Quinlan and Military Rehabilitation and Compensation Commission
[2008] AATA 582
•7 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 582
ADMINISTRATIVE APPEALS TRIBUNAL ) No Q200300962,
) Q200400830-1, Q200600387
VETERANS’ APPEALS DIVISION ) and Q200600450 Re KELLIE QUINLAN Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member Bernard J McCabe and Associate Professor J B Morley RFD, Member Date7 July 2008
PlaceBrisbane
Decision The Tribunal:
1. affirms the reviewable decision in Q200300962.
2. affirms the reviewable decision in Q200400830.
3. varies the reviewable decision in Q200400831 and Q200600450 to conclude that:
a. the respondent is liable for migraine and stress-derived headache with neck-muscle contraction;
b. the respondent is not liable for medication overuse component of the condition; and
c. the question of permanent impairment flowing from these conditions is remitted to the respondent for reconsideration.
4. in relation to Q 200600387:
a. sets aside the reviewable decision;
b. decides in substitution that the respondent liable to pay compensation for applicant’s chronic adjustment disorder
c. remits to the respondent the question of permanent impairment for reconsideration.
......................[Sgd]........................
Senior Member
CATCHWORDS
COMPENSATION – Benefits and entitlements – Applicant claims a number of injuries caused by employment – Ongoing back condition – Ongoing neck condition – Headache condition – Psychiatric condition – Finger injury – Contradictory medical evidence – Ongoing back condition not caused by employment – Ongoing neck condition not caused by employment – Headache condition caused by employment – Psychiatric condition caused by employment – Finger injury not caused by employment
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 24, 27
REASONS FOR DECISION
7 July 2008 Senior Member Bernard J McCabe and Associate Professor J B Morley RFD, Member 1. Ms Kellie Quinlan, the applicant, thinks she is very sick. She says she experiences chronic back and neck pain, headaches and a psychiatric condition. She claims these conditions are the result of accidents that occurred while she served in the Navy. She sought compensation under the Safety Rehabilitation and Compensation Act 1988 (“the SRCA”). The respondent, the Military Rehabilitation and Compensation Commission (“the MRCC”) accepted liability for a back and neck condition for a limited period of time but says that liability has now ceased. It has refused to pay Ms Quinlan any ongoing compensation or accept liability for any other conditions.
2. The applicant has asked the Tribunal to review her case. That task has been unusually complicated. Her medical records are a mess. We suspect that Dr Morley, the specialist medical member of the Tribunal, is the first medical practitioner to have reviewed the entirety of the applicant’s medical records. Crucial parts of those records were certainly not available to some of the doctors who commented on her case. The oral evidence provided during the first part of the hearing also raised important questions that required further investigation.
3. In the circumstances, we have decided to set out a more detailed analysis of the medical records than we would ordinarily include in reasons for decision relating to a case of this kind. We will come to that analysis after referring to the reviewable decisions and the relevant legislation.
The decisions under review and the task for the tribunal
4. The applicant has made five applications to the Tribunal. They are:
(a) Q200300962, in respect of the reviewable decision dated 29 October 2003. That decision affirmed the MRCC’s determinations:
·accepting liability for concussion and musculo-ligamentous neck strain for the period 29 August 2000 though 15 September 2002 following an incident during a touch football match;
·accepting liability for fractured sacrum/coccyx for the period 6 September 2001 through 31 December 2001 following a fall during a rope descent; and
·denying liability for a soft tissue (musculo-ligamentous) of the neck and soft tissue injury of the left third finger following a motor vehicle accident in 1997.
(b) Q200400830, in respect of a reviewable decision dated 22 October 2004. This decision affirms a determination to deny liability to pay lump sum compensation under ss 24 and 27 of the SRCA for permanent impairment arising from concussion and musculo-ligamentous neck strain and fractured sacrum/coccyx.
(c) Q200400831, in respect of a reviewable decision dated 22 October 2004. That decision affirmed a determination denying liability under s 14 of the SRCA to compensate the applicant in respect of her headache condition.
(d) Q200600387, in respect of a reviewable decision dated 29 May 2006 affirming a determination denying liability to pay lump sum compensation in respect of the applicant’s chronic adjustment disorder.
(e) Q200600450, in respect of a reviewable decision dated 7 September 2005. That decision affirmed a determination that liability not be extended to include a headache condition.
5. The respondent does not deny Ms Quinlan injured herself on several occasions during her service. But it says where injuries occurred, they were comparatively minor and the effects of those injuries should have ceased long ago. It argues that if the applicant is continuing to experience symptoms, those symptoms are not attributable to the applicant’s employment with the Navy.
6. In order to resolve the various disputes, we must:
·determine what, if anything, is wrong with the applicant; and
·having arrived at a diagnosis, determine whether the applicant’s employment with the Navy contributed to the development or aggravation of those conditions.
Reviewing the evidence
7. The parties produced reams of expert medical reports and data. A range of other statements and records were also tendered into evidence. Associate Professor McPhee, Drs Campbell, Rowe, Byth, Todman and Cameron gave evidence at the hearing by telephone. Associate Professor Varghese presented evidence in person.
Summary of the applicant's service medical history from 1996
8. The applicant's Service Medical Records (Exhibit 7) show that, after her enlistment in the Navy on 12 February 1996 (refer Exhibit 1, at folio 11), and before her motor vehicle accident in 1997, she had three headaches within 20 months:
·First, on 14 February 1996, localised frontally, accompanied by nausea and vomiting, and tingling around her mouth and in her hands.
·Two, a year later, were with incidental infections (tonsillitis and gastroenteritis), one lasting about a week (6 to 14 February 1997), localising behind her eyes; the other (5 March 1997) was not described in detail.
9. On 15 April 1997, during treatment for pelvic infection, she was diagnosed with mild depression, not requiring treatment, when supporting her partner financially after his discharge from the Navy.
(a) Motor vehicle accident on 2 July 1997
10. The applicant had a motor vehicle accident while driving to work at HMAS Kuttabul in 1997 (Transcript, 13 December 2006 at pages 8 and 9 especially lines 5-6; Exhibit 1, at folios 119-120). Her left hand was injured (Exhibit 3, at folio 144); however, x-rays were normal (ibid, at folio 143). Exhibit 7 records for the following day record that she experienced shoulder and neck-muscle spasm, lower neck and mid-thoracic spinal tenderness, and a painful left middle finger.
11. The next two entries were made 11 days later on 14 July. The same Medical Officer made both entries. The entries record the applicant:
·had headache, diagnosed as migraine, with neck tenderness, subsiding within a "couple of months" (Transcript, 13 December 2006 at page 11 lines 1 and 2);
·reported mild depressive symptoms for the past three weeks, about her relationship difficulties; she was diagnosed as mildly depressed and anxious.
12. Ms Quinlan experienced six more headache episodes recorded over the next three years:
·In September and October 1997, when pregnant, she had two, the first with sinusitis (Transcript, 13 December 2006 at page 31 lines 27-41).
·On 5 February 1999 she reported "stiff" neck and recurring "occipital/frontal" throbbing headaches, recurring approximately monthly; she gave a history of no migraine tendency ("°hx migraines") (Exhibit 7).
·In September 1999, with a febrile illness, she had cervical and thoracic pains with headache, from "the back of the skull and radiating forward” (Exhibit 7).
·In November 1999, and in April 2000, with infections, she had headaches (Exhibit 7).
13. In this time, her only records of back pain were in November 1997 and January 1998, apparently in connection with her pregnancy (Exhibit 9).
14. There were three more records of "stress incidents" or mood changes after Ms Quinlan’s motor vehicle accident and before her touch football injury in August 2000:
·Soon after her son's birth in April 1998, she conceived the first of three more pregnancies, all terminated between September 1998 and November 1999; she said the April 1999 termination was stressful (Transcript, 13 December 2006 at page 34 line 22 to page 35 line 25).
·Her oral contraceptive was changed on 13 May 1999 because she was "moody" (Exhibit 7).
·With an exercise induced asthma episode on 28 August 2000, she described a previous single anxiety attack, when attending to a shipmate's thumb injury (Transcript, dated 13 December 2006 at page 40 lines 28-31).
15. We note the applicant told Associate Professor Varghese that her relationship broke up during 2000 (Exhibit 4, at folio 121).
(B) Touch football injury on 29 August 2000
16. The applicant was serving at HMAS Warramunga in Melbourne during 2000. Six entries in Exhibit 7 dated 30 August 2000 pertain to an injury sustained on 29 August 2000 at a football ground in Williamstown.
·The first entry[1], by a Sick Bay Attendant, apparently of No. 6 (RAAF Base) Hospital (Laverton) (vide infra), records her headaches, nausea, vomiting, and neck stiffness after hitting her head and neck on the ground the previous day. Her cervical spine was tender, but moved normally. She was diagnosed with possible concussion with neck strain.
·The second entry, written by a Dr Cresswell, also apparently of No. 6 (RAAF Base) Hospital, noted tenderness over her fifth cervical vertebra, but normal neck movements; x-rays of her cervical spine were requested and were normal (Exhibit 1, at folio 114).
·The next three notes, entered by a Cpl Clancy, record her admission to the ward of No. 6 (RAAF Base) Hospital. The nausea had settled, but she still experienced neck stiffness. By afternoon (1500 hrs) she was "asymptomatic", requesting discharge.
·The next entry was made by Dr Cresswell who confirmed Ms Quinlan’s hospital discharge.
[1] The folio, not numbered, showing this Sick Bay Attendant's entry has been incorrectly arranged in Exhibit 7 after the folio, also not numbered, containing Dr Cresswell's record and Cpl Clancy's Ward admission notes. Reversing the arrangement of these two folios makes sense of Dr Cresswell's opening comment: "H[istory] as above thanks". As well as this misplaced folio, the Tribunal has noted another error in the compilation of Exhibit 7: it has included, as the fourth last folio, entries from the Outpatient Clinical Record of a different RAN Service Member.
17. Ms Quinlan’s neck stiffness settled over the next month or two (Transcript, 13 December 2006 at page 12 lines 15-25). Four entries in Exhibit 7 for other medical matters from 5 September to 16 October 2000 record no report of residual symptoms.
18. The records show the applicant experienced three subsequent headache events. These were recorded in January, March, and June 2001. There is no record of her complaining of low-back pain, depression or anxiety at this point.
19. The applicant’s service records show that she had applied for discharge from the Navy in April 2001. She gave 14 months notice. On cross-examination she said this was not because of her health. She explained her son was three years old at the time, and she did not want to go back to sea because that would involve moving every couple of years. This extended period of notice provided her with an opportunity to reflect on her decision and she subsequently decided to withdraw the application for discharge and remain in the Navy (Transcript, 13 December at page 43 line 41 to page 44 line 9).
