Springhetti and Comcare
[2007] AATA 1504
•4 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1504
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600028
GENERAL ADMINISTRATIVE DIVISION ) & S 200600029 Re PAULETTE SPRINGHETTI Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member L Hastwell
Professor P Reilly AO (Member)Date4 July 2007
PlaceAdelaide
Decision The Tribunal varies the determination of 11 January 2006 with respect to the applicant's coccygeal injury and sets aside the determination of 11 January 2006 with respect to the applicant's psychiatric injury.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
COMPENSATION – Commonwealth employees – suspected fracture of the sacrum and coccyx – coccyxdinia – liability accepted for initial injury – degree of permanent impairment under the Guide to the Assessment of the Degree of Permanent Impairment – back pain – loss of spinal movement – what is normal range of movement – other factors influencing range of movement such as age and physique – ability to walk distances and deal with steps and grades – inconsistent medical evidence – two separate impairments from one injury – impairments each to be assessed under relevant table – decision varied
COMPENSATION – Commonwealth employees – depression – disease – minor loss of personal and social efficiency – forgetfulness – lapses in concentration – social withdrawal –pre-occupation with events that gave rise to initial injury – 10 percent impairment – decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24, 28(4)
Canute v Comcare (2006) 91 ALD 552
Comcare v Fiedler (2001) 115 FCR 328
Comcare v Moon (2003) 75 ALD 160
Re Mahne and Comcare [2004] AATA 985
Re Staines and Comcare [2005] AATA 858
Re D’Costa and Comcare (2004) 83 ALD 475
Re O’Maley and Comcare (1997) 48 ALD 300
Re Bergersen and Comcare [2007] AATA 1373
Re Canute and Comcare [2004] AATA 627
Re Dwight and Comcare [2006] AATA 730REASONS FOR DECISION
4 July 2007 Senior Member L Hastwell
Professor P Reilly AO (Member)1. There are two applications for review before this Tribunal. The first relates to a claim by Paulette Springhetti (the applicant) that she has suffered a permanent impairment arising out of a suspected fracture of the sacrum and coccyx on 16 August 2001. Liability for the initial injury was accepted by the respondent (Comcare). The reviewable determination rejecting liability for permanent impairment is dated 11 January 2006.
2. The second application relates to a claim by the applicant that she has suffered a permanent impairment arising out of a reactive depression/adjustment disorder for which Comcare accepted liability. The reactive depression/adjustment disorder for which liability was accepted is said to have occurred on various occasions from 25 August 1988 through to 2 March 1994. The reviewable determination rejecting liability for permanent impairment is dated 11 January 2006.
legislation
3. Both claims arise under the Safety, Rehabilitation and Compensation Act 1988 (the Act).
4. Section 14 of the Act provides for the payment of compensation to Commonwealth employees in certain circumstances. Section 14(1) provides:
“14(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
5. “Injury” is defined in s 4 of the Act as follows:
“injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
6. “Disease” is defined in s 4 of the Act as follows:
“disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
7. “Impairment” is defined in s 4 of the Act as follows:
“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.”
8. Section 24 of the Act provides for compensation for injuries resulting in permanent impairment in the following terms:
“24(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(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 when determining whether or not the impairment is permanent
(d) any other relevant matters.
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
…”
9. The degree of permanent impairment is assessed by reference to the Guide to the Assessment of the Degree of Permanent Impairment (the Guide). Section 28(4) of the Act provides that when reviewing an assessment of permanent impairment the Tribunal is bound by the Guide.
10. The relevant tables for the Tribunal’s consideration with respect to the back condition from which the applicant suffers are Tables 9.5 and 9.6 of the Guide. Table 9.5 provides:
%
Description of level of impairment
10
Can rise to standing position and walk BUT has difficulty with grades and steps
20
Can rise to standing position and walk but has difficulty with grades, steps and distances
30
Can rise to standing position and walk with difficulty BUT is limited to level surfaces
50
Can rise to standing position and maintain it with difficulty BUT cannot walk
65
Cannot stand or walk
Table 9.6 provides:
%
Description of level of impairment
Cervical Spine
Thoraco-lumber spine
0
X-ray changes only
X-ray changes only
5
Minor restrictions of movement
Minor restrictions of movement
OR
Crush fracture - compression 25-50 percent
10
Loss of half normal range of movement
Loss of less than half normal range of movement
OR
Crush fracture - compression greater than 50 percent
15
Loss of more than half normal range of movement
Loss of half normal range of movement
20
Complete loss of movement
Loss of more than half normal range of movement
30
-
Complete loss of movement
11. The relevant table with respect to the applicant’s psychiatric impairment is Table 5.1 which provides for the assessment of psychiatric conditions. The relevant portions of that table for the purposes of this case are as follows:
% WPI
Description of level of impairment
0
Reactions to stressors of daily living without loss of personal or social efficiency; and
Capable of performing Activities of Daily Living without supervision or assistance.
5
Despite the presence of one of the following employee is capable of performing the Activities of Daily Living without supervision or assistance:
· reactions to stressors of daily living with minor loss of personal or social efficiency;
· lack of conscience directed behaviour without harm to community or self;
· minor distortions of thinking.
10
Despite the presence of more than one of the following employee is capable of performing Activities of Daily Living without supervision or assistance:
· reactions to stressors of daily living with minor loss of personal or social efficiency;
· lack of conscience directed behaviour without harm to community or self;
· minor distortions of thinking.
15
Any ONE of the following accompanied by a need for some supervision and direction in activities of daily living:
· reactions to stressors of daily living which cause modification of daily patterns;
· marked disturbance in thinking;
· definite disturbance in behaviour.
20
ANY TWO of the following accompanied by a need for some supervision and direction in activities of daily living:
· reactions to stressors of daily living which cause modification of daily living patterns;
· marked disturbance in thinking;
· definite disturbance in behaviour.
issues
12. The issues to be determined are:
·Has the applicant suffered a permanent impairment as a result of the injury to her lower back on 16 August 2001, and if so, what is the percentage of that impairment using the relevant tables?
