Toomey and Comcare (Compensation)

[2015] AATA 834

Toomey and Comcare (Compensation) [2015] AATA 834 (29 October 2015)

Division	General Division
File Number(s)	2014/4786 and 2014/4794
Re	Kristie Toomey
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	29 October 2015
Place	Sydney

Application 2014/4786

The reviewable decision made 18 July 2014, that Ms Toomey is not entitled to compensation under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) from 10 July 2001 to the date of this decision, is affirmed.

Application 2014/4794

The reviewable decision made 18 July 2014, that Ms Toomey is not entitled to compensation under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), is affirmed.

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

J W Constance
Deputy President

CATCHWORDS

Catchwords COMPENSATION – review of decision by Comcare to cease liability to compensate for incapacity – Applicant recovered from effects of injury - decision affirmed – review of decision to deny liability to pay compensation for permanent impairment – no permanent impairment - decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss5A(1), 14(1), 24(1) and 27(1)

REASONS FOR DECISION

Deputy President J W Constance

INTRODUCTION

1. Ms Toomey has applied for a review of two decisions by Comcare, both made on 18 July 2014. 

2. One of the decisions denied that Comcare was liable to continue to compensate her for loss of earnings which she claimed arose from a neck injury she suffered in a motor vehicle accident on her way to work.  The other denied liability to compensate her for permanent impairment claimed to have resulted from her injuries.

3. For the reasons which follow both decisions under review will be affirmed.

   BACKGROUND

4. On 16 October 2000, Ms Toomey was injured in a motor vehicle accident on her way to work at the Child Support Agency. At the time she had just commenced employment and was on probation.

5. On 21 November 2000, Ms Toomey lodged a claim for compensation for injuries suffered in the accident in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).[1]  She described her injuries as “sore shoulders, neck, upper back, headaches, nausea, pain down right arm, base of skull.”

   [1] Exhibit R1 p.217.

6. Comcare accepted liability to compensate Ms Toomey in respect of an injury being a neck sprain.  She did not seek a reconsideration of this decision notwithstanding that Comcare did not accept liability for the claimed injury to her shoulder or the claimed condition of her right arm.  She was paid compensation for medical expenses and for loss of earnings for various periods up to and including 15 January 2001.[2]

   [2] Exhibit A2 doc. 29.

7. By a determination dated 10 July 2001, Comcare decided that it was no longer liable to pay compensation to Ms Toomey in relation to her accepted injury under any provision of the Act.

8. In 2009, Ms Toomey applied to Comcare for compensation for permanent impairment and non-economic loss arising from her injury. This application was made under sections 24 and 27 of the Act. In a decision dated 9 September 2009, Comcare determined that Ms Toomey was not entitled to such compensation. It was not until 2014 that Ms Toomey applied for a reconsideration of this decision.

9. On 18 July 2014, Comcare affirmed the determination made on 9 September 2009 to refuse the claim for permanent impairment.

10. At the time the decision relating to permanent impairment was reconsidered, Comcare also reconsidered the determination of 10 July 2001. That determination had purported to decide that Comcare had no future liability to compensate Ms Toomey at any time. On 18 July 2014 the determination of 10 July 2001 was revoked, and in its place Comcare decided that Ms Toomey was not entitled to compensation under section 19 of the Act from 10 July 2001 to 18 July 2014. Comcare was satisfied that from 10 July 2001 until 18 July 2014 Ms Toomey was not incapacitated for employment by the neck sprain suffered in the accident on 16 October 2000.

11. Ms Toomey has applied to the Tribunal to review both decisions of Comcare made on 18 July 2014. Application 2014/4786 relates to the decision to refuse compensation for incapacity to work. Application 2014/4794 relates to the decision to refuse the claim for compensation for permanent impairment and non-economic loss.

    THE RELEVANT LEGISLATION

12. Subsection 14(1) of the Act provides:

    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.

13. In subsection 5A(1) injury is defined to mean, in part,

    an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment …

14. Subsection 24(1) provides:

    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.

15. Subsection 27(1) provides:

    Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as result of that injury or impairment.

    EVIDENCE

    The evidence of Ms Toomey

16. Ms Toomey described herself as being “always lively” prior to the accident. She played competition tennis, netball, squash and soccer, living a “normal life”. She did not suffer pain in her arms, shoulders or neck.

17. Immediately after the accident Ms Toomey felt pain in her neck, shoulders and right knee. She felt as though “everything jarred”. She was able to drive to the police station and then home.