(C) The rope training accident on 6 September 2001
20. Ms Quinlan was subsequently posted to HMAS Cerberus. Early on the afternoon of 6 September 2001, she was participating in a rope training exercise. She was wearing a flak jacket and carrying a rifle slung over her back. In the course of the exercise, she lost control of her fast rope descent and plunged to the ground. She landed on her buttocks. The barrel of the rifle was between her buttocks when she landed. X-rays of her pelvis and coccyx were taken at HMAS Cerberus Medical Centre, and it seems she was told that she had fractured her coccyx. She was prescribed medication, and sent back to work.
21. The x-ray reported an undisplaced fracture of the fourth part of her sacrum (Exhibit 1, at folio 40). However, the Exhibit 7 entry of that date recorded her x-rays as normal. She was later informed that she had suffered "another fracture" to the fourth part of her sacrum. Ms Quinlan was placed on "restricted duties", and she was subsequently medically downgraded as a consequence of ongoing lower-back pain, neck pain and headaches.
22. We note the applicant subsequently told Dr Byth that she and her partner were going through a difficult period in their relationship. The couple separated soon after the rope training accident (Exhibit 4, at folio 135).
23. The applicant continued to experience pain and discomfort in the period following the rope training accident. On 1 March 2002 SHO Cmdr Moore recommended her referral to a Neurologist and a Pain Clinic pending discharge on medical grounds. Later that month, the applicant was seen by Neurologist Dr Bladin, who diagnosed "tension type headaches". He advised that she reduce her analgesic medication, and recommended starting a treatment course with Tofranil or Tryptanol. He also recommended psychological assessment. He did not comment about the applicant’s back pain (Exhibit 1, at folio 65-66).
24. Clinical Psychologist Dr Mason saw the applicant in May 2002 on Dr Bladin's recommendation. Dr Mason diagnosed Ms Quinlan as "stressed and anxious" from "physical injuries and work- and family-related problems" (Exhibit 11).
25. Ms Quinlan was discharged from the Navy as "medically unfit" on 7 July 2002. In her evidence before the Tribunal, she explained the course of her complaints since (Transcript, 13 December 2006 at page 15 line 21 to page 20 line 22):
·Her low-back pain was more frequent, in her lower lumbar region, extending bilaterally (ibid, at page 49 lines 8-13).
·Her neck pain was, since her fast rope training accident, often progressing to her migraine headaches.
·Her migraines began soon after her accident. At first they occurred four or five times a week, and then two or three times a week. She now used Tramal, Mersyndol, and Nurofen Plus, sometimes with Panadeine forte. Every day, for the past year and a half, after attending a pain management course, she had been taking two Nurofen Plus tablets every six hours. Her migraines might be accompanied by a visual disturbance, sometimes with numbness in the legs (ibid, at page 49 line 13 to page 50 line 5).
26. The applicant now works part-time as a pharmacy assistant. She resides with her mother. Ms Quinlan is dependent on her mother for heavier physical tasks, such as vacuuming, lifting a mop bucket, and cleaning floors.
Which complaints are apparent from the medical records?
27. We pause at this juncture to note that there was no evidence (in the medical records or otherwise) presented to us suggesting the applicant continued to experience symptoms associated with the left third finger soft tissue injury which was sustained in the motor vehicle accident on 2 July 1997. A claim was made in respect of that injury in Q200300962. We must therefore affirm that reviewable decision.
28. The medical evidence presented to this Tribunal identified the applicant's four main complaints:
·Back pain;
·Headaches;
·Neck pain; and
·Mood disorder.
29. We now turn to consider the evidence in relation to each of these complaints. In each case, we will consider, in order, the applicant's history before the accident, the accident itself, her subsequent clinical progress, and the expert medical evidence.
Back pain
Back pain before the fast rope training accident
30. There was no record of the applicant experiencing back pain before her motor vehicle accident. A summary of the evidence for her back pain before her fast rope training accident is:
·She had brief mid-thoracic spinal pain and tenderness following her motor vehicle accident (Exhibit 7, entry for 3 July 1997).
·She had lower-back pain with her first pregnancy (ibid, entry for 26 November 1997), subsiding after her delivery in April 1998 (Transcript, 13 December 2006, at page 32 line 32 and lines 45-46).
·She had thoracic, not lower-back, spinal pain in September 1999 (Exhibit 7, entry for 20 September 1999).
31. There is no record of the applicant experiencing back pain in connection with her touch football injury. We are therefore satisfied the applicant recovered completely from her motor vehicle accident thoracic back pain and that she had no low-back pain following her touch football injury. The Exhibit 7 entries for her present back pain date from her fast rope course injury in September 2001. It has been recorded ever since then, and has been noted by all the medical specialists who have seen her after that date.
The applicant's fast rope training course accident and injuries
32. There are two formal reports of this accident:
·Petty Officer Tucker's Incident and Fatality Report dated 6 September 2001 (Exhibit 1, at folios 93-94) states that this occurred at 1345 hrs that day; “[the] sailor tried to 'Lock Off' on F[ast] Rope but kept going and hit deck hard".
·Petty Officer Bolwell's Statement (ibid, at folio 95) records: "after several successful decents [sic] from the 5 and 10 metre tower AB Quinlan exited the 15 metre tower wearing full battle order kit ie helmet, ballistic vest, webbing and weapon. AB Quinlan travelled down the fast rope but was unable to stop her decent [sic] before hitting the deck and landing on her back where she sustained subsequent injuries. AB Quinlan was then transported to HMAS Cerberus Health Centre where she received medical attention."
33. The applicant's two statements, of 24 April 2002 (ibid, at folio 78) and 25 October 2002 (Exhibit 4, at folio 60), provide more detail. In her first statement the applicant said:
"I was dressed in full battle order kit. I jumped off the fast rope tower at 45FT and proceeded down, I then was told to lock off and I locked off, I couldn't hold the position on the rope any longer and continued to fall down onto a concrete slab. I landed on the rifle that was slung over my back.
"Initial first aid treatment consisted of two people picking me up of [sic] the ground and walking me over to the range office. I then was placed on a park bench to sit and wait until the range 4WD [sic] then escorted to the CERBERUS Medical Centre. On arrival I was X-rayed then sent to the doctor. The doctor then informed me that there was a fracture around the Coccyx Area and a rather large hameriod [sic]. I was also prescribed medication and sent back to work. One to Two weeks later I went back to the doctors for lower back pain and for [sic] I was told that I had also fractured a part of my 4th Sacrum [sic] was then prescribed more medications" (emphasis added).
34. Ms Quinlan’s second statement reads:
"I was dressed in full battle order kit when was instructed to jump. I jumped out and proceeded down the rope and and [sic] was instructed to lock off at 40ft and did. I was told to hold on longer and I lost my grip and fell from about 35ft on to a concrete slab and landed on a rifle that was slung over my back. After the accident I was picked up to my feet and walked over the range office and sat on a park bench. After about a couple of minutes I was thrown an ice pack. Then had to climb into the front seat of a troop carrier and was driven to the medical centre on a dirt road. Where I had to wait for a doctor. When I finally got into the doctor I was sent to x-ray and was diagnosed with a fractured coccyx and was sent back to work with pain killers. A couple of days later I was still in pain and went back to the Medical Centre and was diagnosed with another fracture to my 3rd and 4th sacrum [sic] and had also sustained a large hameroid [sic]" (emphasis added).
35. In her evidence before the Tribunal, the applicant described the accident as follows (Transcript, 13 December 2006 at page 14 lines 7-35):
"Now, can you describe your fall, what you recall of that?---I remember my muscles were surging, and then as I let go, or as the rope came through my hands, I remember my feet starting to rise above my head as I was falling, and then I impacted.
"And do remember where you - what part of your body hit the ground?---It was my tail bone on the rifle barrel. I landed on that, then hit my head.
"When you say your tail bone on the rifle barrel, the rifle barrel was slung over your back?---Yes. The barrel runs straight down the line of your spine.
"All right. So tail bone on the rifle barrel, and then what did you do then?---I was winded and - - -
"You said you rolled over, I think, did you?---No, I never rolled over myself, no.
"Right?---The instructors then picked me up to my feet and walked me over 100 metres over to the office and then put me in a Landcruiser and drove me up the dirt track to the hospital.
"All right. Now, after that event can you tell me please the injuries you suffered as a consequence of that fall?---I had a rather large haemorrhoid, two fractures of the sacrum coccyx area and whiplash.
"Now, were you - did you continue with normal duties?---No, they were restricted duties but still had to continue working.
"Where you given a medical category?---I was down-graded but I wouldn't be able to tell you what medical category I was given at that stage."
36. The Exhibit 7 record of the applicant's fast rope course injury is dated "6/9", entered by Civilian Medical Officer, Dr Lowther (identified by his incidental Exhibit 7 notes for 26 August 1999 and 18 November 1999). This entry was made when the x-rays of the applicant’s pelvis and coccyx were performed at Dr Lowther’s request (see [40]). He wrote:
"When descending her rope course rapid descent, [she] landed on [her] backside. [She was] able to walk into [the medical] centre. No [evident] neurological damage. [She had] FROM [full range of movement, presumably of her back]. [She was] tender [over her] left buttock area. X-rays [of her] pelvis/coccyx [are] NAD. [Treatment] Plan: analgesics" (emphasis added).
37. Notably, this entry makes no reference to a fracture of Ms Quinlan’s coccyx.
38. Dr Lowther's entry "6/9" in Exhibit 7 recorded the x-ray results as “NAD"; ie, "nothing abnormal detected". This presumably was his provisional diagnosis. A formal diagnosis could not have been made until the x-ray films were officially reported by the Radiologist, Dr Poynter. The report would have come from Dr Poynter’s own radiological premises off-base, or formulated by Dr Poynter when next visiting HMAS Cerberus. We note Dr Poynter subsequently reported (Exhibit 1, at folio 40):
“Pelvis/coccyx: A fracture crosses the fourth piece of the sacrum without displacement. No other abnormality seen."
39. Dr Poynter's concluding sentence: "No other abnormality seen" unequivocally excludes injury to the coccyx. We note the x-ray examination included an examination of the coccyx.
40. The x-ray report is undated. The referral request, although dated “9/6/2001” (ie, the date specified according to the US convention), confirms the report in question is the relevant x-ray report, because:
·the requesting doctor is named as Dr Lowther;
·the reason for referral states that the applicant "fell off rope tower"; and
·this date accords with both of the applicant's statements, saying that her x-rays were performed that day.
