Sarles and Comcare
[2007] AATA 1604
•30 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1604
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200500063
GENERAL ADMINISTRATIVE DIVISION ) Re SUZANNE SARLES Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr D Weerasooriya, MemberDate30 July 2007
PlacePerth
Decision The Tribunal sets aside the reviewable decision of the respondent, dated 24 July 2003, and, in substitution therefor, decides:
· from 10 February 2003 to the present date, and as at the present date, the respondent has not been, and is not, liable under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) to pay compensation to the applicant in respect of reflex sympathetic dystrophy or complex regional pain syndrome type I or any other physical ailment;
· from 10 February 2003 to the present date, and as at the present date, the respondent has been, and is, liable under s 14(1) of the SRC Act to pay compensation, in accordance with that Act, to the applicant in respect of the following mental injuries, namely, Substance (Opiate) Dependence and Pain Disorder;
· from 10 February 2003 to the present date, and as at the present date, the respondent has been, and is, liable to pay compensation to the applicant in accordance with s 19 of the SRC Act on the basis that she has been throughout that period, and continues to be, partially incapacitated for work, within the meaning of s 4(9)(b) of the SRC Act; and
· the respondent is liable, pursuant to s 16(1) of the SRC Act, to pay compensation to the applicant in respect of the cost of morphine (up to 220 mg per day) and methadone (up to 20 mg per day) medication obtained by the applicant in the period from 10 February 2003 to the present date, and in respect of the cost of reasonable medical treatment obtained by her in relation to her Substance (Opiate) Dependence and Pain Disorder.
Either party may make an application in relation to the costs of these proceedings within 14 days of the date of this decision. If no such application is made, the Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.
...........[Sgd S D Hotop]..........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant employed by Commonwealth Bank – in course of employment applicant suffered soft tissue injury in 1990 and subsequent associated reflex sympathetic dystrophy or complex regional pain syndrome type I – respondent accepted liability to pay compensation to applicant – applicant thereafter continued to suffer pain symptoms – applicant took morphine for pain from 1992 – respondent ceased compensation payments to applicant in 2003 – applicant continues to suffer pain symptoms – applicant no longer suffering from reflex sympathetic dystrophy or complex regional pain syndrome type I – applicant suffers from Substance (Opiate) Dependence and Pain Disorder – applicant's ailments are mental, not physical – applicant's mental ailments contributed to in material degree by employment by Commonwealth Bank – respondent liable to pay compensation to applicant in respect of mental injuries – applicant partially incapacitated for work as result of mental injuries – respondent liable to pay compensation to applicant for incapacity for work and for reasonable medical treatment – reviewable decision set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(3), s 4(9), s 14, s 16 and s 19
Commonwealth v Smith (1989) 10 AAR 277
REASONS FOR DECISION
30 July 2007 Deputy President S D Hotop
Dr D Weerasooriya, MemberIntroduction
1. On 14 September 1990 Suzanne Sarles (“the applicant”) sustained an injury to her left foot in the course of her employment with the Commonwealth Bank.
2. Comcare (“the respondent”) accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) to pay compensation to the applicant in respect of that injury, which was described as a soft tissue injury to the left foot with sympathetic dystrophy, and thereafter paid compensation to the applicant, in accordance with the SRC Act, in respect of that injury.
3. On 27 March 2001, however, the respondent determined that the applicant was no longer suffering from the original condition of soft tissue injury to the left foot with sympathetic dystrophy, but that she was currently suffering from “chronic pain syndrome” which was “materially contributed to by her Commonwealth employment with the bank”. The respondent subsequently paid compensation to the applicant, in accordance with the SRC Act, in respect of “chronic pain syndrome” and not in respect of the abovementioned original condition, with effect from 3 May 2001.
4. The respondent thereafter continued to pay compensation to the applicant, in accordance with the SRC Act, in respect of “chronic pain syndrome” but, on 7 February 2003, the respondent determined that “on and from 10 February 2003, [the respondent] is no longer liable to pay compensation under any provision of the [SRC] Act for [the applicant’s] claim for ‘chronic pain syndrome’.”
5. On 24 July 2003, the respondent made a “reviewable decision” affirming the determination of 7 February 2003.
6. The applicant has applied to the Tribunal for review of the respondent’s “reviewable decision” of 24 July 2003.
The Issue and the Tribunal’s Determination
7. The general issue for the Tribunal’s determination is whether the respondent has been liable from 10 February 2003 to the present date, and is presently liable, to pay compensation to the applicant in accordance with the SRC Act – specifically, compensation by way of medical expenses and incapacity payments in accordance with, respectively, s 16 and s 19 of the SRC Act.
8. For the reasons which follow, the Tribunal has determined that the respondent has been liable from 10 February 2003 to the present date, and is presently liable, to pay such compensation to the applicant.
The Legislation
9. The SRC Act relevantly provides:
“14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…”
“16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
...”
Section 19 provides for the payment of compensation by way of weekly payments to an employee who is “incapacitated for work as a result of an injury”.
10. Section 4(1) of the SRC Act contains the following relevant definitions:
“ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
“disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
“impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”
“injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
…”
“medical treatment means:
(a)medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
…”
Section 4(3) provides:
“For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment or an injury shall be taken to be an injury if, but only if:
(a) compensation is payable under this Act in respect of the injury for which medical treatment was obtained; and
(b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.”
Section 4(9) provides:
“A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”
The Evidence
11. The evidence before the Tribunal comprised:
· the “T Documents” (T1-T443, pp 1-677) lodged with the Tribunal by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· various documentary exhibits tendered by the applicant (A1-A7) and by the respondent (R1-R14); and
· the oral evidence of the applicant and Dr J Salmon (who was called by the applicant), and Dr J Ker, Dr P Stevenson, Dr Z Srna, Associate Professor R Burns and Dr D Alcorn (who were called by the respondent).
The Factual Background
12. The relevant background facts, as found by the Tribunal on the basis of the “T Documents”, are as follows.
13. On 14 September 1990 the applicant completed a “Notice of Staff Accident/Incident” form in which she indicated that, at 10.20 am on 14 September 1990, she sustained a physical injury in the course of her work as an accounts clerk when a full ledger box slipped off a shelf and fell through her hands onto her leg and ankle (T16). A “First Medical Certificate” (for workers’ compensation purposes) was issued on 14 September 1990 by Dr Czajko who stated that the applicant had attended upon him at 6.46 pm on that date and that it was found that she had sustained a soft tissue injury to her left foot (T17).
14. On 25 September 1990 the applicant made a claim for compensation in respect of the abovementioned injury (T3).
15. The applicant was referred by her treating general practitioner, Dr E Isaachsen, to Dr Tony Robinson, Orthopaedic Surgeon, who reported to Dr Isaachsen on 3 October 1990 as follows:
“Thank you for referring Suzanne who sustained a soft tissue injury to the anterior aspect of the left ankle 3 weeks ago whilst at work. She dropped a ream of computer paper on to her foot resulting in immediate pain and the inability to weightbear.
Since then she has complained of coldness, abnormal sensation and increased temperature in the foot and ankle.
There is no previous history of ankle problems.
On examination of the left ankle, there is an old bruise present over the anterolateral aspect of the joint. The foot is dorsiflexed and inverted. There is a decrease in sensation in the whole of the left leg below the knee especially over the anterior tibia and the dorsum of the foot. The patient is able to plantar grade the foot. Inversion and eversion are limited.
I think Suzanne has a sympathetic dysfunction and I have organised for her to have a bone scan. If this is positive then I will refer her to a pain relief expert for appropriate blocks.” (T20)
In a follow-up report to Dr Isaachsen dated 8 October 1990, Dr Robinson noted that the applicant’s bone scan had shown “dramatic lack of blood flow to the left leg” and he opined that that was “consistent with early sympathetic dystrophy”. He added that he had referred the applicant “with an urgent appointment to a pain relief expert for possible sympathetic blocks” (T21).
16. Dr John Salmon of the Perth Pain Management Centre, to whom the applicant was referred by Dr Robinson, reported to Dr Robinson on 17 October 1990 as follows:
“…
PAIN COMPLAINT
Left ankle pain for one month.
HISTORY OF CURRENT PAIN
On the 14th September 1990 she dropped a box on the front of her left ankle whilst at work as a bank clerk. There was immediate swelling and pain in the left ankle but Xrays revealed no fracture. Her pain has continued as a constant aching/burning/freezing pain around the left ankle and into her heel and the lateral aspect of the calf. There is also an intermittent sensation of ‘hot pins and needles’ in the toes and insole of her left foot. She has also noticed occasional blue skin discolouration around the left ankle and foot and increased sweating around the toes. She has not been able to work or weight bear since the accident.
PSYCHOLOGICAL ASPECTS
She feels increasing anger, frustration and bouts of depression. Her sleep is disturbed.
PREVIOUS MEDICAL HISTORY
Nil relevant.
PREVIOUS TREATMENT
Physiotherapy has not been helpful and she has not tried a TENS machine.
MEDICATIONS
Feldene once a day.
INVESTIGATIONS
Xrays show no significant injury. Bone scan shows abnormalities consistent with sympathetic dystrophy in the left ankle.
EXAMINATION
The left ankle and foot felt cold and there was some swelling and bluish discolouration of the skin compared to the right side. There was some allodynia over the lateral aspect of the left ankle and foot. Neurological examination showed some reduced pin sensation over the left heel and medial aspect of the foot with patchy skin hypersensitivity over other parts of the foot. The area was too tender for motor examination. There was also tenderness over the lateral peroneal nerve winding around the neck of the fibular on the left side and pressure here produced radiating pain into the left ankle and foot.
IMPRESSION
I think that she has a sympathetic dystrophy of the left ankle and foot with some associated lateral peroneal nerve irritation. There is also some significant secondary psychological disturbance.
…” (T22)
17. Dr Salmon thereafter continued to treat the applicant and to make reports regarding her condition.
18. On 25 January 1991 Dr Salmon reported that the applicant had “good and persistent pain relief in her left ankle and foot” and had resumed work (T26). On 12 June 1991, however, Dr Salmon reported that, although the applicant’s original left foot and ankle pain remained quiescent, she had recently experienced “burning pain” in the lateral left and right thigh areas, with “lesser symptoms in the buttocks and low back area” and had been “forced to stop work”. He opined that those symptoms were “further manifestation of sympathetic nerve dysfunction” (T31).
19. Dr Salmon referred the applicant to Professor F Mastaglia, Neurologist, who, in a report dated 2 July 1991, opined that the applicant’s current symptomatology probably represented “a late progression of the sympathetic dystrophy which initially commenced distally in the left leg” (T38).
