Scott and Comcare
[2004] AATA 318
•29 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 318
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos Q2001/1129, GENERAL ADMINISTRATIVE DIVISION ) Q2002/615, Q2003/858
Re SIMON CHRISTOPHER SCOTT Applicant
And
COMCARE
Respondent
DECISION
Tribunal The Hon C R Wright QC (Deputy President) Date29 March 2004
PlaceBrisbane
Decision A Applications Q2001/1129 and Q2002/615
1. The Tribunal allows the applications to review and sets aside the decisions under review.
2. In lieu thereof the Tribunal determines and directs:
(a) That the applicant’s “accepted conditions” for the purposes of his claim for compensation and rehabilitation be taken and recorded as “injury to his left shoulder, left collarbone, left arm and cervical spine resulting in residual pain and resultant major depression”.
(b) That the applicant is, and since the 21 September 2001 has been incapacitated for work by reason of the accepted conditions referred to in paragraph (a).
(c) That the applicant’s costs of the application be paid by the respondent.
B Application Q2003/858
1. The Tribunal allows the application to review and sets aside the decision under review.
2. In lieu thereof the Tribunal determines and directs:
(a) That the applicant’s claim for costs associated with the implant of a spinal stimulator be allowed by MCRS as reasonable medical treatment in relation to the applicant’s accepted conditions.
(b) That the applicant’s costs of application be paid by the respondent.
[Sgd The Hon C R Wright]
Deputy President
CATCHWORDS
Compensation – Army private falling from truck and injuring shoulder, collarbone, arm and neck – initially shoulder and collarbone injuries only accepted as compensable – subsequent diagnosis of injury to neck and arm – dispute with MCRS as to whether arm pain and psychiatric illness arising therefrom should be accepted as causes of an ongoing incapacity – claim for cost of spinal stimulator – reasonableness of costs associated with supply and implant of stimulator.
Safety Rehabilitation and Compensation Act 1988 – s67(8)
Telstra Corporation Ltd v Barrow (1994) 19 AAR 523
Treloar v Australian Telecommunications Commission 26 FCR 316
University of Tasmania v Cane (1994) 4 Tas SR 156
Re Nicklason and Comcare (1999) AATA 736
REASONS FOR DECISION
29 March 2004 The Hon C R Wright QC (Deputy President) Introduction
1. These three applications for review were heard together in Brisbane on 1, 2 and 3 December 2003. They all relate to injuries and incapacities claimed by the applicant to have been caused by an accident on 12 June 1998 when he fell from the rear of an Australian Army truck at the Army base at Bandiana. The applicant held the rank of Private at the time. He had enlisted in the Army on 14 February 1995 and spent a good deal of his time on duty driving and servicing heavy vehicles. It is not disputed that as a consequence of the fall, the applicant sustained injuries to his left shoulder, collarbone and neck.
2. He lodged a claim with the Department of Defence for rehabilitation and compensation on 26 August 1999. On 14 September 1999 his left shoulder was operated upon by Dr Blenkin, an orthopaedic surgeon, who removed part of his left shoulder blade.
3. On 6 March 2000 the Military Compensation and Rehabilitation Service (“MCRS”) determined that the applicant had suffered an injury arising out of, or in the course of his military service “namely subluxation of left sternoclavicular joint on 12 June 1998 while unloading a truck. This injury resulted in excision of the supermedial pole of the left scapula on 14 September 1999”. This determination was plainly inaccurate in the terms in which it was expressed. The sternoclavicular joint is at the front of the body and is the joint connecting the inner end of the collarbone to the breastbone. The scapula is the shoulder blade. Therefor there were at least 2 separate injury sites on the applicant’s upper body. The scapula injury was attended to by Dr Blenkin as already described. The sternoclavicular joint injury was operated on by Dr Fardoulys on 20 March 2001. Dr Fardoulys excised a damaged meniscus of the left sternoclavicular joint and also performed a capoulorrhaphy at the same time. The confusion arising from the original determination by MCRS was perpetuated in some later communications which MCRS had with the applicant. Sometimes the “accepted” condition was referred to by MCRS simply as “left shoulder condition” (eg Exhibit 3, p72). I will return to this point later, but I mention it at the outset because Mr Elliott, counsel for the respondent in all 3 applications for review, made much of the claim that the reviewable decision under challenge in Q2001/1129 related solely to the question whether or not the applicant was incapacitated for work by reason of subluxation of the left sternoclavicular joint. Mr Elliott’s point was that the weight of medical evidence clearly established that the applicant’s sternoclavicular joint problem had been overcome and was no longer a disabling feature of the applicant’s condition.
4. In fact the reviewable decision of 6 December 2001 (Q2001/1129) made no reference to the fact that, at the very least, the applicant’s “accepted” condition also included the damage to the scapula. More importantly perhaps, the antepenultimate paragraph of the decision states “I find that having regard to the medical evidence, your shoulder condition does not result in any incapacity for work and therefore, you are not entitled to incapacity payments under the Act”. The letter then continues “If you think this decision is wrong you may have it reviewed by the AAT …”. (my emphasis). I am therefore of the view that the scope of the review in respect of Q2001/1129 is considerably broader than claimed by Mr Elliott. I take the view that the review process called for in Q2001/1129 embraces that which is obviously the real area of contention between the parties viz. the nature and extent of the injury or injuries caused to the applicant when he fell off the truck and the nature and extent of his resultant disability. On 2 August 2002, MCRS (Exhibit 3, p201) accepted liability for the applicant to participate in pain management therapy in accordance with Dr Todman’s recommendations. In this letter to the applicant (as in much of the other correspondence between the MCRS and the applicant and medical practitioners) reference was simply made to the applicant’s “accepted claim for a left shoulder condition”.
5. I mention this to further illustrate the reason why I do not regard MCRS as having accepted only the condition of “subluxation left sternoclavicular joint” as the relevant shoulder injury. The decision of the Full Federal Court in Telstra Corporation Ltd v Barrow (1994) 19 AAR 523 tends to support the view I have taken.