41. We note that in both of her statements the applicant said that, after her accident, she was seen by a doctor, presumably Dr Lowther as recorded in the Exhibit 7 "6/9" consultation.
42. The applicant insists she was diagnosed with a fracture of her coccyx rather than her sacrum following the x-rays. Given the evidence referred to in [36]-[37], we think it is unlikely she received that diagnosis from Dr Lowther, although it is unclear who else would have suggested it. Ms Quinlan’s first statement says: "The doctor then informed me that there was a fracture around the Coccyx Area". In her second statement she said: "When I finally got into the doctor I was sent to x-ray and was diagnosed with a fractured coccyx". If taken at her word, someone whom she has identified, correctly or incorrectly, as a doctor gave her this "diagnosis". This presumably would have had to have been an HMAS Cerberus medical staff member, after her x-rays were taken. As [53] below shows, she has remained convinced to this time that she fractured her coccyx, as well as her sacrum, in her fast rope course training accident.
The applicant’s subsequent clinical course
43. Ms Quinlan’s statements say she was sent back to work after the accident. In her evidence-in-chief she says that she was on restricted duties (Transcript, 13 December 2006 at page 14 lines 31-32). However, when she was later seen by Psychiatrist Dr Byth, he recorded (Exhibit 4, at folio 135):
"7.3. After she fractured her coccyx in 2001, however, she recorded being 'very scared - I didn't know what was wrong with my back, and what my initial treatment should be'. She thought her back might have been damaged by her being pulled up to her feet immediately after the fall."
44. A perusal of the medical records suggests Dr Poynter's x-ray report (Exhibit 1, at folio 40) may not have been prepared or received by the time the applicant had been sent back to work. As noted in [40], the report was undated.
45. The next entry in Exhibit 7 occurs on 18 September ("18/9"), 12 days after the x-ray referral. The entry was made by Dr Lowther and suggests the report had become available. Appropriately, he corrected the record, writing "# [fractured] sacral area, undisplaced" (emphasis added). His inclusion of the word "undisplaced" implies that, although not citing it, he was quoting from Dr Poynter’s report in Exhibit 1, at folio 40. Again this does not include any reference to a coccygeal fracture.
46. Meanwhile, either two days after the accident (according to the applicant's second statement), or "one or two weeks later" (according to her first statement), the applicant said she was told that she had "also fractured" her sacrum (first statement, emphasis added), or that she had been "diagnosed with another fracture" (second statement, emphasis added), this one to her sacrum, as well as the one of her coccyx. Her first statement infers that she was given this second report by a doctor; her second statement does not specify this. It is not clear if the "18/9" entry in Exhibit 7 refers to the applicant actually consulting with Dr Lowther that day; but, if so, and if this exchange has occurred between them, it has not been recorded by him.
47. We are satisfied from both her statements that the applicant was advised of her x-ray's finding of a fracture of her sacrum (Exhibit 1, at folio 40) after the report eventually became available. Because Dr Lowther corrected the Exhibit 7 record of the applicant's x-ray results on 18 September, although it is not clear whether that was the date that she was so notified, we conclude, on balance of probabilities, that she was notified of her sacral fracture "one or two weeks" after her fast rope course injury, not "two days" later. There has been no evidence presented explaining this delay in conveying this result to the applicant.
48. According to both of the applicant’s statements, when advised of her sacral fracture, she was left with the belief that she had sustained fractures to both her sacrum and coccyx.
49. The applicant’s evidence was unchallenged on these matters. It follows we have uncontested evidence that:
·after her x-rays were taken on the day of the accident, notwithstanding the "6/9" Exhibit 7 record making no reference to her having fractured her coccyx, Ms Quinlan was informed she had a fractured coccyx by someone, apparently a person on the HMAS Cerberus medical staff whom she thought was a doctor; and
·when later told of the Dr Poynter’s report (Exhibit 1, at folio 40), perhaps on 18 September, she was left with the belief that she "also" had "another" fracture - in her sacrum.
50. At this juncture, we pause to consider the applicant's credibility. Several medical witnesses, when they examined the applicant, formed differing views on this issue. Associate Professors McPhee (Exhibit 2, at folios 129-133 and Exhibit 12) and Varghese (Exhibit 4, at folios 118-130), and Dr Cameron (Exhibit 16), remarked on her “abnormal illness behaviour" and "somatoform" features. Associate Professor Varghese added that this was "almost certainly unconscious” and that she was not malingering, her behaviour arising from "her beliefs as to what is wrong with her body" (Exhibit 4, at folio 129). On the other hand, Dr Byth found no "features of Factitious Disorder, exaggeration, malingering, or any particular abnormal illness behaviour” (ibid, at folio 139); and Dr Campbell found no evidence of her embellishing her claims (Transcript, 13 December 2006 at page 56 lines 22-24).
51. We were not provided with evidence from the applicant’s service record or elsewhere which calls her character or credibility into question. In particular:
·There has been no indication that she was any other than a conscientious Service Member. It already has been noted ([19]) that, although, before her fast rope course training accident she applied for discharge for personal family reasons, she subsequently withdrew this request. She told Associate Professor Varghese that, at the time that she was discharged on medical grounds, "she was in fact keen to stay on as a writer or medical orderly" (Exhibit 4, at 123).
·She appears to have managed her personal relationship difficulties with integrity (vide [131] and Associate Professor Varghese's report (Exhibit 4, at folio 122); and to have continued responsibly with the care of her son, assisted by her parents, now working part-time as a pharmacy assistant (Transcript, 13 December 2006 at page 18 lines 25-41).
·The hearing of her evidence lasted 2¼ hours, with one fifteen minute interval after the first half-hour (ibid, at page 8 line 28 to page 50 line 26). She stood at occasional intervals in the witness box for the purpose of pain relief, comporting herself unostentatiously in doing so; after her evidence was completed, we observed that she again occasionally and unobtrusively stood for several minutes at a time when observing the balance of the hearing from the back of the hearing room.
·When giving evidence, she was straightforward, and not evasive; and she was consistent in providing her evidential details (vide [56]-[60]).
·We note that in her two statements describing her fast rope course training accident (Exhibit 1, at folio 78 and Exhibit 4, at folio 60), she has given two different estimations of the time after her accident that she was given her fractured sacrum x-ray result. Given these statements were prepared six months apart, we accept this discrepancy is the product of innocently inaccurate recollections. We also do not make anything of the fact the applicant did not mention her pregnancy terminations to the psychiatrists. Neither of the psychiatrists has viewed this omission unfavourably; we take the same view.
52. In those circumstances, we are satisfied the applicant was a credible witness. We accept she genuinely believes what she has stated. We do not accept the alternative explanation - that she has fabricated the account of having been told that she had fractured her coccyx. We are satisfied from the applicant's demeanour and behaviour during the hearing, from the records and other evidence of her service in the Navy that the suggestion of fabrication cannot be supported.
53. We also note there is no record in Exhibit 7 in the six month period following her fast rope training accident that the applicant was disabused of the diagnosis of a fractured coccyx. Indeed, as noted in [65] below, this fractured coccyx misdiagnosis was repeated in the Exhibit 7 entries. This misdiagnosis:
·is still believed by the applicant (Transcript, 13 December 2006 at page 14 lines 27-29;
·has been repeated by her in the expert medical witnesses' reports (vide infra Drs Combe, Webb, Rowe, Byth, Campbell, and Associate Professor Varghese); and
·remains included in the applicant's claims (Q200300962; and Q200400830)
54. Our findings on this issue suggest to us there has been:
·careless use of the applicant's elementary x-ray information; and
·inadequate communication of the applicant's diagnosis, as then made, to her.
55. In her evidence to the Tribunal, the applicant said that, after her fast rope course injury, she then was placed on "restricted duties" (Transcript, 13 December 2006 at page 14 lines 31-32). She was medically downgraded and transferred to seamanship school, to perform light duties, office work, instructing, and maintenance of charts. Her movements were also restricted during the next six months, especially in relation to lifting and mending. This was particularly because of her ongoing lower-back pain, but also because she had developed neck pain and headaches, which progressed to migraines (ibid, at page 14 line 31 to page 16 line 12).
56. In Exhibit 7, the next entry following that for 18 September 2001 was nearly four weeks after the accident (1 October). Ms Quinlan then presented with an incidental gastrointestinal illness, of vomiting and diarrhoea; there is no reference to her suffering back pain. When cross-examined on this, she asserted that she was in pain (Transcript, 13 December 2006 at page 42 lines 44-47):
"Because I went back repeatedly and I have, from my medications list - of where I've had scrips [sic; ie, for pain relief] written, where I've gone back and spoken to these doctors before the 18th and between the 18th and 11 [sic] October."
57. The entry for 1 October in Exhibit 7 is in two parts: the first being the patient's presenting history, customarily (but not invariably) recorded by a Sick Bay Attendant; the second is the Medical Officer's notes. This is seen frequently elsewhere in Exhibit 7, such as already noted in [16] at No. 6 (RAAF Base) Hospital (Laverton). The applicant also referred to this practice in the Navy in her cross-examination (Transcript, 13 December 2006 at page 37 lines 6-21):
“All right. But you accept that this would be correct, don't you?---Well, I can't accept that it's correct. It's written by another sailor who is not actually a doctor.
"But they are writing down what you say to them, aren't they?---I have no idea what they are writing. I'm not actually writing it.
"I appreciate that?---We're not allowed to look at our medical files.
"But you've seen your medical files, haven't you?---Since discharge, yes.
"And you've had copies of them?---Since discharge, yes.
"You've read through all of these, haven't you?---Since discharge. You're not allowed to view your medical records if you're still in uniform in the Defence Force."
58. When counsel pointed out that this 1 October entry contained no mention of her back pain, she responded (ibid, at page 42 lines 39-42):
"Well, like I said, I can't comment on what the [sic] write and what they don't write. I don't see these notes. I only tell them what I tell them, and whether they write it or not is not for me to be able to do."
59. Counsel also took her to the Sick Bay Attendant's Exhibit 7 entry for 20 November 2001.The following exchanges took place at the hearing (ibid, at page 43 lines 21-39):
"And further down, second line up from the bottom of that entry, there is a reference 'migraine/muscle strain'. So, you have gone along to complain about neck pain on your right side, but there is no mention of any low back pain. What do you say to that?---Well, like I said, I can't comment on what they have written, because it says down here further, 'migraine and muscle spasms - muscle strain'. So, from my - top of my shoulder goes up the back of my neck into below my ear, and that is when the migraines develop. But, as I said, if the doctor [sic; ie, Sick Bay Attendant] doesn't write that I have lower back pain in there, I can't say why he has or hasn't written what he has written.