20. On 7 February 1992 Dr Salmon reported that the applicant was working reduced hours and was “becoming increasingly anxious and depressed with her pain”, and he recommended a trial of epidural electrical stimulation (T54). Dr Salmon subsequently reported that that trial had been successful and that in late March 2002 she underwent implantation of an epidural stimulator (T57-T59).
21. In subsequent reports Dr Salmon initially referred to the success of the epidural stimulator but later referred to the emergence of pain in the area of the implant site, and on 24 June 1992 he reported that the applicant was unable to use her epidural stimulator because of the exacerbation of pain around the implant site, and that she was “becoming increasingly depressed and frustrated with her continued pain and employment problems” (T69).
22. On 5 August 1992 Dr Salmon reported that he had added morphine (30 mg twice per day) to the medications which he prescribed for the applicant (T75).
23. On 1 September 1992 Mr B Suter, Clinical Psychologist, who had been providing psychotherapy treatment to the applicant following a referral by Dr Salmon, reported that her mental state remained “fragile” and that she was “having great difficulty accepting the long term nature of her condition” (T81).
24.On 29 September 1992 Dr Salmon reported as follows:
“…
We have now exhausted all procedures that I am aware of which might improve her condition. She still obtains some pain control with her epidural stimulator, but the situation is far from ideal. She is understandably depressed and frustrated with her persistent pain. We will now try to optimise her pain control with her medication. Currently, she is taking Morphine Contin, 30mgs 2-3 times a day. We hope to stabilise her condition over the next month with psychotherapy and her medications and then proceed with rehabilitation. I will see her again in a month.” (T83)
25. On 2 November 1992 Dr Salmon reported that the applicant wished “to have the epidural stimulator removed and to go off the Morphine”. He added that he was not aware of any other treatment that was likely to help her “severe neuropathic pain problem” (T89).
26. On 18 December 1992 Dr Salmon reported that he had removed the applicant’s stimulator implant and that her symptoms remained “barely controlled on Morphine Contin 100mg twice a day” (T94).
27. On 8 February 1993 Dr Salmon reported, in relation to the applicant, as follows:
“… She developed sympathetic dystrophy affecting the left ankle region after dropping a box on her left ankle on 14 September, 1990 whilst at her work as a bank clerk. The sympathetic dystrophy initially responded well to sympathetic blocks and TENS treatment but periods of remission were always followed by further pain and treatment escalated to surgical sympathectomy by Bill Castleden in September, 1991 which abolished her pain for about four months followed by implantation of an epidural stimulator in March, 1992. She again obtained excellent pain control for a period of months and she was able to return to work. However, her pain returned and spread to involve the whole of the left leg, part of the right leg and the lumbar and dorsal regions. The epidural stimulator was eventually removed in December, 1992. Her pain had become quite unremitting and disabling and from mid 1992 she reluctantly agreed to trial the effect of oral opiates. Her pain does appear to be opiate sensitive but she has required escalation of the dosage to 100mgs of Morphine Contin, 2-3 times per day to gain acceptable control of her symptoms. She has been stable on this dosage for some three months. I have informed the Health Department of her requirement for opiates.
Throughout her treatment at the Pain Management Centre, she has received psychotherapy from Bryan Suter. Rehabilitation has been under management of the Commonwealth Bank. Suzanne naturally has passed through periods of considerable distress and depression with her persistent pain and disability but she has dealt with her problems with considerable fortitude. She understands that there are no further treatments available which are likely to produce a major impact on her neuropathic pain problem. She has not been happy with the idea of remaining on Morphine but she has come to recognise that she requires this drug for maintenance of a degree of pain control and function. Side effects in the form of constipation and sedation are minimal at present.
…” (T104)
28. On 7 May 1993 Dr Salmon reported that the applicant was “now on Morphine Contin 200mgs twice daily” (T112).
29. On 31 May 1993 the applicant claimed compensation for permanent impairment in respect of “intractable neuropathic pain syndrome affecting legs and lower trunk” (T121), and on 4 February 1994 the respondent accepted liability under the SRC Act to pay to the applicant lump sum compensation on the basis of a 20% degree of impairment.
30. On 26 August 1994 Dr Salmon reported that the applicant’s “bilateral neuropathic leg pain problem” was continuing “much the same” and that she was continuing to take Morphine Contin 100 mg three times a day (T156).
31. On 11 November 1994 Dr Salmon reported that, inter alia, the applicant continued to take Morphine Contin 200-300 mg per day.
32. On 14 March 1995 Dr Salmon reported that, inter alia, the applicant’s “neuropathic back and leg pain remain severe” (T173), and on 18 September 1995 he reported that her neuropathic pain problem continued to be “reasonably controlled on Morphine Contin 300mgs a day” (T183).
33.
On 1 March 1996 Mr B White, Clinical Psychologist, reported to the respondent that there was a combination of factors which would be likely to have an adverse effect on the applicant’s prospects of being successfully rehabilitated, namely:
"
1. She has a passive attitude to her rehabilitation and condition.
2.A long period of time has elapsed since her original injury, allowing disability habits to develop.
3.She is getting more practical help, love and attention at this time of her life (which coincides with having a disability), which reinforces illness behaviour.
4.She is magnifying the extent of the problem – the term in the literature is ‘catastrophising’ – ie seeing the extent of the disability and the lifestyle impact as greater than it really is in reality.
5.She is leading a relatively inactive lifestyle.
6.She has a reaction of anger with themes of injustice, ‘it’s not my fault’, and ‘it’s not fair’.
7.There is [a] certain aspect of victim role in her attitude – she feels that life has always dealt her a raw deal, and the disability is yet another example of this.
8.She has little (perhaps nil) insight into these factors.
9.She is receiving financial compensation (and has done for six years) – the literature demonstrates that this is a disincentive for recovery and always interferes with rehabilitation.
10.She is morphine dependant, and self administers, and this interferes with rehabilitation involving physical conditioning and an active lifestyle.”
He added that he was not implying that the applicant was “consciously malingering or manipulating the circumstances”, and he opined that she “simply does not have the psychological resources to react or cope in any different way…” (T196).
34. On 18 March 1996 Dr P Stevenson, Consultant Physician, provided a report regarding the applicant to the respondent in which he concluded that the original diagnosis of “sympathetically maintained pain (or neuropathy)” appeared “reasonable” but that he could find “no objective signs to confirm the presence of a severe dystrophy” (original emphasis). He considered that “it would be of assistance… for her to have an independent psychiatric assessment” (T198).
35. On 27 March 1996 Dr Salmon reported that the applicant’s pain symptoms were “reasonably controlled on an increased dose of oral Morphine” (360mg per day)” (T200).
36.
On 31 May 1996 Dr Stevenson provided a supplementary report to the respondent in which he summarised his opinion as follows:
"
1. It appears to be the consensus of the specialists who have seen [the applicant] that she suffers from the condition known as reflex sympathetic dystrophy, which has followed a fairly minor soft tissue injury to her left leg and foot in September 1994 (sic). This remains the best diagnosis available and her problems with her left foot would appear to follow from this injury.
2. It is however difficult to quantitate the severity of her pain on any other ground than [the applicant’s] subjective account of her symptoms. In severe cases of reflex sympathetic dystrophy, there may be more objective changes with discolouration, wasting, and temperature changes. These are not present in [the applicant’s] case, which tends to suggest her problems are not at the most severe end of the spectrum.
3. I am somewhat disquieted at the apparent development of symptoms of pain elsewhere in the body, remote from the site of the original injury, which clearly cannot be comprehensibly explained as consequences of the original injury. This suggests to me the likelihood of a psychologically derived chronic pain state, and I consider it important that [the applicant’s] condition should be assessed by an independent psychiatrist.
4. I recorded in my notes the impression that issues of compensation appeared to be waxing large in [the applicant’s] thinking, and may be affecting her expression of symptoms.
5. As to the issue of her fitness for work, she would probably be generally unfit, because of chronic pain, which apparently requires the administration of opiates. However, again, I consider a psychiatric assessment is important, in an attempt to gain a better understanding of how much of her incapacity comes from psychological factors rather than physical pain.
6. I do not consider that [the applicant] is strongly motivated to return to her Commonwealth Bank employment, and I feel that her pregnancy may have a further negative effect on her motivation.” (original emphasis) (T202)
37.
On 18 July 1996 Professor Mastaglia, Neurologist, provided a report regarding the applicant to the respondent in which he expressed the following opinions:
"
1. The relationship between her current condition and the initial condition of 1990
In my opinion her current symptoms and disability are due to the persisting effects of the sympathetic dystrophy which she developed as a result of the original injury to the left ankle in September 1990.
2. The link between the original injury and the reflex sympathetic dystrophy
In my opinion the reflex sympathetic dystrophy developed as a direct consequence of the original injury.
…
7. Treatment recommended for the condition
I can only recommend ongoing pain relief with MS Contin, if possible trying to gradually reduce the intake of this narcotic drug. I would also recommend that she remains under the care of Dr John Salmon who may have other suggestions with regard to ongoing treatment.
8. What is the best course of rehabilitation action
I think it is unlikely that she will benefit from a formal rehabilitation programme.
9. What is the general prognosis
I believe that the prognosis is very poor and that [the applicant] will almost certainly be left with a permanent neuropathic pain syndrome which will require ongoing treatment. I think it is highly unlikely that she will be able to return to the work force.” (T209)
38. On 25 September 1996 Dr Salmon reported that the applicant had presented with increased back and leg pain and that she had “had to increase her Morphine Contin intake to 400mg a day to obtain adequate control of these symptoms” (T212).
39. On 10 March 1997 Dr Salmon reported that the applicant’s “neuropathic back and leg pain” had become “increasingly severe” and that she had increased her Morphine Contin intake from 400 mg to 600-800 mg per day. He added that her psychological state had become “more fragile” (T214).
40. Dr B Galton-Fenzi, Specialist Occupational Physician, provided a report dated 15 March 1997 to the applicant’s employer in which he comprehensively set out the history of the applicant’s left foot injury of 14 September 1990 and the medical treatment she had subsequently received in relation to that injury, and concluded as follows:
“As indicated she continues to see Dr Salmon, and it would appear that following many attempts at epidural stimulation, he had resorted to the continuing use of MS Contin and there appears to be little other choice by way of options.
