Tyarna Sanders v National Australia Bank Limited
[2008] VMC 6
•3 July 2008
IN THE MAGISTRATES COURT OF VICTORIA
AT LATROBE VALLEY
WORKCOVER
Case No. W03354691
| Tyarna Sanders | Plaintiff |
| v | |
| National Australia Bank Limited | Defendant |
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| MAGISTRATE: | S Garnett |
| WHERE HELD: | LaTrobe Valley |
| DATE OF HEARING: | 19 June 2008 |
| DATE OF DECISION: | 3 July 2008 |
| CASE MAY BE CITED AS: | Tyarna Sanders v National Australia Bank Limited |
| REASONS FOR DECISION |
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Catchwords: S 93CC Accident Compensation Act 1985 – “current work capacity” – “no current work capacity” – a “degree of realism” required; S 99 Accident Compensation Act 1985 – “reasonable medical treatment”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Carson | |
| For the Defendant HIS HONOUR: | Mr Batten |
1. The National Australia Bank terminated Mrs Sander’s weekly payments of compensation on 30 April 2007 on the grounds that she had a “current work capacity” or in the alternative that if she had “no current work capacity” it would not continue indefinitely.
2. The Bank also terminated her entitlement to physiotherapy and massage treatment expenses from 31 January 2008 and psychological treatment expenses from 31 May 2008 because it alleged the treatment was no longer reasonable and necessary in accordance with Accident Compensation Act 1985 (the Act).
History
3. Mrs Sanders is aged 43 years and commenced work with the Bank on 26 February 1996 as a teller working 27.5 hours per week.
4. On 6 July 1998, she sustained injuries to her right shoulder when she took a load on her right arm to lower herself from a bench on which she was sitting during a work meeting. She attended Dr Smith who referred her for physiotherapy treatment and she was off work for a period of six weeks on workcover. Mrs Sanders gave evidence that she returned to work on normal duties, continued to suffer pain in the right shoulder region, and tended to use her left arm more to alleviate the pain. Consequently, she began to suffer pain in the left shoulder in November 1999. Ultimately, she was referred to orthopaedic surgeon Mr Wright, who performed arthroscopy surgery on her right shoulder on 29 September 1999. Mrs Sanders returned to work on a return to work program in early 2000 but ultimately due to continuing pain and discomfort in her left shoulder underwent a left shoulder arthroscopy on 20 June 2001which was also performed by Mr Wright.
5. Mrs Sanders remained off work for a period of five to six months and once again returned to work on modified duties initially two hours per day gradually increasing to 15 hours per week. She gave evidence that she continued to experience pain and discomfort in both shoulders and developed psychological symptoms for which Dr Smith referred her for counselling in early 2002. Her evidence was that she ceased work in October 2002 because she was not coping.
6. Mrs Sanders gave evidence that her pain level has peaks and troughs and that since her massage and physiotherapy treatment ceased she has experienced more pain and headaches and she is tenser. She is on a disability support pension, receives ongoing treatment from Dr Smith and takes numerous medications for both her work injuries and non-work related conditions, which include insulin dependent diabetes mellitus (first diagnosed in March 1996) and hypothyroidism. She also gave evidence that she engages in a home based exercise program on the advice of her physiotherapist.
7. As part of her rehabilitation, Mrs Sander’s completed an Integration Aide course at Bairnsdale Tafe with the assistance of an aid who performed computer and internet searches and typed her assignments but she has not obtained employment in that field despite the efforts of the Bank and the Commonwealth Rehabilitation Service.
8. In cross-examination, Mrs Sanders gave evidence that she does not believe she can work, cannot think of any job that she could do and that she terminated her involvement with the Commonwealth Rehabilitation Service in mid 2007 who were at that stage in the process of arranging a job placement for her, as she did not believe she was “up to it”. She stated that she looks in the paper for work but there is no job suitable for her.
Medical Evidence
9. Dr Smith gave evidence and his medical reports dated 23 May 2003, 18 May 2007, 16 March 2008 and 8 June 2008 were tendered. Dr Smith confirmed that Mrs Sander’s has sustained rotator cuff tendonitis to the right and left shoulders for which she underwent surgical repair. He was of the opinion that in late 2002 she developed a major depressive illness due to her pain, inability to cope at work and her uncertain future employment. He referred her to a psychologist and prescribed anti depressant medication in February 2003.
