Weston and Military Rehabilitation and Compensation Commission

[2008] AATA 1037

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1037

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/165

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RUTH NAOMI WESTON

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)

Date19 November 2008

PlaceHobart

Decision The decision under review is affirmed.

[Sgd The Hon R J Groom]

Deputy President

CATCHWORDS

COMPENSATION - lower back and knee injuries - liability initially accepted - cease effects determination - whether applicant ceased to suffer any incapacity or impairment from specified date - decision affirmed

Safety Rehabilitation and Compensation Act 1988, ss.  4(1), 14(1), 16(1) & (2), 24, 36(1)

Commonwealth v Borg (1991) 20 AAR 299

McDonald v Director General of Social Security (1984) 1 FCR 354

REASONS FOR DECISION

19 November 2008 The Hon R J Groom (Deputy President)

Introduction:

1.      The applicant seeks a review of a decision ceasing the payment of compensation and medical and related expenses for injuries to her lower back and both knees sustained in the course of her employment with the Royal Australian Navy.

Background:

2.      The applicant initially served in the navy from 8 February 1988 until 18 June 1991 when she was discharged at her request.  She then re-enlisted on 11 October 1999 and was discharged as medically unfit on 25 February 2001.

3.      On 8 August 2000 the applicant lodged a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 ("the Act") for a lower back injury alleged to have occurred on 17 November 1999, when she fell heavily after tripping on a tree root during a naval training exercise. 

4.      By a determination dated 30 August 2000 liability was accepted for a "dorsal disc bulge at L5-S1" occurring on 17 November 1999.

5.      On 11 December 2000 the determination of 30 August 2000 was revoked and instead it was determined that on 17 November 1999 the applicant had suffered an injury to her back being "L4-L5 and L5-S1 discs" and that the injury had led to "accelerated degeneration, facetal arthropathy and disc bulges at those levels".

6.      The applicant was subsequently paid fortnightly compensation and medical and other expenses.  Ms Weston (then known as Ruth Coulson) was also paid a lump sum payment in late 2000 for permanent impairment.

7.      On 28 December 2000 the applicant lodged a further compensation claim for a "sublaxated mal tracking of patella and chondromalacia patella of the left and right knees".   It was alleged that these injuries were caused on various dates in 1988, 1989, 1999 and 2000 during marching exercises when she fell several times on to bitumen in the course of her employment in the navy.

8.      In two separate determinations dated 22 May 2001 liability was accepted for "osteoarthritis of the left knee" deemed to have occurred on 22 February 1988 and "osteoarthritis of the right knee" deemed to have occurred on 11 May 1988.

9.      However, on 1 August 2005 it was determined that the applicant did not then  suffer the effects of the lower back and knee injuries and that there was therefore no liability to continue to pay compensation and medical and other expenses.  That determination took effect from 26 August 2005.

10.     The applicant on 5 May 2006 requested a reconsideration of that decision to cease paying compensation and medical and other expenses.

11.     An Authorised Delegate reconsidered the determination of 1 August 2005 and on 12 September 2006 issued a reviewable decision affirming the determination.

12.     On 13 December 2006 the applicant lodged an application to this Tribunal for a review of the decision of 12 September 2006.

13.     The hearing of the review application was held in Launceston on 6 and 7 October 2008.  Mr E J McDermott appeared for the applicant and Mr J Wallace for the respondent.

14.     The applicant, Dr D Macintosh, Dr P Stevenson and Mr L Perriman gave oral evidence.

15. A substantial number of documentary exhibits were tendered by the parties and received into evidence including the "T Documents" lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

The Issues:

16.     As mentioned, liability was initially accepted for the applicant's injuries and she was paid compensation but later it was decided that Ms Weston should no longer be paid compensation.  The reason for terminating the payment of compensation and expenses was the receipt of medical opinions following assessments of the applicant by consulting psychologist Ms Fisher-Nusenu on 5 August 2004, Dr Coroneos, neurosurgeon, on 8 September 2004, Dr Tuffley, orthopaedic surgeon, on 9 September 2004 and Dr Low, occupational physician on 4 October 2004.

17.     In her decision of 12 September 2006 the Authorised Delegate stated as follows:

"I find that, having regard to the medical evidence gathered in 2004 from a number of specialists and taking into account the radiological findings, you do not currently suffer from any incapacity for work, impairment or need for medical treatment resulting from the accepted conditions of injury to L4-L5 and L5-S1 discs leading to early degeneration, facetal arthropathy and disc bulges and osteoarthritis of the right and left knees due to your military service".

18.     It should be noted that counsel for the respondent confirmed at the hearing that there is no intention to seek to recover compensation payments paid prior to 26 August 2005, including the lump sum payment the applicant received for permanent impairment paid in 2000 (Transcript page 6).

19.     Section 14(1) of the Act is the "gateway" to most of the entitlements provided in the Act.   That sub-section relevantly provides that compensation is payable only when the injuries suffered by an employee "... results in death, incapacity for work, or impairment".