…
Following my assessment and examination it would appear that [the applicant] has little capacity to perform any of the daily functions. As indicated in my report to Comcare, Perth, two propositions exist. The first being that [the applicant] has a significant somatization problem and that she has allowed major intrusion into her life by way of attempted pain management through numerous invasive procedures, which has now resulted in her being significantly disabled. The second being her RSD is so substantial, along with her low back pain, that she will remain permanently disabled, such that it is unlikely she will work again.
I remain to be convinced that her real impairment is as significant as she believes. However I have no doubt that the resulting perceived disabilities are maximal.
…
… I find it difficult to identify why she has such a maximal disability, other than if it is now part of her chronic pain behaviour and somatization process, when the signs are minimal.
Clearly I could state that she could perform some duties, but she has convinced herself, along with her husband, that this is impossible. Merely stating she could do duties will not resolve this case.
Therefore on balance, it would appear that I cannot suggest any duties that this lady could do in the foreseeable future.
Clearly this is a most vexatious case and it would appear that the initial view that she had a Reflex Sympathetic Dystrophy of her lower left leg and foot, resulted in more and more invasive activities to attempt to manage her pain, distress and disabilities. Clearly these methods have failed.
…” (T216)
In a report of the same date to the respondent, Dr Galton-Fenzi stated (inter alia):
“…
On reviewing the lower limbs, there was no evidence for colour differences, there were no differences between the limbs (she stated she could see that the left ankle was more swollen than the right, I did not share that view). The outer aspect of her left shin and left foot was definitely warmer than the right, which was concordant with the dermatome S1. However, there was no erythema, swelling or other features of a Reflex Sympathetic Dystrophy…
…
Following my assessment and examination it would appear that she does have significant overlay and has now developed through a somatization process, a full sick role, which her husband continues to reinforce. As a result, she has significant perceived disabilities, she appears to have become dependant on opiates, and the psychosocial environment that she now finds herself within, continues to potentiate (sic) her problems.
…
It would appear that the opiates were given initially to control her left lower leg pain and then there was a progressive move, with more invasive opiate management, to her lower back. It would now appear that the opiates are being used to manage her low back pain and the left lower leg RSD.
I would not make a decision regarding whether or not she should continue with the MS Contin, as in my opinion, she is now dependent on this medication and attempts at withdrawal and change to alternative medication would probably be unsuccessful.
It is our experience that once individuals commence with opiates, generally they do require increasing doses and this is likely to be the situation in this case. An opiate dependancy is [a] condition in its own right.
…
It is highly probable that [the applicant] is depressed. On reviewing the numerous medical reports in your Comcare file, I note that she has been offered appropriate antidepressant medication (some of these are well known to assist in chronic pain states). It would appear that she has not had these for sustained periods. Certainly there is evidence for her chronic pain condition and all the psychological issues associated with this.
…” (T217)
41.On 1 May 1998 Dr Salmon reported that:
· he had not seen the applicant since June 1997 but that they had since had “consultations on the telephone about once every three or four months”;
· the applicant had told him that her “chronic neuropathic pain” had increased considerably over the last 2 months and that she had increased her MS Contin from 600-700 mg per day to 800-110 mg per day;
· he had “given her Methadone 10mg tablets and asked her to start at 40mg per day keeping the MS Contin to a maximum of 500mg per day” (T288).
42.On 14 May 1998 Dr J Quintner, Rheumatologist, reported to Dr Salmon that:
· his findings on examination of the applicant were consistent with a diagnosis of peripheral neuropathic pain state;
· the applicant’s current intake of opioid medication was inappropriate and should be discontinued;
· the applicant should be referred to a clinical psychologist for assessment and assistance with pain management (T229).
43.
On 7 July 1998 Dr Salmon reported that the applicant had been able to reduce her Morphine Contin intake to 400mg a day following the recent birth of her third child (T233); however, on 10 August 1998 Dr Salmon reported that the applicant had increased her Morphine Contin intake “from 400 to nearer 800mg a day together with the Methadone 80mg a day”, but that she agreed to limit it to
500 mg a day (T235).
44. By letter dated 19 November 1998, the Commonwealth Bank of Australia notified the applicant that it had approved her retirement on the grounds of ill health, effective from the close of business on 27 November 1998 (T250).
45. On 25 September 2000 Dr P Graziotti, Pain Medicine Specialist, provided a report to the respondent in which he set out the applicant’s history and his findings on examination, and answered the questions asked of him as follows:
“…
2.From what if any condition does the employee currently suffer?
The patient obviously continues to experience a chronic pain syndrome. The real question is what is the cause of her extreme pain behaviour? The possibilities are:
a) She has a severe case of sympathetic dystrophy
b) Her pain behaviour is related to psychological factors, in particular catastrophisation, somatisation and hypochondriasis.
In my opinion the predominant factor affecting her pain behaviour is the second. I don’t believe she has severe sympathetic dystrophy given that over a ten year period it would be expected that she would have some wasting of her left leg, that there would be abnormalities in hair distribution or nail texture, there would be abnormalities in skin texture, and none of these are apparent.
…
4. Could you please review her current medication and indicate which is directly related to her current compensable condition.
[The applicant’s] only medication at the moment is MS Contin. By her own report it results in excessive sedation, nausea, itching, and although there is analgesic effect it does not translate into any improvement in function – if anything there is a negative effect on function because of these side effects. It is my strong belief that [the applicant’s] level of MS Contin will markedly reduce after settlement of her case. I’ve seen this on many occasions in patients with a diagnosis of sympathetic dystrophy under similar circumstances.
I would confirm though that MS Contin at the moment is being taken in response to her problems arising from her injury.
5. In your opinion, is the range/level of medication being prescribed reasonable given her condition?
According to Dr Salmon her level of medication has been stable over the past few years. It is normal for a patient taking this medication to be dependent on the drug and he as yet has found no evidence of addictive behaviour.
7. In your opinion, what treatment is reasonable for her compensable condition?
I wouldn’t consider any further treatment reasonable for her compensable condition. In my opinion the most appropriate treatment management tool from here would be settlement of her case and I suspect that there will be a marked improvement in her symptoms after this.
…” (T317)
46. On 1 December 2000 Dr R Jackson, Consultant Orthopaedic Surgeon, provided a very comprehensive report to the respondent in which he expressed, inter alia, the following opinion:
“It is my opinion that [the applicant] has a chronic pain syndrome. It is impossible to state whether she indeed has any specific low back problem or specific lower leg problem. In all probability, she does not.
…
On the balance of probabilities, the work factor of 1990 has led to the present situation. I consider that this specific injury caused only a relatively minor soft tissue injury/contusion to her left lower leg and foot. However, from that situation she appears to have developed a probable reflex sympathetic dystrophy. From that, she has received multiple treatments. From that situation, she has developed considerable non-organic problems which are influencing the situation. The end result is the present condition of the patient which is now chronic pain syndrome.
…” (T330)
47. On 3 January 2001 Dr Salmon provided a report to the respondent in which he opined that:
· the applicant’s medical diagnosis was reflex sympathetic dystrophy or (as it is currently known) complex regional pain syndrome (CRPS) type I;
· the applicant, in the period of 10 years since she sustained that condition, had developed “significant psychological and behavioural dysfunction and a dependence on high doses of oral opiates to partially reduce her symptomatology”;
· the applicant’s current treatment requirement was “an intensive cognitive behavioural programme with the explicit aim of reducing her requirement for opiate medication and increasing her level of functioning and independence from future medical treatment” (T341).
48. On 27 March 2001 the respondent, primarily on the basis of the abovementioned reports of Dr Graziotti and Dr Jackson, determined that the applicant was no longer suffering from the originally-diagnosed condition of “soft tissue injury to the left foot with sympathetic dystrophy”, but that she was currently suffering from “chronic pain syndrome” which was “materially contributed to by her Commonwealth employment with the bank” – “(i)n particular, the multiple modalities of therapeutic treatment [she] has received over the past ten years in response to the initial compensable condition, soft tissue injury to the left foot with sympathetic dystrophy” (T357). On 2 May 2001 the respondent made a determination that, on and from 3 May 2001, it was “no longer liable to pay compensation” under the SRC Act to the applicant for a soft tissue injury to the left foot and reflex sympathetic dystrophy, but that it continued to be liable to pay compensation to the applicant in respect of “chronic pain syndrome” (T364).
49. On 11 May 2001 Dr Salmon reported that the applicant had completed the ACHIEVE cognitive behavioural pain management programme on 4 May 2001, and on 20 August 2001 he reported that the applicant was:
· continuing to utilise the self-management techniques she learnt in the ACHIEVE programme; and
· maintaining a gradual reduction in her morphine consumption, such that her routine intake was currently 500 mg a day compared to 600-700 mg a day prior to the ACHIEVE programme (T380).
50. On 30 November 2001 Dr Salmon reported to the respondent that the applicant was gradually reducing her morphine requirement and that her current morphine intake was 400 mg per day (T381).
51. By letter dated 27 February 2002 the respondent notified the applicant that it had made a determination that:
“on and from 26 February 2002, Comcare is no longer liable to pay compensation under section 16 of the SRC Act for morphine usage beyond the amount of 230mg per day”. (T386)
52. On 14 May 2002 Dr Salmon reported that:
· the applicant had “sustained quite a marked improvement in her condition since she completed the ACHIEVE programme”;
· her “most troublesome pain symptoms remain(ed) in the low back and posterior legs to the ankles”;
· her oral morphine requirement had reduced and stabilised since completing the ACHIEVE programme, averaging around 450-500 mg a day compared to 500-750 mg a day prior to the ACHIEVE programme, and she had ceased taking methadone completely (T397).
53. On 2 December 2002 Associate Professor R Burns, Consultant Neurologist, provided a report to the respondent in which he detailed the applicant’s history and his physical examination of her and continued:
“SUMMARY AND ASSESSMENT:
In answer to the specific questions outlined in your letter of referral dated 11 November 2002:-
1.From what specific condition does [the applicant] currently suffer? Please provide a short description of the condition including its known aetiology and progression.
[The applicant] currently has what I would describe as a chronic pain syndrome, the cause of which is quite unclear to me. The condition is neither getting better nor worse and it has been described in the body of my report above.
2.On the balance of probabilities as distinct from possibilities, is the condition currently suffered by [the applicant] related to:
a)The injury from 14 September 1990?
b)Some other aspect of her employment? If so, what aspects and explain how it contributes to the condition.
c) Factors unrelated to work, eg hobbies? If so, please advise.
d)The natural progression of an underlying condition?
e)Underlying degeneration as part of the natural ageing process?
The condition suffered by [the applicant] is, on the basis of probabilities as distinct from possibilities, not related to a) the injury of 14 September 1990 or related to b) some other aspect of her employment. The condition is presumably related to c) other factors but I do not know which. The condition is not related to d) the natural progression of sympathetic dystrophy and not due to e) an underlying degeneration as part of the natural ageing process.
