Simpson and Australian Postal Corporation
[2004] AATA 1303
•1 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1303
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1909
GENERAL ADMINISTRATIVE DIVISION ) Re JULIE ANNE SIMPSON Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date1 December 2004
PlaceSydney
Decision The Tribunal affirms the decision under review.
[Sgd] Dr JD Campbell
Member
CATCHWORDS
Workers compensation – injury to right great toe – liability accepted – continuing and evolving symptomatology – permanent impairment
Safety, Rehabilitation and Compensation Act 1988 sections 4, 14, 24, 27.
REASONS FOR DECISION
1 December 2004 Dr J D Campbell, Member EVIDENCE
1. In this matter, Ms Simpson (“the Applicant”) seeks a review of the reconsideration decision of an officer of Australian Postal Corporation (“the Respondent”) dated 15 October 2003. In that decision the Respondent affirmed the earlier determination made by the Respondent on 22 September 2003 that the Applicant was not entitled to payment of compensation for permanent impairment to her first right toe pursuant to section 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
2. On 12 December 1995, the Applicant lodged a claim for compensation for permanent impairment arising from an injury to the right big toe which occurred on 25 February 1993 (T22). On 17 February 1995, the Respondent determined that the Applicant was not entitled to such payment as she was not suffering a 10 per cent permanent impairment of the whole person (T23). This decision was affirmed upon reconsideration by the Respondent on 24 July 1996 (T29).
ISSUES
3. The relevant issues in this matter are whether:
(a) The Applicant’s injury to her right foot and right leg has been materially contributed to by her employment with the Respondent; and
(b)Whether or not the Applicant has a 10 per cent whole person permanent impairment assessed in accordance with the Guide to the assessment of the degree of permanent impairment (“Comcare Guide”); and
(c) If so, is the Applicant entitled to lump sum compensation pursuant to sections 24 and 27 of the Act.
DECISION
4. For the reasons nominated later in this decision the Tribunal finds that the Applicant suffers from a morbid condition of chronic pain; that such a condition is an ailment pursuant to section 4 of the Act; and that such an ailment or aggravation of that ailment, on the evidence before the Tribunal, was not contributed to in a material degree by the Applicant’s employment. As a consequence the Applicant’s claim for compensation for permanent impairment must be declined.
5. The Tribunal also noted that even if there was a material work contribution, and if there was found to be a permanent impairment of the right great toe (about which there could be considerable argument), the Tribunal would have assessed the whole person impairment at less that 10 per cent pursuant to Table 9.5 of the Comcare Guide, as the Tribunal does not accept the evidence of the Applicant and her husband as reliable as regards the issues relating to the Applicant’s abilities to negotiable stairs and/or inclines, particularly in the light of any organic pathology in the right toe and/or foot. In such circumstances the Tribunal would have declined the Applicant’s claim for compensation for permanent impairment of the right great toe.
APPLICANT’S EVIDENCE
6. The Applicant detailed:
(a)Born 1970; educated to Year 9; left school at age 15 and worked in odd jobs before joining Australia Post in 1989 as a mail officer.
(b)Suffered injury to chest when struck by a trolley handle at work in February 1990 and was off work for a period; suffered an injury to left heel while doing dock duties in July 1990; suffered an injury to right thumb when lifting trays of mail in December 1991.
(c)Had no problems with toes prior to February 1993. Used to run and exercise for two hours per day, undertake aerobics and enjoyed roller skating and parties. Considered herself very fit, enjoyed long runs and weighed 71 kilograms in 1992. Met her husband late 1991\early 1992.
(d)On 25 February 1993 was involved in an incident at work at 10.30 pm when the brakes on an electric vehicle hauling two ULD’s failed, with the machine coming to rest on top of her right foot. The Applicant stated that she was wearing steel caped safety boots; that she felt mild pain; undid her safety boots and removed her right foot from the boot. She noted that she had pain on top of the right foot and in the big toe, and that her foot was a little swollen. She removed the boot from under the machine and noted that it was crushed and the steel cap dented.
(e)The incident was reported to the Shift Manager, and she was given first aid by way of an ice pack on the right foot. After about half an hour she felt alright and returned to work and completed her shift.
(f)At the end of her shift her right foot was sore and aching. She went home, slept for two hours and then went to see her local doctor, who referred her for an x-ray.
(g)On return to work she worked normal duties, until an episode occurred involving a feeling in her right foot, a loss of balance and a fall at work. She again saw her local doctor who referred her for a bone scan and conduction studies.
(h)The Applicant was referred to Dr Kirsh, orthopaedic surgeon, in October 1993, who operated to remove an exostosis from the right great toe in December 1993, but with no relief for the pain being experienced in the right big toe. At this stage she was unable to undertake her normal activities.
(i)In early 1994 she received physiotherapy treatment which helped her mobility, but did nothing to lessen the pain. Throughout 1994 the pain eased in comparison to her post-operative experiences, but she still experienced pain on a majority of days. She did not work as much as usual through 1994. Use of shoe inserts and padding on right big toe as suggested by Podiatrist did not help.