·Can the applicant have separate impairments arising from the one injury (in this case the back injury) that can be assessed under different tables of the Guide?
·Has the applicant suffered a permanent impairment consequent upon the psychiatric condition for which she received compensation, and if so, what is the percentage of that impairment using the relevant table?
the hearing
13. Both parties were represented by counsel. The applicant gave evidence on her own behalf. Doctors Gehan, Fantasia and Guirguis were called to give evidence for the applicant. Comcare called Dr Tschirn and Dr Tottman to give evidence.
14. The documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were received into evidence as Exhibit R1. A number of other exhibits were received into evidence and will be referred to where relevant.
15. The applicant adopted her statement (Exhibit A3) as part of her evidence.
16. The applicant was 66 years of age at the time of the hearing. She was an employee in the Commonwealth public sector from 1984 until she accepted a voluntary redundancy package in October 2002. She has not worked since that time. Her duties with the Commonwealth were as a transcription typist.
17. She sustained injuries to her back on a number of occasions during her employment with the Commonwealth. She also suffered a psychiatric injury in the course of her employment. The Commonwealth accepted liability for each of the injuries. The issue to be determined by the Tribunal is that of her level of permanent impairment arising from her most recent back injury and from her psychiatric injury.
18. The injuries are described in the applicant’s statement (Exhibit A3). She suffered a number of compensable injuries prior to the two particular injuries that she says gave rise to her impairments. She fell on her way to work in 1988 as a result of which she suffered from pain in her lower back which radiated into her buttock. On that occasion she was unable to return to work for three to four weeks after the injury and continued to suffer from intermittent back pain for some time after the fall.
19. In that same year she was in a lift which malfunctioned. The lift dropped from the fifth floor to the basement, hitting springs and bouncing as it stopped. The applicant alleges that her back pain worsened after that event. At that time she suffered restrictions in sitting as a result of the back injury. Nevertheless, the back symptoms gradually settled and she was able to resume normal and unrestricted work duties by approximately mid-1989. She was careful with her back thereafter and would avoid heavy lifting.
20. She describes three more incidents involving her back in paragraphs 10, 27 and 28 of her statement. Immediately prior to the injury of 16 August 2001 she describes her lower back as being “good”. She says that she had learned to be careful about her back. She occasionally experienced backache and so she avoided heavy lifting and digging. Nevertheless, she was able to walk every day and she could sit and stand without restriction. If she sat for very long periods of time her back would become stiff and uncomfortable. She could mow the lawn and attend to her garden. She had not required any time off work for treatment during the intervening period and she considered herself completely recovered from any back problems that may have arisen out of the earlier incidents.
21. The incident of 16 August 2001 is described at paragraph 30 of her statement. She was travelling home from work and upon alighting from a bus she slipped on a wet concrete path and fell backwards, landing heavily on her buttocks. Her understanding is that she suffered a fracture of her coccyx at the time, although it became clear in the course of evidence that she sustained a suspected fracture which has never been definitely confirmed. Comcare raises no issue with the fact that she sustained an injury as a result of which she was incapacitated for a period of time and Comcare accepted liability for that particular injury.
22. After the injury to her coccyx, she describes suffering significant throbbing pain in her lower back for a period of time and she did not return to work for a number of weeks. It is this injury that she asserts is the cause of the permanent back impairment for which she now seeks compensation under two separate tables of the Guide.
23. She described the pain that she immediately experienced at the time of the fall as “excruciating”. It was treated with physiotherapy and pain relieving medication.
24. She returned to modified duties in October 2001, but she continued to experience ongoing problems arising out of this injury. Paragraphs 39 onwards of her statement detail the difficulties she continues to experience that she relates directly to this injury, and which she asserts to be the basis of a permanent impairment.
25. A summary of her complaints is as follows:
·the back pain is aggravated by sitting for longer than 20 or 30 minutes in her own chair;
·she experiences difficulty changing from a sitting to a standing position;
·she is unable to travel on a bus because of aggravation of the pain;
·she has difficulty with walking distances;
·she has difficulty in using stairs;
·she suffers a throbbing pain in the coccyx that can interfere with her sleeping;
·she suffers aggravation of coccygeal pain after 10 minutes of standing;
·she has difficulty in carrying out household tasks; and
·she has restricted back movement.
26. The applicant also alleges ongoing impairment arising from a compensable psychiatric injury that occurred between 1988 and 1994. Her statement outlines the circumstances of the original injury and details the ongoing impairment that she continues to suffer and which she believes is consequent upon the original psychiatric injury. She claims to continue to experience the following symptoms as a result of the injury:
·she has difficulties with concentration;
·she has difficulty dealing with groups of people;
·she has difficulty with noise such that if there is a lot of noise in a social situation her ears block and she cannot concentrate on what people are saying;
·she does not drive because of concentration problems and has not done so since 1995;
·she lacks confidence when dealing with people;
·she has memory difficulties;
·she has become more socially withdrawn;
·she has difficulty building friendships and she finds that she does not trust people; and
·she has feelings of depression and still thinks about the incidents that occurred in the course of her employment that originally caused the psychiatric injury.
27. In her statement (Exhibit A3) she refers to other health problems that she has experienced since retirement. She has had bilateral breast cancer. The cancers were diagnosed at different times between 2004 and 2006. She underwent chemotherapy and radiotherapy for a lengthy period and has had two partial mastectomies. Paragraphs 33 and 34 of her statement deal with that issue.
28. When cross-examined with respect to the effect of the diagnosis of breast cancer on her outlook, she was adamant that these experiences had not impacted on her mental health. She says that the medication that she continues to take for the cancer has side effects of hot flushes and sweating. She has not taken medication for depression since the mid-1990s nor has she sought psychiatric treatment since that time.