"Right, okay?---I went there, repeatedly, after the accident and went and did the proper thing - went to the medical centre on Cerberus to get medical assistance.
“All right. Just bear with me a moment. And it is not until 1 February 2002 - sorry, 29 January 2002 there is mention of any lower back pain, which is, what, September, October, November, December, January - five months?---Like I said, I went there, repeatedly, with the same symptoms, and I had medication with the dates next to them of when I had them filled, and I went there, repeatedly, back to Cerberus over the same ailment after that accident."
60. Counsel for the respondent, when tendering Exhibit 7, informed the Tribunal that he had been briefed with the applicant's full medical file (Transcript, 13 December 2006 at page 26 lines 45-47). He did not further challenge the applicant’s evidence on this point. As discussed above in [50]-[52], we are satisfied the applicant was a reliable witness and we accept her evidence on this point.
61. We note the applicant's cross-examination (referred to in [59]) in relation to the 20 November 2001 entries in Exhibit 7 overlooked the immediately preceding entry dated 7 November 2001. This is understandable, as the entry is unusually difficult to read. It was written by another Civilian Medical Officer, Dr Lovig (identifiable from Exhibit 11, the referral of the applicant to Clinical Psychologist, Dr Mason). He wrote on 7 November:
"# [fractured] sacrum [on] 6 Sep 01. Still [has] generalised and localised low back sacralgia. Treatment: Tramadol [an analgesic] 50 mg i-ii [1-2 tablets] if required. Has put claim in” (emphasis added).
62. The first sentence of this entry could be alluding to the report in Exhibit 1, at folio 40. Notably, "sacralgia" means sacral pain. We also think it is significant that this entry does not mention a coccygeal fracture. Whereas Dr Lovig may have been aware of the report, we note the next eight entries in the records, from 20 November 2001 to 1 March 2002 (all made by other Medical Officers), do not refer directly or implicitly to the report in Exhibit 1, at folio 40.
63. The wording of Dr Lovig's entry for 7 November 2001 in Exhibit 7, made two months after her fast rope training accident, has important implications. The note makes it clear the applicant "still" had pain over her sacrum (sacralgia). This is consistent with the applicant's evidence that her pain persisted following her accident.
64. Entries recording Ms Quinlan’s neck and lower-back pain and her migraines (for which she received such non-steroidal anti-inflammatory and analgesic medications – like Celebrex (celecoxib), Rafen (ibuprofen), Naprogesic (naproxen), Quinate (quinine), and Tramal (tramadol)) – appear in entries in Exhibit 7 for 20 November 2001, 29 January, and 1, 12 and 13 February 2002. She also had a physiotherapy review on 13 February 2002 for her neck pains and headaches (Exhibit 1, at folio 46).
65. The medical attendants’ confusion over the applicant's diagnosis after 7 November 2001 is evident in these subsequent Exhibit 7 entries:
·Because her low-back pain persisted, on 30 January 2002 Medical Officer Dr Wielicki requested a CT lumbo-sacral spine scan. The scan was reported as normal (Exhibit 1, at folio 45). We note this scan examined the applicant's lower spine from the L1/2 to the L5/S1 levels. This means it did not include the lower (fourth and fifth) sacral (S4 and S5) segments or the coccyx. In other words, the referring Medical Officer did not direct the attention of the x-ray staff to the relevant lower sacral segments, which therefore have not been included in the CT scan imaging sequences. (This fundamental error in anatomical localisation has been overlooked in previous documentation of the applicant's claims; eg, ibid, at folio 6[15]).
·The Exhibit 7 entry for 13 February, made by another Medial Officer (perhaps a Dr Paruewin vide Exhibit 3, at folio 46), records a different inaccuracy: after referring to the applicant's accident, it states "# [fractured] L4 [sic; ie, fourth lumbar vertebra, not fourth sacral segment], coccyx, neck [pain], now for 2/12 [two months] ..." (emphases added). This is another basic anatomical error in notation of her injury: it involved her lumbar rather than sacral region, as well as incorrectly including reference to her coccyx. It does record that she has had neck pain for two months.
·On 1 March, SHO Cmdr Moore refers to the applicant’s "# [fractured] coccyx and 4th part [of] sacrum"; ie, again incorrectly including the coccyx.
66. These inaccurate records indicate that, after 7 November 2001, the doctors writing these records were unaware of Radiologist Dr Poynter's x-ray report of Exhibit 1, at folio 40. That is unfortunate because we know the films were available and had been seen by Dr Lowther, by 18 September, as indicated by his Exhibit 7 entry for 18 September ([45]). The films may also have been seen by Dr Lovig on 7 November. After that date, however, the report was ignored, neglected or forgotten by the attending medical staff of HMAS Cerberus. (It appears the x-ray films themselves were not sighted by any Medical Officer after Radiologist Dr Poynter made his report on them following the applicant's accident on 6 September 2001).
67. We are satisfied that with the exception of Dr Lovig’s accurate (albeit barely legible) entry for 7 November 2001, there are significant omissions and errors in the applicant's Service Medical Records in Exhibit 7 for the six month period after Dr Lowther's entry on 18 September 2001. Those errors and omissions might be partly explained by the various Exhibit 7 entries which suggest the applicant’s case was reviewed by at least five different Medical Officers in the six month period following her fast rope course accident.
68. Regardless of the explanation, we find:
·inadequate documentation of the applicant's back pain and other complaints after the accident;
·in addition to the careless use (as already noted in [54]) of the applicant 's x-ray films and report, they have actually been misplaced; and
·these have contributed to her medical attendants' lack of understanding, and confusion, about the diagnosis of her case.
69. There was also a lack of specialist consultation. The applicant’s persistent complaints of back pain should have resulted in a referral to an orthopaedic surgeon. As Spinal Orthopaedic Surgeon Associate Professor McPhee explained in the course of his oral evidence relating to his third report (Exhibit 15), questionable fracture diagnoses can be clarified by bone scans of the suspect region. The failure to seek specialist opinion is consistent with our conclusion that the crucial x-ray report was misplaced or forgotten.
70. In summary, our examination of the applicant's service medical records condenses to an unhappy litany of five observations:
·a lack of care in using and filing the applicant's elementary x-ray material;
·inadequate communication of the applicant's diagnosis, as then made, to her;
·poor communication between her medical attendants, including substandard medical record keeping;
·a lack of thought and understanding about her case by her medical attendants; and
·a lack of appropriate professional consultation.
The expert medical witnesses' evidence.
71. We now turn to review the expert medical witnesses' evidence. We note at the outset that the expert medical witnesses did not have the opportunity to examine and consider the misplaced x-ray films and report of Exhibit 1, at folio 40. Associate Professor Varghese noted the existence of the report (Exhibit 4, at folio 124), but none of the other expert medical witnesses saw it. In particular, we note:
·It was not mentioned by Dr Bladin (Exhibit 1, at folios 65-66), Dr Webb (ibid, at folios 110-114) or Associate Professor McPhee (Exhibit 2, at folio 131 and Exhibit 12, at page 2);
·Drs Combe (Exhibit 1, at folio 80) and Rowe (Exhibit 2, at folio 123) referred to it by hearsay; and
·Drs Byth (Exhibit 4, at folio 133) and Campbell (Exhibit 6, at page 2) referred to the report describing a coccygeal fracture.
72. It is unclear why the report was not made available to the expert medical witnesses. The failure to do so has complicated these very lengthy proceedings. It is possible the hearings in this matter may not have even been required had the original x-ray films, with their report, been available.
73. As it happened, the report only came to light following the adjournment of the proceedings in December 2006. We brought the report to the attention of the parties in a Telephone Directions Hearing. We invited the parties to bring it and the related material to the attention of relevant medical witnesses for opinion. Associate Professor McPhee was the only expert medical witness who was invited to comment. His third report (Exhibit 15) was his response.
74. Consequently, when considering the expert medical opinions, the Tribunal has been mindful that only Associate Professor McPhee has had the advantage of seeing the report in Exhibit 1, at folio 40. He has never seen the films.
75. We turn now to the evidence. Surgeon Dr Combe, in May 2002 (Exhibit 1, at folios 79-82), obtained the applicant's history of lumbar back pain following her "tower incident". She told him that she had fractured both her coccyx and fourth sacral "section" (ibid, at folio 80). He noted her normal lumbar spinal CT scan report of 30 January 2002, and found "no firm evidence" that she had fractured her coccyx or sacrum, diagnosing her "spinal symptoms" as of "musculoligamentous origin" (ibid, at folio 81). He attributed her back pain to her military service.
76. In February 2003, Rheumatologist Dr Webb (Exhibit 1, at folios 110-116) recorded the applicant’s injury as "an undisplaced fractured coccyx (... misdiagnosed for a couple of weeks)" (ibid, at folio 111), and noted she had been suffering constant severe pain since that time. He also noted her to be depressed, caused by "home/partnership/family arrangement" stressors (ibid, at folio 112). He diagnosed fibromyalgia, or "generalised non organic pain syndrome", not due to her military employment (ibid, at folio 112).
77. Ms Quinlan was assessed in March 2004 by Occupational Physician Dr Rowe (Exhibit 2, at folios 122-128). She told him that she had sustained fractures to her sacrum and coccyx (ibid, at folio 123). He noted her low-back pain, buttock pain, coccyx pain, and pain radiating down the backs of both legs, with other complaints (ibid, at folio 124). He opined that she had suffered lower-back chronic musculo-ligamentous strain, due to her September 2001 injury; and that she had possibly suffered fractures to her coccyx and sacrum (ibid, at folio 128).
78. The applicant was first seen by Spinal Orthopaedic Surgeon Associate Professor McPhee in June 2004 (Exhibit 2, at folios 129-133). He noted her report of continuing lumbar, sacral, and coccygeal pain following her fast rope training accident, extending into both legs (ibid, at folio 130). When examining her spinal movements he found inconsistencies. He described an example when giving his oral evidence: he said her hands could only reach her knees when standing, but could reach to her shins when seated (Transcript, 14 December 2006 at page 81 line 30 to page 82 line 11). He also found "[w]idespread non-anatomical tenderness ... over the lower lumbar spine, sacrum and coccyx extending out bilaterally to the pelvis" (Exhibit 2, at folio 131).
79. On reviewing x-rays of her sacrum and coccyx of 29 May 2003 (ibid, at folio 131), reportedly showing a soundly united previous fracture of the last sacral segment, Associate Professor McPhee said he found no such change. He had an MRI examination of the applicant's sacrum and coccyx performed on 30 June 2006, which was normal (Exhibit 13). He considered that "the evidence of a fracture of the terminal sacrum is questionable"; and “At best, Ms Quinlan may have had a possible fracture of the sacrum, which has now healed" (Exhibit 2, at folio 132).