6. The issue has always been whether or not the applicant’s fall out of the truck on to his shoulder caused the shoulder and arm conditions which have led to his claimed ongoing incapacity. It has never been claimed that there was more than one incident or accidental event which caused his disablement with associated pain and weakness in the left upper limb and shoulder. That the extent of the original injury was not immediately apparent or was not fully diagnosed by examining medical practitioners, does not, in my opinion, prevent the Tribunal on reviewing the decisions presently in question from making a determination as to the causal nexus between the applicant’s fall and the disabilities for which compensation is currently claimed.
7. Similarly, if the applicant’s psychiatric condition has been caused in a material respect by the physiological consequences of the fall (such as chronic pain) that finding should be reflected by the Tribunal’s decision in the present review proceedings. To do otherwise is to sanction a fragmented and piecemeal approach to what is essentially a single issue viz. what have been the disabling consequences (if any) resulting from the disease and/or injury sustained by the claimant.
8. I return now to the relevant chronology of events to explain how the second application for review (Q2002/615) came about. On 3 December 2000 the applicant was discharged from the Army on medical grounds related to his left shoulder condition and on 3 January 2001, the applicant claimed incapacity payments from MCRS.
9. On 9 January 2001 MCRS advised the applicant that he was entitled to incapacity payments as claimed. Thereafter such payments continued until 22 October 2001 when MCRS determined that he was no longer incapacitated and was fit to return to employment and normal activities without restriction .
10. On 27 August 2001, the applicant submitted a claim for rehabilitation and compensation in respect of a major depressive disorder which he attributed to his left shoulder injury. On 28 November 2001 MCRS advised the applicant that his claim for major depression had been disallowed as it had not been shown that his military service had contributed to the causation, aggravation, acceleration or recurrence of that disease to a material degree. This decision was affirmed by a review officer on 8 May 2002. The applicant’s challenge to this determination is the subject matter of his second application (Q2002/615).
11. On 16 October 2002, MCRS accepted liability for “left C7 neuropathy and pain syndrome” on the basis that these conditions resulted from the original shoulder injury. The applicant participated in a number of procedures for pain reduction and management between October 2002 and May 2003, as a result of which his medical advisers, Dr Levien and Dr Rodins, requested MCRS to approve and accept the cost of an operation to implant a full spinal cord stimulator in the applicant’s spinal column to provide alleviation for the applicant’s left arm pain. MCRS regarded this as an undesirable and unreasonable cost and on 11 September 2003, refused the request. The applicant seeks a review of this determination in Q2003/858.
General
12. In this case I think many of the problems which appear to have arisen in the assessment and resolution of the applicant’s claim have occurred as an indirect result of a fragmentation of the bureaucratic assessment processes which were undertaken and which had the effect of preventing a broad, systematic analysis and appreciation of the applicant’s developing disability and its relationship to his original accident. This is not intended as a criticism of MCRS which is obliged to follow the established systems for dealing with new facets or components of claims for incapacity.
13. To briefly recapitulate, the applicant, a private in the Australian Army fell off the back of a truck on 12 June 1998 and hurt his shoulder. The resultant injury was originally assessed by Dr Blenkin, orthopaedic surgeon as being “snapping scapula syndrome” which required excision of the medial pole of his left scapula. This procedure was undertaken and improved the applicant’s symptoms, but did not completely eliminate them. Subsequently, on 20 March 2001, Dr Fardoulys, orthopaedic surgeon excised a damaged meniscus of the left sternoclavicular joint. This operation relieved crepitus in that joint, but still did not relieve all of the applicant’s symptoms. (See Dr Fardoulys Report Exhibit 3, p.77). On 21 May 2001 the applicant’s GP, Dr Belinda Keinig referred him to Dr Hugh Levien a consultant psychiatrist, who diagnosed the applicant as suffering major depressive disorder with strong anxiety and labile moods.
14. In her referring letter Dr Kleinig told Dr Levien said that the applicant had been depressed “since November last year”. This observation was criticised as unreliable and probably inaccurate by Mr Elliott, but I have no reason to doubt Dr Kleinig’s statement, although it is not entirely clear whether she observed clinical signs of depression in November 2000 or she was simply told of symptoms of depression by her patient at that or some later time. Dr Kleinig was not called as a witness at the hearing. However it is also apparent from the material in the T documents (which were tendered in 3 bundles and became Exhibits 1, 2 and 3 at the hearing) that sometime before 15 November 2001 she referred the applicant to Dr Sharwood, an orthopaedic surgeon, for investigation regarding the applicant’s ongoing problems with his shoulder and left arm. Dr Sharwood reported to Dr Kleinig in a report dated 15 November 2001 (Exhibit p.154) in the following terms:
“When he came to se me he was complaining of pain extending from his neck down the back shoulder, particularly along the area where the scar from his surgery was located and pain extending into his forearm, arm and hand. He admitted dropping things at the end of a day and had some symptoms of weakness, pain and paraesthesiae in the forearm and hand. He told me that he was not working at present and was living alone. He stated that he fatigued easily and was uncomfortable using the arm for any length of time.
Examination revealed that he had a good range of movement of his neck. I noted that his muscular development around the shoulder girdles and the base of the neck was excellent and there was no evidence of any wasting. He had a full range of movement of the shoulder joint itself. Movements of his neck were not restricted and he had a good grip in both hands. I noted that power, tone and reflexes in the upper limbs were within normal limits, but he had decreased sensation of the distribution of the median nerve on both the left and right hands. I noted a twenty-centimetre scar on the back of his left scapula, which followed the medial board of that bone. There was also a small scar anterior to his sternoclavicular joint on the left side.
I could find no clinical abnormality in his shoulder. His neck range seemed to be good and the only thing which may have accounted for his symptoms was a possibility of peripheral nerve entrapment, specifically the median nerve in his hands. His nocturnal paraesthesiae and dropping things would be very consistent with that diagnosis and very often patients with this problem do present with shoulder pain.”
15. On 4 February 2002, Dr Fardoulys reported to MCRS that the applicant had undergone facet joint injections in his neck with “good relief for two weeks” after which his pain recurred. Dr Fardoulys also reported seeing nerve conduction studies performed at Greenslopes Hospital which showed a lesion of the posterior chord of the brachial plexus or its branches at a level above the elbow “as the cause of his continuing symptoms”. Dr Fardoulys could offer no surgical help for this condition and thus referred the applicant to Dr Tomlinson, a neurosurgeon.