29. The applicant described herself as being 5' 6" in height and weighing 98 kg. Her weight has increased by 3 to 4 kg since the incident in 2001. The pain that she currently suffers is in the lower back on the right affecting both legs. She indicated pain in the right sacroiliac region, in the top right buttock and to the mid-range of her spine. She also claims to suffer periodic tingling in her three middle toes. She has not consulted her general practitioner with respect to back issues since 2002 other than to ask him to fill in the medical section of her claim form. She has not had physiotherapy or chiropractic treatment for the last four years as she does not find it beneficial.
30. When questioned about her ability to bend over and pick something up from the ground, she demonstrated to the Tribunal that with her legs a reasonable distance apart and bracing herself against the witness box with one hand, she could pick an object up from the ground without bending her knees.
31. She described her back condition as being stable. She tries to walk on most days. On a good day she can walk 700 metres without a break. Her usual route is a 1.4 km round trip. She breaks this trip at a local café. She tries to do this walk once or twice a week and she walks at least some distance most days. She still enjoys some gardening.
32. She and her husband own a quarter acre block. She does some weeding using a kneeler. She also does some light pruning in the garden and sprays the roses with a hand spray. Her husband gives her some assistance with housework. He has been retired for some years.
33. She was asked about what transpired when she attended upon the rooms of Dr Tschirn for an appointment on 22 August 2005. She commented that when her back is “out” she cannot bend at all. She said that her back was not out on the day that she saw Dr Tschirn. She disputed aspects of Dr Tschirn's report. She was surprised that she had climbed 35 stairs on the day in question and had thought it was more like 24 steps. Contrary to his report, she said that she could not climb stairs comfortably and that she would always use the hand rail to help her up the stairs. She said that her natural posture is to lean forwards.
34. She attributes her forgetfulness and difficulty in communicating with people and her inability to drive anymore to the reactive depression/adjustment disorder she suffered in 1994. She rejected the possibility of there being any other causative factors to her forgetfulness, for example the side effects of her medication for cancer.
the medical evidence with respect to the psychiatric condition
35. Doctors Gehan and Tottman agreed that under Table 5.1 of the Guide, the applicant had a 5 percent impairment in that she reacted to the stresses of daily living with a minor loss of personal efficiency. This impairment was consequent upon the adjustment disorder that she had sustained in the course of her employment. The debate between the psychiatrists centred on whether she also suffered from minor distortions of thinking. To achieve a 10 percent impairment under the relevant table, the applicant must also establish that she suffers from “minor distortions of thinking” or a “lack of conscious directed behaviour without harm to community or self” (Table 5.1). It was common ground that she did not suffer from the latter symptom.
36. The applicant's initial claim for compensation for depression/anxiety condition was lodged in March 1994, some weeks after she was handed a formal notice which alleged that she had not complied with a reasonable directive in the course of her employment. Her claim was eventually accepted in September 1994.
37. The medical evidence in the T documents included documents that related back to the period in the 1990s when her claim was being assessed.
38. A report of Dr Black dated 1 August 1994 (T17/53) confirms the diagnosis of reactive depression/anxiety depression and recommends ongoing psychiatric care and a change in her workplace situation. He expresses the opinion that her problems began in 1988 when she suffered the first injury to her back and was then shortly thereafter involved in the separate incidents involving malfunctioning lifts. He links the depression from which she was suffering at the time that he saw her to the various injuries that she had sustained in the course of the employment and to incidents of “an interpersonal nature” that had occurred in her employment since that time.
39. On 15 August 1994 Dr Edmonds, a medical adviser with the Australian Government Health Service, expressed the view (T18/64) that the applicant was fit to be at work and that her psychological condition had improved. By that time the applicant was working at the Federal Court and it was recommended that she not return to work at Auscript.
40. A report of Dr Schembri dated 11 November 1994 (T24/78) outlines the work related incidents and confirms the diagnosis that she had suffered from an adjustment disorder with a mixed mood. He considered her prognosis favourable and confirms that she should not be returned to work for Auscript. He expressed the view (T24/91):
“The prognosis is considered favourable. It is encouraging to note that the patient has responded so favourably to counselling and that she is coping quite well with alternative work. … the patient should not be returned to work for Auscript and one would hope that she would be provided with alternative employment in some other Department. If that were to happen, then she should make a good recovery and not be left with much residual disability.”
41. Dr Gehan gave evidence with respect to the applicant's psychiatric impairment. The applicant saw him on two occasions upon a referral from her solicitors for the specific purpose of a medico-legal report. The applicant has not had a counsellor or a treating psychiatrist and has had no formal psychiatric intervention since 1994.
42. A report of Dr Gehan dated 26 June 2006 was received into evidence as Exhibit A1. His report sets out a comprehensive history of the incidents that gave rise to the psychiatric injury. He expresses the opinion that the events at Auscript were the significant triggers for the applicant's adjustment disorder.
43. He is of the view that she does react to stresses of daily living with minor loss of personal and social efficiency and that this relates to the injuries sustained in the course of her employment and predated the breast cancer. He expressed the view that she also showed minor distortions of thinking. This involved a preoccupation with the events that occurred when she was at Auscript and an over-valuing of the events that occurred. He found a degree of disorganisation in her thinking process.
44. Dr Gehan described the applicant as having obsessive elements to her personality, which predisposed her to overvaluing the Auscript events. He had difficulty following her logical flow of thinking.
45. He acknowledged that other events in her life such as her husband's retirement, her age, the death of her mother, the diagnosis of breast cancer and the treatment for that illness may also have influenced her thinking.
46. Dr Tottman gave evidence for Comcare. He also saw the applicant specifically for a medico-legal report at the request of Comcare. His medical report was contained at T85/210. He adopted that report as part of his evidence.