80. Associate Professor McPhee added: "Her sacro-coccygeal pain, however, is clearly causally related to this [fast rope course] incident" (ibid, at folio 132), concluding that it had been due to soft tissue injuries of her sacral and coccygeal regions, possibly with a sacral fracture (ibid, at folio 133). He did not accept a diagnosis of fibromyalgia, questioning its existence as a physical condition (Transcript, 14 December 2006 at page 84 line 33 to page 85 line 20). He concluded the applicant's back injuries were to the soft tissues of her sacral and coccygeal regions.
81. Significantly, Associate Professor McPhee did not regard Ms Quinlan’s continuing pain since her injuries as having a physical basis. During his cross-examination he illustrated this by referring to the normal findings of her MRI examination of her sacrum and coccyx of 30 June 2006 (Exhibit 13; Transcript 14 December 2006 at page 85 lines 32-39):
"Sorry, go on?---If I see somebody with an injury to their lower back and they've got normal studies soon after the injury, and they've had a serious soft tissue injury, then I would expect 12 months later, that if I re-did the MRI, I would anticipate seeing some changes. You would - if back is perfectly healthy, suffers an injury, it takes about 12 months before you'd see changes on an MRI that would indicate where the injury would be, if it's a soft tissue injury. But I think after that period, if you don't see anything, then one would have to be very wary that there's anything significant occurring at all."
82. When asked by the Tribunal to comment on whether a diagnosis of "chronic soft tissue musculo-ligamentous injury" would adequately explain Ms Quinlan’s persistent back pain, he said (ibid, at page 88 lines 1-6):
"Well, I guess when you - when all other answers fail, that's what we tend to hang our hat on, in that it's one that is - it's a diagnosis that is - you know, hard to confirm, and it implies as it means, that there is no major structural injury that is - that is evident. It's the same as a whiplash injury, which is exactly the same thing.
"Are you saying that it does allow there to be a physical component to that injury then?---Well, the assumption is that is what the injury is, and if you've had an injury, then you are perhaps entitled to get paid, yes."
83. Associate Professor McPhee opined that "non-organic factors, social, psychological and environmental" now were contributing to the applicant’s symptoms and incapacity. He said those factors were unrelated to her employment in the Navy (Exhibit 2, at folio 133).
84. The applicant saw Associate Professor McPhee again in May 2006 (Exhibit 12) to answer two questions:
·Whether the applicant had suffered a fracture of her sacrum/coccyx; and
·Whether there was any underlying condition to explain her ongoing symptoms.
85. Ms Quinlan again described widespread constant lumbo-sacral and pelvic pains passing into the backs of both legs. Associate Professor McPhee noted more inconsistencies in her account on examination. He referred to normal reports of x-rays of her sacrum and coccyx in 2003 and June 2006 (Exhibit 12, at page 2). He stated:
·there was "no evidence that Ms Quinlan suffered a fracture of her coccyx or sacrum in the incident in September 2001";
·her "disability and incapacity cannot be explained on the basis of any other underlying pathology"; and
·"The extent of her pain is exaggerated and consistent with chronic pain behaviour" (Exhibit 12, at page 3).
86. The respondent asked Associate Professor McPhee to provide a third report on 28 June 2007 (Exhibit 15), to address the two questions we raised following our discovery of the x-ray report in Exhibit 1, at folio 40:
·If the report of the applicant's pelvis and coccyx x-rays of 6 September 2001 had been available to him, would this have influenced his opinion; and, if so, what would the opinion now be?
·Would any of the following have influenced the medical outcome of the applicant's case:
(a) An early accurate clarification of her diagnosis? and/or
(b) Her referral to a Pain Clinic as recommended by SHO Cmdr Moore in March 2002?
87. Associate Professor McPhee responded to the first question by saying that he, as an experienced orthopaedic surgeon, in any case of trauma, would have wanted to have seen the x-ray films for himself. He pointed out the radiologist would not have examined the patient. He added that he still doubted whether the applicant had a fractured sacrum. He said he would have expected this to have caused "constant and moderately severe pain in the tailbone", especially when sitting, which was not the history that he had obtained. He noted that the Exhibit 7 entry on the day of her accident (vide [36]) recorded that the applicant had a "tender left buttock", inconsistent with a sacral fracture, the pain of which would localise to the tip of the sacrum or tailbone.
88. In his oral evidence, regarding her diagnosis of a fractured coccyx, Associate Professor McPhee stated (Transcript, 22 February 2008 at page 5 lines 2-4):
"I think it's unlikely you would ever really see a fracture of the coccyx, most coccygeal injuries are in fact dislocations or subluxations for a start."
89. Associate Professor McPhee was also directed to the evidence of an undisplaced fractured sacrum that was diagnosed on the applicant's 6 September 2001 x-rays. He was asked whether he considered that the applicant's normal MRI sacral scan of 2 July 2006 excluded this diagnosis. He said (ibid, at page 5 lines 8-12):
"Yes?---As far as the sacrum is concerned, you would see tell-tale evidence in a majority of cases. An order - 75 per cent at least, I mean there will be a little step in the [bone] cortex, there'll be changes in alignment of ... when you look closely. In most cases - in the majority of cases you will be some tell-tale evidence of a previous fracture."
90. He went on (ibid, at page 5 lines 27-42):
"Yes, bearing in mind that we're applying the standard of balance of probabilities here, could you give an answer in those terms on balance of probabilities what that normal MRI result could convey to us on the tribunal?---Well, you know, I think it is - you've got a false negative grade [sic; ie, rate] of let's say 25 per cent versus a 35 per cent positive - I mean if there is displacement then it's almost certainly [a] fracture. If there's no displacement then the odds are probably one in four that there was a fracture.
"So that in other words it's less likely - less probable that there was a fracture back in 2001?---Well, you know, I don't think anyone's tested that.
"No?---But, you know, it is unusual to have an undisplaced fracture.
"Yes?---There's always a little tiny step somewhere that always remains, that doesn't change ad infinitum.
Yes?---So to have a fracture that hasn't displaced at all is an unusual situation."
91. On the second question he was asked to consider (see [86]), Associate Professor McPhee’s report (Exhibit 15, at page 2) began:
"One of the worst mistakes in medicine is to apply a diagnosis which is either incorrect and inaccurate [sic] and convey to a patient that there is something seriously wrong. A diagnosis which is inconclusive by one means may be confirmed by other forms of investigations. In the case of a fracture, a bone scan will always be positive for a fracture for the twelve months at least following the injury and is diagnostic. If a fracture is confirmed by bone scans then a definite diagnosis can be made. If it is not confirmed by a bone scan then the individual should not be informed that there is a fracture when there is biologically not a fracture. Incorrect labelling only leads to unnecessary over-treatment and fear of harm. There are many aspects of Ms Quinlan's presentation that suggest that this has been a sequence of events."
92. In light of those remarks, we invited Associate Professor McPhee to comment on whether an incorrect diagnosis of a fractured sacrum might have contributed to the development of a mood disorder. He responded by saying that, because "between a quarter and a third" of patients with back pain that he sees have "functional overlay", (eg, personality disorder, depression, anxiety, vide Transcript, 22 February 2008 at page 6 lines 12-16), for such patients he routinely uses a number of validated standardised questionnaires to assess this. He briefly outlined five of these which he used in his examinations of the applicant; and, after referring to the fifth, he said (ibid, at page 7 lines 2-22):
"Also this one does indicate she has - she was having trouble coping with anxiety and depression. So it is - you know, there was obviously a psychological component to her overall sort of wellbeing ... So in my mind, yes, there is a significant functional involvement in her overall disorder and as I said she presents with a classical case of chronic pain behaviour.
"Now, do I understand from the detail that you've given us that on the one hand it is made very clear that she has the functional overlay but it is not necessarily taking us to the point of establishing that she has a mood disorder such as anxiety or depression until - - -?---No, it cannot be known. It only points in that direction and says there is a probability."
93. Associate Professor McPhee’s report also discussed the possibility of a Pain Clinic referral. He remarked that a Pain Clinic's effectiveness depended upon such factors as a "reasonable basis for pain causation", and whether the Clinic staff could manage the psychological aspects of the applicant's pain management (Exhibit 15, at page 2).
94. Psychiatrists Associate Professor Varghese and Dr Byth were not requested to address the applicant's back pain complaints. Although Neurologists Drs Cameron and Todman specifically were asked to provide opinions about her headaches, Dr Todman (Exhibit 14, at page 4) briefly referred to her spinal symptoms being caused by "chronic musculo-ligamentous strain". He made no comment about their relationship to her military service.
Headaches
The applicant's headache history before her fast rope course accident
95. Soon after her enlistment in the Navy in February 1996, the applicant's Service Medical Records (Exhibit 7) record her having three headaches in the 16 month period before her motor vehicle accident on 2 July 1997; two occurred within a month in conjunction with incidental infections. Two weeks after this accident she had a migraine headache, followed in the next three months by two more headaches, unspecified, early in her pregnancy, one associated with sinusitis. None were recorded after that for the next 18 months. There were four other headaches recorded between February 1999 and April 2000, three being associated with incidental infections. A number of headaches were recorded in the weeks after her touch football injury on 29 August 2000. Thereafter she had another three headaches between January and June 2001.
The fast rope course accident and injuries
96. The accident has been described in [32]-[38]. The applicant's evidence that she struck her head in her fall is noted at [35]. She also gave this history to Associate Professor Varghese (Exhibit 4, at folio 119). Dr Byth recorded that she did not suffer a head injury but had a "whiplash injury from overextending her neck" (Exhibit 4, at folio 133[5.3]).
Subsequent clinical course
97. Ms Quinlan told the Tribunal in her oral evidence that the migraine headaches began soon after the fast rope training accident and recurred "four to five times a week" (Transcript, 13 December 2006 at page 15 line 36 to page 16 line 12). We note the first Exhibit 7 record of her headaches does not appear until more than three months later (20 November 2001). Ms Quinlan added that she had "never experienced migraines until [this] last accident" (Transcript, 13 December 2006 at page 25 lines 4 and 5). An Exhibit 7 entry for 12 February 2002 includes reference to "History of migraines". As already noted, SHO Cmdr Moore's pre-discharge assessment on 1 March 2002 (Exhibit 7) records: "Gets neck pain and low-back pain and [secondary] migraines...".