10.Dr Smith confirmed that he attended a case conference in October 2005 with Ms White (treating psychologist), Ms East (CRS) and Ms Ness (Bank representative) to discuss the future management of Mrs Sander’s condition and employment options. He noted that the outcome of the conference was that Mrs Sander’s would not be returning to work with the Bank in any capacity and that she should have a vocational assessment regarding alternative employment.
11.He also opined that her condition is stable, it varies in severity and that her current maintenance program of physiotherapy, massage, counselling and medication should continue so that she can maintain her activities of daily living. In March 2008, he was of the opinion that although significantly disabled by her condition she would be fit for suitable work part time such as an Integration Aide providing it had flexibility for her good and bad days. On 4 June 2008, he noted that she was experiencing more pain and loss of function of her shoulders resulting in a worsening of her depressive symptoms, which he attributed to the termination of physiotherapy and massage treatment. He is of the opinion that she is unfit for all work.
12.During cross-examination, Dr Smith confirmed that he had not referred Mrs Sanders to a psychiatrist because he believed his treatment was appropriate and due to a limitation on those services in the area. He agreed with the opinion expressed by Dr Jager, Psychiatrist, who assessed Mrs Sanders on behalf of the Bank that her major depressive disorder is in partial remission and is potentially amenable to treatment and that it would be reasonable for her care to be transferred from her psychologist to a psychiatrist.
13.He conceded that there is little objective evidence of a continuing physical condition, that her treatment regime is not ameliorating her physical symptoms, and that her psychiatric condition is a significant part of her presentation. He agreed with an assessment made by Paul Hartley, Rehabilitation Consultant, who assessed Mrs Sanders on behalf of her solicitors on 20 February 2008, that she could return to part time work should her condition improve.
14.The remaining medical evidence on behalf of Mrs Sander’s was tendered by way of medical reports. This evidence included reports from; Ms White and Mr Egan Psychologists, Ms McNeill Physiotherapist, Dr Nicholson, Mr Wright Orthopaedic Surgeon, Ms Allen and Ms Wood Naturopath/Remedial Therapists and the Medical Panel . I do not propose to refer to all in detail as many of the reports simply contain historical detail as to the treatment received by Mrs Sander’s which is not in dispute between the parties nor do the contents of all reports assist in the determination of the matter.
15.Mr Wright stated in his report dated 17 October 2003 that the surgery he performed on Mrs Sander’s right shoulder on 29 September 1999 consisted of anterior stabilisation using thermal capsular shrinkage and a limited subacrominal decompression with division of the coracoacominal ligament and a conservative acromioplasty. The surgery performed on her left shoulder on 20 June 2001 consisted of subacrominal decompression. He indicated in 2003 that he could not specify the cause of the ongoing pain she was experiencing.
16. Mrs Sander’s gave evidence was that she has not seen Mr Wright since 2004.
17.The reports from the Psychologists confirm that Mrs Sander’s has been receiving psychological treatment for many years with a focus on assisting her to manage her symptoms and coping with her pain levels. Ms White indicated in her report dated 1 February 2007 that Mrs Sanders had been working towards self-management of her condition over the previous six months and has encouraged her to have a break from counselling. She referred Mrs Sander’s to Mr Egan who commenced treating her in April 2007 and who has continued to see her on a monthly basis until May 2008. In his report dated 14 May 2007 he indicated his goal was to empower Mrs Sander’s to manage her condition.
18.A Medical Panel opinion dated 29 March 2005 obtained for the purposes of an S 98C claim was tendered indicating that in the Panel’s opinion Mrs Sander’s has a 13% whole person impairment resulting from the accepted injuries.
19.Ms McNeill stated in her report dated 27 November 2007 that Mrs Sander’s was attending occasionally when she has a flare up and that a tens machine was trialled which empowers her to manage her injury.
20.The report from Ms Wood dated 4 April 2008 confirms that Mrs Sander’s has attended for regular remedial massage treatment since May 1999 and the treatment has given her symptomatic relief and improved her well being enabling her to effectively deal with life’s challenges. She also states that massage treatment will be an important part of her pain management program.