47. In his report he expressed the following opinion:
“… Mrs Springhetti continues to have some social anxiety, some episodes of depressive feelings, which appear to be the remnants of an adjustment disorder due to work stressors from leaving her position at Auscript in March 1994. …
Her condition currently is still related to the situation leading up to March 1994. There is no pre-existing condition except Mrs Springhetti’s basic personality, which is that of rather obsessional traits needing to work effectively and well to maintain high standards but also to be appreciated for her effort and standard of her work and to be accepted as a person. …” [T85/215-216]
Further on in his report he comments:
“In relation to permanent impairment assessment, … she does have reactions to stressors of daily living with minor loss of personal and social efficiency as outlined in the body of my report. She does have social anxiety and there are some problems with insomnia, some degree of concentration problems and there is a sense of insecurity, lowered self-esteem. In relation to minor distortions of thinking it is difficult to know how to answer this. If one includes difficulty in concentration at times, … then the level of impairment would be ten percent in that she has the presence of more than one of the categories outlined by Comcare … .
If one accepts that complaints of ‘I can’t stand noise, my ears block up, I don’t know what people say, but it only lasts a short time, if I get away. I can not drive my motor vehicle any more. I have lost concentration’, that this constitutes minor distortions of thinking then in this case Mrs Springhetti has a ten percent level of impairment on a foreseeable permanent basis.
…” [T85/216]
48. In his oral evidence to the Tribunal Dr Tottman then expressed the view that the applicant did not suffer from minor distortions of thinking related to the psychiatric injury. He was also of the view that she had obsessional traits. He noted that she had a need to be over-inclusive in relating the events with respect to work. He agreed that she over-valued the events at Auscript, but he saw that as being a result of her seeing things from her own point of view and putting much more value on her own perception of events rather than it being a distortion of thinking. He considered her lack of concentration to be “an inability of thought” rather than a distortion of thought. He considered that a distortion of thought required some degree of illogicality - a dissonance between what was going on in the person’s head and actual reality.
49. He adopted the view that for there to be a distortion of thinking there needs to be some pathology in the process of thinking. When asked why he would not apply the word “distortion” to a situation where an individual’s thinking were consumed by one thought or one idea to the practical exclusion of other thoughts and ideas, he responded as follows:
“… there is a change in emotion that that person emotionally has become totally involved in that situation. Therefore, their thought processes follow that emotion. There may be nothing wrong with the thought processes except that the emotional drive to express that time and time and time again is a change in emotional attitude but not a distortion in thought process.”
50. Dr Fantasia, the applicant’s general practitioner, gave evidence to the Tribunal. His consultations with the applicant related largely to her back injury and then her subsequent diagnosis of breast cancer. He had completed the doctor’s portion of claims for compensation for the applicant and where he had commented as to psychiatric impairment, he had relied on the information provided to him by the applicant. There was no evidence of the applicant having any specific consultations with Dr Fantasia about psychological or emotional issues in recent years. There was also no evidence that she had regularly specifically consulted him with respect to issues of pain management.
the medical evidence with respect to her back condition
51. The applicant underwent x-rays on 23 August 2001 (Exhibit A4). Those x-rays showed slight spondylolistheses at L4-5 and L5-1. Degenerative changes in the lower lumbar spine were noted. The sacrum was thought to be intact. With respect to the coccyx, the following was noted in the x-ray report:
“… Slight posterior deviation of the 1st coccygeal segment noted in relation to the sacrum, possibly developmental or related to the recent injury. There is also a little cortical irregularity involving the antero-inferior aspect of the 1st coccygeal segment. This could possibly represent a minor fracture.”
52. Further x-rays were taken in August 2005 (T83/200). It was noted in that x-ray report “No bony deformity of the lower sacrum or coccyx has been demonstrated to indicate a previous displaced fracture”.
53. The Tribunal noted that as long ago as 1998 the applicant had attended the Adelaide Pain Management and Rehabilitation Clinic seeking acupuncture treatment for what was described as “chronic lumbar/sacral pain related to slipping near her bus stop whilst on her way to work on 1/7/86”. In 1995 the Seaton Physiotherapy Clinic wrote to her general practitioner, Dr Fantasia, and the following comment was made “Thanks for referring this pleasant lady who has quite a history it seems with her lumbar area”. She returned to the Seaton Physiotherapy Clinic for further treatment after the fall in August 2001 and in a report dated 30 May 2002 it is noted that her treatment had ceased, but that she continued to suffer ongoing right lumbar problems and coccygeal aches after her fall of 2001.
54. She did not have any specialist treatment immediately after the injury. She was seen by her general practitioner and sought assistance from physiotherapists. By November 2001, Dr Fantasia reported (T50/128):
“Her progress has been slow but steady and although she is still having discomfort related to her fractured coccyx she is slowly increasing her work hours.”
He anticipated that she would continue to recover and resume the use of public transport later in that year. In a report written shortly thereafter, Dr Fantasia suggested that there be an extension of her subsidy for transport arrangements until at least mid January 2002.
55. In October 2002 Dr Fantasia assessed the applicant as suffering 25 percent loss of function of her lumbar sacral spine and a 10 percent loss of function of her cervical spine arising out of the 2001 incident. He reported that she suffered from constant low back pain radiating into her legs at that time with restricted mobility (T71/163). He diagnosed her condition as being coccydynia following a fractured coccyx. At T72/164 he altered the percentage impairment assessment of her lumbar sacral spine to 15 percent. He did not use the Guide in making these assessments.
56. From 18 August 2001 onwards, the applicant attended upon him on a number of occasions with respect to her back problems. There were no consultations relating to her back condition between the end of 2002 and 17 February 2004 when she presented with the condition of cancer in the breast.
57. Dr Guirguis’ medical report of 11 September 2006 was received into evidence as Exhibit A2. He saw the applicant on one occasion for the purposes of a medico-legal referral. He had access to earlier reports prior to his consultation with the applicant and he had the applicant fill out a patient history questionnaire (Exhibit A5).