(j)At the end of 1994, the pain situation in the right big toe was the same and restricted her from running, aerobics, walking on sand and wearing particular shoes.
(k)Years 1995 to 1998 were similar to 1994, although her memory of those years is not all that clear.
(l)The Applicant married in 2000. She had been living with her partner in a single story house from 1992, and they shared all domestic duties until 1994 when her husband did everything including washing, ironing and cooking, as she was unable to stand because of pain. She had some difficulty in walking, again because of pain.
(m)Suffered other injuries at work including:
· injury to right hand and wrist opening mail bags (September 1995)
· injury to right shoulder when struck by a full mailbag (July 1996)
· injury to right shoulder lifting bags and trays (February 1997)
· injury to feet, right hand and back in fall from ladder (February 1997)
· injury to right foot and ankle and foot caught under a trolley (January 2001).
(n)Ceased work in February 2003 and took a voluntary redundancy package, having stated her desire to work in another area because of pain on standing.
(o)She has no treatment for the last couple of years and is unable to do anything. Uses Panadeine Forte and Mersydol for pain relief.
(p)Has lived upstairs in a two storey house for the past eight years, with the laundry downstairs. She uses the rail to walk up and down the 20 stairs, placing her foot parallel to each step. She does not like going up and down stairs because of stabbing pain in the right big toe, together with at times some cramping and pins and needles.
(q)She has three children, with the youngest some two and a half weeks old. She is unable to go walking with her husband, but does walk to the shops. She experiences pain on going down stairs. She needs lots of breaks when walking (two stops on trip from Town Hall to the Tribunal).
7. In response to the question in cross-examination the Applicant detailed the following:
(a)She said to Dr McGill in April 2004 that the pain was in the right big toe and up the foot and that it had been this way for the last two years. Further that the safety boot was damaged at the time of the incident.
(b)She was unable to remember telling either Dr Wallace or Dr Lam that the fall occurred two and one week respectively after the incident in February 1993. She did not believe there was any fall one to two weeks after the incident.
(c)She returned to work in April 1993 on full duties and that she made no complaints about her toe to Dr Symeou between April and August 1993.
(d)In September 1993 she told Dr Symeou of the sudden onset of pain in the right big toe at work the previous day, which made her fall to the ground. She later saw Dr Kirsh, who operated on her toe, with a return to full duties after the operation on 23 February 1994 at which time the pain was coming and going.
(e)She was unable to remember what she told Dr Vote about difficulty with grade and steps at her consultation on 7 March 1994. Similarly she had no clear memory of the consultation with Dr Bodel in 1994.
(f)Her solicitor lodged the permanent impairment claim in September 1994 and in 1995 she told Dr Deveridge that her pain was intermittent, but in cold weather it was constant and that she had no trouble with stairs, but difficulty with uneven surfaces.
(g)When her claim was rejected in 1995, she was made aware of the criteria in the Comcare Guide.
(h)Between 1994 and 2001, she changed doctors to the Blue Cross Medical Centre; that between March 1997 and January 2001 she made 80 visits to that centre and during that period there is no mention of pain in right big toe. During this period she agreed that she was working normal duties and had no time off because of pain in her right big toe. Nevertheless the Applicant said that she would have discussed the painful right big toe with the doctor.
(i)She became pregnant in 1998 with her weight around 74 - 75 kilograms and that weight gain and loss has occurred with each pregnancy.
(j)The Applicant and her family moved to their current house in 1997 and lived downstairs for the two years prior to moving upstairs for family reasons.
(k)She did not communicate with Australia Post about her problems with her right big toe at the time she took voluntary redundancy.
Mr Haddad
8. Mr Haddad, the Applicant’s husband detailed:
(a)When he first met the Applicant, she was happy go lucky and enjoyed life. They went dancing, to the cinema and the hotel. They travelled to the USA in 1992 and the Applicant had no trouble walking. They commenced living together in 1992 at which time they shared the household duties.
(b)He does not have a clear recollection of circumstances of the accident, other than her toe was sore and she had a limited ability to move about. On return to work she would come home in pain, and he remembers that she was not as active as before the accident and that they did not go out as much.
(c)In the second half of 1993, he thought his wife was frustrated at work, and the pain in the right big toe was a little worse, together with problems with the muscle at the back of her right leg. After the fall at work in September 1993 the Applicant’s pain got worse and again after the surgery in December 1993.
9. The Tribunal also notes the statement of Mr Haddad dated 18 September 2004 (Exhibit A6) in which he details the difficulties his wife has with buying and wearing shoes, walking and climbing stairs, and doing basic household duties.
MEDICAL EVIDENCE
Dr Symeou – General Practitioner
10. In his clinical notes (Exhibit A7) Dr Symeou records that on 26 February 1993 the Applicant attended following an injury to her right foot with resultant pain. Examination revealed a swollen but not bruised foot and tenderness over her right big toe and metatarsal. Treatment with ice packs and Panadeine Forte was recommended. X-rays taken of the Applicant’s right foot and big toe were recorded as revealing no abnormality on 16 March 1993. Similarly a bone scan was reported on 23 March 1993 as revealing no abnormalities. Dr Symeou records significant improvement in symptoms on 24 March 1993 and certified the Applicant fit to resume her normal duties from 28 March 1993 (T4).