18. On the day of the accident she consulted Dr Fung, General Practitioner, who prescribed medication for pain relief. She saw her usual general practitioner, Dr Wong, the following day.  She did not return to work for approximately two weeks. 

19. Within a few days of the accident Dr Wong referred Ms Toomey to Dr Sharah, a psychiatrist.  The clinical notes indicate that Ms Toomey was “not coping”.[3]  At first Ms Toomey said that this referral was necessitated by the effects of the accident.  However later she said that she did not remember if this was the case. 

    [3] Exhibit R2 p.60.

20. For a period of six to eight weeks following the accident Ms Toomey suffered a lot of pain. However, as she was on probation at the time, she returned to work about two weeks after the accident. Following her return she had considerable time off work by reason of her injuries. Ms Toomey endeavoured to continue to go to work until January 2001 when she was forced to stop work by reason of the pain in her neck and right shoulder.  She resigned from her position in April 2001.  She said that she resigned to avoid having her employment terminated.

21. Ms Toomey said that the injury to her neck caused her the most difficulty.  Moving her neck caused pain from her neck over the top of her head, resulting in migraine headaches which could last all day.  Even after she stopped working Ms Toomey continued to suffer pain in her neck and right shoulder every day.

22. In June 2001, Ms Toomey started working for a grocery chain as a shop assistant and cashier. When she applied for the position Ms Toomey stated that she was “up to very physical work”. [4]  Part of her duties included stocking shelves using an electric jack; she mainly used her left arm for this work. She was employed between 30 and 40 hours per week.  Ms Toomey said she enjoyed the job, although she took a lot of painkillers and needed to take time off work by reason of her injuries. After six months in this position she was sent for a medical examination by her employer and her employment was terminated.

    [4] Exhibit R2 p164.

23. In September 2002, Ms Toomey obtained employment in a hardware store in the paint section.  In her interview for this position she described her previous work as “very physical …Best exercise …I loved it.”[5]  She said that she left this job after six weeks as she could not lift the cans of paint without hurting her shoulder and neck.

    [5] Exhibit R1 p.31.

24. Ms Toomey’s next position was with a motoring association at a call centre, working four – five hours per day. She continued in this job for approximately eight months.

25. In March 2003, Ms Toomey commenced working for the Roads & Traffic Authority of New South Wales. She was employed on a temporary basis for six months and then appointed to a permanent part-time position. She works as a counter attendant three hours per day Monday – Friday and four hours on Saturday.  Ms Toomey says that she has been unable to work full-time hours by reason of her injuries.

26. Ms Toomey says that by 2004 the continuing pain she was suffering caused her to feel depressed. In 2004 her relationship with her partner ended, which she believes was caused by her depression. She says that she still suffers depression.

27. Apart from medication, a short treatment by a physiotherapist in 2000 and occasional cortisone injections to her shoulder over the past three to four years, Ms Toomey has not received medical treatment for her injuries.  Neither the physiotherapy nor the injections relieved the pain she suffers. 

28. Ms Toomey has not consulted Dr Sharah in the last four years. 

29. Ms Toomey was asked about her medical history prior to October 2000.  Her memory of the conditions which she suffered then was very limited.

30. On 23 February 2015[6], Ms Toomey stated:

    I have suffered crippling depression at the hands of Comcare starting back in 1994/1995 when I was being bullied and harassed at work for being gay. And the treatment I am receiving now does not help with the depression I have been suffering since the car accident.

    [6] Exhibit A5.

    The evidence of Ms Jan Toomey

31. Ms Jan Toomey is Ms Toomey’s mother. She provided a statement dated 11 May 2015[7] and gave evidence.

    [7] Exhibit A1.

32. In her statement Ms Jan Toomey said that, based on her observations of Ms Toomey over the years following the motor vehicle accident, Ms Toomey has continued to be in pain and has been unable to participate in any sport, recreation activities or full-time work. In her opinion Ms Toomey appears to be depressed and has been so for a number of years. She described her daughter’s depression as “overwhelming”.

    The evidence of Ms Devenny

33. Ms Devenny is the sister of Ms Toomey. She provided a statement dated 9 May 2015[8] and gave evidence.

    [8] Exhibit A7.