58. The patient history questionnaire forms part of the history that Dr Guirguis relies on in making his assessment. He tested forward flexion of the applicant’s back at 40 degrees. He used a goniometer to measure forward extension. He observed that she had “difficulty in turning on the couch”. He did not observe her ascending or descending stairs. He did not observe her walking any distance.
59. He was familiar with the Guide. He hypothesised that she may have developed a condition known as coccydynia, which can be a chronic condition. Alternatively, the fall may have aggravated and accelerated arthritis and spondylosis in her back. He commented as follows:
“It seems that there was a certain impact. There may or may not have been a fracture of the coccyx. There may or may not have been some soft issue injury surrounding the coccyx, which gave rise to pain, and the question really is: why that hasn’t … subsided now five or six years later? … Well, I think, as I said, it is just the point where things start to – to get into a downhill road, rather than being able to – to cope with the pain, being able to remain flexible, remain fit, you can’t, and then you just – you can go back. So I think that is … the reason … for most cases of pain, why it doesn’t … disappear after a certain period of time.”
60. He found no signs of radiculopothy that could give rise to sensory symptoms in her left foot. He observed that the applicant walked with a forward lean.
61. Dr Guirguis formed the conclusion that according to the Guide the applicant suffered a 20 percent impairment of the whole person as a result of a back injury in 2001. He considered that functionally she was experiencing a problem with standing from the sitting position and walking on steps, grades and distances. He found that in forward flexion her hands reached her knees to 40 degrees, extension was 10 percent and side flexion 20 percent each side. He agreed that normal range of movement for a person of the applicant’s age would be 70 percent or less and for a person in good health in their 60s, it would be possibly between 70 and 80 percent.
62. Dr Tschirn, a registrar in occupational medicine, gave evidence for Comcare. His report dated 7 September 2005 is contained at T84/201. He saw the applicant on 22 August 2005 upon a referral from Comcare. In his report he recorded that using an inclinometer and goniometer method the applicant showed 90 percent forward flexion (with normal, in his opinion, being 90 degrees) and 20 percent extension (with normal, in his opinion, being 25 percent). He observed her walk at a steady pace with no apparent limp for approximately 300 metres and no objective difficulty was noted. He observed her climb up and down a flight of stairs at her own pace with no objective difficulty noted. He told the Tribunal that she climbed on and off his examination bed without assistance and he observed her leaving the building. Her pace and the nature of her gait as she left the building were similar to that during the accompanied part of the medical assessment.
63. He assessed her as having less than a 10 percent impairment in accordance with Table 9.5 of the Guide in that she could rise to a standing position and walk and had no objective difficulty with grades and steps. He considered that she had a 5 percent whole person impairment in accordance with Table 9.6 of the Guide in that she had minor restrictions of movement in her lumbar sacral spine.
64. His examination couch is mid thigh high and he said that he did not observe that she experienced any difficulty getting on and off the couch. He described his practice is to take people for an extended walk as the final part of the examination and observe them walking. He observed her walking from the examination room to the elevator, then to stairs where he watched her walk up and down the stairs and he then observed her walking out of the building. He was adamant that he did not notice anything objectively remarkable in her case.
65. He did not dispute that she may have used her right arm to grasp the handrail of the stairs when ascending and descending stairs. He could not recall observing it. He considered that he would have noticed something as obvious as her pushing off with her forearm on the handrail. He made the point that some people use a handrail just for comfort and he would not normally record that as a difficulty.
66. He did not find any radicular symptoms of pain in the calf or tingling in the toes.
discussion of the medical evidence
67. Dr Guirguis had one consultation with the applicant. He accepted her account of the difficulties that she experienced walking on the stairs. He did not independently make an objective assessment of the issues that arise under Table 9.5. It would seem that his medico-legal assessment was done at some speed, with an eye on the Guide as he worked. He relied on the accuracy of the patient history questionnaire in which the applicant indicated that on her account she was experiencing a moderate to intense level of pain at all times; that the pain was getting worse was constant; and was worsened by sitting, standing, walking, bending forward, coughing sneezing and by ascending or descending stairs. She also complained of numbness in her legs and stiffness, weakness, swelling and giving way of her legs. In the questionnaire she indicated that she was seeing a doctor or having treatment for her pain more than once a month. She presented herself as being significantly disabled.
68. There is no evidence that she was receiving any treatment for pain from any doctor or other health provider at that time.
69. Dr Guirguis recorded her range of forward flexion at 40 percent. He agreed with Tribunal Member Professor Reilly that the normal range of movement for someone of the applicant’s age would be 70 to 80 degrees if fit, and often less than 70 degrees.
70. At the time that the applicant saw Dr Guirguis, the report of Dr Tschirn dated 7 September 2005 was available to the applicant and her legal team. The discrepancy between the findings of the doctors can possibly be interpreted by the fact that, when the applicant saw Dr Guirguis she was aware of the requirements of the Guide and of Dr Tschirn’s findings with respect to her impairment levels under the Guide
71. The Tribunal prefers Dr Tschirn’s evidence to that of Dr Guirguis with respect to Table 9.5 issues. Dr Guirguis did not carry out an observed assessment of the applicant's ability to deal with stairs and grades or distances. He relied on the patient history questionnaire prepared by the applicant in making his assessment of impairment under Table 9.5.
72. Each doctor reported quite different findings as to the applicant’s range of spinal movement under Table 9.6. Dr Guirguis in the final analysis effectively agreed that she had a loss of less than half range of movement. Dr Tschirn had her experiencing no loss of forward flexion movement in that she could flex to 90 degrees. He did not observe where her hands reached in relation to her knees when testing forward flexion.
discussion of the applicant’s evidence
73. In her evidence, the applicant dismissed as irrelevant the effect of very major life events, and in particular being diagnosed with bilateral breast cancer in the between 2004 and 2006. She did not accept that the breast cancer drugs or the chemotherapy she had endured or the two operations had any significant effect on her life. She was focused in her belief that all her ailments arise from the events that occurred in the course of her employment up until 2001.