…
4. What other factors would have caused the condition(s)?
I do not know what physical factors would have caused this condition. There is no evidence of any physical disorder.
5.Is the condition, and/or any aggravation, likely to be permanent or temporary? If temporary, when is it likely that any employment caused aggravation would cease/have ceased?
I consider that [the applicant’s] condition is likely to be permanent, bearing in mind that it is now 12 years since she has undertaken any form of full-time work and she appears incapable of even doing things about the home.
Capacity for work
6.Is [the applicant’s] capacity for work in any way restricted by any condition still related to the employment?
I consider that [the applicant] has the physical capacity to work and I cannot understand why she requires a full-time carer. I stress that I could find no neurologic abnormality.
7.If the employee is fit enough to undergo a return to work program to achieve part or full-time hours, please advise the following:
.details of any remaining work restrictions
.types of activities/employment that [the applicant] should avoid.
If she were able to return to work, then I cannot identify any work restrictions or types of activities that [the applicant] should avoid.
Treatment
8.What ongoing treatment, if any, would be reasonable in this case? What frequency and for what duration would it be expected that further treatment would be required?
The ongoing treatment that [the applicant] is receiving has been outlined in the body of my report above. Whether it would be possible to reduce or discontinue the large amount of medication she is taking, namely the MS Contin for her pain plus the other medication she takes for her headaches, is unknown. The long duration of this medication use does not auger well but theoretically it would be possible for her to discontinue medication.
…”
Professor Burns concluded his report as follows:
“Comment:
It does seem that [the applicant] did develop reflex sympathetic dystrophy as a result of the injury to her left leg. I recognise that some people were not happy to make this diagnosis, but it seems reasonable to accept that explanation. There is no evidence of reflex sympathetic dystrophy now and I consider that the minor change in the sweating of her left leg is a result of the previous sympathectomy. It should be noted that she did not respond in any convincing way to a huge variety of treatments offered. Moreover, it seems extraordinary that after 12 years and following what was a fairly minor injury, she is on large doses of MS Contin, taking other analgesics and remains unable to undertake any significant activities of daily living. In other words, her lifestyle is quite abnormal. I am fully aware that this is the first time I have seen [the applicant] and that others have seen her over a long period of time and may well be in a better position to comment about her. The pain in her back and right lower limb is difficult to explain on the basis of reflex sympathetic dystrophy. Dr Paul Graziotti stated in his report dated 25 September 2000 that she had ‘a severe case of sympathetic dystrophy or pain behaviour related to psychological factors, in particular catastrophisation, somatisation and hypochondriasis. In my opinion, the predominant factor affecting her pain behaviour is the second’.
I feel concerned to label [the applicant] as ‘chronic pain syndrome’ with all these atypical and unusual features over such a period of time, in a young woman taking large amounts of medication. It may be that you will choose to obtain the opinion of a very experienced psychiatrist as someone who has dealt with pain clinics, or you may choose to obtain the independent opinion of a pain specialist.
…” (T406)
54. On 28 January 2003 Dr Salmon reported that:
· the applicant’s “widespread back and leg neuropathic pain” was continuing “much the same”;
· her oral morphine medication had been “stable over the last nine months or so at 580mg per day”.
He concluded his report as follows:
“I believe Suzanne to be a genuine chronic pain sufferer and there is no doubt that her condition dates from the injury at work in 1990 and it is now well recognised in the literature that complex regional pain syndrome Type I (formerly known as reflex sympathetic dystrophy) can pursue an extremely variegated clinical course in the long term and physical manifestations may be quite slight or atypical in some patients. It is of course also quite usual for patients suffering severe disabling chronic pain to develop severe psychological disturbance including depression, anxiety, catastrophisation and somatisation. The latter factors were recently well addressed by the ACHIEVE programme in 2001 and the result has been an improvement in Suzanne’s physical and psychological functioning but not cure of her condition, which was never anticipated. I remain hopeful that Suzanne will manage further improvement in function over time and reduction in her requirement for oral Morphine.” (T409)
55. On 7 February 2003 the respondent made a determination that:
“on and from 10 February 2003, [the respondent] is no longer liable to pay compensation under any provision of the [SRC] Act for [the applicant’s] claim for ‘chronic pain syndrome’.” (T411)
56. On 24 July 2003 a Review Officer of the respondent made a “reviewable decision” affirming the determination of 7 February 2003 (T422).
57. Following a request by the applicant for an extension of time for lodging with the Tribunal an application for review of the “reviewable decision” of 24 July 2003, the Tribunal, on 4 August 2005, granted an extension of time until 30 September 2005.
58. On 24 August 2005 the applicant lodged with the Tribunal an application for review of the “reviewable decision” of 24 July 2003.
The Applicant’s Evidence
59.
The applicant tendered in evidence her 2 witness statements, one dated
8 November 2006 (Exhibit A1), the other dated 13 November 2006 (Exhibit A2), and she confirmed that the contents of those statements are true and correct.
60.
In her witness statements the applicant referred to the injury to her left ankle and foot which she sustained while working at the Commonwealth Bank on
14 September 1990, the impact of that injury on her, and the medical treatment which she has received as a result of that injury from September 1990 to date. She described her present symptoms as follows:
“My pain is with me 24hrs a day 7 days a week…
…
As for my pain now, well it depends on what day you ask me. Some days it’s like a hot deep throbbing that makes my legs feel like dead weights, that they won’t support my weight. And sometimes they don’t. I walk with a walking stick because my legs give out without much notice. I have grazed my hand, elbows, chin and legs on many occasions because my legs buckle underneath me. It’s embarrassing and humiliating to me. When it happens I just want to curl up and die. My family must feel the same when it happens when I’m with them. Needless to say I don’t go out if I can help it.
On other days the pain is like a burning ball that rides up my leg getting stronger as it goes until it explodes in my hip or lower back, then it starts again. I also suffer from having my large toenails removed every 6 to 8 months because they grow weird because of the nerve damage. The skin on my feet are thick and crack (sic). The cracks get so deep that they bleed and that also interferes with my walking. The tendon under my right foot also suffers because of all the weight bearing over the years.
…
I feel I have been to hell and back. I still feel like I am still there sometimes. I still get bouts of depression, self loathing, uselessness and frustration. I know that the chronic pain that I suffer from everyday because of that accident will be with me for the rest of my life. So I just go through one day at a time.” (Exhibits A1 and A2, pp
2-3, 10)
61. In her oral evidence-in-chief the applicant confirmed that the nature of her symptoms remains the same. She said:
“The pain is still there every day, all day. The depression is still there. It’s just the same. I’m still sick, I hate it.” (Transcript, p 28)
62. In cross-examination the applicant acknowledged that she had been taking morphine “for a very long period of time”. Although she could not recall the details, she accepted that she was first prescribed morphine on 5 August 1992 at a dose of 30 mg per day. She said that she subsequently found that she required greater dosages of morphine in order to “dull” her pain so that it was not “so severe” and thus make it “more tolerable”. She confirmed that her morphine dosage was increased on advice from Dr Salmon and that he provided her with the necessary prescriptions.
63. The applicant confirmed that, after the removal of the epidural stimulator in December 1992, she “dramatically increased” her intake of morphine to 200 mg per day, and she said that that dosage made her pain tolerable although she was still unable to do much in the way of physical activities.
64. The applicant confirmed that subsequently that dosage of morphine was not providing effective pain relief, and so she increased her morphine intake to 300 mg per day in January 1993, and then to 400 mg per day in May 1993.
65. It was put to the applicant that in March 1997 her dosage of morphine again “increased dramatically” from 400 mg per day to 600-800 mg per day. She acknowledged that her morphine intake reached 600 mg per day but she maintained that it “never” reached 800 mg per day. It was also put to her that in May 1998 her morphine dosage increased to 800-1100 mg per day, but she responded:
“No. Never. Never was it that high.” (Transcript, p 121)
66. The applicant confirmed that she did not see Dr Salmon between June 1997 and May 1998 but she said that she contacted him by telephone “on a regular basis” during that period in order to obtain prescriptions for morphine. She likewise confirmed that she did not see Dr Salmon in the period from January 2003 to February 2006 and that, during that period, she obtained prescriptions for morphine and other medication by telephoning Dr Salmon when necessary.
67.
The applicant said that she is currently taking 230 mg of morphine, and
10 mg of methadone, per day, and that, although she still has pain symptoms, her pain is under control on her present dosage of morphine. She added:
“The pain’s the same. It’s how I deal with it that’s different. I now have coping mechanisms, tools, set routines that help, and they help a lot.” (Transcript, p 167)
68. The applicant agreed that, since the work accident of September 1990, there had been a number of stresses in her life. Her cross-examination continued:
“Do you agree that the compensation process was a stressor?---Yes.
That the reduction in your pay to 75 per cent was a stressor?---Yes.
And the consequential financial hardship?---Was a stress, yes.
And when your husband ceased working was a stressor?---Yes.
That your stepdaughter has been a stressor to you over the years?---Yes.
That your potential that you might not have been able to have children was a stressor?---Yes.
That the effects of the morphine upon you was also a stressor?---Yes.
The fact that the medical treatment wasn’t working was a stressor?---Yes.
That your employer’s management of the claim was also a stressor?---Yes.
That the fact that Comcare was not settling your claim was a stressor?---No, not settling, no.
No? Don’t agree with that one?---No.
That your unplanned pregnancies were a stressor?---No, not a stress. A hiccup more than anything. A worry but not a major stress or anything. All these stresses, I dealt with them.
I think you gave evidence that you were considering an abortion with one of the children at the time?---It was discussed.
Did that create stress in your life?---It depends on how you define stress. Was it a worry? Was it hard? Yes. The decision? Yes. But once it was made, it was gone. It’s not a continuing stress. Each one of these things that was – challenge that was thrown, I dealt with it in the best way I knew how and once I dealt with it, we let it go and then we tackled the next one.
Do you agree that your pregnancies were stressful?---Yes.
And the birth of your children was stressful?---The first one was, yes but the other two weren’t, no because we knew what we were dealing with then and I wasn’t allowed to be awake and I was put – go to sleep.
That having a child with a diagnosis of ADHD is stressful?---Yes.
And having a child with endocrine problems is stressful?---Yes.
That your husband having been diagnosed with liver problems and depression is also stressful?---Yes. The depression is, the liver isn’t because it’s not an issue at the moment.” (Transcript, pp 191-192)
69. The applicant was questioned about her capacity to work. Her evidence was as follows:
“Do you think you could return to work at the moment?---Not right now.