16. There is no report by Dr Tomlinson among the exhibits, but there are reports dated 8 March 2002 and 15 April 2002 (Exhibit 3, p162 and 168) to Dr Tomlinson by Dr Don Todman a consulting neurologist. In the latter report Dr Todman expressed his opinion as follows:
“I think that Simon had a lower brachial plexus stretching injury in his original accident. The sensory symptoms, reflex changes and needle E.M.G. examination suggest primarily C7 involvement, but there is no evidence of any external compression on imaging. At this stage I have suggested continuing with physiotherapy and I have prescribed Epilim 500mgs bd for the neuropathic pain. I will check with him again in six weeks and if this is not successful would look at the possibility of Neurontin if D.V.A. give approval.”
Dr Todman referred the applicant to the pain management clinic at Greenslopes Private Hospital for assessment.
17. MCRS sought the opinion of Dr Keays a consultant orthopaedic surgeon in July 2002. On 26 July 2002, Dr Keays provided his report. Inter alia, he said:
“Mr Scott sustained an injury whilst in the service in 1998 and subsequently has had surgery to his left scapula, sternoclavicular joint as well as arthroscopy to his left shoulder. None of these procedures have provided him with significant benefit and now has evidence of chronic pain syndrome involving his left upper limb. EMG studies undertaken have suggested a C7 neuropathy and there is slight wasting of his left triceps but good strength and normal deep tendon reflexes.
He is currently awaiting assessment at a pain clinic. He is taking fairly extensive painkillers and is receiving psychiatric treatment as well.”
18. In his original claim for compensation the applicant claimed in respect of “left shoulder injury”. He did not claim for damage to the pole of his left scapula, subluxation of his sternoclavicular joint, damage to his cervical spine, damage to his left brachial plexus or chronic pain syndrome. These are all medical terms which have been applied at various times by examining doctors to various components of his original injury. The fact that at various times the symptoms he has suffered have manifested themselves more acutely in some areas rather than the other, does not in my opinion detract from the rational process which leads me to concluded that the original injury effectively included or precipitated all of the above conditions and, although the scapula problem and the sternoclavicular joint problem were more or less resolved by surgical intervention, there is a residual disability best described as chronic pain syndrome caused primarily by brachial plexus damage as described by Dr Todman, together with myofascial pain probably associated with sympathetic nervous system involvement as described by Dr O’Callaghan as well as some nerve involvement at C7.
19. I am also of the opinion that the psychiatric condition which the applicant has manifested and which has been described by Dr Levien is a direct result, both of the chronic weakness and pain in his left arm, the lost of his Army career as a consequence and his understandable anxiety generated by his dealings with MCRS.
Issues arising in rspect of Application Q2001/1129
20. The respondent claims that symptoms of pain in the left arm of which the applicant complains was not a feature of his condition until about 2 years after his fall from the back of the Army truck. It is submitted on this basis that there is no demonstrable causal connexion between that event and the applicant’s allegedly disabling symptoms which now lie at the heart of his compensation claim. This contention is supported by the evidence of Dr Goode and Dr Cameron.
21. In his report of 25 June 2002 (Exhibit 14) Dr Goode says that upon his examination of the applicant on that day, the applicant told him that he “thinks” he developed some left arm pain at about the time he was referred by his GP to Dr Fardoulys for surgical attention to the left sternoclavicular joint. The applicant’s fall from the truck occurred on 12 June 1998. This date has never been challenged. The applicant was first referred to Dr Fardoulys sometime before 7 April 2000 (see Exhibit 3 p.46) but the actual date of his examination by Dr Fardoulys does not appear from the doctor’s reports.
22. As already mentioned, Dr Kleinig the applicant’s GP, was not called to give evidence and her sole report at Exhibit 3 pp78-79 does not touch upon this issue. There is therefore no independent verification of when the applicant first advised a medical practitioner of the continuing pain and weakness in his left arm. The first reference in any of the T documents to pain other than shoulder or sternoclavicular pain seems to be the entry in Outpatients Clinical records at Exhibit 3 p.24, which reads “he now has pain going up into neck region – (illegible) lifted something heavy and felt a pull in neck. Pain on movement of neck.” This entry is dated 25 August 1998. The examining doctor thought this was a muscle strain.
23. Dr Fardoulys operated on the applicant’s sternoclavicular joint in May 2001. Dr Goode records “… Mr Scott developed left arm pain, radiating down all of the arm to the left fourth and fifth fingers. As indicated he was not sure whether this was present before the surgery in May 2001, but he was definite that it was present at the time of wearing a sling after the surgery.” Dr Goode also recorded that:
“Currently with respect to his orthopaedic and neurological situation, Mr Scott says that the worst part of his problem is the left arm pain. He experiences numbness all the way down the arm to the left fourth and fifth fingers. He said this is intermittent, and is present by the end of every day, lasting hours at a time. It can radiate to his cervical spine. He says it is worse with sleeping, and he tends to fatigue rapidly. He can’t nominate any relieving factors.
Mr Scott says he still has some left shoulder pain over the joint itself, and some pain over the left upper scapula, but no sternoclavicular joint pain – he says there is only a little sternoclavicular joint crepitus, which is of no concern to him.”
This description of symptoms was generally consistent with what the applicant said in his oral evidence at the Tribunal hearing.
24. Dr Goode had “difficulty” in ascribing the left paracervical pain and the left arm pain to the original fall but recommended further neurological investigation. He conceded that the applicant’s vagueness as to the sequence of events may well be related to his medication.
25. When the applicant was interviewed by Dr Cameron on 25 November 2002, the applicant gave him a history, part of which he recorded as follows:
“At the time “(i.e. when referred to Dr Blenkin)” he told me he was experiencing pain over his left shoulder, spreading to the top of his neck and also over the left sternoclavicular joint. The pain was constant and accompanied by headaches over the back of his head.
He told me he was experiencing numbness in his left arm from Day 1 of the fall. He said this numbness would come and go. He also described discomfort spreading from his neck over the outer aspect of the left shoulder and upper limb to D4 and 5. He said this discomfort would come on particularly if he was sitting for long periods or working with his left arm above his head. He also said that turning his head to the sides would cause discomfort. He said his neck felt stiff after the fall.”