11. On 10 September 1993, Dr Symeou records that the previous day the Applicant experienced a sudden onset of pain in the right big toe causing her to fall at work. The Applicant was referred for new conduction studies which were reported as within normal limits on 17 September 1993 (T6). Dr Symeou referred the Applicant to Dr Kirsh, Orthopaedic Surgeon because of continuing symptomology in right big toe. Dr Kirsh removed an exostosis on 2 December 1993. Dr Symeou records on 15 December 1993 that the Applicant’s right big toe was swollen, after she had attempted to work for two hours the previous day. The record further shows continuing difficulties experienced by the Applicant during January through to June 1994, and again in November 1994.
Dr Kirsh – Orthopaedic Surgeon
12. Dr Kirsh, having removed the exostosis on 2 December 1993, records that at 21 December 1993, the wound was well healed and the Applicant still had some minor pain (T11); as at 2 February 1994 Dr Kirsh ceased physiotherapy treatment as this seemed to cause pain. He recorded the Applicant as experiencing intermittent unpredictable pain, which is stirred up whenever the right big toe is fiddled with. Dr Kirsh records the Applicant as having returned to full duties (T16).
Dr Vote – Orthopaedic Surgeon
13. In a report dated 7 March 1994 (T17), Dr Vote records the Applicant as having received a significant crush injury to her right great toe some 12 months earlier, and that following the incident the symptoms improved but did not totally disappear. He further records that the symptoms got worse after the surgery undertaken in December 1993. It is further noted that the Applicant had been back at work since January 1994.
14. Dr Vote was unable to find any evidence organic basis for the Applicant’s symptoms, but did consider that she was genuine. Dr Vote considered that her then static symptoms would gradually diminish over a period of time, and that a further bone study examination should be undertaken.
Dr McLean – Consultant Nuclear Physician
15. Dr McLean conducted a bone scan examination on 18 March 1994 and in his report concluded that “there are a number of subtle abnormalities in the right foot including a mild reflex sympathetic dystrophy as well as abnormalities in the 1st proximal phalanx and metatarsal” (T18).
Dr Bertolino – Pain Clinic
16. In a report dated 2 June 1994 (Exhibit A9), Dr Bertolino detailed the Applicant’s clinical history which included a difficulty in wearing particular forms of shoes. He also noted that there is no particular pattern to the pain, and that the Applicant reports that she is unable to walk on sand.
17. Dr Bertolino was of the opinion that the Applicant had causalgia caused by a partial injury of the dorsal lateral digital nerve to the right toe. A diagnostic lumbar sympathetic nerve block was suggested but refused by the Applicant, who was described as being intermittently teary during the consultation.
Dr Bodel – Consultant Orthopaedic Surgeon
18. On 19 October 1994 in his report (T21) Dr Bodel detailed the Applicant’s clinical history, which included her difficulty with certain footwear, and her inability to continue with aerobics and ten pin bowling activities. Dr Bodel recorded nothing of significance at examination, and concluded that the Applicant does have some evidence clinically of a permanent loss of efficient use of her right foot and also some minor impairment to the function of the back.
Dr Deveridge – Consultant Orthopaedic Surgeon
19. In a report dated 13 July 1995 (T26), Dr Deveridge records the clinical history of the Applicant, and notes that her current complaint is of intermittent pain in the right big toe, which has become more constant with the cold weather, is exacerbated by a hot shower and tends to increase with prolonged standing at work. Dr Deveridge also records the Applicant’s avoidance of high heels, and her restricted sporting activities. He records that she is unable to walk on sand, avoids uneven ground or jumping, but does not have difficultly with stairs or inclines.
20. Dr Deveridge found at examination that the Applicant had a good range of movement at the great toe and did not detect any restriction of movement in the forefoot, mid foot sub tolar and ankle joints.
21. Dr Deveridge considered the best explanation for the Applicant’s symptomology was reflex sympathetic dystrophy, for which there is some evidence. He considered the condition reasonably stabilised and believed it could run a chronic course. Dr Deveridge was unable to make a satisfactory assessment under the Comcare Guide.
Dr John Lawson – Consultant Physician
22. In a report dated 4 May 2001 (T30), Dr Lawson details the clinical history of the Applicant and notes her current complaint as daily pain at the base of her right big toe, which moves up her foot and which is increased by walking, standing and climbing stairs. He also notes that the Applicant has difficulty with stairs and inclines because of increasing pain, and that she has a limp at the end of each day. Examination revealed some tenderness over the proximal right big toe joint.
23. Dr Lawson considered that the Applicant was suffering from an evolving degenerative osteoarthritis and that he assessed her as having a 20 per cent whole person impairment pursuant to Table 9.5.