Why?---Not that I don’t want to. Because I’m afraid that the – because I can’t sit for long, can’t stand for long. If I start interfering the pain’s going to flare and then I’ve got to work it all over again to settle it down. If I could go back to work slowly and on my own, I’d probably get there.” (Transcript, p 169)
The Evidence of the Medical Witnesses
Dr John Salmon
70. Dr Salmon said that he has been practising as a specialist in pain management for about 20 years.
71. Dr Salmon confirmed that he had been treating the applicant since October 1990 when “she presented with a painful, swollen, cold, sweaty, discoloured foot”. He added that that presentation was “very typical of complex regional pain syndrome” (“CRPS”) and that that was the initial diagnosis. He said that, following various forms of surgical treatment, “she was left with this disabling pain which by this time had spread up the leg and was involved in the dorsolumbar region as well” – a development which he described as “typical of this sort of condition”. He added that “she has been left with a chronic complex regional pain syndrome type problem since then”, and she has been “on oral opiates” since then.
72.
Dr Salmon said that the applicant had had “the full range of available treatments”, and that her condition had been “relatively stable over the last…
10 years”. He added that she had benefited from the cognitive behavioural programme which she completed in 2001 in that she was subsequently able to reduce her oral opiate intake by about 50%.
73. Dr Salmon said that he last saw the applicant on 23 February 2006, and he confirmed that he had prepared a report in relation to that consultation. That report, dated 23 February 2006, which was tendered in evidence, states (inter alia):
“… I last saw Suzanne in January 2003 but we have spoken on the phone at intervals and I have kept her supplied with authority scripts for her Ms Contin and methadone.
…
Suzanne reports that her chronic dorsolumbar and leg complex regional pain symptomatology continues much the same. Pain is present as a continuous aching or burning sensation intensity 6 to 8 out of 10 with variable hot or cold skin temperature change and swelling affecting mostly the left leg. The skin of the sole of [the] left foot frequently cracks and bleeds.
…
Her opiate medication has been stable for some years now consisting of Ms contin 100 mg one a day and Ms contin 60 mg two a day and methadone 10 mg zero to two a day. This intake is substantially reduced to what she was taking five or more years ago (prior to the Achieve CBT pain programme). She receives her medication in three-month authority scripts issued by myself.
On examination the left foot was warm and dry with dusky red skin discoloration compared to the right foot and the skin of the sole of [the] left foot was thickened and cracked compared to the right foot.
…” (Exhibit A3)
74. Dr Salmon also confirmed that he had subsequently provided 2 reports to the applicant’s solicitors, namely, a report dated 27 September 2006 and a supplementary report dated 17 October 2006. Those reports were tendered in evidence (Exhibits A4 and A5, respectively). The report of 27 September 2006 relates to the consultation of 23 February 2006, and is in similar terms to the abovementioned report of 23 February 2006. The supplementary report of 17 October 2006 states as follows:
“…
1. Ms Sarles has been unfit to work from February 2003 to the present as a result of her work related injury and CRPS condition.
2. Ms Sarles is currently unfit to perform her pre-accident duties on a full-time basis.
3. Ms Sarles’ current incapacity for work is a result of the work injury in 1990 and the consequent development of CRPS.
4. Current and further treatment requirement will include maintenance of her current opiate medication, hopefully tapering gradually over time, and possibly consideration of another trial of spinal cord stimulation or intrathecal opiate. She may also want to consider trialling oral ketamine and/or ketamine relation which has recently become available. In the future there will be further treatment developments for CRPS.”
75. In cross-examination Dr Salmon confirmed that, over the course of his treatment of the applicant from October 1990, her symptoms have “broadly” remained unchanged but the “objective observable signs” have “fluctuated over time”. Asked to describe the relevant signs for a diagnosis of CRPS, Dr Salmon responded:
“Well, on examination you often see a guarded limb. They won’t weight bear, they won’t use it. The limb may be hot and red, or it might be cold and white and bluish. It might be variably swollen, there might be variable increased sweating and disturbance of pinprick sensation and light touch might be very painful – that’s called allodynia. There’s frequently tenderness over the peripheral nerves supplying that area. This is in the initial stages, we’re talking about, yes.” (Transcript, pp 150-151)
He added that quite often the skin might be “shiny or smooth”, and that “very severe pain is the most cardinal symptom”.
76. Dr Salmon said that, when he last examined the applicant on 23 February 2006, he found (as stated in his report of that date – see paragraph 73 above) that there were “some changes in skin texture and temperature and colour”, but he acknowledged that there was no observable sweating on that occasion and that he did not refer to swelling in his report. He confirmed, however, that it was his opinion, when he examined the applicant on 23 February 2006, that she was suffering from “chronic (sic) regional pain syndrome”. Asked whether he was of the opinion that the applicant was suffering from “chronic pain syndrome”, Dr Salmon responded:
“What’s chronic pain syndrome?”
When it was described to him by counsel as “a pain disorder of some sort, of some description”, he commented:
“Well, that’s too nebulous to be a diagnosis. What is chronic pain syndrome?” (Transcript, p 152)
He confirmed that it is his opinion that the applicant’s condition is a physical condition, and added:
“I think she has a disorder of her nervous system that creates the bulk of the symptoms.” (Transcript, p 152)
Later, he elaborated as follows:
“… we know now that the problem that drives… this condition is a change in the central nervous system… we used to think it was all of the sort of peripheral nerves, and the sympathetic nervous system. We now know that the main problem is a change in neural control and the central nervous system and the spinal cord…” (Transcript, p 153)
77. Dr Salmon confirmed that he had first prescribed morphine for the applicant in August 1992 and he explained that he had done so because the applicant “was describing persistent pain, and morphine is… the most commonly used strong opiate analgesic”. He said that, at that time, a “more liberal approach to prescribing morphine” was prevalent, but he added:
“I would say that our feeling now is that that experiment with being liberal with morphine has been particularly unsuccessful and we’re now backing off from using morphine, especially in high dosage, for patients with persistent pain because it leads to more problems than it solves.” (Transcript, pp 351-352)
78. Asked whether he had informed the applicant of the “addictive qualities” of morphine, Dr Salmon responded that he routinely discussed with patients “the pros and cons of taking morphine”. He added that the applicant’s “dependence has not been a major issue because she’s not a drug abuser”.
79. Dr Salmon said that the applicant was then receiving psychotherapy treatment from Mr B Suter, Clinical Psychologist, and that, although she “certainly had a depressed mood”, he did not consider referring her to a psychiatrist because he did not believe that she was suffering from a psychiatric condition or that her major problems were of a psychiatric nature.
80. Dr Salmon acknowledged that there have been periods during which he has prescribed morphine for the applicant following telephone conversations with her without face-to-face consultations. He said that that was not a practice he commonly followed and that he had made a “special allowance” for the applicant because of her difficulties with travelling and the demands made on her by her young children. He also acknowledged that his “indulging” the applicant in this way, and his failing to monitor her as closely as, “in hindsight”, he should have, were reasons why her morphine intake “escalated”, especially in the period from June 1997 to April 1998. He agreed that he had not been providing her with close supervision at that time but he added that they had had “consultations on the phone about once every three or four months”. His cross-examination continued:
“So, is it the case that she was running out of her medication before the normal time frame had expired for that medication to run out in?---That is what was tending to happen, yes. And I would phone her and discuss it and she would undertake to not increase it and then she would report that she was going [to] run out and - it was difficult.
If that was occurring, wouldn’t you have called her into your surgery to talk to her or examine her at least?---Well, I would have liked to have seen her more frequently but, as I said, I made allowances because of her difficulties with travelling and the demands of her family and the fact that I knew her quite well. But I did give her more latitude than I think I have any other patient. And maybe it was unwise, looking back at it, in terms of the dosage. But she did - we did succeed in winding her right back. We halved her dose within a few months of that. So, that was the peak dose that she reached and we were back down to around about 500 mg by a year later. And then when she did the pain program in 2001, her dose was halved again and has remained at about that sort of dose. So, we did in the end deal with it but - - -
Would you agree that in May 1998 she was very definitely addicted to morphine?---She was - yes, depending on how you use that word. But she was certainly very dependent on it.
Would you agree that the morphine was assisting her to cope with life?---Well, she certainly believed she couldn’t cope without it.” (Transcript, p 365)
81. Dr Salmon also agreed that he did not have a face-to-face consultation with the applicant between January 2003 and February 2006, and he said that during that period he spoke with her on the telephone, probably about every 3 months when her scripts were required. He confirmed that during that period he kept her supplied with authority scripts for MS Contin and Methadone. His cross-examination continued:
“Would you agree that at the time you wrote your report in February 2006, she remained dependent or addicted to morphine?---She was certainly dependent on it and is still dependent on it.
Would you agree that she’s addicted to it?---Well, I just - I’m careful as to how that word is used. I guess you could call her addicted to it in that I think she would struggle to manage off it at the moment. But she’s on much less now than she was…
Would you agree that there are psychological factors which play a role in the applicant’s current symptoms?---Of course, yes.
…
Would you say that the psychological factors are a significant contribution to her condition?---Yes, I certainly would agree that psychosocial factors have had a major impact on her pain and disability and requirement for medication, yes.
Would you say - - -?---And that is usually the case with these conditions.
Would you say that they outweigh the physical factors?---No, I don’t think I would say that. I would say they were - I would say the physical, the CRPS condition remains the predominant factor driving her symptoms and disability, but I would say if you pressed me to make an estimate, I would say maybe 30 per cent of her overall disability is related to psychosocial factors, which is not the same as making it psychogenic.” (Transcript, pp 366-367)
82. In response to a question from the Tribunal, Dr Salmon said that he did not accept that the applicant’s reflex sympathetic dystrophy/CRPS condition had resolved and that the applicant now suffered from chronic pain syndrome. He said:
“No, I can’t accept that. I think you’ve got to ask, well, when did it resolve? Because you’ve got a narrative here, and all these reports of her condition. There’s no point in time where her physical symptoms disappear and then - and she’s completely normal and then she develops a recurrence of symptoms. Her symptoms have always been there to some degree, haven’t they? And her psychological problems have always been there to some degree. So it’s been a continuum all along. At different stages her physical symptoms have been more severe and less severe and also her mood problems have been more severe and less severe. But I don’t see that there’s been any identifiable point where her physical symptoms disappeared and then she developed another condition, the chronic pain syndrome as it’s called.” (Transcript,
p 369)
Dr John Ker
83. Dr Ker, Specialist in Rehabilitation Medicine, said that he first saw the applicant in September 1992, at the request of the Commonwealth Bank, for the purpose of assessing her suitability to participate in a rehabilitation programme for a return to work with the Bank. He said that she reported tenderness distally in the left lower limb and, on clinical examination, he found that she had “some limited swelling of her ankle”. He added that he did not find skin discolouration, loss of hair, or any other dystrophic features; nor did he find evidence of neurological loss. He confirmed that, apart from the ankle swelling, there were no objective features of reflex sympathetic dystrophy. He said that, in the light of his examination of the applicant, he made a diagnosis that she had sustained soft tissue injury with resultant reflex sympathetic dystrophy, but that, at the time of his examination, she did not exhibit any features of a chronic dystrophic state.