26. Dr Cameron, a consultant neurologist, was unable to find any clinical evidence of nerve damage which could explain the applicant’s continuing painful condition in the arm but, although he was aware of prior EMG studies (presumably those performed by Dr Todman, see his reports to Dr Tomlinson dated 8 March 2002 and 15 April 2002. Exhibit 3, p.162 and 168 and Dr De Wytt in August 2002) he did not see or ask for the formal EMG reports. Dr Cameron noted that the applicant had told Dr Goode that his arm symptoms first developed “possibly 2 years after his fall”. He also said of the applicant “He has no evidence of wasting weakness, reflex change or sensory impairment evidence on examination.” During the course of his oral evidence he was asked if he had questioned the applicant about reflex changes or simply recorded his clinical observations that such changes were not seen on examination. He was unable to recall questioning the applicant, but thought he would have done so. I think it unlikely that he did. I regret to say that despite his long experience and expertise in neurological matters, I found Dr Cameron to be somewhat dogmatic and dismissive of views which did not accord with his. He did not inspire me with confidence in his evidence.
27. When the applicant was questioned on such matters by Dr O’Callaghan, he told him that he had “excessive sweating and mottling colour change in the left hand” (see Dr O’Callaghan’s report of 23 July 2003. Exhibit 12 page 2). Dr O’Callaghan regarded this as indicative of “abnormal sympathetic nervous system activity” (Transcript pp.91and 92).
28. In his oral evidence to the Tribunal, the applicant said that he had had pain and burning sensation from the neck all the way down the left arm ever since the accident in 1998. He described this in more detail in his Statement of 31 May 2003 (Exhibit 6). I tend to agree with mr Elliott, counsel for the respondent, that the applicant is not a particularly accurate or reliable historian, but I think a significant factor in this deficiency is the applicant’s long history of medical examination and treatment by a very large number of medical practitioners and his heavy dosages of a number of pharmaceutical products prescribed to control his psychiatric condition and the pain in his arm.
29. If it could be shown that his neck and arm symptoms were experienced immediately, or soon after, the accident there would be little reason to doubt the conclusion that the accident caused the symptoms and resultant disability. Indeed commonsense almost dictates that if a man falls about six feet from the back of a truck and lands on the point of his shoulder on a hard surface he is likely to sustain substantial injury to his shoulder and attached upper limb. If, as claimed, the head also strikes the ground, cervical damage also seems to be likely. However, in proceedings of this kind such assumptions cannot be made and inferences cannot be drawn which are not supported by the evidence.
30. Although the applicant is not a reliable historian, I have no reason to doubt his description of his painful arm and its disabling effects upon him. In my opinion there is a body of medical evidence which suggests that the pain, numbness and other impairments spoken of by the applicant has a discernible organic cause.
31. Dr O’Callaghan explains the principle mechanisms in his report (Exhibit 12 @ p.2) where he says:
“In summary, Mr Scott suffered an injury to the left shoulder blade region when he fell from a truck in 1998. There was no fracture at the time and this injury appears to have involved primarily the soft tissues. He developed a lot of muscle spasm and referred pain onto the shoulder and eventually down his left arm. I suspect that he has primarily myofascial pain and there is a classical presentation for myofascial trigger points in the region of the left scapula to refer pain in a non-dermatomal fashion down into the left arm. This is frequently associated with some abnormal sympathetic nervous system activity such as the excessive sweating and colour change. With muscle spasm over the shoulder itself it is very common for the brachial plexus to be irritated as it travels past these muscles and frequently this causes tingling and sometimes pain into the medial two fingers of the hand. There was no history of any brachial plexus injury at the time of the fall and he did not report any arm pain immediately after the surgery by Chris Blenkin. This arm pain began when he started to reuse his left arm and the muscle spasm was recurring at that time as well.”
Having regard to the temporary relief which was afforded to the applicant when he was injected in the left C6 and C7 facet joints under the direction of Dr Fardoulys, there appears to be some confirmation of the opinions of Dr Rodins and Dr O’Callaghan that the applicant’s cervical spine was also traumatised.
32. At all events this injury to C6 and C7, has been accepted by the respondent as causing a compensable incapacity (see MCRS determination dated 16 October 2002, Exhibit 3, page 214) so there is no need to consider the causal implications which may otherwise follow from the note in the records already referred to by me in paragraph 22 of these reasons. (Exhibit 3, p.24). In making this determination MCRS relied on the opinions of Dr Rodman, Dr Rodins and Dr Amanda Casperson. Dr Casperson expressed the unequivocal opinion that “Mr Scott sustained a left C7 neuropathy at the time of the original injury in 1998. It is … part of the injury”.
33. It is of course still necessary to consider whether or not that condition either alone or in conjunction with other diseases or injuries have incapacitated the applicant, and in this regard it is relevant to recall Dr Rodins observations at p115-116 of the transcript that the absence of objective evidence of neuropathic damage “does not mean that an individual is not experiencing neuropathic pain”.
34. Dr Casperson in her report of 16 October 2002 suggested that the original C7 neurological deficit had resolved by August 2002 but, as Dr Rodins indicated, the resolution or absence of current objective signs of such a condition does not mean the pain has gone.
35. In this case it is my opinion that the arm pain complained of by the applicant is real and not imaginary or feigned and is caused in part by the residual consequences of the C7 injury.
36. It is worth noting at this point that the MCRS letter of 16 October 2002 also included a determination that liability “be extended to include Chronic Pain Syndrome”, but this is followed by the cryptic, or at least ambiguous, determination that “the date liability is to be extended is 22 July 2002, this being the date Dr Keays examined you and formally diagnosed your condition”. Mr Elliott submitted that this should be read as meaning that liability be extended “to” (ie not beyond) 22 July 2002. Mr Kronberg counsel for the applicant submitted the correct interpretation was that liability extended “from” (ie on and after) 22 July 2002. I think Mr Kronberg’s submission is the more logical as Dr Keays report says “he now has evidence of chronic pain syndrome involving his left upper limb”. The report is dated 26 July 2002.
37. Whatever should be made of this determination I should make it clear that irrespective of its terms, I find that the applicant has suffered from chronic pain syndrome attributable to his original fall at all relevant times. This, coupled with his psychiatric condition, has produced a total incapacity for work.