Dr Millar – Consultant Rehabilitation Physician
24. In his report dated 26 September 2002 (T31), Dr Millar records the Applicant’s clinical history and notes that her current symptoms include a painful right foot if she stands for a long time and that she experiences difficulty going up and down stairs and walking up hills.
25. Dr Millar found a full range of movement in the toes and ankle of the right foot, with the big toe being tender to touch. He noted a CT examination of the big toe in April 2002 showed no abnormality.
26. Dr Millar considered that the Applicant was suffering from a chronic regional pain syndrome, that the impairment was permanent and that she had a 20 per cent whole person impairment pursuant to Table 9.5.
Dr Giannapoulous – Rheumatology Registrar
27. In a report dated 25 August 2003 (T35), Dr Giannapoulous detailed the Applicant’s clinical history and describes her symptomatology in the following turns:
“[The pain] tends to be on the first metatarsal phalangeal joint on the right and it may radiate to the medial side and occasionally to the dorsal surface of the foot. It only affects the right foot. It tends to hurt mainly when she has been standing on it for long periods of time. She has not been able to exercise as she did previously because it makes the pain worse. She is able to continue working full time, however she works in a different section of the company to where she did previously. She is required to stand on her feet most of the day”.
28. Dr Giannapoulous found at examination that the right big toe had a full range of movement and that there was no limitation of joint movement to pain. He also found altered sensation of a non-dermatomal distribution affecting the top, the dorsum of her foot, the medial aspect and the inferior portion of her shin. Dr Giannapoulous concluded that he was not confident that the diagnosis was reflex sympathetic dystrophy.
Dr Maxwell – Consultant Orthopaedic Surgeon
29. In his report dated 11 September 2003 (T37) Dr Maxwell records that the Applicant does the washing, cooking and some shopping, has difficulty standing for long periods and can walk for half an hour. Dr Maxwell detailed the clinical history of the Applicant and described her current symptoms:
“She experiences pain in the right great toe which she says makes her ankle sore and she gets cramps in the leg after walking a lot or driving. She says she is worried about coming down stairs but has no real problems going up stairs … she said that change in the weather makes her foot ache. She informed me that she has difficulty wearing fashionable shoes and has to wear joggers. She says her weight has increased because she no longer does much exercise”
30. Dr Maxwell summarised his diagnosis and opinion:
“Apart from the scar on the dorsum of her foot and the slight loss of extension on testing of her right great toe metacarpalphalangeal joint I could find no other significant abnormality.
There was no muscle wasting of the right leg suggestive of disuse. She was able to walk on her heels and toes and walks without a limp. Although she complained of some tenderness on palpation of the great toe I do not consider there was any particular cause for this.
I no longer consider she suffers any disability or impairment as a result of the alleged foot injury.
It should be remembered that she continued to work after the injury and was able to remove her foot from the shoe while the shoe was still caught under the safety bar. The shoe was fitted with steel caps.
It does appear that she developed an abnormal reaction after this injury. I can find no reason for the apparent collapsing of the right leg that she describes and I do not think that any current collapsing is due to any work related injury.
I consider that she has zero whole person impairment according to Table 9.2 and I also consider she has zero whole person impairment according to Table 9.5.
Despite her history I do not think she has difficulty with grades and steps. The lack of muscle wasting indicates normal function.
I do not consider she has any pathological condition preventing her walking up or down steps or up and down grades.
In the future I do not consider that any deterioration will occur”.
Dr Negrine – Consultant Orthopaedic Surgeon
31. In two reports dated 17 December 2003 (Exhibit A4) and 3 February 2004 (Exhibit A5), Dr Negrine found that the Applicant at examination was able to walk on her heels and toes and that there is a mild alteration of sensation on the dorsum of the right foot with quite a good range of movement in the metatarsal phalangeal and inter phalangeal joint of the right big toe.
32. Dr Negrine considered the most likely diagnosis to be neuropathic pain, and after reviewing a further MRI examination of the right great toe confirmed that diagnosis.
Dr Lam – Pain consultant
33. In a report dated 5 March 2004 (Exhibit A3), Dr Lam noted the Applicant had a fall two weeks after the initial incident in 1993 with the remainder of the clinical history being consistent with other reports. Dr Lam described the Applicant’s chronic persistent pain problem:
“The pain is described as a constant pain with paroxysmal attacks. The characteristics of the pain are described as sharp, stabbing, hot, warm, shooting, with associated numbness and discolouration. Mrs Simpson also reports swelling and sweatiness. Pain radiates up her tibia and across her toes. There is a history of allodynia, hyperalgesia and dysaesthesia. Pain seems to be better when she elevates her leg. Pain seems to be exacerbated by cold weather, warmth, walking, running, wearing shoes and staircase”.
34. Dr Lam found “glove distribution altered sensation to soft touch in the right leg to the level above the right knee. There was allodynia and hyperalgesia over the right big toe”.
35. Dr Lam considered the Applicant to be suffering from a mild CRPS type 1 (chronic regional pain syndrome). Dr Lam did not initiate any analgesic regime because of the Applicant’s current pregnancy.