98. By March 2002 Neurologist Dr Bladin recorded the applicant’s "tension type headaches" recurring about twice weekly, beginning with neck spasm, extending to the vertex and into both frontal and both temporal regions (Exhibit 1, at folio 65). He was seeing her by referral from SHO Cmdr Moore for neurological assessment before her discharge. He did not comment on any relationship of these headaches to any of her injuries.
The expert medical witnesses' opinions
99. In May 2002 Dr Combe noted Ms Quinlan’s "major headache" with neck pain, 3-4 times a week, with "throbbing pain in the back of the head and in the forehead" (Exhibit 1, at folio 80). He doubted the diagnosis of migraine, but opined that her headaches had "a direct causal link" with her military employment (ibid, at folio 81).
100. In February 2003 the applicant told Dr Webb that, within two months after her fast rope training accident, she had developed "daily headaches". She said she was taking 4 to 5 Mersyndol tablets and 3 Panadeine forte tablets (Exhibit 1, at folio 111) for headache and back pain. Dr Webb did not comment on her headache diagnosis, or its relationship to her injuries.
101. Dr Rowe examined the applicant in March 2004. He noted her complaints included headaches (Exhibit 2, at folio 124). Orthopaedic Surgeon Associate Professor McPhee, at her first consultation with him on 24 June 2004, recorded her report of headaches extending over her scalp to the frontal region, recurring three or four times each week (ibid, at folio 130). In March 2005 she told Psychiatrist Associate Professor Varghese of her "pain from the shoulders radiating to the neck and causing migraine" (Exhibit 4, at folio 119). Psychiatrist Dr Byth, in October 2005, recorded: "After the fall ... She struggled with severe headaches..." (Exhibit 4, at folio 133[5.7]). None of these doctors was asked for a diagnosis of her headaches, or comment regarding any possible relationship to her Navy service.
102. In October 2006 Dr Campbell obtained the applicant’s history of headaches following her motor vehicle accident, aggravated by her touch football injury, and by her fast rope training injury (Exhibit 6, at page 2). She told him they recurred daily, and often were associated with nausea, dizziness and vomiting (ibid, at page 3). He opined a 100% attribution between her chronic headaches, diagnosis not specified, and her "employment related factors" (ibid, at page 6).
103. We questioned the applicant at the hearing about her consumption of pain medication. She stated that for her headaches she used several analgesic doses daily, such as Panadeine, Panadeine forte, Mersyndol, Tramal, and non-steroidal anti-inflammatory medications including Brufen and Nurofen. She told the Tribunal that her headache still recurred about three times a week (Transcript, 13 December 2006 at page 16 lines 35 to page 17 line 15 and at page 19 line 35 to page 20 line 22). In light of that evidence, we invited the parties to obtain additional medical evidence regarding the possibility of a "medication overuse" component to her headaches. The applicant and respondent obtained the opinions, respectively, of Neurologists Dr Todman and Dr Cameron to address two aspects of her claims:
·Whether or not the applicant's clinical condition includes "Medication Overuse Headache", and
·If so, the extent, if any, to which it does or does not relate to any of the applicant's injuries or their treatments.
104. The applicant attended Dr Cameron's rooms on 17 February 2007 (Exhibit 16). She told him her migraine headaches developed after her fast rope course injury. She spoke of constant frontal discomfort and a severe superimposed headache recurring at least three times a week. This spread from her neck and the back of her head. She required medication on most days; she used a box of Panadeine forte tablets a month, sometimes up to two boxes in a fortnight; and she took Nurofen Plus for neck and back pain. An anti-migraine medication had not helped.
105. Dr Cameron observed that, on examination, although sitting comfortably throughout the interview, all of Ms Quinlan’s movements seemed painful. Her neck movements appeared limited when tested, but when she was distracted they were of good range; she could only reach her hands to her knees on lumbar flexion. Dr Cameron noted she was very sensitive to palpation over her cervical and lumbar spines. He noted the MRI studies of the applicant’s cervical spine, and sacrum and coccyx, of 30 June 2006, were normal.
106. Dr Cameron examined the applicant’s documents and concluded her headaches were "multi-factorial". He noted:
·Ms Quinlan’s Service Medical Records descriptions of headaches in February 1996 and in July and October 1997 suggested pre-existing migraine. He said that migraine occurs in 25% of patients from the upper-cervical and occipital regions.
·Her psychological problems could cause headache, and cervical muscle contraction discomfort from stress could be a factor; and his examination findings had suggested abnormal illness behaviour.
·She had a recent past history of excessive narcotic medication use, causing a likely component of analgesic-induced headache.
107. Dr Cameron noted Ms Quinlan first developed her neck complaints in July 1997 following her motor vehicle accident, which later settled; and they may have been aggravated by her touch football accident in September 2001. However, he found no evidence of cervical spinal impairment. He found there was "little association" between her headache disturbance and her injuries. When cross-examined he agreed with Dr Todman's opinion that the applicant had chronic muscular tension headaches and occipital migraine, as well as an "analgesic component" (Transcript, 22 February 2008 at page 14 lines 1-3).
108. Dr Todman saw the applicant in April 2007 (Exhibit 14). He first took the applicant's history of her three injuries and her present complaints:
·Following her motor vehicle accident in July 1997 she had neck and low-back pain, and begin to experience intermittent moderate headaches (ibid, at page 1).
·Her neck pain and headaches' frequency increased following her touch football accident in August 2000 (ibid, at page 1).
·In her fast rope training accident in September 2001 she suffered "quite severe injuries to her spine including neck and low back injuries", followed by "a major increase" in her headaches (ibid, at page 2).
109. Dr Todman noted the applicant’s neck and low-back pains were constant, extending from her neck to her shoulders, and in her lower back, locating "in the midline and paravertebral regions", with bilateral sciatica (ibid, at page 2). Her headaches were of two types: a dull, moderately severe, daily occipital headache extended throughout her head; and about three times a week she had a worse frontal headache involving the temples, with nausea, vomiting, photophobia (light sensitivity), and a visual aura. He noted she usually took Panadeine forte for pain relief (ibid, at page 2). The examination also disclosed restricted cervical and lumbar spinal movements, with muscle spasm and tenderness in both regions (ibid, at page 3). Dr Todman noted the MRI scan of Ms Quinlan’s cervical spine of 30 June 2006 was normal (ibid, at page 4).
110. After completing his review, Dr Todman concluded the applicant had sustained injuries in each of her accidents resulting in ongoing symptoms in her cervical and lumbar spines, and headaches. Her spinal symptoms were due to "chronic musculo-ligamentous strain" (ibid, at page 4). He identified her headaches as of two types, both related to her work injuries, viz chronic muscle tension headaches and episodic migraine (ibid, at page 4). He additionally considered that her analgesic medication use may have caused "rebound headache", of secondary aggravating significance (ibid, at page 5).
Neck pain
Neck pain history before her fast rope course accident
111. There is no record of the applicant experiencing neck pain before her motor vehicle accident on 2 July 1997. After that accident, Exhibit 7 records that, on the next day, she had developed shoulder and neck-muscle spasm with lower-neck tenderness, persisting for two weeks. Her complaints settled, with neck "twinges” for the next "couple of months" (Transcript, 13 December 2006 at page 11 lines 1 and 2).
112. Exhibit 7 further records that in February 1999 the applicant was treated for "stiff neck" and headaches. In September 1999, with a febrile illness, she had neck and thoracic pains, responding promptly to physiotherapy and analgesics.
113. This evidence suggests Ms Quinlan made a complete recovery from her neck injuries sustained in the motor vehicle accident. That recovery was more than likely complete before the end of 1999. We are satisfied we should make a finding in those terms.
114. On the day after the applicant’s touch football injury of 29 August 2000, Exhibit 7 recorded neck stiffness. She was diagnosed with possible concussion and neck strain. Cervical spine x-rays on 30 August 2000 (Exhibit 1, at folio 114) showed slight narrowing of the C5/6 and C6/7 interspaces, which were regarded as not significant. Her neck stiffness persisted for the next month or two (Transcript, 13 December 2006 at page 12 lines 15-25).
115. The next reference in Exhibit 7 to neck pain is in June 2001, progressing to a headache, with no other details described. In our view, it is unlikely that the neck pain on this occasion was related to the touch football injury given that more than a year had elapsed since injury. Accordingly we accept the applicant had fully recovered from her touch football neck injury by the end of 2000.
Her fast rope course accident and neck injuries
116. The applicant told Dr Combe that she had pain in her neck following her fall (Exhibit 1, at folio 80; see also [32]–[36] above). Associate Professor McPhee (Exhibit 2, at folios 131 and 132) diagnosed "whiplash" neck injury; Dr Todman stated that her "severe injuries to her spine" included her neck as well as her low-back (Exhibit 14, at page 2), and Dr Campbell opined that she "aggravated the neck injury" in her fall (Exhibit 6, at page 4).
Her subsequent clinical progress
117. The first Exhibit 7 record of neck pain following the fast rope course injury is dated 20 November 2001. The entry suggests the applicant’s pain radiates to behind her right ear. Meanwhile, she told the Tribunal that, although her complaints were dominated by her lower-back pain, her neck pain developed over the next six months (Transcript, 13 December 2006 at page 15 lines 29-34). On 12 February 2002 Exhibit 7 records that she had a "[t]ender neck" in conjunction with a migraine attack. On 1 March 2002, SHO Cmdr Moore has made the following reference: "Gets neck pain and low back pain and [secondary] migraines ... This neck pain was aggravated by fall [of 6 September 2001]".
118. Dr Bladin, on 21 March 2002, recorded "muscle spasm and nucho-occipital pain" (ie, pain at the back of her neck and head) (Exhibit 1, at folio 65).
The expert medical opinions
119. Three months later the applicant gave Dr Combe a history of her neck pain following soon after the fast rope training accident (Exhibit 1, at folio 80). He noted x-rays were taken of her cervical spine in February 1999, without significant changes shown. Dr Combe appears to have had the applicant’s neck pain in mind when remarking "that her spinal symptoms are musculoligamentous in origin", and opined a "direct causal link" between her military employment and neck pain (ibid, at folio 81).
120. In February 2003 Dr Webb recorded "interscapular pain" (Exhibit 1, at folio 111), attributing this to fibromyalgia, or "generalised non organic pain syndrome" (ibid, at folio 112), due to the applicant’s depression. He said those conditions were not attributable to her military service.
121. When the applicant saw Dr Rowe in March 2004, she described her history of neck pain in conjunction with her motor vehicle and touch football accidents (Exhibit 2, at folios 122-123). He recorded her pain at the back of her neck as one of her current symptoms (ibid, at folio 124). He found "some loss of range of movement of her neck” (ibid, at folio 125). He examined the x-rays of her cervical spine taken on 19 March 2004, and regarded these as "in essence normal" (ibid, at folio 128). He diagnosed musculo-ligamentous strain to her neck, and related it to her accident of 6 September 2001 (ibid, at folio 128).
