Talanoa and Comcare
[2005] AATA 609
•8 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 609
ADMINISTRATIVE APPEALS TRIBUNAL ) No. N2003/1146; N2004/169;
) N2004/793
GENERAL ADMINISTRATIVE DIVISION )
Re
AISAKE TALANOA
Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr M E C Thorpe, MemberDate8 June 2005
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No. N2003/1146; N2004/169
) N2004/793
GENERAL ADMINISTRATIVE DIVISION )
Re
AISAKE TALANOA
Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr M E C Thorpe, MemberDate 8 June 2005
Place Sydney
DecisionFor the reasons given orally at the conclusion of the hearing, the decisions under review are AFFIRMED.
(Sgd) M.D. ALLEN
..................................................
Presiding Member
CATCHWORDS
Workers’ Compensation – whether Applicant suffered injury, aggravation and a psychiatric disorder from a motor vehicle accident in the course of his employment – inconsistencies between Applicant’s evidence to Tribunal and histories obtained by medical practitioners – decisions under review affirmed.
Safety, Rehabilitation and Compensation Act 1988
Commonwealth of Australia v Stankowski [2005] NSWCA 106
REASONS FOR DECISION
1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Signed: (E.Pope)
..................................................................................……………………………….Associate
Date of Hearing 6 and 8 June 2005
Date of Decision 8 June 2005
Counsel for Applicant Mr A Canceri
Solicitor for Applicant Andrew Fegent & Company Solicitors
Counsel for Respondent Miss R. M. Henderson
Solicitor for Respondent Dibbs Barker Gosling
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter Nos N2003/1146, N2004/169, N2004/793
By MR M.D. ALLEN, Senior Member
AISAKE TALANOA v COMCARE
SYDNEY, WEDNESDAY, 8 JUNE 2005MR ALLEN: The first matter N2003/1146 relates to a reviewable decision made the thirtieth day of June 2003 which pursuant to section 14 of the Safety Rehabilitation and Compensation Act accepted as a work-caused industry a condition described as "closed fracture of ribs, right" and then rejected a claim in respect of "aggravation of disc degeneration L4/5, L5/S1 and an adjustment reaction with depressive reaction".
The second matter, number N2004/169 concerns a reviewable decision dated 3 February 2004 which rejected claims in respect of lumbar spine, right shoulder, right leg and reproductive organs.
Matter N2004/793 referred to a claim for permanent impairment and a reviewable decision of 22 June 2004, the permanent impairment being in relation to the right shoulder, leg, neck, lumbar spine and a psychiatric disorder.
The events giving rise to the claims was that the applicant who was then employed by the Department of Foreign Affairs and Trade, was on the sixteenth day of October 2000 in the course of his employment involved in a motor vehicle accident. He was driving a Commonwealth owned vehicle when that vehicle came into collision with a truck. The accident was of moderate severity in that the Commonwealth vehicle was found to be beyond economical repair. As a result of the accident, the applicant was transported to St George Hospital and remained there for part of the day and was given morphine to cope with pain and then later discharged with some analgesia.
There is some dispute as to just what happened after the accident but that seems to be somewhat immaterial, except that the applicant said it was bystanders who released his seat-belt and removed him from the vehicle, whereas the notes of the St George Hospital state that he "self-extricated, walked at the scene and there developed right-sided chest pain and a sore right knee".
At this stage, it is worth mentioning that there are discrepancies in the evidence the applicant gave to this Tribunal and to the histories he has given as to investigating medical practitioners for medico/legal reports and some prior documentary evidence. As was pointed out by the New South Wales Court of Appeal in Commonwealth of Australia v Stankowski [2005] NSWCA 106 at paragraph 149 the court said:
Turning to the appellant's complaints about differences between the histories relied on by the respondent's experts and the facts established, the relevant principle is that histories assumed by experts must be “sufficiently like” those established to” render the opinion of the expert of any value”: Paric v John Holland (Constructions) Pty Limited (1985) 59 ALJR 844 at 846.
The applicant's evidence to this Tribunal is that he took time off work after the accident, he spent a week in bed at home, he still had pain in his right side and shoulder. Since then he has found - as he put it - "very heavy to move both legs". This occurred in November 2000. Prior to that he had had no problem with his legs, so he said. He also said he had no prior problems with his right shoulder or his chest. He could not comprehend what was happening to him and was distressed and angry for some time. He made the interesting statement that:
I felt anger because when I settled down I realised what the Department did to me.
That statement, it would seem, refers to the fact that the applicant was offered a redundancy shortly after the motor vehicle accident and accepted. The circumstances are set out by the applicant himself in a statutory declaration declared the twenty-third day of May 2002 which is found as document T14 in matter N2003/1146. At paragraph 10 of that document he said:
I attended a meeting at the Department of Foreign Affairs with Douglas, being a Director of the Department and he said words to the following effect:
"Due to your health I can offer you a redundancy or are your intentions to return to work?"
I replied words to the effect:
“Due to my health I am uncertain whether I will be able to return to work and will be happy to accept a redundancy.”