84. Dr Ker confirmed that he had commented, in a report dated 30 October 1992 (T87), that it was of concern to him that the applicant was using oral morphine. Asked to explain that comment, he said:
“Yes, I think that once you start to commence oral opiates for the management of a chronic pain complaint, you are very likely exposing your patient to ongoing and continuing use of opiates and with the ongoing and continuing use of opiates patients will develop, in most circumstances, tolerance to those opiates with as a result a likely circumstance in which their opiate dosage over time may well progressively increase.” (Transcript, p 234)
85. In cross-examination, Dr Ker agreed that an injury of the kind sustained by the applicant in September 1990 could suffice to trigger the onset of a complex regional pain syndrome. He agreed that the symptoms or signs of CRPS may come and go, but he said that that was “not the usual experience”. He added:
“The usual experience is that patients will, over a period of time, either have comprehensive and ongoing resolution of their pains or may in fact end up in what I’ve described as a chronic dystrophic state…” (Transcript, p 241)
He said that, when he saw the applicant in September 1992, 2 years had elapsed since her left ankle injury and he regarded the “modest swelling” of her left ankle, which he found on examination, to be part of a residual dystrophic state resulting from that injury rather than a symptom of the injury itself. He confirmed that he had not examined the applicant since 1992.
Dr Peter Stevenson
86. Dr Stevenson, Consultant Physician, confirmed that, at the request of the respondent, he had examined the applicant on 5 March 1996 and had subsequently prepared a report dated 18 March 1996 and a supplementary report dated 31 May 1996 (T198 and T202, respectively – see paragraphs 34 and 36 above).
87. Dr Stevenson said that, on examination of the applicant on 5 March 1996, he did not find any objective evidence of reflex sympathetic dystrophy/complex regional pain syndrome in her left lower limb. He said that he “found it easier to consider a psychogenic or somatoform explanation for the dissemination of [her] symptoms”, rather than a neurological explanation – hence, the suggestion in his report of 18 March 1996 that she be referred for an “independent psychiatric assessment”.
88. Dr Stevenson confirmed that he had prepared a report dated 29 May 2006 based on a documentary review of the clinical course of the applicant’s condition since 1996. That report was tendered in evidence by the respondent (Exhibit R9). In that report, which is addressed to the respondent’s solicitors, Dr Stevenson summarised the applicant’s history and medical treatment, referred to relevant medical reports, and continued:
“Assessment:
Ms Sarles… is a 39 year-old lady who, following an impact injury to the lower limb in 1990, developed early picture consistent with a local reflex sympathetic dystrophy (complex regional pain syndrome) of the left leg. Objective manifestations resolved. She reports an ongoing pain and disability throughout the body and opiate dependence.
The answers to your questions are as follows:
1.So far as you are able to assess, from what condition does the applicant suffer, if any?
There is good evidence of opiate dependence. Dr Srna diagnoses also personality disorder not otherwise specified.
The possibility of pain disorder is postulated but is insecure in the context of financial reward for disability.
…
Professor Richard Burns, a very competent neurologist, found no evidence of true complex regional pain syndrome (CRPS) formerly known as reflex sympathetic dystrophy. There were minor autonomic changes due to sympathectomy.
There is no other formal medical diagnosis.
It seems there was a soft tissue impact injury to shin or foot. The early medical documentation seems remote, but an abnormal bone scan indicates suggested early complex regional pain syndrome/reflex sympathetic dystrophy manifesting itself around October 1990. I could find no evidence of any objective neurovascular change when I saw the lady in 1996 and the condition seemed long resolved then. In retrospect, the diagnosis of RSD/CRPS on bone scan was insecure and probably overgenerous…
2.So far as you are able to assess, at what time did this condition arise?
The soft tissue injury occurred in 1990, reflex sympathetic dystrophy possibly shortly after and was resolved by 1996. She has unnecessary opiates since. No specific date is possible.
…
4.Do you think there was an incident at work, which precipitated the applicant’s condition?
On the evidence available to me, there was an incident at work thought to cause complex regional pain syndrome type 1. The bone scan however, in retrospect, seems quite non-diagnostic. It is quite possible that a misdiagnosis led to assumption of excessive invalid role.
…
5.Are there any other factors that have contributed to the applicant’s current condition?
The physical injury is long resolved. Psychosocial and economic factors maintain inappropriate assumption of an invalid sick role. There is likely to be a complex social network including family and well-intentioned medical practitioners who support the inappropriate physical basis of the claimant’s illness and affirm the sick role.
6.Do you consider the applicant is incapacitated for work as a consequence of her current condition?
When I last saw her I could not find any objective physical pathology which would prevent return to work. This is ten years ago. Any objective pathology has long resolved. Current dose of opiates may be some problem, but Dr Srna felt her low dose could be rapidly discontinued. Certainly there is no objective pathology which requires opiates. Her continuing to take opiates is unnecessary. There is no pathology which presents (sic) a return to work and there has not been for a long time. In retrospect, she was probably fit to work in 1996.
…
8.If you consider the applicant has some degree of capacity, in your opinion state hypothetically the:
(a)applicant’s ability to engage in her pre-injury occupation; and
(b)applicant’s ability to undertake rehabilitation;
Setting aside the minor incapacity which may date from unnecessary opiates, she is fully fit to return to her occupation with or without rehabilitation. Many persons on chronic opiates for medical conditions or drug use are quite functional at work.
9.Since the accident in 1990, the applicant has received extensive medical treatment. Several specialists, including Dr Graziotti, Dr Johnson (sic), Dr Jackson and Professor Burns have all raised concerns about the amount of morphine prescribed to the claimant. On February 2002, Comcare determined that they would not reimburse the costs of the morphine beyond 230mgs per day. In your opinion state:
(a)the reasonableness of the morphine prescribed to the applicant;
(b)if the applicant’s morphine intake should be reduced or discontinued. If so, how can it be reduced or discontinued.
(c)the applicant’s need for morphine in future.
She is obviously opiate dependent. There has long been no pathology requiring opiates.
In disability syndromes, claims of total disability without pathology, medical treatment comes not to relieve pathology but to justify invalidity. Her use of opiates does not treat nociceptive pain, but justifies continuation of the sick role. Dr Srna is correct. She is opiate dependent for reasons likely to be due to personality and social encouragement. She requires no opiates to treat work injury.
...”
Associate Professor Richard Burns
89. Associate Professor Burns, Consultant Neurologist, confirmed that, at the request of the respondent, he had examined the applicant on 26 November 2002 and had subsequently prepared a report dated 2 December 2002 (T406 – see paragraph 53 above).
90. Professor Burns confirmed that, in his clinical examination of the applicant, he did not observe any of the objective signs which are required for a diagnosis of reflex sympathetic dystrophy/complex regional pain syndrome. He said that he could not make a definite diagnosis of her condition and could not explain her pain, and that he felt that strong psychological factors were colouring her symptoms. He said that, although her former condition of reflex sympathetic dystrophy was connected with her work injury of September 1990, she no longer has that condition, and he added that he could not see how her present chronic pain syndrome was connected to that injury.
Dr Zdenek Srna
91. Dr Srna, Consultant Psychiatrist, confirmed that, at the request of the respondent’s solicitors, he had examined the applicant on 30 January 2006 and had subsequently prepared a report dated 7 March 2006. That report was tendered in evidence by the respondent (Exhibit R10).
92. In that respect Dr Srna set out the applicant’s family and social history, the history relating to her work injury of 14 September 1990 and her subsequent medical treatment, her previous medical and psychiatric history, and he comprehensively reviewed the medical reports contained in the “T Documents” which had been provided to him by the respondent’s solicitors. He described his findings on examination of the applicant’s mental state as follows:
“Mental State Examination
This revealed a short, mildly overweight middle-aged female with a somewhat hoarse and strained voice, supporting herself with a walking stick. She was pleasant and responsive, although not comfortable, shifting all the time. She had short straight red hair with sunglasses positioned on top of her head. She had nasal piercing (a ring) in her left nostril and multiple ear studs. She wore many rings on her fingers. She was dressed in a shirt, cardigan and light coloured trousers, and she wore open shoes.
Her speech was normal in rate, flow and syntax. The prosody of her speech, her mimic, her gesticulation and her psychomotor activity were all within the range appropriate to the situation of the interview, and as such not reduced. She gave a spontaneous history. She impressed as bright, intelligent, eloquent and sharp minded. Although she implied that she was suffering from an ongoing severe pain, she displayed disability behaviour that would have been appropriate to someone with say a mild foot injury. However, most of time her mental state was completely devoid of any features that would normally accompany the presence of strong pain. Thus she exhibited a phenomenon known as ‘la belle indifference’. She was initially quite guarded, but became more pleasant and warmer as the interview continued. She displayed a situational anxiety with frequent touching of her face. Her affect was somewhat depressed but she was reactive and she displayed a normal spectrum of emotional reactions, appropriate to the situation of the interview. This included irritability when talking about certain aspects of her case.
“It is also important and necessary to address one other entity, so-called ‘chronic pain syndrome’. This must be distinguished from chronic (sic) regional pain syndrome, which is, when properly defined, an objective neurovascular disease.
The term chronic pain syndrome indicates the situation determined by social, rather than medical factors, where the language of pain and behaviour of illness persist after healing of physical injury. It is rare after major, domestic or sporting injury. It is frequently though dubiously claimed after minor injury in the compensation process.” (original emphasis)
He cited the following passage from the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th ed), p 567:
“Associated with these developments has been the introduction of the term chronic pain syndrome (CPS) into common parlance. Although not official nomenclature, it is frequently used to describe an individual who is markedly impaired by chronic pain with substantial psychological overlay. CPS is largely a behavioural syndrome that affects a minority of those with chronic pain. It may best be understood as a form of abnormal illness behaviour that consists mainly of excessive adoption of the sick role. …” (footnote omitted; original emphasis)
As regards the present case, he stated:
“Complex regional pain syndrome with objective neurovascular basis may resolve and be replaced by a ‘chronic pain syndrome’ determined by socio-economic factors, ie inappropriate adherence to a sick role. This appears the case here.”