Issues arising in respect of Application Q2002/615
38. I turn therefore to consider whether the applicant’s psychiatric condition is attributable to his shoulder injury. To be a compensable “disease” within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) it must be shown on the balance of probabilities that the condition is an ailment or aggravation thereof suffered by an employee which was contributed to in a material degree by the employee’s employment by the Commonwealth. The question is, did the employment “in fact and in truth” contribute to the condition complained of, see Treloar v Australian Telecommunications Commission 26 FCR 316 (compare with University of Tasmania v Cane (1994) 4 Tas SR 156, where “substantial” contribution was the statutory test).
39. It may be noted that Dr Alcorn, a consulting psychiatrist whose report of 11 November 2001 challenged the diagnosis and other aspects of the report of the applicant’s psychiatrist Dr Levien, and was relied on by MCRS to reject the applicant’s depression claim, attributed the “principal” cause of the applicant’s mental condition to factors other than his employment as a soldier.
40. Dr Alcorn’s report also says “The employment was definitely not the course [sic] of his condition”, but introduces an almost immediate ambiguity into this proposition in paragraph 4 of his opinion (Exhibit 3, p 136) where he says he believes the applicant’s employment contributed to the contraction, aggravation, acceleration or recurrence of the disease “0-9 percent”. In paragraph 5, he says “The employment was of negligible contribution” to the occurrence of the applicant’s mental state which he described as an “adjustment disorder”.
41. It may therefore be observed that Dr Alcorn does not completely negate the proposition that the applicant’s employment contributed to the applicant’s psychiatric condition. In this context the relevant “applicant’s employment” is taken to include the fall from the back of the truck during his performance of Army duties.
42. The respondent raised an additional legislative dimension to the applicant’s claim in respect of his mental disorder. That too derives from s4 of the SRC Act. In the MCRS review decision of 8 May 2002 (see Exhibit 2, p196) the following point is made:
“Section 4 of the SRC Act further states that an injury” (which includes a disease) “will not be compensable if it arose out of or was aggravated by reasonable disciplinary action against an employee, an employee’s failure to obtain promotion, transfer or benefit in connection with his/her [military] employment.”
This was relied on by the determining officer on the ground that, Dr Alcorn “opined that your condition is the result of grievances with benefits you feel that you are entitled to and not your service in the military.” I think this is something of an oversimplification of Dr Alcorn’s written opinion, but in any event I think it manifests a misunderstanding of the scope of the relevant part of s4.
43. It seems to me that in so far as the applicant sustained mental distress and consequent psychiatric disorder due to the loss of career opportunities and retraining entitlements, for example, this consequence was the product of his failure to retain his employment rather than a “failure to obtain … a benefit in connection with his … employment” (see Nicklason and Comcare (1999) AATA 736 (4 October 1999)).
44. If approached in this way it seems to me that Dr Alcorn’s opinion actually supports the applicant’s claim in respect of his “major depression” (Dr Levien) or “adjustment disorder” (Dr Alcorn). Dr Alcorn says that upon discharge from the Army “his anger and sense of grievance escalated into the current Adjustment Disorder”.
45. Dr Alcorn strongly disagreed with Dr Levien’s diagnosis of “major depressive disorder”, but in cross-examination by Mr Kronberg he said that “major depression” was not an “invalid” diagnosis (Transcript p201). When asked as to the major differences between himself and Dr Levien he said that Dr Levien’s records did not disclose ongoing symptoms which could be said to be due to depressive illness. Over 760 photocopied pages of Dr Levien’s records were put in evidence (Exhibits 16A and 16B) I have not read them all as my attention was not specifically directed to any particular part or parts as illustrative of some deficiency or as having some other evidentiary value.
46. However I have read all of Dr Levien’s reports which were either contained in the T documents or put in as separate exhibits (notably Exhibit 7) and, after reading the diagnostic criteria contained in DSM-IV-TR in respect of “major depressive disorder” and “major depressive episode”, I had no difficulty in understanding the diagnostic criteria which Dr Levien referred to as supportive of his diagnosis. Dr Alcorn however referred not to Exhibit 7 (which is Dr Levien’s principal report) but to 2 very short reports of 14 July 2001 and 16 August 2001 (p92 Exhibit 2 and p84 Exhibit 3) and said that neither report contained details of clinical reasoning underlying Dr Levien’s diagnosis. This is true but I would not see this as a valid basis for rejecting Dr Levien’s diagnosis. That diagnosis is amply justified by the material contained in Exhibit 7. Dr Levien’s criticisms of Dr Alcorn’s opinion were fairly mild but he did make the point – a valid one I think – that Dr Alcorn had not said what the applicant’s failure to “adjust” related to.
47. Dr Alcorn prepared a very lengthy report (Exhibit 3, pp 115-39) on 11 November 2001. He interviewed the applicant on 30/10/01 over a period of 1½ hours. The applicant claimed that a substantial part of this time was spent filling in forms, but I have no reason to conclude that the examination was inadequate. Dr Alcorn has not seen the applicant on any subsequent occasion.
48. Dr Levien on the other hand has been the applicant’s treating psychiatrist on a more or less regular fortnightly basis since 31 May 2001. He is very well acquainted with his patient and, I think, understands him very well. I found Dr Levien to be a convincing witness. He engaged in a somewhat robust cross-examination with Mr Elliott upon matters relating to an alleged failure by him to cooperate with MCRS, but the issues then canvassed do not help me one way or the other in evaluating his testimony. I do not accept the suggestion, clearly implicit in some of Mr Elliott’s questions, that Dr Levien was unreasonably resisting the desire of both the applicant and MCRS that the applicant should resume a rehabilitation program.
49. I do not think that Dr Levien undervalued the applicant’s antisocial, offending, and generally irresponsible behaviour, both before and during his time in the Army. I accept Dr Levien’s opinion as to the cause and nature of the applicant’s psychiatric condition. I refer to page 12 of Dr Levien’s report of 27 November 2002 (Exhibit 7) where he says:
“I feel the depression is caused by:-
1. pain and suffering due to his shoulder injury
2.the fact that the shoulder injury means he can no longer serve in the Armed Forces
3.his complete bewilderment with the process of repeated medical evaluations he has undergone
4.continuing unemployment.