34. Ms Devenny said that Ms Toomey changed “incredibly” after the accident. She observed that Ms Toomey was unable to take part in any of the sports which she previously enjoyed and was restricted in the activities (such as playing with her nieces and nephews) which she had undertaken.  She appears to have been depressed for many years since the accident.

    Evidence of Ms Stortini

35. Ms Stortini was employed by Comcare from about 1999 until 2009.  She provided a statement dated 2 July 2015[9] and gave evidence.

    [9]  Exhibit R5.

36. In May 2001 Ms Stortini was working as a Claims Officer.

37. On 29 May 2001 Ms Stortini spoke to Ms Toomey and made a file note of that conversation. The file note reads:

    Phoned Kristie to advise that incap has been paid up to the 28 Jan 01

    In conversation I asked Kristie how her neck was at the moment. She said it is great and the time away from work has healed her neck.

    I suggested cancelling the medico legal on 6/6/01 and she agreed because she thinks the medico will agree that she is now OK.

    I advised I would cancel medical + I would also send her an intention to cease as her claim has resolved.

    She agreed to this and explained that she just wanted this whole Comcare claim to go away + be over.[10]

    [10] Exhibit R5 annexure “A”.

38. Ms Stortini could not recall the specifics of the conversation with Ms Toomey, but having reviewed the file note, she was confident it was an accurate record of the conversation.

39. On 10 July 2001 Ms Stortini wrote to Ms Toomey advising her that Comcare was no longer liable to compensate her in respect of the injuries.[11]  Ms Stortini referred Ms Toomey to the fact that Dr Wong had stated that her restrictions should have ceased by May 2001.  The letter also included the following:

    You also advised in a conversation on 29 May 2001 that you were feeling great and that the time away from work had healed your neck and that your condition had resolved.

    EVIDENCE OF HEALTH PROFESSIONALS

    [11] Exhibit annexure “C”.

    Report and certificates of Dr Wong, General Practitioner

40. On 8 May 2001[12] Dr Wong reported:

    Her diagnosis was – soft tissue injury of neck, back and right hand.

    Cervical spine x-ray was normal. She was prescribed Celebrex up to twice daily with Panadeine Forte tablets. She did not benefit from Celebrex and was later switched onto Voltaren which gave her some relief. She was referred for physiotherapy on 19^th October 2000. She was also referred to consult Dr Alex Sharah, Psychiatrist, for her anxiety and depression

    Ms Toomey suffered frequent exacerbations of her neck and back pains. Therefore, a CT cervical spine was arranged and showed no pathology.

    Her pains were aggravated by physical strains as well as emotional strain. She was referred to Dr Bruce Trevitt by Dr Becker on 8^th January 2001 for review.

    Due to her frequent exacerbations of neck pains, Ms Toomey was requiring a gradual return to pre-injury hour work plan with minimal restrictions. Her restrictions would have ceased by now.

    Ms Toomey’s prognosis is good.

    [12] Exhibit A2 doc.11.

41. Following the accident Dr Wong and other general practitioners issued several certificates stating that Ms Toomey was unfit for work by reason of neck and shoulder pain. Dr Wong certified Ms Toomey as fit for work on restricted duties from 29 January 2001.[13]

    [13] Exhibit A2 doc.4.

42. On 19 October 2000, Dr Wong referred Ms Toomey to Dr Sharah, Psychiatrist.  The referral note read:

    Thanks for seeing Kristie Toomey.  Suffered depression.  On no medications.[14]

    [14] Exhibit R2 p.3.

    Report of Dr Sharah, Psychiatrist

43. On 31 October 2000, Dr Sharah reported to Dr Wong, in part:

    This woman complains of bouts of depression for the last four years arising from an harassment case at work.  She is able to see me now because two weeks ago she was involved in a rear end car smash and is suffering from whiplash and is not going to work.[15]

    [15] Exhibit R2 p.2

    Reports of Balmain Rehabilitation and Physiotherapy Centre

44. The Child Support Agency referred Ms Toomey to the Centre in November 2000.  The Rehabilitation Provider noted that Ms Toomey was suffering from neck, upper back and right arm pain which was exacerbated by a number of movements, including shoulder elevation.[16]

    [16] Exhibit A2 docs 14-19.

45. In a Progress Report dated 28 February 2002[17] Mr Kneeshaw, Rehabilitation Provider, stated in part:

    CURRENT TREATMENT

    Ms Toomey is not receiving treatment. She had been prescribed Voltaren tablets, a NSAID [non-steroidal anti-inflammatory drug], and is gradually reducing her dose.  She also takes Panadeine Forte.