Dr N McGill – Consultant Rheumatologist
36. In a report dated 14 April 2004 (Exhibit R1) Dr McGill detailed the clinical history of the Applicant, in which he confirmed that she stated her foot had returned to normal after the first incident in 1993 and before the later incident in 1993. Dr McGill also reports that the Applicant stated that the pain is the same as it was five years ago.
37. Dr McGill detailed her pain symptomology in the following terms:
“She reported that she intermittently feels pain radiating from the right foot up the leg to the knee. She also has pain along the medial aspect of the right big toe. She sometimes experiences pins and needles under the right foot. She explained that sometimes her right foot looks swollen”.
38. Dr McGill found at examination a full range of movement of the inter phalangeal and metatarsal phalangeal joints in both big toes, no swelling and no suggestion of reflex sympathetic dystrophy and no other describable abnormality of the right foot.
39. Dr McGill summarised his opinion:
“I do not think that there is any ongoing disorder related to the injury in February 1993. She would have suffered bruising to the toe in February 1993. The cause of her representation in the latter half of 1993 is unclear.
She is markedly overweight and has had problems with depression for which she has received treatment intermittently during the last twelve months. I do not think that the accident in February 1993 has had any substantial effect on her weight gain (which she reported has steadily continued now over many years) nor do I believe that the accident in February 1993 is related to any current psychological disturbance.
I think the initial bruising from the accident in February 1993 was directly a result of her employment. I think there is uncertainty whether her symptoms in late 1993 and 1994 were related to the February 1993 accident but there is no ongoing problem related to the February 1993 accident.
There is no indication for further treatment of the right foot. Her obesity represents a substantial long term problem for her. Her view that it is pointless her attempting to lose weight until she has finished having a family is a misguided one.
There is no whole person impairment in accordance with Table 9.2 of the Comcare Guide. There is also no whole person impairment in accordance with Table 9.5. She today specifically stated and confirmed that the pain she experiences in her foot does not change with walking. Her gait was normal and there was no evidence of any disorder that would be expected to interfere with her walking (other than that her obesity and lack of fitness would limit her endurance and speed when walking uphill or for long distances).”
40. In a further report dated 7 August 2004 (Exhibit R2) and in his oral evidence to the Tribunal, Dr McGill detailed particular aspects of other doctors’ reports and outlined the reasoning behind his opinion respectively.
Dr R Wallace – Consultant Orthopaedic Surgeon
41. In a report dated 1 April 2004 (Exhibit A1), Dr Wallace details the Applicant’s clinical history and with the exception of a fall, two weeks after resuming her normal duties after the initial incident in February 1993, the history is consistent with that recorded by others.
42. Dr Wallace described the Applicant’s present complaints:
“She now complains of persisting pain at the right great toe radiating to the dorsum of the first metatarsal phalangeal joint, the medial border of the right foot, and the medial aspect of the right calf to the level of the knee. The pain is worse on driving, at night, dancing, running, kicking, walking, negotiating slopes or stairs or wearing high heels and has no relieving factors”.
43. Dr Wallace stated the following opinion:
“I believe this patient has suffered a crush injury at her right foot as a result of injuries sustained in the course of her duties at work on 25th February 1993. Her injuries are consistent with the mechanism described of being run over by a heavy machine.
At present, I do not believe she is fit to return to her full pre-injury duties at work as a Mail Officer. She would not be fit for activities requiring repetitive bending, squatting, crouching or kneeling at her right leg, standing in one position for prolonged periods, repetitive lifting above 10 kilos, working in confined spaces, at heights or on ladders, prolonged driving a motor vehicle or prolonged periods of walking or stair climbing.”
44. In a further report also dated 1 April 2004 (Exhibit A2) Dr Wallace considered that the Applicant’s condition had stabilised and that she had a 20 per cent whole person impairment pursuant to Table 9.5. Dr Wallace also concluded that the Applicant’s work was a substantial contributing factor to the injury of 25 February 1993.
Clinical Notes – Blue Cross Medical Centre
45. The Tribunal observed that during her period of care under this Medical Centre the Applicant was seen for a variety of conditions on over 230 occasions between June 1994 and June 2004. On at least 12 occasions the issue of the right big toe was documented, with nine occasions occurring after January 2001 and three occasions prior to February 1997. On at least five other occasions Panadeine Forte was prescribed for various conditions nominated, and on 14 May 1998 the Tribunal observes the notation: “Panadeine Forte – chronic use”. The Tribunal also notes the wide range of conditions for which the Applicant sought attention. Such conditions nominated included depression, headaches, migraines, pregnancy, various injuries and seasonal illnesses to name but a few.
CONSIDERATIONS AND FINDINGS
46. Section 24(2) of the Act details that a decision-maker must have regard to the following in determining whether an impairment is permanent:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
47. However, before determining whether an impairment is permanent one must first determine whether an injury to an employee has resulted in an impairment. Section 4 of the Act defines an impairment:
“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.