21.The Bank also tendered numerous medical reports from Mr Kendall Francis Surgeon, Dr Baker Specialist in Occupational Medicine, Mr Jones Orthopaedic Surgeon, Dr Jager Psychiatrist, Dr Nash and Mr Wright.
22.Mr Kendall Francis examined Mrs Sander’s on 19 April 1999, 5 June 2000, 19 January 2001, 10 October 2001, 22 August 2002 and 24 May 2004. The reports following his examinations of her on 19 April 1999, 19 January 2001 and 10 October 2001 were not tendered.
23.At the 22 August 2002 examination, two months prior to Mrs Sander’s ceasing work, he believed that she was still in the process of recovering from her left shoulder surgery and was coping with the light duties she was performing. He was of the opinion that the massage treatment she was receiving should cease as it was being received for psychological rather than physical reasons. At his 24 May 2004 examination, he noted a marked deterioration in her symptoms with severely restricted movement of both shoulders and noted that she had become emotional and weepy. He recommended a psychiatric assessment and questioned the relationship between her left shoulder condition and the incident at work on 6 July 1998 or the condition in the left shoulder developing because of overuse of it (as did Dr Nash who examined her on 30 September 2004). He did not believe she would be left with a permanent impairment and was fit for suitable work.
24.Dr Baker examined Mrs Sander’s on 2 February 2007 and 28 March 2008. In February 2007, he considered she was suffering from chronic soft tissue injuries to both shoulders and an adjustment disorder with symptoms of anxiety and depression. He did not consider she could work as an Integration Aide but suggested possible occupations including; meter reader, call centre operator, telemarketer, meeter or greeter in a store or lifeline counsellor. In his report dated 1 April 2008, he agreed with an opinion expressed by Mr Jones that Mrs Sander’s pre-existing diabetes mellitus increased the chances of her developing shoulder problems. He confirmed his earlier opinion that she was fit for suitable work from a physical perspective noting that Mrs Sander’s considered herself totally incapacitated. He also opined that she should be able to self manage her condition and supported the Bank’s decision to terminate physiotherapy and massage treatment.
25.Mr Jones examined Mrs Sander’s on 22 August 2007. He diagnosed that she had bilateral capsulitis/rotator cuff dysfunction and noted that it was recognised that diabetes has a well-known association with shoulder capsulitis and that any surgical procedure on a diabetic was capable of initiating a frozen shoulder. (Dr Nash also opined that capsulitis has a prevalence of between 10-20% in diabetics and was the most likely cause of Mrs Sander’s left shoulder problem). Mr Jones initially doubted her condition was work-related but subsequently opined that as the Bank had accepted liability for the original injury; it was still a significant factor in her presentation. He also questioned the need for ongoing physiotherapy on the basis that it had not produced any benefit over the past one to two years and he also queried Mrs Sander’s ability to work as a teachers/integration aide.
26.Dr Jager assessed Mrs Sander’s for psychiatric purposes on 21 August 2007 and 30 May 2008. As indicated earlier he diagnosed her as having a chronic major depressive disorder. He suggested in August 2007 that an increase in her Reboxetine medication to 8mg daily would result in a significant improvement in her condition although noted in his report dated 10 June 2008 that her resumption of Reboxetine, whilst improving her condition, has not resolved it. He opined that the contributing factors to her psychiatric condition included her work injury, medical problems and genetic pre-disposition (noting her mother’s history of depression).
27.He is of the opinion that Mrs Sander’s is not fit for her pre-injury duties, unfit to work with the public because of her emotional distress but could perform physical work with restrictions six hours a day. He believes she should be treated by a psychiatrist rather than psychologist to allow the type and amount of medication to be manipulated.
28.I find that the overwhelming medical evidence indicates that Mrs Sander’s would be capable of performing part time modified duties because of her bilateral shoulder condition. However, it is also obvious that when combined with her psychiatric condition, which to date has not been adequately treated, her capacity is further compromised.
Vocational Assessments
29.Mrs Sander’s tendered a report from Paul Hartley, Rehabilitation Consultant dated 25 February 2008 and the Bank tendered numerous reports from the Commonwealth Rehabilitation Service who were involved in her potential rehabilitation from 1999 through to mid 2007.