    PHYSICAL STATUS

    Ms Toomey reports that her pain levels are reducing.  She has intermittent neck, right shoulder and arm pain and occasional headaches.  The frequency and severity of these episodes are reducing.  She remarked that in her opinion she felt ‘70% better’ than compared with the initial onset of pain.  She noted that she is occasionally quite tired at the end of a shift.

    [17] Exhibit R1 p.245-246.

    Report of Dr Trevitt, Orthopaedic Surgeon

46. Ms Toomey was referred to Dr Trevitt by her general practitioner in January 2001.

47. In his report dated 25 January 2001[18], Dr Trevitt stated:

    There is vague tenderness over both trapezii muscles at the base of her neck. She has a good range of movement in her neck. I would estimate that the movement is full for this particular. She certainly appears to have pain throughout most of the movements, but the movements are symmetrical. Shoulders also have a full range of movement without localised, specific tenderness and with normal rhythm. There is pain when she elevates the shoulders. The neurological examination of the upper extremities is normal.

    ……

    OPINION:  this patient’s history and clinical findings are consistent with a soft tissue injury in the cervical spine. Objectively, she seemed to have recovered movements, but continues to have difficulty exercising and moving because of the pain. She has abandoned physiotherapy and is now hoping that there was some other alternative which will suddenly allow her to become comfortable and return to normal. I have told her that she needs to control her own pain and resume a normal lifestyle so that the symptoms can subside over the next few months. She feels depressed and unable to increase her activities and I am afraid there is no further treatment likely to make any difference. Some psychological help or counselling may be of assistance, but I think this patient has had a sudden, emotional disturbance and has subsequently decompensated, as she has found herself unable to work through the pain and increase her activities. I do not know of any physical way to help this process.

    [18] Exhibit A2 doc.46.

    Report of Dr Kong, Medical Adviser, Health Services Australia Ltd

48. Dr Kong assessed Ms Toomey’s fitness for duty/appointment with the Child Support Agency on 26 February 2001.  He provided a report dated that day.[19]

    [19] Exhibit R1 p.241.

49. Dr Kong reported that Ms Toomey complained of neck, shoulder and superficial head pain since the time of the motor vehicle accident. He reported further:

    Ms Toomey underwent a pre-employment medical examination on 25 October 2000 at that time was found not to meet the medical standard for appointment due to the severity of her neck/shoulder condition as well as a recurrent allergic condition.

    Since the time of the last review, Ms Toomey stated that she has ceased physiotherapy. She felt that the level of the pain had improved by about “70%” and that she was able to do more about the home and in her daily activities. She is still aware of a constant background discomfort in her neck and shoulders which radiates to the back of her head and right arm. The discomfort is worse if she is anxious or if she tries to lift any heavy items with her right arm (she is normally right-handed). She stated that she could sit comfortably for about 20 minutes, drive for about 15 minutes, walk uphill for about 10 minutes, write constantly for about 15 minutes – after these times she would feel uncomfortable in her neck/shoulder and she would need to change posture or briefly rest. She has no difficulties walking on flat ground or down hills.

    ……

    Examination of the neck and shoulders reveals some non-specific tenderness in both trapezeii muscles. Neck movements were good, with only some minor terminal restriction due to pain. Shoulder movements were good. No neurological deficits were noted in the upper limbs.

    ……

    Ms Toomey’s musculoskeletal condition has improved since the time of the last assessment. Her range of movement in her neck has improved and she is currently undertaking a graduated return to work program at 4 hours a day. She would be fit to continue this program, under the supervision of an appropriate rehabilitation provider. She should not lift more than 5kg with her right arm. She would benefit from the use of a headset. I would anticipate further gradual improvement in her condition.

    Report of Dr Casolin, Medical Director

50. In April 2004, Ms Toomey was assessed in relation to her absences from work at the Roads & Traffic Authority.

51. On examination of Ms Toomey, Dr Casolin noted:

    Ms Toomey presented with a normal gait and mobility and was able to remain seated for an extended period.  Right shoulder elevation to the side and forward was greatly reduced and she had difficulty turning her head to the right.  There was diffuse tenderness of the neck musculature and right elbow but no suggestion of carpal tunnel compression or tenosynovitis.