He was subsequently made redundant. He said at present he has problems with his right shoulder and can hardly lift anything and it is painful. He still has pain in the chest on the right side. It takes him a long time to walk. He has pain all down his legs, cannot stand for a long time because of painful legs and has pain in the lower back. He also complains of sexual dysfunction and a loss of libido. He said that his doctor prescribed pain-killers every fortnight.
Cross-examined, he could not remember complaining to his general practitioner, a Dr Niumeitolu, who is also a fellow Tongan, regarding pain in his groin in August 2000 and specifically stated:
I never had low back pain before the motor vehicle accident.
He couldn't remember seeing a Commonwealth medical officer complaining of such pain. He said that he first noticed low back pain one month after the motor vehicle accident.
The applicant first made a claim for permanent impairment on or about the sixteenth day of November 2001. Although it would appear to have been received by the respondent on 6 February 2002. That form is accompanied by a report by his general practitioner and under the heading of Diagnosis, Current Condition, the doctor has written chest pain, previous fracture, right sixth rib. The impairment is recurring pain and he also refers to recurring chest pain, muscular and skeletal.
Document T3 in matter N2004/169, is the notes of the St George Hospital following the motor vehicle accident, contained in those notes is an X-ray report taken on the day of the accident. There is reference to a fracture of the neck of the right sixth rib but a later note by what is agreed is no doubt a more senior radiologist is that re that right rib, no fracture is seen. Similarly, “discontinuity was found in the right pubis suggestive of a fracture but clinical correlation is needed”. The clinical notes then go on to say that the applicant got out of the car and now has right-sided chest pain. Importantly, his neck was examined and the note reads, “neck non-tender, full range of movement.” The thoracic spine was tender. It appears that the applicant then continued under the care of his general practitioner.
On 7 May 2002, the applicant was examined by a consultant physician, Dr Lawson, on behalf of his solicitors. He took a history of alot of lower body pain and bruising of the pelvis and approximal leg. Dr Lawson in his opinion referred to severe general body trauma as a result of a heavy impact motor vehicle collision. We have referred previously to the notes of the St George Hospital and it may be queried as to whether the description of a heavy impact motor vehicle collision is consistent with the bruising and the amount of damage occasioned. Dr Lawson went on to say:
As a result of the injury he has been affected by continuing thoracic and lumbar spinal pain -
Query the neurological impairment of the lower limb. On 28 August 2002 he was examined by Dr Bensic, orthopaedic surgeon, on behalf of the respondent. In the history taken by Dr Bensic he said:
Mr Talanoa told me he was unable to move or get out of his car, he had to be helped out by passers-by.
Again, that is contrary to the hospital notes. He said it was confirmed he sustained two rib fractures. From the hospital notes, it would appear he had no rib fractures. Significantly at that stage Dr Bensic noted that the applicant forced himself to exercise but did not attend for physiotherapy or take medication for pain relief. More importantly, under the heading past medical history Dr Bensic recorded:
Mr Talanoa regarded himself as very healthy before the motor vehicle accident with no symptoms of back, chest, stomach or leg pain. He denied any systemic illness.
A similar history was obtained by Dr Ellis, orthopaedic surgeon, who saw the applicant on behalf of his solicitors. In a report dated 6 January 2004 Dr Ellis recorded pain in the right shoulder:
He indicates the deltoid prominence. It is present every day and has been present only since the accident. Both legs are heavy and painful after he walks for ten minutes
And further it was noted:
He had no low back pain prior to the accident but it was present immediately after the accident, was at its worst for a few days although not as bad as the right shoulder pain.
Again, we would query the history of immediately after the accident as no note is made of such pain in the notes of St George Hospital, but more importantly, as is pointed out in exhibit R4, the report of a Commonwealth medical officer dated 2 May 1997, the applicant at that time was complaining of numbness in the lower body and had low back pain for 23 years and a burning sensation in his left lateral thigh for the last few weeks. That doctor considered that the lower back pain was degenerative. In the notes of the general practitioner there is a note of lower limb pain in July and February 2000. In March 2000, cramps in both legs; August 2000, left groin pain, and importantly, on 11 March 2003, right shoulder pain present for some six months.
In his report Dr Bensic opined that the accident possibly aggravated pre-existing degenerative changes in the applicant’s lumbar spine. However, his opinion was that he would have been able to return to his pre-injury duties if he had not taken a voluntary redundancy. He did not consider him totally and permanently incapacitated for work. More importantly, he noted that the applicant would appear to have symptoms exceeding his clinical signs.
Dr Ellis opined that the applicant's right shoulder pain and low back pain were reasonably related to the accident, in particular Dr Ellis gave evidence as to how an SLAP lesion of the right shoulder was caused by the accident. That opinion was controverted by a consultant physician, Dr Stevenson, who saw the applicant at the request of the respondent and whose report is dated 6 October 2003.
In evidence, however, Dr Stevenson was adamant that although an SLAP lesion might be caused by a motor vehicle accident in the sense that it is not possible to exclude it, if it had been so caused there would have been reference made to shoulder pain in the notes of the hospital immediately after the accident. In particular he went on to point out in his report that SLAP lesions are classically caused by falling on the outstretched hand or such repetitive activities as pitching in baseball.