30.The reports from CRS indicate that in the September/October 2002 period there was confusion between the Bank, Mrs Sander’s and CRS as to whether the focus of rehabilitation should be on vocational options within or external to the Bank. Mrs Sander’s informed CRS that she was upset and not coping with the environment at work and was stressed about the mixed messages she was receiving in respect to her rehabilitation program and the uncertainty about her future. It was agreed between CRS and the Bank that the aim should be to find her suitable work outside the Bank.
31.On 25 November 2005, a CRS Vocational Assessment identified her as being suitable for employment as an Integration Aide. In March 2006, CRS identified a number of barriers to employment including; limited experience in the job market, pain levels, difficulty sleeping, reduced shoulder movements, reduced handling capacity, grip strength and upper arm strength, limited driving capacity and her depression. The assessment also noted that she would only be able to work for short periods of time – up to two to three hours and for up to three days per week and therefore she would need to find employment in an area that allows for a good deal of flexibility in the workplace.
32.As previously mentioned, Mrs Sander’s successfully completed the Certificate requirements for employment as an Integration Aide with the assistance of the Bank and CRS. As part of her rehabilitation, arrangements were made for a potential voluntary placement at Lucknow Primary School. The aims were to assist her in developing confidence in her abilities in the work place and to allow direct contact in relation to integration aide work. However, this arrangement was cancelled in mid 2007 when Mrs Sander’s requested that occupational rehabilitation services cease because of her injuries and resultant depression. Ms Rutter, Rehabilitation Consultant at CRS confirmed that Dr Smith considered it was inappropriate to proceed with a voluntary placement for Mrs Sander’s at that time. Dr Jager also expressed the opinion in August 2007 that Mrs Sander’s was unfit for work as an Integration Aide because of her emotional distress.
33.Mr Hartley assessed Mrs Sander’s on 20 February 2008 for the purposes of a vocational assessment. He believed the skills gained by her in the Integration Aide course were unable to be fully utilised due to her physical restrictions, anxiety, and depression. In particular, he believes she would not be able to physically support disabled and active children, set up equipment, carry school/classroom requisites or have the ability to react quickly in difficult situations.
34.He was unable to suggest suitable vocational options for her in the Bairnsdale area at this time although postulated that with access to the WISE scheme and further training she may have a chance to be employed as a pharmacy assistant which would involve performing tasks as a dispensary assistant, pharmacy administration or selling co-ordination. He indicated that in order to qualify she would need to complete a Pharmacy Assistants Pre-Employment Course and in order to take the advanced role necessary to reduce her need to undertake the more physical duties she would need to attain a Certificate II and III qualification in Community Pharmacy. Mr Hartley indicated that such courses are available at GippsTafe in Warragul. He recommends that she undertake each course on a part time basis over one year each having regards to her physical limitations and believes this should greatly enhance her ability to gain suitable employment.
Does Mrs Sander’ have a “current work capacity”?
35.Whilst I am mindful of the principles set out by the Court of Appeal in Barwon Spinners[1] in relation to “suitable employment” and the application of those principles to statutory benefit entitlements[2], a degree of reality must be applied for the concept and the Act to have practical and meaningful application. A “degree of realism” when considering the concept and application of suitable employment and capacity for employment is not new and has been applied by the courts before and after Barwon Spinners as I listed in my decision of Bos v Safeway[3].
[1] 2005 VSCA 33
[2] See Unreported Decision of Judge Wilmoth in Spoljaric v PBR Automotive Ltd 15 June 2005 and Judge G D
[3] Dated 19 December 200736.In particular, in Holt v Kleyn Plant Hire P/L[4] Judge G D Lewis said; “However, employment even of the lightest kind must involve punctuality, regular attendance and a constant capacity to do the work required”.
[4] Unreported 27 August 200237.In Imbraim v Jack & Mario Quality Meats[5], Judge Strong said, when considering the definition of “suitable employment” in an S 134AB application; “to be suited for such a position, a worker must have the capacity to be at work each day, during the appointed hours (with perhaps the occasional sick day). The worker must be well enough not only to complete the required tasks, but to do so with the requisite level of concentration. No employer would regard a worker as suitable for a permanent (or long term casual position) unless he/she was able to meet those requirements...”