1. In the conclusion to his report, Dr Casolin stated that “Ms Toomey has a number of medical conditions including severe soft tissue injury of the right shoulder and neck with chronic myofascial pain and migraine headaches ….”[20]

   Centrelink assessment 2004[21]

   [20] Exhibit R1 p.78.

   [21] Exhibit A2 doc.48.

2. In 2004, Ms Toomey was medically assessed by Dr Ying, Medical Adviser to Health Australia, following her application for a disability support pension.

3. Dr Ying reported that:

   On examination there was a loss of ¾ from the range of Ms Toomey’s neck movements;

   This loss of movement was work-related;

   Ms Toomey displayed a moderate reduction of right shoulder movements.

   In the opinion of Dr Ying, Ms Toomey’s work capacity would increase from 8-14 hours per week at the time of assessment to more than 30 hours per week after two years.

4. Dr Mar, Ms Toomey’s treating general practitioner at the time, described her current symptoms as:

   Constant pain in neck and shoulders associated with headache.  Patient has a history of migraine.

   ……

   Neck and shoulder pain affects her concentration and is getting her depressed.  Furthermore it is triggering her headaches.

5. In a further assessment in October 2004 Dr Casolin reported:

   Since her previous assessment she has limited her work hours to her maximum capacity of 20 hours per week. As a result her chronic myofascial pains are at a manageable level and all her other conditions are also in remission. She has commenced anti-depressant medications but remains depressed and anxious on a routine questionnaire.[22]

   [22] Exhibit A2 doc.51.

   Report of Dr Sheehan, Medico Legal and Occupational Health Consultant

6. Ms Toomey consulted Dr Sheehan in August 2008 for the purposes of her claim for compensation.

7. On 5 September 2008[23], Dr Sheehan reported:

   ·Ms Toomey’s “chronic injuries have seriously impacted upon her capacity to lead a normal life to the extent that she has been treated for depression”;

   ·she has been left with “a significant muscular ligamentous injury involving her cervical spine”;

   ·the injury to her spine is associated with neck stiffness and separately based post-traumatic headaches;

   ·the fact that muscle spasm was encountered during examination of her neck is evidence supporting the severity of the neck injury;

   ·Ms Toomey has been left with a significant soft tissue injury involving her right shoulder, the exact nature of which remains undefined;

   ·Ms Toomey “has been rendered permanently unfit for any work which might necessitate the need for her to maintain fixed head and neck postures for long periods of time or the need to use her dominant right arm in any forceful fashion, particularly overhead”.

   [23] Exhibit R1 p.83.

   Report of Mr Stoker, Clinical Psychologist

8. Mr Stoker assessed Ms Toomey on 23 January 2009 specifically in relation to the motor vehicle accident.

9. In his report dated 23 January 2009[24], Mr Stoker expressed the following opinions:

   …. As a consequence to the motor vehicle accident, this woman is suffering from an Adjustment Disorder with Depressed & Anxious Mood …. Her depression and anxiety are secondary to ongoing pain, physical limitations, social/recreational/relational/sexual/vocational difficulties.

   ……

   It is also my opinion that she is suffering from a Pain Disorder due to Psychological Factors and a General Medical Condition (Namely Right Shoulder Injury) (D S M – IV). In other words, she has a chronic pain syndrome. Her depression, anxiety and anger are exacerbating her experienced pain levels via a process of somatisation.

   [24] Exhibit R1 p.91.

   Report of Dr Bornstein, Consultant Orthopaedic Surgeon

10. At the request of Comcare, Dr Bornstein assessed Ms Toomey in August 2009 in relation to her claim for compensation for permanent impairment.

11. In his report dated 12 August 2009[25], Dr Bornstein stated, in part:

    Examination showed her to be tender generally at the root of the neck over the trapezius muscle. She had no extension of her neck. She had no rotation to the right-hand side and she had fairly normal lateral flexion and forward flexion of her head. Rotation to the left was normal.

    ……

    She had gross restriction in the range of movement of the shoulder, she was unable to abduct it more than about 30° and the same applied to flexion, extension and rotation. All movements in her right shoulder were severely restricted apparently by pain.

    [25] Exhibit A2 doc.52.

12. Dr Bornstein concluded:

    The degree of disability presented by Ms Toomey appears to be out of all keeping with the nature of the accident, which I would accept could have caused soft tissue injury of the whiplash type, particularly as she informs me that the MRI scan carried out subsequent to this accident revealed no abnormalities. Of course at this time I do not know the anatomical appearance of her neck as she does not have any radiology, and certainly no recent radiology on which to make an informed assessment. Accordingly it is not really possible to make any assessment of whole person impairment at this time in the absence of any radiology to confirm her complaints.

