Proudfoot and Comcare
[2008] AATA 578
•4 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 578
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2007/1319 & No. 2007/6156
GENERAL ADMINISTRATIVE DIVISION )
Re HELEN MAREE PROUDFOOT Applicant
And
COMCARE
Respondent
DECISION
Tribunal
Senior Member M D Allen
Date4 July 2008
PlaceSydney
Decision 1. The decision in matter No. 2007/6156 is affirmed.
2. The decision in matter No. 2007/1319 is set aside and remitted to the Respondent with the direction that:
(i) The Applicant has been since 31 October 2006 to date capable of working 25 hours per week, and is entitled to compensation for loss of earnings, pursuant to section 19 of the Safety Rehabilitation and Compensation Act 1988.
(ii) Breast reduction surgery is reasonable medical treatment pursuant to section 16 of the Safety Rehabilitation and Compensation Act 1988.
3. The Respondent is to pay the Applicant’s costs in matter No. 2007/1319.
..................[sgd].......................
M D Allen
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION
– decision no. 2007/6156 not reviewable as applicant’s compensable injuries could not be said to be permanent – decision in matter no. 2007/6156 is affirmed
– review of decision no. 2007/1319 rejecting a claim to pay for breast reduction surgery and further determining applicant capable of working 36 hours per week – whether breast reduction surgery is reasonable medical treatment – breast enlargement as a result of being prescribed endep to alleviate pain resulting from compensable injuries may be regarded as an injury as applicant’s breasts said to be a bodily indisposition or ailment – number of hours per week applicant capable of working given incapacity occasioned by compensable work injuries – decision in matter no. 2007/1319 is set aside
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 sections 4(1), 4(3), 5(A), 14, 16, 19, 24 and 27
Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2007 Schedule 1
REASONS FOR DECISION
4 July 2008 Senior Member M D Allen 1. Originally, these proceedings concerned applications to review two reviewable decisions of the Respondent. The second application, being matter No. 2007/6156, sought review of a decision refusing to pay compensation for permanent impairment and associated economic loss, pursuant to sections 24 and 27 of the Safety Rehabilitation Compensation Act 1988.
2. For reasons that will be dealt with in the body of these reasons for this decision, any impairment currently suffered by the Applicant, as a result of her compensable injuries, could not be said to be permanent, therefore, the decision under review in matter No. 2007/6156 is affirmed.
3. The reviewable decision in the other matter before the Tribunal, being matter No. 2007/1319 was dated 20 February 2007, and rejected a claim to pay, pursuant to s 16 SRC Act, for breast reduction surgery and further determined that the Applicant was capable of working 36 hours per week.
4. On 30 April 2008, the Respondent determined that liability would be accepted pursuant to s 14 SRC Act for the condition of fibromyalgia as and from 1 April 2007.
5. The result of the determination of 30 April 2008 was that the Respondent, at the date of hearing in this matter, and as and from the 1st day of April 2007, was liable to pay compensation to the Applicant for the following injuries namely:
(a)Neck sprain
(b)Sprain of shoulder and upper arm (left)
(c)Sprain of shoulder and upper arm (right)
(d)Fibromyalgia
6. In other words, the two matters to be decided by me were the number of hours per week the Applicant was capable of working, given the incapacity occasioned by her work-caused injuries, and whether breast reduction surgery was medical treatment which it was reasonable for the Applicant to obtain in the circumstances.
7. In a report to the Respondent’s solicitors dated 29 August 2007, Associate Professor Barnsley stated with regard to the Applicant’s ability to work:
“I consider Ms Proudfoot is capable of working and performing all the normal duties of her current position, however, she has a propensity to ready fatigue and the development of pain, particularly in the upper thoracic spine and around the shoulders. I found no reason to doubt the veracity of this lady’s reporting. Therefore, I would tend to accept her judgment as to her limitations with regard to her pain at present.”
8. The Applicant’s employer, Centrelink, obtained a report from Dr Graham Hall, consultant occupational physician. In that report dated 12 October 2007, Dr Hall opined that the Applicant was not fit for her pre-injury hours of work. Unfortunately, Dr Hall’s report is confusing as to the number of hours he considers the Applicant could work. He did add, however:
“…..as she has co-operated in several plans to increase her hours her claims (that she is unable to work more than 25 hours a week) cannot be easily dismissed particularly as fatigue is a feature of fibromyalgia.”
9. Dr Liaw, orthopaedic surgeon, in a report dated 1 December 2006 recommended that the Applicant reduce her hours of work to 25 hours per week. In a later report dated 18 May 2007, he recommended that she should continue to work 25 hours per week in order to reduce her shoulder pain to a more tolerable level.
