Spasojevic and Comcare

[2005] AATA 303

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 303

ADMINISTRATIVE APPEALS TRIBUNAL      )

)         No N2003/1611
  )               N2004/1476

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARIA SPASOJEVIC

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr PD Lynch, Member

Date7 April 2005

PlaceSydney

Decision The decision under review is affirmed.

.........................................

Ms N Bell

Presiding Member

COMPENSATION - reflex sympathetic dystrophy – Applicant does not continue to suffer from condition – Applicant was entitled to compensation

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

April 2005 Ms N Bell, Senior Member
Dr PD Lynch, Member       

1.      Mrs Spasojevic, now aged 60 years, made a claim for ankle pain in October 2002.  She had injured her ankle while working as a hospital assistant at Concord Repatriation Hospital in June 1993 and she considered that her current pain was linked to that injury for which liability had been accepted.  Between the time of this incident and the date of claim Mrs Spasojevic injured her back in 1997 and currently receives weekly compensation payments from the State insurer, GIO, for total incapacity under the State workers compensation scheme.

2.      Comcare took the view that the effects of Mrs Spasojevic’s ankle pain had ceased and, in any event, were not linked to her 1993 injury.  Comcare also decided to reject Mrs Spasojevic’s claim for 20% permanent impairment of her right ankle.

3. There is general agreement amongst Mrs Spasojevic’s treating medical practitioners that in 2002 she suffered from Reflex Sympathetic Dystrophy (“RSD”). However, there is some dispute as to whether that condition has resolved. If we find that the condition continues, then we must consider whether the condition is due to her work at the Hospital, either by virtue of her 1993 ankle injury or otherwise. If we so find then we must consider whether she has a permanent impairment within the meaning of section 24 of the Safety, Rehabilitation and Compensation Act 1988 and, if so, assess any impairment accordingly.

does mrs spasojevic continue to suffer from reflex sympathetic dystrophy?

4.      Mrs Spasojevic said that in early 2002 her ankle became swollen, she had constant pain which woke her at night and she couldn’t walk or limped.  She consulted Dr Fung, her general practitioner, who referred her for x-ray and to Dr Kanangara, Rheumatologist, who referred her for a bone scan, prescribed an orthotic insert and also referred her to the Concord Hospital Pain Clinic where she was under the care of Dr Hong, Pain Management Specialist.  She last saw Dr Kanangara in December 2002.  Dr Hong administered intravenous Guanethidine blocks to Mrs Spasojevic’s right leg in October and November of 2002.  Dr Hong also prescribed Celebrex, Neurontin and Doxepin.

5.      Mrs Spasojevic initially said she experienced a slight improvement in her condition after the blocks but later conceded experiencing an improvement of approximately 50% after the second block.  She said Dr Hong decreased her dose of Neurontin from 600mg to 100mg and Mrs Spasojevic considers that her symptoms were less troubling when she was taking the larger dose.  Mrs Spasojevic last saw Dr Hong in November 2004 and will not see her again until the end of 2005.

6.      Mrs Spasojevic said her current symptoms are such that if she does nothing in a day she can manage slopes and stairs with less pain but almost always has problems with slopes and stairs.  She said that on a good day she can walk for 15 to 30 minutes but on a bad day she sits or lies down for most of the day.  She noted that four out of seven days are usually bad days.

7.      Mrs Spasojevic agreed that by 2002 she had gained a lot of weight.  She also agreed that her back condition makes walking difficult, with pain radiating down both her legs, the left being worse than the right.

8.      Dr B Trevitt, Orthopaedic Surgeon, who had treated Mrs Spasojevic when she injured her ankle in 1993, examined Mrs Spasojevic again in December 2002 and found her symptoms and clinical findings to be consistent with soft tissue degenerative changes in her right ankle and to the back of her foot.  He found no evidence of RSD or of any injury.  He considered the loss of feeling in her foot to be unrelated to any orthopaedic condition or any injury suffered 9 years previously.

9.      Dr Kanagara, in his report of November 2002, said he had first seen Mrs Spasojevic in April 2002 and found she had a swollen right foot with clinical evidence of RSD with Sudeck’s atrophy.  He said this was confirmed on a bone scan and she was referred to the Pain Clinic.  Dr Kanangara said when he saw Mrs Spasojevic again in November 2002, she had “minimal discomfort but clinically she is completely cured of the condition”.  He noted that she is on medication prescribed by Dr Hong but clinically she is fit to do “as much work as necessary” and was advised to do a lot of exercise to keep the symptoms away.  Dr Kanangara also wrote in November 2002 to Dr Fernando, another general practitioner attended by Mrs Spasojevic, advising that Mrs Spasojevic had some discomfort but clinically had no swelling.  He also wrote that he told Mrs Spasojevic that the condition, when treated, has a complete success rate but commented that she is nervous and “will talk her way into getting more medications”.  He has also told her that the condition is cured and she should start living normally although there may be a “minute amount of discomfort in the ankle”.