Having heard the explanation given by Dr Ellis and also that by Dr Stevenson, we are far more convinced by Dr Stevenson as to causation of the SLAP lesion and although it is stated that it could not be ruled out we are not persuaded on the balance of probability given the opinion of Dr Stevenson that that lesion is as a result of the motor vehicle accident.
Dr Stevenson in his report stated that there appeared to have been a moderately severe impact injury, the direct and explicable injuries were related to the seat belt and were soft injuries to the front of the chest. The cervical spine may well have been strained but would have resolved within six weeks or less. Likewise the lumbar spine would have suffered some transient discomforts but substantial or chronic injury was most unlikely. He stated:
So far as I can tell there was the motor vehicle accident with significant soft tissue injury and probably the fracture of a rib. There may have been non-specific discomforts elsewhere but no major chronic damage. He has had sophisticated radiology of his spine and shoulder. These are shown as predictable age appropriate degenerative changes in the thoracolumbar spine and as is predictable they have shown degenerative change in the acromioclavicular joint which again is perfectly expected and age- appropriate.
He stated:
There is really little current evidence of substantial injury. His lumbar spine was not involved in the accident. There is fairly substantiantive evidence from experimental collisions at speeds up to 100kph which have readily reproduced soft tissue strain but not chronic damage. There is no traumatic lesion in the lumbar spine and I am unable therefore to regard his back leg symptoms as realistically connected with the accident. The examination of his cervical spine showed very substantial illness behaviour. Around the right shoulder most problems appear degenerative.
He went on to say that other changes were degenerative and age appropriate. We have of course referred earlier to the complaints by the applicant at an earlier time as to lumbar pain, pain in the legs, and regard those as significant. We find that the applicant most certainly did have chest wall bruising to the right of his chest and ligamentous strain to the neck, but those, as Dr Stevenson reported, would have resolved within a matter of weeks.
There is also a claim for psychiatric illness. The psychiatric illness does not really deal with the sexual dysfunction and it is difficult to see how that arises. Dr McClure opined that the applicant was suffering an adjustment disorder with depressed moods. He stated it would have been briefly exacerbated by bereavement surrounding the death of the applicant's father, but the symptoms related to the physical injuries continue to represent a substantial contributing factor.
There is some dispute as to the presentation of the applicant to the various psychiatrists that have seen him. Dr McClure noted that the applicant's mood was frequently depressed and sometimes irritable. That presentation contrasts somewhat with the impression which was given to Dr Rowe, consultant psychiatrist, when he saw the applicant on 23 August 2002. Dr Rowe stated as to the applicant:
He presented as a large and fairly jovial Tongan man at the stated age. He maintained good eye contact and told his story in an open, frank manner without any obvious embellishment.
He added after the examination:
I do not feel that Mr Talanoa has a specific psychiatric diagnosis. Whatever complaint he has lies in the field of orthopaedics.
Dr Yvonne Skinner, psychiatrist, also saw the applicant and when she saw him on 18 November 2003 she came to the opinion that he was not suffering from a psychiatric disorder. She added:
Mr Talanoa told Dr Rowe that he would have been able to return to work if he had not taken the redundancy and the fact that he is not working has got him down and he is bored at having nothing specific to do. This is consistent with the account given to me by Mr Talanoa.
In her evidence Dr Skinner referred to various cultural factors and stated
The cultural issues are important. He had a lot of embarrassment and distress at being unemployed when his wife was employed.
She did add, however:
I could not exclude a short period of an adjustment disorder prior to when I saw him.
The applicant's general practitioner was asked for a report. It was noted from his clinical notes that he also had treated the applicant for some depressive anxiety state and had prescribed an antidepressant medication. The last note by the general practitioner is 5 November 2001 which reads:
Anxiety improved with supramil. Not as distressed.
Dr Numatolo's report of 5 December 2003 reads:
Mr Talanoa suffered from fractured right sixth rib. Resolved. Extensive soft tissue injuries to his chest wall back and right shoulder. Exacerbation of pre-existing degeneration disease of spine and right shoulder.
There is no mention whatsoever in that report by the general practitioner of any psychiatric illness. We can only conclude therefore that from the time when he was last see by Dr McClure which appears to be around June 2003 as to when the applicant was seen by Dr Skinner, the condition had resolved. As to its cause as an adjustment disorder we are more persuaded by Dr Skinner that in reality it results from the applicant being unemployed as a result of taking the redundancy.
It is interesting that no note is made of depression and anxiety by the general practitioner until November 2002 his notes stating anxiety driving to work and then on 20 August 2001, depression, anxiety since off work, too young for retirement. One might expect some anxiety driving to work immediately after the accident but it would seem any depressive anxiety state really started to manifest itself in August 2001 as a result of being unemployed.
The reports referred to, particularly that of Dr Stephenson, make it clear that the applicant suffered minor injuries as a result of the accident which have resolved. The history which was given to other medical practitioners was not accurate, consequently, their reports cannot be relied upon. The sum total of it is, however, that the decisions under review are affirmed.
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