I do not feel he would have become depressed should he have continued to serve in the Armed Forces and therefore the depression is a secondary consequence directly related to his injury sustained in the Army.”
50. I also accept Dr Levien’s assessment that the applicant is currently unemployable notwithstanding the voluntary social work which he is performing for therapeutic and rehabilitative purposes at Wodonga. It is plan from Dr Levien’s formulation of the cause of the applicant’s major depression that he has a compensable disease within the meaning of the legislation.
Issues arising in respect of Application Q2003/858
51. I turn now to the subject matter of application to review Q2003/858. The spinal stimulator proposed for insertion into the applicant’s spine is a costly device exceeding $30,000. Insertion in the spine requires an operation of about 2 hours duration. Once inserted there are ongoing maintenance costs and procedures which need to be followed to keep it in proper working order. A minor surgical procedure is required when the battery is replaced once every 5-7 years.
52. The decision-maker whose determination is presently under review usefully detailed the history and progress of this claim in her letter to the applicant dated 11 September 2003 (Exhibit 3, pp295-297). The following is the relevant part of that letter:
“On 2 August 2002 you were advised that MCRS would pay for your participation in a pain management clinic starting 5 August 2002.
In his letter dated 1 October 2002, Dr Heinz Rodins, anaesthetist and consultant in pain management, confirmed that you attended the 5 days at Greenslopes, where you were assessed by a multi-disciplinary unit. Dr Rodins requested that approval be given for you to undergo a left sided cervical radiofrequency neurotomy performed at levels C6 and C7. Dr Rodins acknowledged that the outcome was uncertain. This procedure was apparently performed on 21 November 2002 at Greenslopes Private Hospital.
In his letter dated 13 January 2003 Dr Rodins, confirmed that you had one months reduced pain after you received cervical radiofrequency performed in October 2002. Your pain was in essence interfering with your ability to return to work and had been unresponsive to a variety of medications. Dr Rodins considered the next step was to assess the suitability of a spinal cord stimulator implant.
Dr Rodins requested that you be admitted for 5 days at Greenslopes to be reviewed b y a multi-disciplinary plan unit. MCRS approval was given on 16 January 2003.
In his letter dated 10 February 2003, Dr Rodins requested that ongoing physiotherapy be provided to you to assist your recovery. MCRS approved 8 treatments of physiotherapy on 25 February 2003.
On 20 May 2003 Dr Rodins requested that you proceed to a full spinal cord stimulator implant. He confirmed that you underwent a trial on 19 April 2002 and had excellent results. He estimated that it would cost approximately $30,145.00 to purchase the Genesis XP IPG Spinal Cord Stimulator.
In his report dated 2 June 2002 Dr Edwin Nicoll, Locum military compensation medical adviser, was concerned about the implantation of a stimulator in you, a 27 year old male with intermittent pain. Dr Nicoll recommended an opinion from a treating psychiatrist and referred you to another pain specialist for a second opinion. Dr Nicoll noted that the implant procedure had potential side effect of its own.
In his report dated 16 July 2003 Dr H Levien, consultant psychiatrist, supported the use of a spinal cord stimulator. He reported a significant improvement in your global levels of disability and in particular your psychiatric state. Dr Levien considered from a psychiatric point of view it would have a marked benefit both upon your depression and chances of rehabilitation.
In his report dated 24 July 2003 Dr Nicoll noted Dr Levien’s conclusion that there were no psychiatric contraindications, but said that from a physical point of view he was still not convinced that this was appropriate treatment. Dr Nicoll listed the following possible complications which could occur with such a procedure;
1. Risks of operation and attendant anaesthesia
2. Post operative complications
3. Spinal cord damage
4. Spinal cord or meningeal inflammation
5. Meningitis, osteomyelitis, local tissue infection
6. Scarring at the electrode site
7. Pain at implant site
8. Loss of analgesia-creation of pain and altered sensation
9. Implant failure
10. Migration of electrode
11. Maintenance of device with repeat operations to replace aging components
12. Electromagnetic interference
13. Allergic reaction to device components
In his letter to Dr Rodins dated 28 July 2003, Dr Jim O’Callaghan, specialist in pain medicine, agrees that the spinal implant would be appropriate treatment at this time for you.
In his report dated 31 July 2003, Dr Nicoll, referred to the comments of Dr Rodins and O’Callaghan and said that on the basis of the published literature, the current evidence shows that, “the spinal cord stimulator is most suited to chronic pain of predominantly neuropathic origin, which was different to your myofascial based pain”. Dr Nicoll noted that you only reported a 40% reduction in pain with activity. The literature suggested a minimum of 50% was required in order to justify the implant.
Considering the not insignificant side effects of having a spinal implant inserted, Dr Nicoll considered that the appropriate treatment for your condition was an exercise program and the use of a Transcutaneous Electrical Nerve Stimulator (TENS) machine. These treatments were free of the significant side effects inherent in the invasive procedure of spinal cord implants.”
53. The nature of the stimulation trial and the operative and subsequent procedures involved were described in Dr Rodins report of 17 November 2003:
“Q1. Simon Scott has attended the Greenslopes Private Hospital Multidisciplinary Pain Unit for some time for the management of his ongoing left-sided neck and left shoulder pain. Over an extended period of time various treatments had been attempted to reduce his ongoing pain syndrome all resulting in minimal control of his pain. MCRS approved a trial of cervical spinal cord stimulator.
As part of the standard work-up for requesting a trial of stimulation, Mr Scott was assessed by another pain specialist as well as a psychologist as to the suitability for a stimulator. The trial involved implanting an electrode percutaneously into the cervical epidural space. This electrode was connected to an external hand-held programme “TENS machine”. This was used to program various stimulation patterns for Simon to trial. He had this device implanted and functioning for 4 days as an inpatient. During that time he was able to assess what benefits he obtained in the reduction in his pain. He stated it significantly reduced his level of discomfort and was keen for a permanent system to be implanted.
Q2. As stated above, Simon has had a trial of spinal cord stimulator which was extremely successful. It was planned to schedule Simon to have a permanent device implanted when MCRS declined funding for his procedure. Permanent implant of a spinal cord stimulator involves insertion of two electrodes into the cervical epidural space, tunnelling both leads subcutaneously to a fashioned pocket subcutaneously in the anterior abdominal wall and connection to an implantable programmable device can be programmed to produce various stimulation patterns. The procedure involves a combination of local anaesthetic and general anaesthetic. Total operative time involved, on average, is between 2 to 3 hours.