122. In June 2004 Associate Professor McPhee (Exhibit 2, at folios 129-133) recorded Ms Quinlan’s complaint of now constant neck pain. He examined her x-rays of her cervical spine of 9 February 1999, 20 September 1999, and 30 August 2000, all of which he considered to be normal (ibid, at folio 131). He diagnosed soft tissue cervical spinal injury, incompletely resolved (ibid, at folio 133). Although he related her neck complaints predominantly to her fast rope course injury (ibid, at folio 133), because of the "non-organic factors" contributing to her complaints, he did not regard these as caused by her Navy employment. His re-examination of the applicant in May 2006 was specifically to address her low-back pain (Exhibit 12).
123. Dr Campbell saw the applicant in October 2006 (Exhibit 6). She described severe daily neck pains, extending into her shoulders and arms. Dr Campbell diagnosed cervical spinal chronic soft tissue musculo-ligamentous injuries, opining a direct causal link with her work accidents. He found no evidence of her embellishing her claims (Transcript, 13 December 2006 at page 56 lines 22-24).
124. Dr Cameron (Exhibit 16) noted in February 2007 that Ms Quinlan’s worsening headaches spread from her neck and back of her head. He found she was tender over her cervical spine, but with apparently "abnormal pain response" to gentle palpation over her neck and lower back (ibid, at page 6). He noted the normal MRI studies of her cervical spine of 30 June 2006. He concluded that her neck complaints began in July 1997 after her motor vehicle accident, but later settled (ibid, at page 7). They may have been aggravated by her touch football and fast rope training accidents (ibid, at page 7). However, he found no objective evidence of "cervical impairment" (ibid, at page 7). He concluded that she had a "non-organic disturbance", unrelated to her RAN service (ibid, at page 7). On cross-examination he agreed that her spinal complaints were due to chronic musculo-ligamentous strain (Transcript, 22 February 2008 at page 13 lines 44-46).
125. At Dr Todman's examination in April 2007 (Exhibit 14) he noted the applicant’s history of neck pain following both her motor vehicle accident and her touch football accident, but with "quite severe injuries to her spine including [her] neck" in the 6 September 2001 accident (ibid, at page 2). He found her cervical spine movements to be restricted, with tenderness and muscle spasm. He concluded that her cervical spinal symptoms were due to chronic musculo-ligamentous strain (ibid, at page 4). He offered no comment on the relationship of this to her Navy employment.
Mood disorder
The applicant's history of mood disturbance before her fast rope course accident
126. The first entry in Exhibit 7 recording any mood disturbance in the applicant appears on 15 April 1997. The entry says she had been depressed for the past two months, and "wants to be with partner". Three months later, on 14 July 1997 (12 days after her motor vehicle accident), she was recorded as being "off work". The entry continues:
"Moody last 3/52 [three weeks], tearful, depressed, no motivation, last slept 2/7 [two days] ago. Eating up and down. Exercising. Not suicidal. Stresses - worrying about everything, de facto unemployed, worry with money. Past Hx [history] - normally well and happy. [Medications] - Panagesic, [indecipherable: oral contraceptive pill]. °All meds [No allergies to medications]. °Fam Hx depression [No family history of depression]. [Diagnosis:] mild depression with anxiety. Ref to psych. R/v 2/7 [Review in two days]."
127. When cross-examined about this at the hearing, Ms Quinlan said she was under some financial strain because she was supporting her partner financially following his discharge from the Navy for alleged illicit drug involvement (Transcript, 13 December 2006 at page 28 line 4 to page 30 line 4).
128. There is no record of the applicant returning two days later, or of her being seen by a psychiatrist or psychologist. The next Exhibit 7 entry related to her attendance on 7 August 1997 for a suspected urinary infection.
129. Nearly two years later Exhibit 8 records that, on 9 April 1999, when seeking her second pregnancy termination, she had "other underlying stressors". The Transcript of her cross- examination on this records (13 December 2006 at page 35 lines 10-25):
"Are you able to tell us what other underlying stressors you may have been experiencing at that time?---I was a single parent. That's pretty stressful.
"Yes?---Just that. Looking for child care when you're working. You've got to perform duties - overnight duties. You have to care for them, so, yes, living by myself might say it was a little bit of a worry - - -
"Relationships - - - ?--- - - - paying for everything.
"Any relationship problems at that time?---I didn't have a relationship. The father and I were no longer together.
"What, on 9 April 1999?---I have no idea the date that we broke up, but this says that I was a single mother at this time, so - I don't know how long - what exact date we broke up, or anything, I'm sorry."
130. We note the applicant’s oral contraceptive was changed in May of that year because she was "moody". She was also cross-examined on her pregnancy termination in November 1999 (Exhibit 10; Transcript, 13 December 2006 at page 44 lines 17-44):
Headaches
161. Exhibit 7 records that the applicant had 10 sporadic headaches in the 4½ years between her enlistment and her touch football injury in August 2000. One was diagnosed as migraine, shortly after her motor vehicle accident. Six others accompanied incidental infections. The remaining three were unspecified, one with her first pregnancy. They were briefly more frequent after her touch football injury. In the next year, before her fast rope course injury, she was recorded as having three more; these also were unspecified.
162. According to the applicant's and medical expert witnesses' evidence her headaches became much more frequent following her rope course injury.
163. Five of the medical specialists offered diagnoses of Ms Quinlan’s headaches. Dr Bladin diagnosed tension headaches with muscle spasm (Exhibit 1, at folio 65). Dr Combe diagnosed migraine (Exhibit 1, at folio 81). At the Tribunal hearing Neurosurgeon Dr Campbell diagnosed tension headaches due her neck injury. Dr Cameron opined a "multi-factorial" combination of pre-existing migraine, psychological stress-derived headache with neck-muscle contraction, and a recent "likely component" of analgesic-induced ("Medication Overuse") headache (Exhibit 16, at page 6). Dr Todman similarly diagnosed chronic muscle tension headaches with episodic migraine, with secondary analgesic rebound ("Medication Overuse") headache (Exhibit 14, at page 5).
164. Given Drs Cameron and Todman agree on this point (Transcript, 22 February 2008 at page 14 lines 1-3), we conclude the applicant's headaches are a "multi-factorial" combination of pre-existing migraine, psychological stress-derived headache with neck-muscle contraction, and "Medication Overuse" headache. We note this conclusion embraces the diagnoses offered by Drs Bladin, Combe, and Campbell.
165. We have been provided with differing medical opinions regarding the relationship of the applicant's headaches to her military service injuries. However, all doctors are agreed that her fast rope course accident was the only injury that was possibly relevant. Drs Combe, Campbell and Todman attributed her headaches to this incident. Dr Cameron disagreed on two main grounds. He said her migraine was a pre-existing condition and he argued her other headaches are manifestations of abnormal illness behaviour.
166. On weighing these opinions in the balance, we find:
·the applicant's pre-existing migraine condition was aggravated by her fast rope course injury, and she has not recovered.
·Her psychological stress-derived headache with neck-muscle contraction is related to her mood disorder.
·Her "Medication Overuse" (or analgesic rebound) headache has developed as a result of her consistently heavy analgesic intake for pain relief from her various complaints. We do not accept that the overuse of analgesics is attributable to her employment in the absence of evidence that she has become addicted to or dependent upon those medications.
Neck pain
167. Although the applicant had neck pain briefly after both her motor vehicle accident and her touch football injury, we have already concluded in [113] and [115] that she recovered completely from both of these neck injuries.
168. Ms Quinlan’s neck pain following the fast rope course accident has been more persistent. References to this neck pain appear in the Exhibit 7 entries for 20 November 2001 and 12 February 2002. The applicant said the pain developed over the next six months after the injury (Transcript, 13 December 2006 at page 15 lines 29-34).
169. The differing medical opinions for this pain's diagnosis are summarised as follows:
·Dr Combe diagnosed it as musculo-ligamentous, probably fibromyalgia (Exhibit 1, at folio 81);
·Dr Webb attributed it to fibromyalgia (Exhibit 1, at folio 112);
·Drs Rowe and Campbell diagnosed against fibromyalgia, favouring chronic musculo-ligamentous strain to her cervical spine (Exhibit 2, at folio 125; Exhibit 6, at page 5); Dr Rowe also entertained possible "accelerated disc derangement in her neck" (Exhibit 2, at folio 125); and
·Associate Professor McPhee, rejecting the existence of fibromyalgia, also diagnosed soft tissue injury of her cervical spine (Exhibit 2, at folio 132).
170. In [157] we indicated our rejection of a diagnosis of fibromyalgia in light of diagnostic controversies. Because of the applicant's normal MRI studies of her cervical spine of 30 June 2006 (Exhibit 13), we do not accept Dr Rowe's suggestion of possible "accelerated disc derangement in her neck". On balance of probabilities we accept the remainder (and majority of) the expert opinions, namely those of Associate Professor McPhee and Drs Rowe and Campbell, to the effect that the applicant's neck pain has been caused by soft tissue cervical spinal musculo-ligamentous injuries.
171. The doctors also differed on the relationship between the applicant’s neck pain and her fast rope course injuries. The experts expressed the following views:
·Dr Webb did not relate his diagnosis of fibromyalgia to her military service (Exhibit 1, at folio 112);
·Associate Professor McPhee opined that her neck (and lumbar) pains were consistent with "chronic pain behaviour", and therefore unrelated to her Navy employment (Exhibit 12, at page 3);
·Dr Combe linked her spinal symptoms to her service (Exhibit 1, at folio 81);
·Dr Rowe opined her chronic musculo-ligamentous strain to her cervical spine to result from 29 August 2000 injury (Exhibit 2, at folio 125); and
·Dr Campbell diagnosed "a direct causal link" with particularly her fast rope course injury (Exhibit 6, at page 6).
172. We set to one side the diagnosis of fibromyalgia. We decide against Dr Rowe's opinion in light of our findings in [113] and [115] that the applicant had recovered from her previous injuries before her fast rope course accident. Weighing the contrary opinions of Dr Campbell and Associate Professor McPhee, we find, in the same way as for her chronic low-back pain in [159], that the applicant’s present neck pain is not related to her fast rope course injuries.
Mood disorder
173. We have already commented on evidence of the applicant's several mood disturbance and stressor instances prior to her fast rope course training accident: vide [126]-[131]. It is clear that, in contrast to her other two subject accidents, the rope course training injury entailed several major stressors for the applicant. Appropriately, it was this injury that was specifically addressed by Associate Professor Varghese and Dr Byth. From the evidence presented to it the Tribunal must resolve two questions:
·Has the applicant developed a mood disorder since this accident?