10. Dr Chris Oates, consultant occupational physician, in a report to Centrelink dated 26 April 2007, quite unequivocally stated:
“Ms Proudfoot is not fit to work for more than 25 hours per week at present on a given day per week basis...”
11. Given the opinions of Drs Oates and Liaw and Associate Professor Barnsley, I am satisfied that the Applicant has been and is unable to work for more than 25 hours per week due to incapacity arising from her compensable injuries.
12. So far as the requirement to undergo breast reduction surgery is concerned, the Applicant claimed that she had an entitlement pursuant to subsection 4(3) SRC Act which reads:
For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be in the injury if, but only if:
(a)Compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b)It was reasonable for the employee to have obtained that medical treatment in the circumstances.
13. The Applicant’s evidence was that she was prescribed the drug ENDEP by her former general practitioner. Endep is a mild anti-depressant which is also prescribed, as it was in her case, for the relief of pain. As a result of taking Endep, she put on weight and the size of her breasts increased significantly. Later, after discontinuing Endep she was able to reduce weight, but her breasts remained enlarged and placed weight upon and hence caused pain to her neck and shoulders.
14. Although orthopaedic surgeon Dr Bornstein in a report to the Respondent expressed some scepticism as to whether Endep could be blamed for the Applicant’s breasts becoming enlarged, the balance of medical opinion before me is that the Applicant’s breast enlargement is as a result of taking Endep.
15. Dr Bagga, rheumatologist, in a report dated 22 July 2007 stated:
“There is no doubt that Endep can cause weight gain and it is a well described side-effect of this medication. It appears that there was a clear temporal relationship to her weight gain and increase in breast size co-incident with the introduction of this medication. Obviously other factors can also impact on weight gain but it would be reasonable to assume in this case that the Endep may have been a major contributing factor to her weight gain and enlargement in her breast size appears to have been a direct consequence of this.”
16. Dr Arianayagam, plastic surgeon, in a report dated 14 July 2007 stated:
“She was started on Endep tablets … they did not give her much improvement but caused some weight gain and probably an increase in breast size.”
17. Dr John Davis a consultant in occupational medicine, stated in a report dated 22 March 2007:
“One of the side-effects of amitriptyline is a gynecomastia in males and breast enlargement and galactorrhea in females… nevertheless if all other aetiological causes of breast enlargement are excluded then based on the evidence of her ingesting Endep I believe it would be reasonable to suggest that on the balance of probabilities it is more likely than not that the Endep medication which she was prescribed materially contributed to the increase in her breast size.”
18. Associate Professor Barnsley, in a report dated 29 August 2007 to the Respondent’s solicitors, stated:
“Endep is a tricyclic anti-depressant agent. It has been used to treat depression but also used as a co-analagesic in the management of patients with chronic pain states and fibromyalgia. I consulted MIMS a database on adverse effects relating to drugs. Breast enlargement is clearly mentioned as a potential adverse effect of amitriptyline or Endep. I would therefore agree with the report of Dr John Davis that it is likely Ms Proudfoot did have some breast enlargement as a consequence of the Endep treatment.”
19. On the basis of the above medical opinions, I am satisfied that the Applicant’s breast enlargement was as a result of being prescribed Endep to alleviate pain resulting from her compensable injuries.
20. The Respondent submitted that any breast reduction surgery would not alleviate any symptoms arising out of her compensable injuries, but would alleviate symptoms occurring in her thoracic spine, which resulted from a non-compensable injury or disease.
21. That submission finds support in the report of Dr Bagga dated 22 July 2007. In that report, Dr Bagga states:
“She has considered breast reduction surgery and I feel that this certainly may alleviate some of her pain although I doubt that it will completely relieve the pain and I have reinforced this to Helen. There is no doubt however that large breast size does increase the strain through the thoracic spine and can contribute to chronic cervicothoracic pain and stiffness. I would expect some relief from the symptoms with breast reduction surgery although clearly it is difficult to quantify how much relief she is likely to gain.”
22. Although Dr Bagga refers to the thoracic spine, Dr Liaw in his report of 3 October 2006 to the Applicant’s general practitioner states “In my opinion her shoulder and scapulae pain is … partially due to her posture and the weight of her breasts”.
23. Dr Arianayagam stated “undoubtedly, the size and weight of her breasts and her work contribute to her chronic shoulder and scapulae problems. Breast reduction surgery, to reduce the size, droop and weight of her breasts, would most definitely assist in alleviating her symptoms”.