Q3. The convalescent period in hospital after the insertion of a permanent spinal cord stimulator system is usually no more than one week. There are certain movement restrictions until the electrodes have time ‘to bed in’. Certain movements of his neck and upper chest would be considered undesirable until approximately 4-6 months post-implant. He would need to wear a neck collar for about 6 weeks.
Q4. Simon would be capable of attending a full rehabilitation program approximately one month after the implantation of a spinal cord stimulator system bearing in mind movement limitations as mentioned above.”
54. I have already referred to Dr O’Callaghan’s assessment of the causes of the applicant’s present chronic pain syndrome at paragraph 31 (above). The remaining part of Dr O’Callaghan’s report is as follows:
“I have had very little success over the years treating patients with this type of pain, it can cause very severe pain radiating into the arm and if a myofascial problem has built up over three years it will take a very long time for a patient to improve even if they are carrying out an appropriate exercise programme. I believe they have to set a goal of some improvement after perhaps six months of an appropriate and very gradual exercise programme so that they do not exacerbate their condition. It is very difficult at the commencement of this type of programme because of the extreme pain that any activity in these muscles. I do have a patient with similar pain whom I am treating at the moment and after many years of various treatments I have no proceeded to spinal cord situation. He has not obtained the degree of stimulation cover which Mr Scott obtained in his trial but my patient has certainly better pain relief from spinal stimulation than from any other treatment which I have initiated in the prior six years.
In view of the fact that Mr Scott did obtain reasonable benefit from the trial of spinal cord stimulation I believe it would be the appropriate intervention at this time. With the improvement in his pain it would then be extremely important for Mr Scott to begin a very gradual exercise programme directed at the shoulder girdle muscles and that he have realistic goals that he should see some gradual improvement in six to twelve months as a result of this graduated exercise programmme. I am concerned that he doesn’t obtain better pain relief which would enable him to proceed with the exercise programme that he will slowly deteriorate and that he may reach a point where muscle wasting in the regional of the left shoulder becomes so severe that a recovery is not possible.”
55. Dr Cameron was vehemently opposed to the use of a spinal cord stimulator on the applicant (see Transcript pp249-260). His view was that you should “never operate on a person who is grossly depressed”. Accordingly, I asked him (p260). How does a depressed patient, who is depressed because of chronic and severe pain ever get to have pain relief administered to him? I commented that his solution seemed to create a vicious circle. Dr Cameron’s response was as follows:
“It is. As I said, the only way you get this – you go and get – you’re got to try and control the depression. Now, obviously this has been attempted with a multitude of drugs and we got nowhere fast. Well, that’s a bad sign so therefore I think you should pull back the drugs used. The second thing is, he doesn’t get out and to send this man into a rehabilitation program. It’s no good if he’s sitting at home. You’ve got to get him out into some rehab program and keep trying him and you’re going to have a high failure rate but you’ve got to do this because the option is he’s not going to be anywhere. But you’ve got to get them to work through the pain, get them to rehabilitate more, get them to use the affected limb more and more, increase the range of movement. Sure, you’re going to have pain, control as you go. But that’s the only way you’re going to be successful here. And you’re going to have a failure rate. We know that. Just by experience, we all have a failure rate. That’s the only way this man’s going to get anywhere but get him back into something that isn’t working in some … part-time in some, as I say, looking at monitors in a security section somewhere.”
56. With all respect to Dr Cameron, I am unable to regard his proposed solution as a real solution at all in a situation where the depressed individual has been unable to overcome the pain by conservative means over a significant period of time. The applicant is a young man who had excellent muscular development prior to the occurrence of the accident. I think he has had a genuine desire to rehabilitate himself since then and has also attempted to maintain his physical fitness. (His premorbid physical condition may well be one of the reasons why some examining doctors were unable to detect muscle wasting).
57. Dr O’Callaghan disagreed with the idea that a person with a psychiatric condition should not be treated with a spinal stimulator and, as appears from those sections of his report to which I have already referred, he has the view that myofascial pain as well as neuropathic pain can be substantially alleviated by the use of a stimulator.
58. Dr O’Callaghan and Dr Rodins are both specialists in anaesthesia and pain management and have many years experience. Their proposal for implanting a spinal cord stimulator was also considered by Dr Levien following the applicant’s trial stimulator at Greenslopes Hospital. In his report of 16 July 2003 (Exhibit 3 pp258-261) Dr Levien said:
“Prior to the intervention with the spinal stimulator, Mr Scott was significantly depressed and was on Amitriptyline at a does of 250 mg per day, Largactil up to 250 mg per day together with Ducene 2mg and Stelazine 1mg three times per day.
At that stage, he was overweight, underactive, socially phobic and having panic attacks up to 3-4 times per week. He was heavily dependent upon his wife and attending myself on a week and half basis, often with crisis meetings. He was significantly disabled by pain, forlorn, hopeless and had little motivation towards rehabilitation. He was also on significant levels of analgesic medications.
With Spinal Cord Stimulator, he reports a significant reduction, both in his level of pain and also discomfort and also altered sensation.
Reviewing the inpatient notes, his response to the procedure seems conservative and realistic – with him initially reporting little benefit. With the change in the program of stimulation, he reported, and was observed by the skilled assessors, as showing a 50% plus major reduction in pain covering 90% of the pain afflicted area.
In the weeks following the successful trial, there appeared to be a major improvement with Mr Scott.
I observed he was able to reduce his anti-depressant medication significantly – his Endep was reduced to 200mg per day and his Largactil was able to be reduced to 100 mg per day and Stelazine and Ducene were taken on a once daily basis.
He became less socially phobic and able to take much greater care of his son and reported near daily outings. He began a daily program of walking and lost 4kg.
He reported less unusual sensation in his arms and reported an improved pattern of sleep.
He reported reduced irritability and interpersonal tension with his wife and a resumption of sexual intercourse.
He began partaking of a greater role in the household, preparing dinners, doing some partial vacuuming and doing some of the household washing.