·If so, to what extent has her fast rope course injury contributed to this?
Has the applicant developed a mood disorder since this accident?
174. The Psychiatrists, in their reports, took differing, but not completely opposing, views on this question. Dr Byth has diagnosed the applicant with a mood disorder of chronic adjustment disorder with depressed mood (referred to at [145]). Associate Professor Varghese considered two mutually exclusive diagnoses for the applicant: a dysthymic (depressive) illness disorder; and a somatoform disorder ([137]). The former is a mood disorder, the latter is not. In his report he diagnosed the applicant with a somatoform disorder.
175. Associate Professor Varghese explained (see [139]) that dysthymia is a low-grade long-lasting depression, sometimes marked with major depressive episodes, compared to major depression which is a severe illness of a shorter duration.
176. We must decide between these opinions. We begin this process by considering observations made by Associate Professor Varghese during his examination and cross-examination at the hearing (see [138]). He said that, if the applicant's pain had an organic basis, he would accept Dr Byth's diagnosis of a chronic adjustment disorder with depressed mood; ie, a mood disorder. He further acknowledged that, from Dr Byth's findings in the six months after her consultation with him, she appeared to have deteriorated, showing "evidence of depression", being a mood disorder.
177. Associate Professor Varghese also said (see [138]) that the diagnosis of a chronic adjustment disorder with depressed mood "could only apply if there was ... a significant physical disability, on which to adjust. You can't get adjustment disorder on the perception of physical disability, it has to be real physical disability ... the central issue is the extent to which Ms Quinlan has suffered significant physical disability as a result of the accident."
178. We have interpreted Associate Professor Varghese's use, during his evidence, of the terms "organic basis" and "real physical disability" (at [138]) to require consideration of whether, at the time, there was validated objective diagnostic evidence of an "organic basis" and "real physical disability".
179. We have already accepted the applicant's migraine headaches were related to her fast rope course training injury (see [166]). We do not accept that her present low-back pain (at [160]) and present neck pain (at [172]) are from injuries sustained in the accident.
180. This crystallises the question we must decide. In effect, we have already found that the applicant’s headaches are "real" disabilities. To complete this assessment of whether her present low-back pain and neck pain have contributed to her developing a mood disorder, we must determine whether, in her fast rope course accident, the applicant sustained either "real" or "perceived" physical disabilities, of a fractured coccyx, and a fractured sacrum. From [178] the validated objective diagnostic evidence available to the Tribunal is the applicant's x-ray report of Exhibit 1, at folio 40.
181. We have already concluded the applicant did not have a fractured coccyx. That diagnosis was never actually made, although most of the doctors who dealt with the applicant while she was in the Navy appear to have assumed it was made. We have also concluded the applicant did not suffer a fractured sacrum; however a formal diagnosis was made at the time and was, at least until recently, accepted. Whatever one might make of the fractured coccyx, we accept the applicant was not merely perceiving an injury to her sacrum in the sense described by Associate Professor Varghese. Even if the diagnosis was ultimately disproved, it was a real physical disability on that analysis.
182. Associate Professor McPhee’s comments help put the diagnosis into context. At the resumed hearing, he was asked whether being told that one had an injury that one did not in fact have might have contributed to the development of a mood disorder (vide [92]). He responded by outlining several tests that he had performed on the applicant to assess whether she had any "functional overlay" such as personality disorder, depression, anxiety. When asked whether such testing could establish whether the applicant had a mood disorder "such as anxiety or depression", he replied: "No, it cannot be known. It only points in that direction and says there is a probability".
183. Given our conclusion that the applicant's sacral fracture was a "real disability" in the terms enunciated by Associate Professor Varghese during the time of her service in the Navy, we are satisfied the applicant has developed a mood disorder, as diagnosed by Dr Byth, of chronic adjustment disorder with depressed mood.
To what extent has her fast rope course injury contributed to this mood disorder?
184. Before considering whether the applicant's fast rope course injury may have contributed to her diagnosis of chronic adjustment disorder with depressed mood, we must also have examine the applicant's other stressors before that accident.
185. As we discussed in [126]-[131] these were of two types:
·Her relationship stresses; ie, her depressed mood as recorded on 15 April and 14 July 1997 in Exhibit 7, and the breakup of the relationship in 2000 that she mentioned to Associate Professor Varghese (Exhibit 4, at folio 121); and
·Her pregnancy terminations in April and November 1999 (Exhibits 8 and 10).
186. Of these, Associate Professor Varghese, as noted in [140], appeared to place little weight on the effect of her pregnancy terminations. Dr Byth also assessed that these would not have had any ongoing traumatic effect on her psychiatric state (at [146]). Given that evidence, we are satisfied the terminations of the applicant's pregnancies were not significant psychological stressors.
187. The Psychiatrists express different views about the importance of the applicant’s pre-accident relationship stresses.
188. We note Associate Professor Varghese considered the applicant had experienced a chronic dysthymic disorder with at least one previous major depressive episode in July 1997 (at [136]). At that attendance the Medical Officers recommended her referral to a psychologist or psychiatrist. There is no record of any such referral having taken place. Associate Professor Varghese obtained her history of seeing a psychiatrist or psychologist while still in the Navy, for an unspecified purpose (Exhibit 4, at folio 121). It is not clear whether this may have been a reference to the applicant's referral, shortly before her discharge, to Clinical Psychologist Dr Mason (see Exhibit 11). However, there was no other Exhibit 7 record of the applicant presenting with depression.
189. This evidence supports the alternative view of Dr Byth, who, having initially overlooked the April and July 1997 Exhibit 7 entries, opined during cross-examination that the July 1997 event was a temporary mild depression episode (at [143]). Dr Byth had expressed consistent views in his report where he observed that, before her accident, the applicant had not previously taken stress leave, had counselling, or been prescribed psychotropic medication (at [143]).
190. We are satisfied in all the circumstances that the applicant did not have any significant pre-accident mood disturbance.
191. We turn now to examine the extent of any psychological stress effect from Ms Quinlan’s accident. We note that, in April 2002, before she was discharged from the Navy, Clinical Psychologist Dr Mason diagnosed Ms Quinlan as "distressed and anxious" from "physical injuries and work and family-related problems" (at [133]). It is clear that Dr Mason assessed both to be significant. The Psychiatrists were divided.
192. Associate Professor Varghese noted the applicant’s reference to having apparently fractured her coccyx and its associated "considerable pain"; her ongoing physically limiting pain for which she was put on restricted duties until being discharged medically unfit from the Navy; and the disabling persistence of her various painful complaints since (Exhibit 4, at folio 119). In his report he has not provided an assessment of her accident's psychological impact on the applicant; he appears to be referring to this indirectly at folio 129 in saying: "It seems from the medical specialist's [sic] reports that any pain and disability arising out of naval service is minimal".
193. However, when giving his evidence to the Tribunal, he modified this view, saying (Transcript, 15 December 2006 at page 98 lines 28-32; see also [138] above):
"it seems to me that the central issue is the extent to which Ms Quinlan has suffered significant physical disability as a result of the accident. If she has, and it is deemed - it is deemed that she has on the basis of reports from specialists, then I would - I would agree that you could understand the condition as being adjustment disorder with depressed mood."
194. On the other hand, as noted in [142], Dr Byth recorded:
"After she fractured her coccyx in 2001, however, she recalled being 'very scared - I didn't know what was wrong with my back, and what my initial treatment should be'. She thought her back might have been damaged by her being pulled up to her feet immediately after the fall."
195. Dr Byth also noted (Exhibit 4, at folios 133[5.7] and 135[7.4]):
"After the fall, she had trouble performing her usual work in the Navy. She struggled with severe headaches and lower back pain, which did not improve with physiotherapy and medication"
…
"She was distressed by pain in her lower back, and thought she should have been allowed more time off work to rest. ...".
196. Thus Dr Byth, compared to Associate Professor Varghese, was satisfied that the applicant's experiences of the accident and its sequelae were the relatively greater stressors.
197. At this juncture, we repeat the five findings pertaining to the applicant's medical care while still in the Navy following her injury as set out in [70]. These were made after we reviewed of the applicant’s service medical records. We found:
·a lack of care in using and filing the applicant's elementary x-ray material;
·inadequate communication of the applicant's diagnosis, as then made, to her;
·poor communication between her medical attendants, including substandard medical record keeping;
·a lack of thought and understanding about her case by her medical attendants; and
·a lack of appropriate professional consultation.
198. We also bear in mind Associate Professor McPhee's statement in Exhibit 15, at page 2), quoted in [91], that pointed out the problems which can arise when a patient is giving a wrong diagnosis.
199. Collectively, these five matters could be described as a miasma of medical mismanagement, albeit more painful than toxic, enmeshing the applicant through no fault of her own. We take the view that these factors, all present during the applicant's remaining 10 months of service in the Navy, were each additional stressors, related to her fast rope course training accident. They substantially compounded the extent of her stressors from the accident.
200. When these other stress factors are considered in conjunction with the evidence on this question from Dr Byth, we determine that, on balance of probabilities, Ms Quinlan’s fast rope course training injuries have mad a substantial contribution to the development of chronic adjustment disorder with depressed mood.
Conclusion
201. We are satisfied the applicant has developed chronic adjustment disorder as a result of her service with the Navy. The reviewable decision in respect of adjustment disorder (Q200600387) is set aside. The Tribunal decides in substitution that the respondent is liable to pay compensation for that condition. The question of permanent impairment is remitted to the respondent for reconsideration.
202. We are also satisfied the applicant’s migraine condition was aggravated and worsened in the long term as a result of her injuries at work, and that her stress-derived headache with neck-muscle contraction is related to her work-related psychiatric condition. We therefore vary the reviewable decisions referred to in Q200400831 and Q200600450 so that:
·the respondent is liable for the migraine and stress-derived headache with neck-muscle contraction, but
·the respondent is not liable for the medication overuse component of the condition.
·The question of permanent impairment flowing from these conditions is remitted to the respondent for reconsideration.
203. The decision in Q200400830 is affirmed.
I certify that the 203 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Associate Professor J B Morley RFD, Member
Signed: ...............................[Sgd]......................................................
Michael Buckingham, AssociateDates of Hearing 13-15 December 2006
21-22 February 2008
Date of Decision 7 July 2008
Counsel for the Applicant Mr P Mylne
Solicitor for the Applicant Slater & Gordon Lawyers
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Australian Government Solicitor
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