24. Associate Professor Barnsley in his report of 29 August 2007 said “I consider that Ms Proudfoot’s pain difficulties are most likely to be related to her postural requirements at work … I am certain that her difficulties have also been contributed to by her having large breasts, although it is also clear that some of her current breast size can be attributed to medications used to treat her neck pain…”.
25. Dr John Davis in his report 20 February 2007 states “Ms Proudfoot informed me that her normal breast size prior to her injuries was 12D although at some time this increased to 16G. Clearly at that time there was a significant increase in her weight overall. Her breast size is now reduced to 10G and hence does aggravate her neck and thoracic symptoms as a result of the breast weight. It would therefore not be unreasonable for serious consideration be given to breast size reduction at this time so as to assist her”.
26. Doctors Liaw, Arianayagam and Davis all refer to the Applicant’s shoulder pain being relieved by breast reduction surgery. Associate Professor Barnsley in his report referred to the Applicant as having “lower neck pain” and states “Ms Proudfoot complains of near constant pain in the upper thoracic spine, trapezii and medial scapulae or shoulder blades”. Later in his report he refers to neck and shoulder pain.
27. I am satisfied that the medical practitioners quoted have drawn the distinction between the thoracic spine and the cervical spine. Their reference to “neck” pain clearly refers to the latter. Thus, any operation to reduce the size of the Applicant’s breasts would benefit symptoms caused by her compensable injuries, namely neck sprain and sprain of the left and right shoulders.
28. It follows, in my opinion, that based on the medical reports quoted an operation to reduce breast size is both reasonable and appropriate in the Applicant’s circumstances.
29. That a breast reduction operation is reasonable medical treatment does not depend on a finding that Endep was responsible for the enlargement of the Applicant’s breasts. The Respondent did, however, submit that even if this were the case, the Applicant could not succeed pursuant to ss 4(3) SRC Act, as the Applicant’s breast enlargement could not be regarded as an “injury”, as that word is defined in s 5A SRC Act (as amended by the Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2007).
30. Section 5A SRC Act (as amended) defines injury in similar terms to the former definition found in ss 4(1) SRC Act, and it is that former definition which applies in this case, the claim being lodged prior to the amendments effected by the 2007 amending Act. (See item 42 in Schedule 1 to the 2007 Act).
31. The definition of injury in ss 4(1) pre the amendments of 2007 read inter alia:
“Injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of that employment; …”
whereas “disease” was defined prior to the amending Act as:
“Disease means:
(a) any ailments suffered by an employee; or
(b) the aggravation of any such ailments;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
The term “ailment” is defined as:
“Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether a sudden onset or gradually development)”.
32. The word “defect” is defined by the Oxford English Dictionary Online (2008) as having as meaning to:
“A fault … flaw, imperfection (in a person or thing)”.
It seems to me that if the Applicant’s breasts have become enlarged, to the extent that they are affecting her posture and causing pain to her neck, then they can be regarded as a defect as defined above. The word “ailment” is defined by the same source as “the fact of ailing, bodily or mental indisposition, disorder, sickness”. I am of the opinion that the Applicant’s breasts could also be said to be a bodily indisposition, and hence an ailment. “Indisposition” being defined as “want of adaptation to some purpose … unfitness, unsuitable …”.
33. Notwithstanding the above lexicographic excurses, I am, as stated above, satisfied in any event that breast reduction surgery is reasonable medical treatment for the Applicant’s compensable injuries, as those injuries are defined in the Respondent’s determination of 30 April 2008.
34. The decision in matter No. 2007/6156 regarding permanent impairment will be affirmed in that the degree of permanent impairment cannot be fully ascertained until the Applicant has undergone breast reduction surgery. The decision in matter No. 2007/1319 is set aside and remitted to the Respondent, with the direction that:
(i)The Applicant has been since 31 October 2006 to date capable of working 25 hours per week and is entitled to compensation for loss of earnings pursuant to s 19 SRC Act 1988.
(ii)Breast reduction surgery is reasonable medical treatment pursuant to s 16 SRC Act 1988.
35. The Respondent is to pay the Applicant’s costs in matter No. 2007/1319.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: [sgd] [sgd] .....................................................................................
Mwela Kapapa, AssociateDate/s of Hearing 2 – 3 June 2008
Date of Decision 4 July 2008
Counsel for the Applicant Mr M Perry
Solicitor for the Applicant MBT Lawyers
Counsel for the Respondent Ms R M Henderson
Solicitor for the Respondent Sparke Helmore Lawyers
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