[5] 24 February 200638.It is obvious that when considering Mrs Sander’s evidence as to the restrictions on her daily living activities, her fluctuating pain levels, her depression and her medication intake, that she would not, at present, or in the foreseeable future, be a regular attendee at any workplace or have the constant capacity required to fulfil a meaningful employment position. She would require frequent rest breaks, depending on her pain level and would require regular periods off work.
39.Mrs Sander’s capacity is limited due to the nature and extent of her compensable injuries. Her employment opportunities are limited by virtue of her place of residence (Nicholson – a rural town in East Gippsland). She only completed year 10 at school and whilst she completed in house training at the Bank and obtained an Integration Aide Certificate, she has no other qualifications. Her past employment history is confined to the banking sector and retail sales. She has significant barriers to employment which include; her fluctuating pain levels, sleep disturbance, loss of self esteem, reduced arm/shoulder movements, a major depressive disorder which has been inadequately treated to date and the intake of numerous medications which include; Reboxetine 8mg, Temazepam, Panadeine Forte, Panadeine, Brufen, anti- inflammatory gel, Insulin and Thyroxine.
40.She currently has no work capacity, which is likely to continue indefinitely. That is, for the foreseeable future[6]. I accept that with appropriate treatment from a psychiatrist, as recommended by Dr Jager, and appropriate rehabilitation assistance as recommended by Mr Hartley, Mrs Sander’s may ultimately be able to return to work in “suitable employment”. Therefore, at present, she is entitled to weekly payments in accordance with the provisions of the Act.
[6] As defined by Judge G D Lewis in Wright v Sunnyside House Inc. Unreported 6 October 2004
Are ongoing physiotherapy, massage and psychological treatment reasonable and necessary?
41.The Bank terminated these services because it alleged they were no longer reasonable and necessary.
42.The concept of “reasonably necessary” was considered by the New South Wales Compensation Court in Rose v Health Commission (NSW)[7]. The Court said; “I would believe the treatment must be reasonable if it is to fall within the purview of the subsection. But that is not solely because of the words “reasonably necessary” but is rather inherent in the concept of “treatment” itself. Treatment is necessarily purposive. Treatment in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular “treatment” cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment”.
[7] [1986] NSWCC 243.The Court held that it was a matter to be determined by the tribunal on the totality of the relevant facts as found by it. These would include consideration of medical opinions as to appropriateness; alternative treatments; cost; degree of effectiveness – actual or potential; its usage in similar cases. In addition, if there are two potential lines of treatment and one is low cost, highly effective, and the other high cost, minimally effective, it would be difficult to adjudge the latter necessary.
44.In Pascoe v Phelan[8] the Workers Compensation Board held that the test of reasonableness also embraces the question of whether the treatment alleviates the workers suffering.
[8] 1961 3 WCBD 31145.In Clement-Black v Heath Workers Compensation[9], Judge Williams held that “reasonable” had to be given an objective interpretation and is what the court thinks is reasonable taking into account all relevant circumstances.
[9] Unreported County Court decision 1 April 199646.In Colosimo v GIO[10], the Court when considering S 99 (14) of the Act considered that the critical word in the sub-section was “essential”, which meant necessary, indispensable.
[10] Magistrate Lauritsen 15 September 200347.In relation to Mrs Sander’s ongoing psychological treatment which was terminated by the Bank on 31 May 2008, I accept the opinion of Dr Jager, as did Dr Smith in his evidence, that it is appropriate for Mrs Sander’s treatment to be transferred from her psychologist to a psychiatrist in order to further manipulate the anti-depressant medication and/or the type of anti-depressant medication and therapy.
48.I also accept the opinions of Dr Baker and Mr Jones that the provision of physiotherapy and massage treatment is no longer reasonable and necessary. Mrs Sander’s has been receiving this treatment for many years with no tangible physical benefit as conceded by Dr Smith. Mrs Sander’s gave evidence that the treatment was therapeutic as it helped her relax. The evidence is that the treatment provides temporary relief only. In my opinion, any benefits associated with this treatment can be achieved by Mrs Sander’s continuing her home based exercise program. The medical evidence supports that the focus of her ongoing treatment should be psychiatrically based.
ORDERS:
49.Therefore, I find that ongoing psychological, physiotherapy and massage treatment are not reasonable and necessary in accordance with the Act and the Bank is not liable for the costs associated with them.
Lewis in Levey v Apex Printing P/L 31 October 2005.
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