107. The Tribunal accepts that “chronic pain syndrome” may be an appropriate description of a physical ailment involving pain which is not, or at least not substantially, associated with psychological factors, and which cannot be explained organically. In the Tribunal’s opinion, however, that description is not appropriate in the applicant’s case because, for the reasons explained below, the Tribunal is reasonably satisfied that the applicant’s chronic pain is associated with psychological factors and constitutes a mental ailment rather than a physical ailment.
108. Accordingly, the Tribunal finds that the applicant does not continue to suffer from any physical ailment that was contributed to in a material degree by her employment by the Commonwealth Bank of Australia, and that she has not suffered from any such physical ailment since at least 2000, if not earlier.
Mental ailment(s)
109. Although the applicant, during the 1990s, received “psychotherapy” and psychological treatment (by, amongst others, Mr Suter and Ms Connolly), and was psychologically assessed by Mr White in 1996, she was not referred to a psychiatrist during that period. As far as the Tribunal is aware, the only face-to-face examination of the applicant by a psychiatrist was that conducted by Dr Srna, an eminent Consultant Psychiatrist, on 30 January 2006, for the purpose of these proceedings. Dr Srna concluded that the applicant was suffering from Personality Disorder Not Otherwise Specified, Opiate Dependence, and Pain Disorder. Dr Srna’s comprehensive report of 7 March 2006 (Exhibit R10) and evidence were referred to in paragraphs 91 and 92 above.
110. The Tribunal also has before it a very thorough report of Dr Alcorn, Consultant Psychiatrist, dated 7 March 2007 (Exhibit R14) which was prepared on the basis of a review of the relevant documentation without a face-to-face examination. Dr Alcorn, in the introduction to his report, commented:
“…
It should be noted that Mrs Sarles has not been medically evaluated by me. This review report concerns the medical and other reports which have been issued concerning her illness, treatment and progress. …
…
A judicial or administrative decision maker should therefore note that validity of the conclusions in this review concerning various hypotheses generated from the available medical reports is significantly lower than would apply in the ordinary situation where a face-to-face examination had been conducted.” (original emphasis)
Dr Alcorn concluded that the applicant is suffering from Substance (specifically, Narcotic) Dependence but that, on the balance of probabilities, she is not suffering from Pain Disorder. Dr Alcorn did not address the condition of Personality Disorder Not Otherwise Specified diagnosed by Dr Srna.
111. The Tribunal is reasonably satisfied, on the basis of Dr Srna’s report and evidence, that the applicant has suffered, and continues to suffer, from several mental ailments or, more specifically, psychiatric disorders, namely, Personality Disorder Not Otherwise Specified, Substance (specifically, Opiate) Dependence, and Pain Disorder.
Personality Disorder Not Otherwise Specified
112. The Tribunal accepts Dr Srna’s opinion (which was not contradicted by Dr Alcorn) that the applicant suffers from Personality Disorder Not Otherwise Specified. The Tribunal also accepts Dr Srna’s analysis that the applicant’s Personality Disorder had developed well before the work injury of September 1990 and that that condition, rather than itself being related to her employment, rendered her more susceptible to contracting the psychiatric disorders which she contracted after the work injury, namely, Opiate Dependence and Pain Disorder.
113. Accordingly, the Tribunal finds that the applicant suffers from Personality Disorder Not Otherwise Specified, but that that mental ailment was not contributed to in a material degree by her employment by the Commonwealth Bank of Australia, and, accordingly, is not an “injury” for the purposes of the SRC Act.
Substance (Opiate) Dependence
114. As regards Substance (Opiate) Dependence, both Dr Srna and Dr Alcorn have opined that the applicant suffers from that psychiatric disorder, and the Tribunal so finds. The date of clinical onset of that disorder is, however, somewhat uncertain. According to the evidence before the Tribunal, Dr Salmon first prescribed oral morphine medication for the applicant in August 1992, the initial dosage being 60mg per day, but during 1993 her morphine dosage increased to 200-400mg per day and thereafter gradually increased and she has continued to ingest a substantial dosage of oral morphine on a daily basis. The Tribunal notes that Mr White, Clinical Psychologist, described the applicant as “morphine dependant” in his report of 1 March 1996. On the basis of the evidence before it, the Tribunal is reasonably satisfied, and finds, that the applicant contracted Substance (Opiate) Dependence during the period 1993-1995.
115. As regards the cause of the applicant’s Substance (Opiate) Dependence, it seems clear, having regard to the evidence before the Tribunal, that the applicant contracted that psychiatric disorder in the period 1993-1995 as a result of her ingesting, on a daily basis from August 1992, substantial dosages of oral morphine medication prescribed by Dr Salmon, her treating pain specialist, for the management of her pain symptoms resulting from her then compensable injury, namely, reflex sympathetic dystrophy.
116. Pursuant to s 4(3)(b) of the SRC Act, however, before the applicant’s Substance (Opiate) Dependence can itself be taken to be an “injury” for the purposes of that Act, it must have been “reasonable” for her to have obtained the “medical treatment” (namely, the oral morphine medication) as a result of which she contracted that disorder.
117.
The circumstances which led to the applicant’s being prescribed oral morphine by Dr Salmon in August 1992 were summarised in Dr Salmon’s report of
8 February 1993 (T104 – see paragraph 27 above). In short, those circumstances were that, because the applicant had continued to experience pain notwithstanding various forms of treatment (including sympathetic blocks, TENS treatment, surgical sympathectomy and implantation of an epidural stimulator), she “reluctantly agreed to trial the effect of oral opiates”. Dr Salmon added that her pain appeared to be “opiate sensitive” but that she required escalation of the dosage from 60 mg per day to 200-300 mg per day “to gain acceptable control of her symptoms”. Dr Salmon also noted that, throughout her course of treatment at the Pain Management Centre, she was receiving “psychotherapy” from Mr Suter. Dr Salmon concluded:
“… She understands that there are no further treatments available which are likely to produce a major impact on her neuropathic pain problem. She has not been happy with the idea of remaining on Morphine but she has come to recognise that she requires this drug for maintenance of a degree of pain control and function. Side effects in the form of constipation and sedation are minimal at present.
…”
In his oral evidence Dr Salmon said that, at the time he first prescribed morphine for the applicant, a “more liberal approach to prescribing morphine” was prevalent, but he acknowledged that nowadays a much less liberal approach is generally followed.
118. The Tribunal notes that Dr Graziotti, an eminent specialist in pain management and a co-author of the published article, “The use of oral opioids in patients with chronic non-cancer pain” referred to in paragraph 98 above, in his report of 25 September 2000 (T317 – see paragraph 45 above) noted that the applicant’s only current medication was MS Contin (her dosage of which he had previously recorded as 500-700 mg per day), and he confirmed that that medication was being taken “in response to her problems arising from her injury”. He then addressed questions regarding reasonable medication/treatment as follows:
“5. In your opinion, is the range/level of medication being prescribed reasonable given her condition?
According to Dr Salmon her level of medication has been stable over the past few years. It is normal for a patient taking this medication to be dependent on the drug and he as yet has found no evidence of addictive behaviour.
7.In your opinion, what treatment is reasonable for her compensable condition?
I wouldn’t consider any further treatment reasonable for her compensable condition. In my opinion the most appropriate treatment management tool from here would be settlement of her case and I suspect that there will be a marked improvement in her symptoms after this.”
The Tribunal notes that Dr Graziotti did not express any concerns about the level of morphine currently prescribed for the applicant – a level which was substantially higher than that which was prescribed for her in the period 1993-1995 when she contracted Substance (Opiate) Dependence – nor did he express any reservations about Dr Salmon’s treatment of the applicant. The Tribunal also notes that Professor Mastaglia, in his report of 18 July 1996 (see paragraph 37 above), recommended that the applicant continue to obtain “ongoing pain relief with MS Contin” and remain under the care of Dr Salmon, and that Dr Galton-Fenzi, in his report of 15 March 1997 (see paragraph 40 above) referred to the applicant’s use of MS Contin without expressing any disapproval or concern about that usage.
119. Having regard to the abovementioned evidence, and notwithstanding the fact that, as early as October 1992, Dr Ker had expressed concern about the applicant’s use of oral morphine (see paragraph 84 above) – a concern, the Tribunal would add, which has subsequently proved to be well-founded – the Tribunal is satisfied that it was reasonable, in the prevailing circumstances, for the applicant to obtain the oral morphine medication from August 1992 which resulted in her contracting Substance (Opiate) Dependence in the period 1993-1995. Accordingly, the Tribunal finds that, pursuant to s 4(3) of the SRC Act, the applicant’s Substance (Opiate) Dependence is an “injury” for the purposes of that Act.
Pain Disorder
120. As previously mentioned, the Tribunal is reasonably satisfied, on the basis of Dr Srna’s report and evidence, and notwithstanding the contrary opinion of Dr Alcorn (which, in the Tribunal’s opinion, was expressed somewhat tentatively and which was formed without the benefit of a face-to-face examination of the applicant), that the applicant suffers from a somatoform disorder, namely, Pain Disorder (a psychiatric disorder), and the Tribunal so finds.
121. As regards the cause of the applicant’s Pain Disorder, the Tribunal notes Dr Srna’s opinion that the applicant’s work injury of September 1990 was “purely a trigger” and “provided an opportunity for the [applicant] to exhibit… a pathological behavioural syndrome”, and that “sooner or later she would have found another ‘accident’ that would have led to the same behavioural pattern”. The Tribunal accepts Dr Srna’s opinion that the applicant’s Pain Disorder was “triggered” – that is, precipitated – by her work injury of September 1990. It is, however, not to the point to comment that some other minor injury in the future would have triggered the same behavioural syndrome in the applicant. Nor is it to the point that the applicant’s 1990 work injury was itself merely a minor injury and only precipitated a Pain Disorder in the applicant by reason of her vulnerability owing to her pre-existing Personality Disorder because, as stated by von Doussa J in Commonwealth v Smith (1989) 10 AAR 277 at 284:
“The legal concept of causation when applied to the field of personal injury takes the person injured as it finds him, with all his pre-dispositions and susceptibilities, whatever they may be: see Mason JA… in Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29 at 44, whose judgment was upheld by the High Court, (1973) 47 ALJR 236.”
122.