74. On the applicant’s account, she can walk up to 1.4 km twice a week. She demonstrated to the Tribunal an ability to bend to the floor with her legs apart and her knees straight.
75. The Tribunal noted the applicant was able to sit comfortably without apparent discomfort for long periods of time, both when giving her evidence and when seated in the rear of the hearing room.
76. There were inconsistencies between the evidence and the patient history questionnaire. The applicant has not regularly sought any treatment for her pain in recent years. She takes on average 8 Panadol per week for pain. This amount of medication is not consistent with her experiencing severe pain, nor is it consistent with the statement that she made in the patient history questionnaire.
77. The Tribunal formed the view that the applicant, whether consciously or unconsciously, embellished her evidence and although she continues to suffer some level of pain and discomfort and disability arising from the accident in 2001, the Tribunal does not accept her suffering or impairment is as significant as is presented by her.
78. For example, although she has a general practitioner, there have been no complaints of back pain to him since 2002 until such time as she visited him to have him complete a compensation claim form for her in 2004.
79. Leg symptoms and tingling in her toes from what she complains appears to have no known organic basis. There is no medical finding by any practitioner of radicular pain.
80. Her personality characteristics, which have been noted by both the psychiatrists, probably underlay the applicant’s intense focus on the work based incidents as being the root cause of any adverse symptoms that she now suffers either physically or psychologically.
findings of fact
81. The Tribunal makes the following findings of fact:
·The applicant suffered from a reactive depression/adjustment disorder in 1994 arising out of events that occurred in the course of her employment with Auscript. The events that gave rise to this period of psychiatric illness occurred over several years and included perceived victimisation and difficulty in her relationships at work.
·The applicant had no prior history of psychiatric illness, although she had developed a phobia about using lifts in the late 1980s and as a result of this had seen a psychologist on 4 to 5 occasions at the end of 1988.
·As a result of her accepted psychiatric injury, she was off work from 2 March 1994 until she returned to work in July 1994. She then returned to a different working environment. She received counselling from a psychiatrist, Dr John Trueman, in the interim. She has not sought any counselling or psychiatric assistance since.
·During the period that she was unwell, she lacked motivation, was depressed and was prescribed some medication, which she was taking when she returned to work in July 1994. She did not require medication on a long-term basis and has not seen a psychiatrist for counselling or taken medication for any psychiatric or psychological disorder since 1994.
·The applicant fell on 16 August 2001 and injured her coccyx. The fall either fractured her coccyx or aggravated pre-existing degeneration changes in her spine. She has continued to suffer some pain and discomfort in the area of her coccyx, radiating into her right buttock since that time.
·The applicant had physiotherapy treatment over a period of time after this incident. She did not seek any medical treatment. X-rays indicated a possible fracture of the coccyx, but this has never been confirmed.
·The applicant remained in the workforce until she accepted a redundancy package in 2002.
·The applicant was diagnosed with cancer in her left breast in 2004 and had a partial mastectomy. A week before seeing Dr Gehan in June 2006, she was diagnosed with cancer on her right breast and had a further partial mastectomy. As a result of the 2004 cancer, she underwent some months of chemotherapy treatment. She continues to take medication for the cancer which has the effect of causing hot flushes.
·The applicant is 66 years of age. She currently weights 98 kg and is 5’ 6” in height. She is overweight for her age and height.
·The applicant ceased driving a motor vehicle in or around 1995 as she was suffering concentration problems. Her husband has driven her since that time.
·The applicant has difficulties in relating to people outside her family, she no longer has the confidence to drive and is reliant on her husband for transport, and she lacks confidence in her ability to build relationships.
·The applicant last saw her general practitioner with a complaint with respect to her back, which did not relate specifically to a compensation claim, in 2002.
·The applicant demonstrated a different range of back movement when investigated by different practitioners.
·Normal range of movement for someone of the applicant’s age and build and physical characteristics is likely to be between 60 and 70 percent.
·The applicant can sit comfortably for periods of greater than 30 minutes.
·The applicant’s general fitness, her weight and her age have some impact on her ability to negotiate distances and stairs and walk distances. Despite this, she still regularly walks in her local area.
·The applicant does not have any evidence of radicular symptoms.
·The applicant complains of suffering pain in her buttocks and sacroiliac region that troubles her and causes discomfort from time to time. She takes up to 8 Panadol a week for pain relief.
·The applicant’s condition has improved considerably since the time of the accident in 2001. She no longer takes strong pain killing medication, and she has no requirement for ongoing treatment by health professionals such as physiotherapists or chiropractors.
consideration of the evidence and application of the law
82. Impairment is defined in s 4 of the Act. It is “ … the loss, the loss of use, or the damage or malfunction, of any part of the body or of any bodily system or function”.
83. “Permanent” is defined under s 4 of the Act as meaning “likely to continue indefinitely “.
84. Section 24(2) sets out the factors that the Tribunal must have consider when determining whether or not an impairment is permanent (supra paragraph 8).
85. Based on the High Court’s decision in Canute vComcare (2006) 91 ALD 552 which was then upheld by the High Court, the Tribunal is satisfied that it can consider the impairment arising from the back injury under two separate tables namely, Tables 9.5 and 9.6 of the Guide. More than one injury can arise from the one workplace incident and more than one impairment can arise from each injury. Each impairment is to be considered separately under its relevant table.
86. The applicant contends that two separate impairments arise from the work-related injury she suffered to her back on 16 August 2001 and they are to be considered under two separate tables of the Guide.
87. To attract a percentage impairment of 10 percent under Table 9.5 of the Guide, she must establish that she can rise to standing position and walk but has difficulty with grades and steps. To attract 20 percent, she must establish that she can rise to standing position and walk, but has difficulty with grades, steps and distances.