48. In addressing the necessary issues in this matter, the Tribunal is mindful that much emphasis was placed by the Respondent on the reliability of the Applicant in so far as it relates to an objective definition of the history of events and circumstances. In so stating, the Respondent points to a number of issues that reinforce this contention.
49. Firstly, the Respondent pointed to the incident report signed by the Applicant on 25 February 1993, in which it is stated that the two ULD’s contained empty bags. This, the Respondent states, is inconsistent with the history given by the Applicant in which she has stated on a number of occasions to various doctors that they were full and weighed 1200 kilograms. The Respondent contends that the Applicant throughout has been presenting to clinicians that the nature of the existing injury was much more severe than it was.
50. The Tribunal, while noting that completion of Section C and for that matter other parts of the Incident Report completed on 25 February 1993 to be in a different handwriting than that demonstrated by the Applicant’s signature, does not accept the Respondent’s contention in this regard. In so stating, the Tribunal is mindful that both the Applicant’s description of the incident over time and the resulting injury that was documented at the time by the attending medical practitioner, clearly describes a crush type incident, from which the Applicant was able to remove her right foot. Further the nature and extent of the resulting injury was clearly detailed at the time and, following a short period, the Applicant was cleared to attend work on full duty in late March 1993. What happened thereafter has been clearly and consistently documented, with the Applicant’s symptomatology being documented over time.
51. While the Respondent may contend that the Applicant has made the original injury out as a more significant injury, the Tribunal contends that the clinical records before the Tribunal do not bear out such a contention. More so, while clinicians reporting on the issue some years later may use terms such as a significant crush injury, this is a matter of their interpretation, and not necessarily can it be imputed to the Applicant. In so stating the Tribunal observes the relative consistency (with exceptions) of clinical history given by the Applicant over the 10 years to various clinicians and any inference as to the significance of the nature of the original injury must rest with each clinician.
52. Similarly, the Tribunal also notes some minor discrepancies in the clinical history recorded by Doctors Wallace and Lam as regards a fall occurring two weeks after returning to work in 1993. That this is inconsistent with the clinical history as detailed before the Tribunal is a matter of record, from which the Tribunal draws no adverse inference as regards the Applicant’s reliability as a witness. In so stating it is clearly inconsistent with what the Applicant told the Tribunal, with the error resting perhaps with the recording doctor or alternatively the Applicant may have been confused.
53. More importantly is the contention argued by the Respondent that the Applicant’s complaints or difficulties with the right big toe issue are not borne out by the relative infrequency with which such complaints are recorded over a 10 year period while she was a patient of the Blue Cross Medical Centre between June 1994 and June 2004. The Respondent noted a period of some four years between February 1997 and January 2001 where no such notation of problems with the right foot is recorded, and indeed the attendance in January 2001 related to a further injury.
54. In seeking an understanding of an absence of such recorded comments in the clinical notes, the Tribunal is mindful that the right big toe issue was mentioned on at least 12 occasions over the 10 year period during which the Applicant attended on more than 200 occasions; that there was a note recorded in January 1998 that the Applicant was a chronic user of Panadeine Forte and that her husband, who accompanied her on her many visits to the clinics, believes she mentioned the right big toe problem on every four to five occasions.
55. The Tribunal concludes that in such circumstances the likely causes were an under recording, an under reporting by an individual with a chronic problem or a mixture of both. In such circumstances, and in the light of the Applicant’s evidence that her condition has been much the same over the past 10 years, the Tribunal, mindful that the clinical notes record multiple complaints, finds that on the balance of probabilities the more likely is that the absence of notation is a consequence of under reporting.
56. Further, the Respondent contends that the Applicant only commenced complaining about difficulties with stairs and grades after her claim for permanent impairment was denied in July 1996, and after she had been made aware of the reasons for the denial.
57. The Tribunal, having noted the clinical history and the Applicant’s admission that in 1996 she became aware of the Comcare Guide table relevant to her claim, accepts that, on the face of the evidence there is a change in the Applicant’s symptomatology post 1996. In so stating the Tribunal notes an absence of the Applicant experiencing difficulty with stairs and inclines prior to the first claim being submitted in December 1995. Further, the Tribunal notes the more positive recording by Dr Deveridge in 1995 that the Applicant has no difficulty with stairs and inclines.
58. The Tribunal further notes that the Applicant is recorded as complaining of difficulty with steep steps on 21 June 2001 (Blue Cross Records), a complaint made earlier to Dr Lawson (May 2001) and later to Dr Millar (September 2002), to Dr Maxwell (going down stairs) (September 2003), Dr Lam (March 2004), and Dr Wallace (April 2004).
59. The Tribunal observes that there is an inconsistency between the Applicant’s evidence that her condition has remained much the same since 1994 and the clear variations in symptoms occurring in mid 2001, in so far as they relate to her ability to cope with stairs and inclines.
60. As a further notation the Tribunal observes a variation in what various clinicians record as to what domestic activities the Applicant can undertake, and as to what domestic activities her husband states he undertakes. But on this occasion the Tribunal believes this may just be a matter of degree and not of great significance. Finally the Tribunal would record that despite her apparent constant pain symptomatology, the Applicant continued to work, with minimal days off because of pain in the right big toe until 2003, when she was made redundant.