    ……

    I cannot give you the specific condition from which she suffers beyond to say the fact that she appears to continue to be suffering from a whiplash associated disorder. On the basis of the history given to date there does not appear to be any structural damage to her neck that could explain the long term problem that she has from the orthopaedic standpoint. There may be a neurologic deficit which causes her headaches which appear to be the major complaint.

13. In response to a question whether Ms Toomey suffered any whole person impairment arising solely from work-related factors, Dr Bornstein stated that he did not consider it was reasonable to attempt to answer this question on the basis of her subjective complaints. In his opinion, by way of example, there was no logical reason for the grossly restricted range of motion in her right shoulder.  In his opinion, Ms Toomey’s condition had not been adequately investigated.

    Ultrasound report October 2013

14. This report[26] refers to a clinical history of a painful arc.  It states in part:

    The tendon of supraspinatus is thickened and hypoechoic consistent with tendonitis.  No other rotator cuff tendon abnormality is identified.  There is no evidence of a rotator cuff tendon tear.

    [26] Exhibit A2 doc.55.

    Evidence of Dr McGill, Consultant Rheumatologist

15. On 15 January 2015, Dr McGill assessed Ms Toomey at the request of the Solicitors for Comcare.  He provided reports dated 15 January 2015[27] and 26 June 2015[28] and gave evidence.

    [27] Exhibit R3.

    [28] Exhibit R4.

    Report dated 15 January 2015

16. Dr McGill reported taking a medical history from Ms Toomey that she had problems with depression.  She said that the depression began when she was harassed at work and that it was contributed to by the motor vehicle accident and by her separation from her former partner.

17. When asked specifically as to her symptoms over the month immediately prior to the assessment, Ms Toomey referred to:

    ·occasional migraine;

    ·stabbing sensation at the back of her neck on rapid movement of her head;

    ·slight soreness in the left upper limb;

    ·a feeling that her right forearm at times was “dead”;

    ·intermittent paraesthesia down the right upper limb involving all fingers of the right hand.

18. Dr McGill reported that:

    In summary, the physical examination demonstrated severe obesity, failure of full movement of all joints in the right upper limb without any objective finding to account for that pattern of restriction, no neurological abnormality and symmetrically restricted cervical spine movements.

19. In the opinion of Dr McGill, his examination of Ms Toomey revealed “abnormal behaviour with the right upper limb not explicable on the basis of organic disease. There was no evidence of chronic disuse of the right upper limb.”  In his opinion she suffered strain of the cervical region as a result of the motor vehicle accident on 16 October 2000.

20. Dr McGill continued in his report:

    Noting that she had full normal rhythm of shoulder movement in January 2001 and noting the nature of the accident it is very unlikely that she suffered any shoulder injury.

    I think any direct physical effect of the motor vehicle accident is likely to have ceased in a few weeks or at most in three months.

    With respect to the objective findings, her condition did follow the expected pathway of recovery. When she saw Dr Trevitt in January 2001 he noted “objectively she seems to have recovered movements”. The reports of various pains did not follow what could be expected or could be plausibly related to the motor vehicle accident.

    Her current symptoms and her symptoms for many years have not been related to the motor vehicle accident.

    It is possible that she has rotator cuff related symptoms in the right shoulder but the examination findings today were not explicable on that basis. Rotator cuff degeneration is very common including in people in their 40s. No investigation of her shoulders or other structures was available. If she has rotator cuff disease then this is not related to the motor vehicle accident in October 2000 for the reasons discussed above.

    The significant pre-existing and non-work-related medical history is primarily that of the difficult time she has had psychologically coping with various stressors which have been described by the psychologist and have been mentioned above. The current situation would have been the same regardless of the motor vehicle accident on 16 October 2000.

    She does not suffer incapacity related to injury sustained on 16 October 2000. Specifically there is no impairment as per the Comcare Guide Edition 2.1 in relation to the October 2000 motor vehicle accident.

    Report dated 26 June 2015

21. In this report Dr McGill summarised the medical conditions reportedly suffered by Ms Toomey prior to the accident in October 2000[29]:

    [29] This information was taken from the clinical notes of the general practice attended by Ms Toomey (exhibit  R2) and other records provided to Dr McGill by Comcare’s Solicitors.