He also became more motivated towards rehabilitation and, in fact, contacted the RSL and negotiated to do their course, a first aid course and to then become involved in the care of three Veterans.
He also reported a reduction in his panic attacks, now down to a once a week basis and less irritability and paranoia and socially phobic withdrawal when out socially. He also reported a reduction in mood swings.”
He concluded:
“He is optimistic about this procedure and keen to proceed. From a psychiatric point of view, evidence would suggest that this would have a marked benefit, both upon his depression and his changes of rehabilitation.”
Counsel for the respondent suggested to Dr Levien and other witnesses that by making himself busy with supportive social work in Wodonga following the stimulator trial, the applicant was manifesting an improvement in his general condition to such a degree that the stimulator implant should be abandoned or at least deferred. Dr Levien dealt with this in the following passage of evidence.
Q. “On the second page of that [your report of 16 July 2003] you say this:
`With the spinal cord stimulator he reports a significant reduction, underlined, both in his level of pain and also discomfort and also altered sensation.’
I will then omit the next paragraph but come back to it in a moment. And then you have the sentence:
`In the weeks following the successful trial there appeared to be a major improvement with Mr Scott.’
Did you relate that major improvement to the optimism, perhaps, that was engendered by his having had a successful trial with the spinal cord stimulator or to other factors? --- A. No, I think it is more than optimism, as you say. Like, I don’t think the effects of the cord stimulation lasts more than like 24 hours or 48 hours. I think they are a brief phase analgesic procedure but I think he just felt that it greatly reduced his pain and – which is how I think he – it sort of broke the cycle of pain and demoralisation and it seemed to give rise to great optimism within him. And I suppose as part of that he was able to get a bit more motivated and try to do without the … of medication and give things a bit of a go.
Q. Yes, well, that’s really what I was talking about. It occurred to me it may have engendered in him the frame of mind, “Well, at last I’ve got something that’s helping this pain problem I have. I’m going to get it and get some benefit from it, therefore I can start re-casting my life in a more favourable mould”? --- A. That is very much my impression.
Q. I see, thank you. Right. Now, the second point I wanted to raise out of that letter is in the paragraph that I omitted originally and you say this:
`Reviewing the in-patient notes, his response to the procedure seems conservative and realistic, with him initially reporting little benefit. With the change in the program of stimulation, he reported and it was observed by skilled assessors, as showing a 50 per cent plus major reduction in pain covering 90 percent of the pain afflicted area.’
Now, I think it was suggested to you yesterday that that initial trial might have had a placebo effect upon him. I was wondering if the fact that he initially reported little benefit from the procedure and only reported benefit once the program was changed, whether that would be contra-indicative of the placebo effect or not? --- A. To some extent, your Honour. Its effect, I recently noted from his report, it seems as though they sort of under-stimulated him initially, although using different types of electrodes or it may even have been that the placement was a bit different. But if he was looking – if he was highly impressionable and looking for some sort of magical response, I would have imagined it at the initial phase rather than later on.”
59. The applicant’s proposal to proceed with the implant was considered by Dr Nicoll, a locum Military Compensation Medical adviser, on behalf of MCRS. He provided 4 reports which are to be found at pages 240-242, 249-250, 264-265 and 270-272 of Exhibit 3. At page 265 he listed the possible complications of the procedure which were later reproduced in the decision-maker’s determination referred to in paragraph 52 above. Dr Nicoll expressed his opinion as follows:
“In my opinion, given the diagnosis of myofascial pain in this client by the special physician Dr O’Callaghan, the appropriate reasonable rehabilitation treatment for this client, would be Dr O’Callaghan’s recommended exercise programme.
Given the small improvement in pain relief of only 40% with activity in this client compared to the bench mark standard set by North and Wetzel (2002) of at least 50%; and the fact that the pain in this client’s case is not neuropathic; given the not inconsequential risks of spinal implants, I would recommend that spinal stimulator implants not be considered appropriate treatment for this client.”
Dr Rodins dealt with each of these potential risk factors at page 104 and following in the transcript. He thought that the applicant’s case for an implant was not “clear cut” (p108), but he was of the view that he was nonetheless “a reasonable candidate for a permanent implant”.
60. Dr Goode was asked about his familiarity with spinal cord stimulators. The doctor said (transcript p241 and 242) that he only had “peripheral awareness” of them, but he considered that the applicant fitted the category of those who may benefit from the procedure.
61. Dr Alcorn was apparently not consulted on this issue and did not express an opinion from a psychiatric viewpoint in the course of his evidence.
62. It is obvious from this brief review of the quite substantial body of medical evidence taken at the hearing and contained in the documents that the stimulator question was a proper subject for debate, but, on the whole of the evidence, I have concluded that provision of the funds and facilities for their stimulator implant by MCRS is indeed reasonable in all the circumstances and should be undertaken. If the treatment is successful it may well substantially diminish the quantum of funds which MCRS may otherwise have to make available to deal with the applicant’s disability and incapacity by some alternative, and possibly less effective modality.
63. The applicant has been attempting to cope with pain and diminished function in his left arm for a long time. He is anxious to overcome this disability. He has undertaken a trial process which suggests that a stimulator implant will effect a substantial diminution in pain with a consequent improvement in function. This, in turn, should see him able to recommence physical rehabilitation programs with a consequent return of working capacity. I do not see his depressive illness as an impediment to these outcomes – indeed such outcomes are likely to diminish or eradicate his depression. The applicant is willing to undertake the implant procedure and is fully aware of potential complications. The desirability of proceeding is supported by a substantial body of persuasive medical opinion. The high cost is relative to ongoing costs for medical and other treatment which may otherwise be required for the applicant’s rehabilitation and compensation.
64. The correct or preferable determination in this matter is that the applicant’s claim for the costs associated with the implant of a spinal stimulator be allowed by MCRS as reasonable medical treatment in relation to the injury sustained on 12 June 1998.
65. Costs are dealt with by s67(8) of the Act. The respondent should pay the applicant’s costs of all 3 applications to review and I so direct and order.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 1,2 and 3 December 2003
Date of Decision 29 March 2004
Counsel for the Applicant Mr P A Krongberg
Solicitor for the Applicant Gilshenan Luton
Counsel for the Respondent Mr G Elliortt
Solicitor for the Respondent Phillips Fox
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