10.     Dr Hong recorded, on 4 December 2002, that “clinically, reflex sympathetic dystrophy is in remission” but noted that she still requires ongoing rehabilitation.  On 13 February 2003 Dr Hong noted that Mrs Spasojevic had had experienced some pain over the last 3 days but had not taken any Celebrex.  She also noted that on examination there was no sign of RSD.  On 15 May 2003 she noted “Certainly she is now better and does not exhibit evidence of reflex sympathetic dystrophy …However, her treatment is by no means complete”.  On 17 July 2003 Dr Hong noted “Clinically, the right foot is non tender and there is no sign of reflex sympathetic dystrophy”.  She did, however, prescribe 300mg of Neurontin.

11.     Professor Sambrook, Rheumatologist, confirmed his reports of 2 March 2004 and 16 April 2004.  In the first of these reports he had diagnosed Mrs Spasojevic’s condition as either RSD or post-traumatic arthritis.  In his oral evidence to the Tribunal he noted that the bone scan performed and reported on by Dr Allman in September 2002 showed increased blood flow, indicating inflammation, and increased uptake into the bone which, in his view, indicated an acute injury that has since resolved (over some 6 to 9 months).  Professor Sambrook considered, on the basis of Mrs Spasojevic’s reporting of her symptoms, that the condition remained current.  He drew support for this from the continuing treatment by Dr Hong.

12.     Dr McGill, in his first report of 12 January 2004, said that Mrs Spasojevic had suffered RSD in 2002 but that condition had resolved by the end of 2002, based on the report of Dr Kanangara.  He said when he saw Mrs Spasojevic in January 2004 there was no sign of RSD.

13.     Mr Grey, for Mrs Spasojevic, submitted that the views of Drs McGill, Trevitt and Kanangara that Mrs Spasojevic’s RSD had resolved by the end of 2002 and Dr Hong’s view that she had no signs of RSD soon after that time should be considered in the light of the relief obtained by Mrs Spasojevic from the two blocks that closely preceded their examinations.  He also submitted that it is significant that in July 2003 Dr Hong was still prescribing Neurontin and indicated a review in 3 months and noted that Mrs Spasojevic saw Dr Hong on 3 occasions in 2004.

14. We are not persuaded by this. All medical evidence, with the exception of Professor Sambrook, supports the view that Mrs Spasojevic’s RSD had resolved by the end of 2002 or shortly thereafter. Dr Hong’s continuing treatment of Mrs Spasojevic is evidence only of continuing treatment and not, in the face of her reports of an absence of signs, evidence of a continuing condition. We are mindful of Mrs Spasojevic’s evidence of continuing discomfort but found her to have a tendency to exaggerate her symptoms, given her reports of improvement to her treating doctors. It follows that we consider that by late 2002 or early 2003 Mrs Spasojevic no longer suffered from RSD. It also follows that she has no permanent impairment within the meaning of section 24 of the Act.

was mrs spasojevic entitled to compensation?

15.     The matter could end here.  However, the decision under review, in respect of liability, is that as at 5 May 2003 Mrs Spasojevic is no longer entitled to compensation under various provisions of the Act, in respect of swollen capsule of the right ankle.  This begs the question of whether she was ever entitled to compensation.

16.     There is support from Dr Kanangara, a treating doctor, for the view that Mrs Spasojevic’s RSD is linked to her 1993 ankle injury for which liability was accepted.  Professor Sambrook also supported this link.  He conceded that the problem with the hypothesis that Mrs Spasojevic’s RSD arises from her ankle injury is the length of time from the injury in 1993 to the onset of RSD in 2002, but that in the absence of a history of another injury and with a history of low grade pain since 1993, that is the best available answer.  He conceded that it would be unusual for an injury to be triggered in 1993, go away and then come back again 9 years later.   While he raised the possibility of post traumatic arthritis, he said Mrs Spasojevic’s response to blocks and Neurontin suggests that her condition is less likely to be post-traumatic arthritis which responds less well to that treatment.

17.     However, even if we concluded, as urged by Comcare, that Mrs Spasojevic’s RSD or ankle pain in 2002 was unrelated to her 1993 injury (and we note this view is supported by the evidence of all doctors but Dr Kanangara and Professor Sambrook), that does not provide a complete answer to the question of whether her 2002 condition was caused or contributed to by her employment.

18.     Dr McGill ventured the opinion that the injury or insult that may have triggered Mrs Spasojevic’s RSD was tibialis posterior tendonitis or, indeed, that it was some response to her compensation issues concerning her back injury, another condition.   Dr Davis, Consultant in Occupational Medicine, in his report of 21 January 2005, stated there is evidence of post traumatic arthritic changes resulting from the 1993 injury and raised the possibility that she suffers from a thickening of the joint capsule.

19.     We are inclined to leave the reviewable decision undisturbed, given the support, by Dr Kanangara, Mrs Spasojevic’s treating specialist, for a link between the 1993 injury and her RSD in 2002 and the possible alternative precipitators suggested by Dr McGill and Dr Davis.

Decision

20.     The decision under review is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, and Dr PD. Lynch, Member.

Signed:         ..........[Linda Blue]......................................
  Associate

Dates of Hearing  7 & 8 March 2005
Date of Decision  7 April 2005
Counsel for the Applicant         Mr L. Grey
Solicitor for the Applicant          Mr T. Mannah
Counsel for the Respondent     Mr N. Polin
Solicitor for the Respondent     Ms S. Johnson