61. In summary, the Tribunal having detailed the issues raised concludes that the Applicant has detailed her clinical history, with some variation, consistently over a 10 year period. In this regard the Tribunal considers the Applicant a reliable witness on most events and issues.
62. As regards the issue of consistency of grades and steps, the Tribunal notes the evidence as presented by the Applicant. The Tribunal has particular concerns about the reliability of this evidence in the year 2001, some eight years after the primary incident. Further, the Tribunal notes that inquiry had been made by Dr Deveridge in 1995 about such matters and a negative response recorded. Thirdly, the Tribunal accepts the evidence of the Applicant and her husband that the condition has been much the same for the last 10 years. On balance of probabilities and for the reasons nominated the Tribunal does not accept the Applicant’s evidence and that of her husband in relation to the issue of grades and steps in addressing the issue of diagnosis and assessment in this matter.
63. The Tribunal notes the clinical history of the Applicant as detailed by herself and by the many clinicians over a 10 year period. The Tribunal observes that the dominant feature of her symptoms is pain in the right big toes with various foot and lower right leg symptoms of pain. The Tribunal notes the many clinical examinations and investigations of the right big toe and foot undertaken over a 10 year period, and apart from a bone scan examination in 1994 and the recording on two occasions of altered sensation of a non-dermatonal distribution, the significant remainder of the clinical evidence details a right big toe with a full range of movement and an absence of any demonstrable pathology which could provide explanation for the pain.
64. The Tribunal further notes the various diagnosis suggested in this matter, which include bony exostosis (Dr Kirsh), no organic basis (Dr Vote), mild sympathetic reflex dystrophy (Dr McLean – bone scan), causalgia (Dr Bertilino), need to exclude a spinal cause of pain (Dr Bodel), reflex sympathetic dystrophy (Dr Deveridge) degenerative osteo arthritis (Dr Lawson), chronic regional pain syndrome (Dr Millar), not confident that diagnosis was reflex sympathetic dystrophy (Dr Giannapoulous), no pathological condition presenting her walking up and down steps and/or grades (Dr Maxwell), neuropathetic pain (Dr Negrine), mild chronic regional pain syndrome (Dr Lam), causalgia right big toe in oral evidence (Dr McGill) and neuropathetic pain right foot (Dr Wallace in oral evidence).
65. From such an array of diagnostic opinion, the Tribunal concludes that on balance of probabilities in this matter the only diagnosis that can be made is one of chronic pain affecting the right big toe which is simply a reflection of the Applicant’s symptomatology over a 10 year period.
66. In concluding that the Applicant’s pain symptomatology is best termed chronic pain, the Tribunal further recognises and finds that this is a morbid condition and further that, pursuant to section 4, this is an ailment which, within the terms of the definition of disease, may be a disease for the purposes of the Act if the ailment or an aggravation of the ailment was contributed to in a material degree by the employee’s employment.
67. In considering the latter it is evident to the Tribunal that the Applicant’s clinical history points to a continuing history of pain since the original incident, with a period of some five months in 1993 when there appeared to be significant amelioration of pain symptomatology, and from 1997 to 2001, a significant underreporting of pain symptomatology in the clinical records of the Blue Cross Medical Centre. The Tribunal also observes a number of conditions which appear in the clinical record over time and these include obesity, depression, and pregnancy and a further injury into the right big toe. As to what part such conditions play, if any, in the clinical picture has been explored but briefly in some clinician reports.
68. The Tribunal further notes that the Applicant was able to continue working during the period 1994 to 2003 apart from maternity leave, sick leave for other ailments and a minimal amount of sick leave/compensation leave for the right big toe pain condition, apart from a further injury to the toe in 2001.
69. The Tribunal notes that Dr Vote considered there was no organic basis for the pain; Dr Bodel was concerned that pain may have had a spinal origin; Dr Giannopoulos was uncertain as to the aetiology of the Applicant’s chronic pain, Doctors Magill and Maxwell conclude that there is no ongoing pain described relating to the original injury in 1993, while the Tribunal infers from Dr Wallace’s report and further more directly in his oral evidence that the 1993 work incident was the cause of the continuing pain, as does Dr Millar. The Tribunal notes Dr Lawson’s opinion in 2001 that the pain arises from an evolving osteoarthritis as a consequence of the original incident in 1993. Dr Deveridge considered in 1995 that the continuing symptomatology was a consequence of the 1993 incident. The Tribunal notes that Dr Lam and Dr Negrine do not appear to have addressed the issue of whether the Applicant’s continuing symptomatology was related to the 1993 incident.
70. In assessing such opinion, the Tribunal rejects the opinion of Dr Lawson, as it is evident from subsequent clinical investigation (MRI) that the Applicant does not have osteoarthritis in the right big toe. In such circumstances, the logic of Dr Lawson’s reasoning is rejected by the Tribunal. Further, and for similar reasoning, those opinions founded on a diagnosis of reflex sympathetic dystrophy must remain questionable, as the Tribunal has rejected that diagnosis on balance of the probabilities.
