001
Counsel for the Applicant        Mr R. Pilkington
Solicitor for the Applicant         Pamela Coward & Associates
Counsel for the Respondent    Mr J. Wallace
Solicitor for the Respondent    Dibbs Barker Gosling