    ·October 1993 experiencing tendonitis of the wrist and stress;

    ·1994 the possibility of early RSI was recorded;

    ·March 1994 Ms Toomey had been involved in a motor vehicle accident 18 months previously and was then experiencing “chronic pain”; there was a reference to back pain;

    ·July 1995 a workplace assessment occurred in regard to “wrist, forearm and neck pain”;  it was noted that these symptoms had been experienced a couple of years previously followed by a recurrence and had been constant for the last couple of months; Ms Toomey reported that she was experiencing “a shooting pain that originates in the fingers and ball of the right hand and radiates to her right wrist and elbow and travels up to her right shoulder”; she had difficulty in driving for long distances, leisure activities including playing tennis and activity such as nursing her young nieces and nephews;

    ·September 1995 experiencing body pain, dizziness and sneezing;

    ·October 1995 it was noted that Ms Toomey was “cracking up” and reported harassment at work;

    ·November 1995 recording of stress and antidepressant therapy;

    ·January 1996 report of Ms Toomey having seen a psychiatrist;

    ·June 1997 Ms Toomey reported that she had almost been involved in a motor vehicle accident and hurt her left arm on the steering wheel; two days after this incident she was experiencing pain in the right wrist and tingling in the fingers in addition to the back of the neck and in the lower back (both of which were reported to be resolving);

    ·May 2000 Ms Toomey was experiencing migraines and headache;

    ·June 2000 experiencing pain in the right forearm when it was noted that there was “no injury” but there was “tenderness ++”;

    ·June 2000 a note of Ms Toomey receiving news of the suicide of her uncle and a subsequent entry of the need for referral because of depression and not coping.

22. Dr McGill confirmed his opinion that Ms Toomey’s present situation is not influenced by the effects of the motor vehicle accident in October 2000.

    ISSUES

23. The following issues arise for consideration.

    In application no. 2014/4786

    (1).Has Ms Toomey been incapacitated for work at any time since 10 July 2001 as a result of the injury, being a neck strain, suffered by her on 16 October 2000?

    (2).If so, for what period or periods was she incapacitated?

    In application no. 2014/4794

    (3).Has the injury or injuries suffered by Ms Toomey on 16 October 2000 resulted in a permanent impairment of Ms Toomey?

    (4).If so, what is the degree of that impairment?

    CONSIDERATION OF THE ISSUES

    Issue 1:       Has Ms Toomey been incapacitated for work at any time since 10 July 2001 as a result of the injury, being a neck strain, suffered by her on 16 October 2000?

24. Ms Toomey argues that the pain she suffers in her neck and her right shoulder has prevented her engaging in full-time work for most of the time since 10 July 2001.  This was the date from which Comcare determined that her neck sprain ceased to cause her to be incapacitated.  It is to be noted that Comcare has not accepted liability to compensate Ms Toomey in respect of an injury to her shoulder and, on the evidence before me, she has never sought a reconsideration of the decision denying that liability.

25. Further, Ms Toomey argues that ever since she was injured, several doctors have expressed opinions that her inability to engage in full-time work has been caused by the condition of her neck and right shoulder.  I accept that this is so.  Comcare also accepts that, at times until 10 July 2001, the injury to Ms Toomey’s neck alone prevented her working.

26. After assessing Ms Toomey in August 2008, Dr Sheehan was of the opinion that she had an ongoing “significant muscular ligamentous injury involving her cervical spine” and “a significant soft tissue injury involving her right shoulder.”  His opinion is supported by the reports and assessments carried out in 2004 by Dr Casolin, Dr Ying and Dr Mar.

27. However, having carefully considered all of the evidence, I have reached the conclusion that any incapacity for work experienced by Ms Toomey since 10 July 2001 has not been caused by the injury to her neck. In so doing I have preferred the evidence of Dr McGill to that of Dr Sheehan and others who supported his view.

28. Although it is not necessary that I decide the issue, in view of the argument put by Ms Toomey, I record that I am satisfied also that the condition of her right shoulder did not cause her incapacity to engage in full-time work.  My reasons for so deciding are the same as my reasons for reaching the conclusion in relation to her accepted neck condition.