88. In Comcare v Fiedler (2001) 115 FCR 328, the Full Federal Court considered the interpretation of the word “difficulty” in the context of Table 9.4 of the Guide. They said:
“… The word ‘difficult’”, like most ordinary English words, has no fixed meaning but is, as the Tribunal observes, a word capable of covering a broad spectrum of restriction and disability in the context of a phrase such as 'difficulty with digital dexterity’ in Table 9.4. According to the Macquarie Dictionary, 3rd ed, ‘difficult’” connotes a range of conditions from being ‘not easy’, to being ‘hard to do’, to ‘requiring much effort’. According to the Oxford English Dictionary, 2nd ed, it connotes notions of not being easy, of requiring effort or labour, of being troublesome or hard to do, perform or carry out. … “
89. In the case of Comcare v Moon (2003) 75 ALD 160, Justice Mansfield commented as follows when considering the concept of “difficulty” under Table 9.5:
“ … In my view, it is a question of fact in each case as to whether pain experienced in activity presents a ‘difficulty’ with that activity, or whether it is simply a consideration going to ‘lifestyle effects’. … The term ‘difficulty’ in, e.g. Table 9.5, is not a term of art, but carries its ordinary meaning: … “
90. The Tribunal has already commented that in its view the applicant embellished her evidence as to the effect that the injury to her coccyx has had on her. She is preoccupied with the compensation process, which is probably due to her underlying personality characteristics and she fails to take account of the effect of her general physique, her age and her lack of fitness on her mobility.
91. Dr Fantasia has been seeing the applicant as her general practitioner for many years prior to the incident of 2001. In his evidence he commented that the applicant had always presented to him with a rather stiff gait and generalised stiffness and had appeared in a very similar manner on all occasions that he saw her whether it specifically related to her back or to other problems. He had been seeing her since well before the date of the injury.
92. The patient history that she prepared and presented to Dr Guirguis was largely the basis of his findings with respect to Table 9.5. His version of the walking and distance test is to have a patient walk across his small consulting room. He then could not specifically recall whether he had carried out this test on the applicant. The patient history questionnaire that she prepared for him presents a grim picture of her abilities and enjoyment of life and is inconsistent with Dr Tschirn’s observations, with the Tribunal’s observations of the applicant and with aspects of the applicant's evidence.
93. The applicant was unemotional and calm in giving her evidence. She claims to be unaffected by a major cancer scare and minimises the effects of such a major event in terms of her life. She remained focussed on her conviction that all the physical and psychological problems that she experiences arise out of work-related incidents. She continues to find pleasure still in her garden, in walking and in her family.
94. With respect to issues arising under Table 9.5, the Tribunal finds that, on the balance of probabilities and based on all available evidence, the applicant is able to walk reasonable distances for a person of her age and build and she does so on a regular basis and does not have any apparent difficulty with grades or steps that can be related to the work related injury. Her physique and age and level of fitness impact on her ability to carry out these tasks. There is not sufficient evidence for the Tribunal to be satisfied that the injury of August 2001 has left her with an impairment of 10 percent under Table 9.5 of the Guide, such that she has difficulty dealing with grades, steps or distances in the ordinary meaning of that word.
95. The Tribunal prefers the evidence of Dr Tschirn with respect to issues arising under Table 9.5 of the Guide. He reported his observations in his medical report and observed that the applicant could walk a distance without difficulty, and that she had no objective difficulty with grades and steps. He assessed at her as having an impairment of less than 10 percent under Table 9.5. In her own evidence she indicated that she can walk 700 metres before stopping for a cup of coffee which is a reasonable distance for a woman at this age. She then returns home. She enjoys walking regularly.
96. The Tribunal must also have regard to whether the injury has given rise to an impairment arising under Table 9.6 of the Guide. The applicant asserts a loss of more than half normal range of spinal movement and a 15 percent impairment under Table 9.6.
97. The Tribunal is confronted with conflicting evidence from the medical experts. Dr Tschirn assessed her as having a 5 percent impairment under Table 9.6 in that he found a slight loss of lumbosacral extension and minor restrictions of movement in her lumbosacral spine. In the following year, and once more in the context of the applicant being involved in the compensation claim process, Dr Guirguis found that she suffered a 20 percent impairment under Table 9.6 in that she could only forward flex to 40 degrees and extension was 10 degrees. It is difficult to reconcile these two findings.
98. It has already been noted by the Tribunal that the patient history provided to Dr Guirguis by the applicant presented a grim view of her health. Despite this she had not seen her general practitioner or a specialist at all about pain or spinal problems from late 2002 onwards and the evidence indicates that she was exaggerating her symptoms in the patient history questionnaire.
99. Dr Guirguis, in giving his evidence, acknowledged that a normal range of movement for a person of the applicant’s age was something less than 90 degrees and if his finding of 40 degree forward flexion is correct, her loss of spinal movement is a loss of less than half normal range of movement for a healthy person of her age.
100. The Tribunal is satisfied, on the balance of probabilities, that the applicant’s pre-occupation with the compensation process led her to exaggerate symptoms, whether consciously or unconsciously, when she attended Dr Guirguis. His assessment appeared to be fairly perfunctory and he had no clinical notes.
101. The Tribunal however finds that Dr Tschirn’s findings that the applicant had a 90 degree range of movement also appear unrealistic given her age and physique. It appears that there is no general medical consensus as to what normal range of movement is for a person of the applicant’s age. Dr Guirguis considered around 70 percent to be the figure and Dr Tschirn became somewhat tongue-tied when quizzed on the issue.
102. The radiological reports do show spinal degeneration in the applicant’s spine. She did sustain a fall and clearly suffered symptoms for some months afterwards. In the circumstances, the Tribunal finds, on the balance of probabilities, that the applicant has 10 percent impairment under Table 9.6 in that she has more than minor restrictions of movement arising from the accident and has lost less than half the normal range of spinal movement for a person of her age.