Accordingly, the Tribunal finds that the applicant’s Pain Disorder was precipitated by the left foot soft tissue injury of September 1990 and consequential reflex sympathetic dystrophy sustained by her in the course of her employment with the Commonwealth Bank of Australia, and that, in that way, that mental ailment was contributed to in a material degree by her employment by the Commonwealth. The applicant’s Pain Disorder is, therefore, an “injury” (being a “disease” as defined in
s 4(1) of the SRC Act) for the purposes of the SRC Act.
Have the applicant’s Substance (Opiate) Dependence and Pain Disorder resulted in impairment or incapacity for work?
123. The Tribunal has no difficulty in finding that each of the applicant’s abovementioned “injuries”, namely, Substance (Opiate) Dependence and Pain Disorder, has resulted in ongoing “impairment” (as broadly defined in s 4(1) of the SRC Act).
124. The question whether the applicant is incapacitated for work by reason of either or both of the abovementioned “injuries” is more problematic.
125. As regards the applicant’s Substance (Opiate) Dependence, Dr Alcorn has opined that that condition “is likely to impact adversely on her work ability due to impairment of concentration, memory and motivation” and to result in “a part-time incapacity for work”. Dr Srna did not specifically address the question whether the applicant’s Substance (Opiate) Dependence has resulted in incapacity for work. The Tribunal concurs with Dr Alcorn’s opinion, and finds that the applicant’s Substance (Opiate) Dependence has resulted in “incapacity for work”, in the sense of a partial incapacity for work, within the meaning of s 4(9)(b) of the SRC Act.
126. As regards the applicant’s Pain Disorder, Dr Srna’s views regarding the impact of that condition on her capacity for work are, in the Tribunal’s opinion, not entirely clear. On the one hand, he has opined unequivocally that the applicant has chronic Pain Disorder (Associated With Psychological Factors) in accordance with the diagnostic criteria set out in DSM-IV-TR which, the Tribunal notes, are as follows:
A.
Pain in one or more anatomical sites is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention.
“
B.The pain causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
C.Psychological factors are judged to have an important role in the onset, severity, exacerbation, or maintenance of the pain.
D.The symptom or deficit is not intentionally produced or feigned (as in Factitious Disorder or Malingering).
E.The pain is not better accounted for by a Mood, Anxiety, or Psychotic Disorder and does not meet criteria for Dyspareunia.” (Attachment 3 to Dr Srna’s report, Exhibit R10)
On the other hand, however, he stated in his report:
“In this case it is not an issue of psychiatric impairment and incapacitation, it is an issue of a pathological sick role for what appears to be a mixture of primary and secondary gains, well cemented over several decades since the index accident. I do not believe the claimant would, after such a long time, leave her sick role with or without psychiatric and psychological treatment, and resume her pre-accident capacity. …
…
From the psychiatric point of view, the claimant is not incapacitated for work as a result of the index accident. She does not suffer from any psychiatric illness per se and hence is fit for work. Nevertheless, it is not likely that she would voluntarily give up her sick role and return to work after such a long time.
…
The claimant’s ability to engage in her pre-injury occupation has, from a psychiatric point of view, never been compromised as a result of the index injury. She remains psychiatrically fit to return to her pre-injury employment.”
Dr Salmon, in his report of 17 October 2006, stated:
“
1.Ms Sarles has been unfit to work from February 2003 to the present as a result of her work related injury and CRPS condition.
2.Ms Sarles is currently unfit to perform her pre-accident duties on a full-time basis.
…”
127. It seems to the Tribunal that Dr Srna’s stated opinion that the applicant’s “ability to engage in her pre-injury occupation has, from a psychiatric point of view, never been compromised“ as a result of her work injury of 1990 and that she “remains psychiatrically fit to return to her pre-injury employment” is inconsistent with his stated opinion that she is suffering from Pain Disorder Associated With Psychological Factors in that she satisfies the DSM-IV-TR diagnostic criteria for that psychiatric disorder. Having observed and listened to the applicant as she gave her evidence over several hours, the Tribunal concurs with Dr Salmon’s opinion that, by reason of her pain symptoms (albeit that Dr Salmon regards these symptoms as resulting from a physical ailment, whereas the Tribunal has found that they result from a mental ailment), she has an ongoing incapacity to perform her pre-injury work duties on a full-time basis. Dr Salmon, however, did not expressly opine that the applicant is totally incapacitated for work. In the Tribunal’s opinion the applicant’s Pain Disorder has resulted in “incapacity for work”, in the sense of a partial incapacity for work, within the meaning of s 4(9)(b) of the SRC Act.
128. Accordingly, the Tribunal finds that the applicant’s Substance (Opiate) Dependence and Pain Disorder have resulted in ongoing “incapacity for work”, in the sense of a partial incapacity for work, within the meaning of s 4(9)(b) of the SRC Act.
The respondent continues to be liable to pay compensation to the applicant
129. It follows from the abovementioned findings that, from 10 February 2003 (the date on and from which the respondent ceased to pay compensation to the applicant) to the present date, and as at the present date, the respondent has been, and is, liable under s 14(1) of the SRC Act to pay compensation, in accordance with that Act, to the applicant in respect of the following mental injuries, namely, Substance (Opiate) Dependence and Pain Disorder.
What compensation is the respondent liable to pay to the applicant?
Compensation for incapacity
130. It follows from the Tribunal’s finding that the applicant’s Substance (Opiate) Dependence and Pain Disorder have resulted in ongoing partial incapacity for work that, from 10 February 2003 to the present date, and as at the present date, the respondent has been, and is, liable to pay compensation to the applicant in accordance with s 19 of the SRC Act. The Tribunal is, however, unable, on the basis of the evidence before it, to determine the amount of such compensation, and, accordingly, it remits that matter to the respondent for determination.
Compensation for medical expenses
131. Compensation is payable, pursuant to s 16(1) of the SRC Act, in respect of the cost of medical treatment obtained in relation to an injury, provided that it was “reasonable for the employee to obtain [that treatment] in the circumstances”.
132. The only “medical treatment” which, the Tribunal understands, has been obtained by the applicant since the cessation of her compensation payments on 10 February 2003 is the medication prescribed by Dr Salmon, namely, morphine (220 mg per day) and methadone (up to 20 mg per day). The question is whether it was reasonable in the circumstances for her to obtain that treatment in respect of either or both of her relevant injuries.
133. The Tribunal accepts that Dr Salmon has prescribed that medication for the applicant for the purpose of alleviating the pain which she experiences as a result of her compensable injury, and that the applicant has obtained that medication solely for that purpose. The Tribunal notes that, on 27 February 2002, the respondent made a determination limiting the amount of compensation payable to the applicant, pursuant to s 16 of the SRC Act, for the cost of morphine medication to the cost of 230 mg of morphine per day. In the Tribunal’s opinion, that determination was appropriate in the circumstances. Given that the applicant’s pain symptoms, as the Tribunal has accepted, have continued and are presently continuing as a result of a compensable injury (which the Tribunal has found to be of a mental nature rather than a physical nature), it was, in the Tribunal’s opinion, reasonable for the applicant to obtain morphine (220 mg per day) and methadone (up to 20 mg per day) – dosages of opiates which Dr Srna, in his report of 7 March 2006, described as “moderate” – from 10 February 2003 to the present date in circumstances in which Dr Salmon, her treating pain specialist since October 1990, prescribed that medication for her for the purpose of alleviating the pain which he attributed to her suffering from complex regional pain syndrome type I. The Tribunal accepts, furthermore, that morphine medication was reasonable medical treatment in the applicant’s case – a proposition not doubted, even in relation to a dosage of 500-700 mg per day, by Dr Galton-Fenzi in his report of 15 March 1997 or by Dr Graziotti in his report of 25 September 2000 – and that it was reasonable in the circumstances for Dr Salmon to prescribe morphine for the applicant’s pain, at the substantially reduced dosage of 220 mg per day, in the period from 10 February 2003 to the present.
134. Accordingly, the respondent is liable to pay compensation to the applicant, pursuant to s 16(1) of the SRC Act, in respect of the cost of morphine (up to 220 mg per day) and methadone (up to 20 mg per day) medication obtained by her in the period from 10 February 2003 to the present date.
135. It is inappropriate for the Tribunal now to seek to determine the medical treatment which it would be reasonable for the applicant henceforth to obtain in relation to her compensable mental injuries, namely, Substance (Opiate) Dependence and Pain Disorder, and in respect of the cost of which the respondent would be liable to pay compensation to her pursuant to s 16(1) of the SRC Act. Suffice it to say that such medical treatment should comprise reasonable treatment which is undertaken for the purpose of discontinuing the applicant’s opiate ingestion as soon as safely practicable, and for the purpose of treating her psychiatric Pain Disorder condition as effectively as practicable.
Decision
136. For the above reasons the Tribunal sets aside the reviewable decision of the respondent, dated 24 July 2003, and, in substitution therefor, decides:
· from 10 February 2003 to the present date, and as at the present date, the respondent has not been, and is not, liable under s 14(1) of the SRC Act to pay compensation to the applicant in respect of reflex sympathetic dystrophy or complex regional pain syndrome type I or any other physical ailment;
· from 10 February 2003 to the present date, and as at the present date, the respondent has been, and is, liable under s 14(1) of the SRC Act to pay compensation, in accordance with that Act, to the applicant in respect of the following mental injuries, namely, Substance (Opiate) Dependence and Pain Disorder;
· from 10 February 2003 to the present date, and as at the present date, the respondent has, and is, liable to pay compensation to the applicant in accordance with s 19 of the SRC Act on the basis that she has been throughout that period, and continues to be, partially incapacitated for work, within the meaning of s 4(9)(b) of the SRC Act; and
· the respondent is liable, pursuant to s 16(1) of the SRC Act, to pay compensation to the applicant in respect of the cost of morphine (up to 220 mg per day) and methadone (up to 20 mg per day) medication obtained by the applicant in the period from 10 February 2003 to the present date, and in respect of the cost of reasonable medical treatment obtained by her in relation to her Substance (Opiate Dependence) and Pain Disorder.
137. Either party may make an application in relation to the costs of these proceedings within 14 days of the date of this decision. If no such application is made, the Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.
I certify that the 137 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr D Weerasooriya, Member
Signed: ........................[Sgd Y Maker]...............................
AssociateDate/s of Hearing 10-13 April 2007
Date of Decision 30 July 2007
Counsel for the Applicant Mr L Gandini, Mr A Gill
Solicitor for the Applicant Chapmans
Counsel for the Respondent Mr B Ablong
Solicitor for the Respondent Dibbs Abbott Stillman
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