29. In so doing, I have preferred the evidence of Dr McGill to that of Dr Sheehan and others who supported his view.

30. Dr McGill assessed Ms Toomey’s condition in 2015.  I was impressed by the detailed consideration he gave to the various reports and clinical notes provided to him.  Based on his evidence, I am satisfied that the effects of the injury to Ms Toomey’s neck had ceased by early 2001 and no later than 10 July 2001, when Comcare denied liability to further compensate Ms Toomey for incapacity for work.

31. I have set out the basis on which Dr McGill formed his opinion and I am satisfied that his opinions were based on sound assumptions of fact. 

32. In particular I have taken into account that Ms Toomey suffered unspecified chronic pain, pain in her neck, pain in her right arm and migraine headaches prior to the claimed injury.  These conditions are very similar to those which Ms Toomey argues she now suffers and which are entirely a result of the motor vehicle accident in October 2000.

33. Ms Toomey also sought to rely on her suffering depression as a factor contributing to her inability to engage in full-time employment.  Putting aside any issues arising from Ms Toomey not having claimed depression as an injury resulting from the accident, I do not accept her argument.

34. It is clear that Ms Toomey suffered, and was treated for, depression prior to the accident.  She was referred to Dr Sharah within a week of the accident.  His report to Dr Wong indicated that he treated Ms Toomey for depression arising from harassment which had taken place some years previously and that she had suffered depression for some years prior to October 2000.  It may be that Ms Toomey’s perception of pain and the cause of it has been influenced by her psychological condition.

35. The conclusion of Dr McGill is supported by the opinion of Dr Wong expressed in May 2001, that Ms Toomey’s restrictions from the accident would have ceased by then. Although Dr Bornstein accepted that the accident may have caused a soft tissue injury to the neck, in his view the degree of disability presented by Ms Toomey in 2009 “appeared to be out of all keeping with the nature of the accident”.

36. I do not accept Ms Toomey’s evidence that she has continuously suffered pain in her neck since the accident.  On the basis of the evidence of Ms Stortini, I am satisfied that on 29 May 2001 Ms Toomey told Ms Stortini that her neck was “great” and had “healed” and that she agreed that her claim had been resolved.  This is consistent with Dr Trevitt’s view that she had recovered movements by January 2001 and Dr Wong’s assessment of the situation in May 2001.  It is consistent also with Ms Toomey having told both Dr Kong and Mr Kneeshaw that the level of pain she was experiencing had improved by “about 70%” by late February 2001.

37. Ms Toomey gave evidence that she does not recall Ms Stortini saying that she would cease her claim.  As Ms Stortini made a note of the conversation and followed it up with correspondence as she said she would, I am satisfied that her recollection of the events is accurate  When asked why she did not respond to the letter written by Ms Stortini on 10 July 2001, Ms Toomey replied “I wanted them to get off my case”.  This response gives further support to the conclusion that by this time Ms Toomey had recovered from her injuries.

38. For these reasons, I am satisfied on the balance of probabilities that Ms Toomey has not been incapacitated for work at any time since 10 July 2001 as a result of the injury to her neck suffered on 16 October 2000.

    Issue 2:Not applicable.

    Issue 3:       Has the injury suffered by Ms Toomey on 16 October 2000 resulted in a permanent impairment of Ms Toomey?

39. The claim for compensation for permanent impairment made on Ms Toomey’s behalf by letter of 4 November 2008[30] was based on the two reports of Dr Sheehan of 5 September 2008.[31]  These included an assessment of permanent impairment based on both the neck injury and an injury to the right shoulder.

    [30] Exhibit R1 p.343.

    [31] Exhibit R1 p.344 ff.

40. For the reasons already stated, I am satisfied that Ms Toomey no longer suffers any effects of an injury to either her neck or her right shoulder caused by the motor vehicle accident in which she was involved on 16 October 2000. It follows that I am not satisfied that any injury suffered by Ms Toomey in that accident has resulted in a permanent impairment in accordance with section 24 of the Act.

    CONCLUSION

    Application 2014/4786

41. The reviewable decision made 18 July 2014, that Ms Toomey is not entitled to compensation under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) from 10 July 2001 to the date of the decision, will be affirmed.

    Application 2014/4794

42. The reviewable decision made 18 July 2014, that Ms Toomey is not entitled to compensation under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), will be affirmed.

I certify that the preceding 93 (ninety -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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

Associate

Dated 29 October 2015   

Date(s) of hearing	8 July 2015
Applicant	In person
Counsel for the Respondent	Mr B Dube
Solicitors for the Respondent	Ms S Leembruggen, Sparke Helmore