103. The Tribunal varies the determination of 11 January 2006 (T92) with respect to the applicant's coccygeal injury. The Tribunal affirms the decision insofar as there is a finding that the applicant does not achieve a 10 percent threshold under Table 9.5 of the Guide. The Tribunal finds that the impairment can also be assessed under Table 9.6 of the Guide and the Tribunal finds that the applicant has a 10 percent impairment under Table 9.6 of the Guide. This decision was open to the decision-maker who elected not to consider impairment under Table 9.6.
104. The applicant's second claim is that related to her psychiatric condition. The Tribunal must determine by reference to the Guide, whether she has suffered a permanent impairment arising out of the psychiatric injury for which the Commonwealth accepted liability in 1994.
105. Psychiatric impairment must be considered by reference to Table 5.1 of the Guide. It is common ground that as a result of the psychiatric injury sustained in the course of her employment, the applicant has at least a 5 percent impairment under the relevant table in that she reacts to stressors of daily living with a minor loss of personal or social efficiency. Debate centres on whether she has a 10 percent impairment under the tables. Section 24(7) of the Act provides that if the degree of impairment is less than 10 percent, then no compensation is payable.
106. To achieve a 10 percent impairment the Tribunal must be satisfied that the applicant also suffers from minor distortions of thinking. Counsel for the applicant asserts that her over-valuing of the events at Auscript and her conviction that it has continued to cause impairment is, in itself, a distortion of thinking. Comcare asserts that the over-valuing of the events at Auscript is a feature of her underlying personality and the way that she, as an individual, sees the world and is not a distortion of thinking.
107. The concept of minor distortions of thinking has been considered in numerous cases. In Re Mahne and Comcare [2004] AATA 985 in considering this concept Senior Member Handley commented as follows:
“ … In my view the distortions of thinking … are to be found by her lack of motivation, her poor memory and concentration, her negative thoughts, her pre-occupation with injury, lying awake at night and “ruminating”, her withdrawal and being tearful.”
108. In Re Staines and Comcare [2005] AATA 858 Member Webb commented as follows at paragraph 61:
“What is required is ‘minor’ or relatively small or lesser distortions of thinking. I am satisfied that Ms Staines experiences distortions of thinking during a panic attack that are within the meaning of ‘minor distortions of thinking’ … ”
109. In previous cases, feelings of hopelessness have been found to amount to a minor distortion of thinking (Re D’Costa and Comcare (2004) 83 ALD 475), excessive ruminations have been found to amount to minor distortions of thinking (Re O’Maley and Comcare (1997) 48 ALD 300), pre-occupation with feelings of vulnerability to future depressions and excessive vigilance about pressure in the workplace have been found to be minor distortions of thinking (Re Bergersen and Comcare [2007] AATA 1373) and in Re Canute and Comcare [2004] AATA 627, a minor reduction in concentration and feelings of low self worth were found to amount to minor distortions of thinking.
110. In Re Dwight and Comcare [2006] AATA 730 Deputy President Hotop commented as follows:
“Having regard to the relevant definitions in the Macquarie Dictionary (4th ed) and The New Shorter Oxford English Dictionary, the Tribunal understands that:
· the phrase ‘minor distortions of thinking’ refers to comparatively unimportant or insignificant perversions of thinking; …”
111. Having considered all the available evidence, the Tribunal is satisfied, on the balance of probabilities, that the applicant's social withdrawal, her sense of reduced self worth, her lack of confidence, her difficulty in building friendships and her genuine preoccupation with the events that gave rise to the psychiatric injury amount to minor distortions of thinking and arise largely out of the events that occurred in the course of her employment. The Tribunal is also satisfied that this impairment is permanent in that it is likely to persist into the foreseeable future. It is now many years since the incidents that took place in the workplace between 1988 and 1994 and the residual symptoms from which the applicant continues to suffer appear quite entrenched.
112. The evidence points to a change in her general outlook and sense of self-worth after 1994. The events that occurred in the course of her employment and that gave rise to the accepted psychiatric injury occurred over a period of time and have left the applicant with a degree of permanent impairment which manifests in the way that she now deals with the world and with social relationships. Her thought processes are irrationally negative when it comes to her ability to develop social relationships and build any sort of independent friendships outside her immediate family. The Tribunal is satisfied, on the balance of probabilities, that this derives from her negative experiences in the workplace that resulted in her psychological breakdown for a period of time.
113. Whether her lapses in concentration and memory problems are related to the events that occurred between the late 1980s and the 1990s is another issue. There is not sufficient evidence to make that connection other than the applicant's choice to cease driving in 1995 occurred in the year following acceptance of liability for the psychiatric condition. It is equally possible that the applicant’s age and stage in life in 1995 and the effects of chemotherapy, radiation and medication for cancer in 2004 to 2006 have contributed to ongoing concentration difficulties.
114. The Tribunal is satisfied, on the balance of probabilities, that she presently suffers from a permanent impairment arising out of the work-related psychiatric injury and that the degree of impairment is 10 percent pursuant to Table 5.1 of the Guide.
115. The Tribunal sets aside the determination of 11 January 2006 (T93) with respect to the applicant's psychiatric injury and substitutes a decision that the applicant has a 10 percent impairment under Table 5.1 of the Guide arising from the psychiatric injury that she sustained in the course of her employment which injury occurred on 2 March 1994.
I certify that the 115 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell and Professor P Reilly AO (Member)
Signed: ...........J Coulthard...........................................
AssociateDates of Hearing 14-16 February 2007
Date of Decision 4 July 2007
Counsel for the Applicant Mr F Di Fazio
Solicitor for the Applicant Moloney & Partners
Counsel for the Respondent Mr A Martin
Solicitor for the Respondent Phillips Fox
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