71. While all clinicians appear to accept that the Applicant continues to experience pain in the right big toe with further involvement of the right foot and lower right shin, the Tribunal notes that such symptomatology exists without any demonstrable organic pathology in the right big toe or foot, despite extensive investigation and clinical appraisal over a 10 year period. Further, the reporting of the pain symptomatology would appear to be a complaint that either has been under-reported or under-recorded in the clinical notes of attending general practitioners over a 10 year period. This is a period in which the Applicant would appear to have visited the same medical practitioners on some 200 plus occasions for a variety of clinical conditions (depression, pregnancy, injury, infections etc). It is from this background of evidence and a careful appraisal of the clinical opinion that the Tribunal concluded that the Applicant has a chronic pain condition.
72. Further the Tribunal concludes that, on the balance of probabilities, this chronic pain condition is not related to the original workplace injury in 1993. In so finding the Tribunal, having been particular in detailing the opinions of the many clinicians and the clinical circumstances against which such opinions have been given, prefers the opinions of Doctors McGill, Maxwell and Vote. It is these opinions which the Tribunal concludes better reflect the clinical circumstances and findings in this matter, and in particular the absence of any organic pathology in the right toe and right foot and the under-reporting and/or under-recording of pain records of the Blue Cross Medical Centre. The Tribunal also observes that other conditions (depression, obesity, other injury) suffered by the Applicant during this period may have further complicated the clinical picture. The Tribunal notes that the Applicant was able to continue working during the period 1994 to 2003, apart from maternity leave on two occasions and with minimal time off on account of the right toe pain (a further event occurred in 2001).
73. The Tribunal notes that Doctors McGill and Maxwell conclude that there is no ongoing disorder relating to the original injury in 1993, while the Tribunal infers from Dr Wallace’s opinion the opposite. In considering Dr Lam’s and Dr Negrine’s report, the Tribunal would conclude from such reports that neither have addressed such a question. The Tribunal notes that Dr Giannapoulous was uncertain as to the aetiology of the Applicant’s chronic pain syndrome in his report of 25 August 2003; that Dr Millar in his report 26 September 2002 considers that the Applicant’s nine year chronic pain is a result of the work injury in 1993; Dr Lawson, in his report of 9 May 2001, believes the Applicant’s degenerative osteoarthritis can be related to the work injury in 1993.
74. While the Tribunal has difficulty with Dr Lawson’s opinion in that there is no clinical or radiological evidence of osteoarthritis in the right big toe, the Tribunal accepts that the clinical evidence before the Tribunal indicates a continuing history of pain symptomatology experienced by the Applicant over 10 years. In relation to the latter, the Tribunal observes that the Applicant consulted the Blue Cross Medical Centre practitioners over 200 times in that 10 year period, and while reporting and having recorded a variety of conditions, including seasonal illnesses, depression, migraine, other injuries, pregnancy etc, reference to the right big toe occurs in approximately 12 occasions, one of which was a new injury in 2001.
75. The Tribunal acknowledges that both Doctors Wallace and Millar point to the possibility that the Applicant’s chronic pain syndrome is a consequence of the 1993 work incident. The Tribunal however is left with little if any appreciation of the clinical reasoning as to how the purported relationship with the 1993 incident is sustained, particularly in the light of absence of any organic pathology in the right great toe and other issues raised in the previous few paragraphs.
76. In summary the Tribunal concludes the Applicant suffers from a morbid condition of chronic pain in the right big toe which can be considered to be an ailment. The Tribunal has concluded on the balance of probabilities that the condition of chronic pain has not been established to be either an ailment and/or the aggravation of such ailment that was contributed to in a material degree by her employment with the Respondent. As a consequence the claim for compensation for permanent impairment by the Applicant must fail.
77. The Tribunal would also observe that had the above finding been the opposite, namely a work contribution, the two issues that remained to be determined are whether the chronic pain was an impairment in terms of the definition of impairment within the Act, particularly in the absence of any organic pathology in the right big toe. While much robust consideration could be given to such an issue the Tribunal has already indicated that it does not accept the evidence of the Applicant and her husband in relation to the evidence of negotiating stairs and inclines. In such circumstances, even where a permanent impairment was found to exist and that permanent impairment was a pain related limitation of movement of the right big toe, the Tribunal would conclude that an assessment of such an impairment would be less than a 10 per cent whole person impairment pursuant to Table 9.5 of the Comcare Guide. Such a finding is of course made in the absence of evidence of difficulty with grades and steps, with the Tribunal not accepting on the balance of probabilities such evidence as reliable. Again in such circumstances the Applicant’s claim would not be successful.
DETERMINATION
78. The Tribunal affirms the decision under review.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: A. Krilis
AssociateDate/s of Hearing 7 & 8 October 2004
Date of Decision 1 December 2004
Solicitor for the Applicant Mr Paul Ohm, Carroll and O’Dea
Solicitor for the Respondent Mr Michael Poulos, Australian Government Solicitor
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