20.     It should be noted, however, that payment of the costs of "medical treatment" for a work-related injury is not dependent on whether the injury results in incapacity for work or impairment.  (See section 16(1) and (2) of the Act).

21.     It was stressed in the course of the hearing by Mr McDermott for the applicant that Ms Weston was only seeking to undertake a rehabilitation program and in particular suitable vocational training.  He contended that in the circumstances the Act "guarantees her a rehabilitation program". 

"Rehabilitation program" is defined in section 4(1) to include "... vocational training".

22.     The difficulty for the applicant is that section 36(1) of the Act provides that a rehabilitation program is only available to an employee who is suffering an incapacity for work or an impairment.

23.     As this is an application to review a "cease effects" determination it is necessary for the Tribunal to be positively persuaded on the material before it that the period of incapacity, any impairment or the need for any further medical treatment for the work caused injuries came to an end prior to the 26 August 2005.  (See Commonwealth v Borg (1991) 20 AAR 299 and McDonald v Director General of Social Security (1984) 1 FCR 354).

24.     The principal issues for the determination of the Tribunal are:

·Did the applicant, prior to 26 August 2005, cease to suffer any incapacity for work, impairment or need for medical treatment for the following injuries which were previously accepted as due to the applicant's military service;

(a)      osteoarthritis of the right and left knees

(b)      an injury to L4-L5 and L5-S1 discs leading to early degeneration,   facetal arthropathy and disc bulges.  

Injuries to the Knees:

25.     As indicated above, on 22 May 2001 the respondent accepted liability for osteoarthritis of the left and right knees.  In the decision of 12 September 2006 it was affirmed, after taking into account medical opinions and radiological findings, that the applicant had, on 26 August 2005 ceased to suffer any incapacity for work, impairment or had any need for medical treatment resulting from those conditions of the two knees.

26.     When giving oral evidence the applicant described her knee injuries as follows:

"I first had knee problems back in 1988, my first term of service.  I had some fairly severe falls, got quite a few medical chits and medical things with that. They never did any arthroscopies or that, they did basic x‑rays, there was a bony floating island there, but during the second term I had another couple of quite bad falls and they began to get worse and worse.  They diagnosed it as being chondromalacia patella...".        (Transcript page 76)

and when asked how many falls she had the applicant replied:

"I’ve had many over the years.  In excess of a dozen, easily.  Probably the worst ones were actually in 1999.  We were doubling back from an exercise that we went on and there was a huge pot hole.  I stepped in it and went down quite hard on my knees.  They actually had to go and get the ambulance to take me back up to the hospital and that took me off my feet for a few days".  (Transcript page 76)

The applicant added that she had fallen "regularly" outside her period of service in the navy.  (Transcript page 76)

27.     It is noted that almost all of the expert medical evidence has been provided by medical practitioners engaged by the navy or by the respondent.  Two medical specialists were called by the respondent to give oral evidence.  No medical witnesses were called by the applicant.

28.     A written medical opinion was provided by the applicant's former general practitioner, Dr Cruikshank.  He said in his report of 15 August 2006 that he saw the applicant in 2002.  Her bilateral knee pain was continuing following operations on the knees.  Dr Cruikshank stated that she used Canadian crutches because of "pain and irritability of her knees".  However he did not express any opinion as to whether the applicant has any ongoing incapacity for work, impairment or need for medical treatment resulting from her work-related knee injuries.  The Tribunal found Dr Cruikshank's opinions to be of limited assistance in this matter.

29.     Dr Macintosh, consultant orthopaedic surgeon, stated in his report of 28 May 2007 that:

"Whilst it is probable that her knee problems were aggravated whilst serving in the Navy, it is likely that these were temporary aggravations and the ongoing problem is related to her constitutional tendency for subluxation of the patella in both of her knees"

and

"In my opinion, her continuing knee symptoms are not related to service in the Navy".  (Page 6 of report).

30.     In referring to both the knee and  back injuries Dr Stevenson, consultant physician, said in his report of 7 November 2007:

"She does have minor degenerative changes common in the middle-aged population.  It is really not the cause of her pain, both in the knees and the back.  Pain has been found to correlate much more with psycho-social factors than with degeneration.

Significant depressive illness is noted.  If the lady had had major objective pathology, this may have developed secondary to the service injury.  However, evidence of service trauma is minor or speculative.  It is on the other hand recognisable that persons who suffer depression have a very high incidence of medically inexplicable pain.  It would seem therefore likely the depression caused her to misinterpret resolved soft tissue injuries as chronically injurious".   (His report page 10)

Further he said:

"While I ...  find no significant work-related causation or aggravation, she had minor soft tissue strains or non-specific knee or back pain".  (Report page 11).

31.     Dr John Schneider, a specialist in occupational medicine, said in a report dated 30 March 2001 that:

"In my opinion the examinee's bilateral osteoarthritis has occurred as a result of a recurring dislocation or both patellae.  There appears to be adequate evidence in the information supplied that at least several of these dislocations occurred whilst she was in service in the Royal Australian Navy, and physical activities associated with that service are probably likely to have precipitated these dislocations in a rating with pre-existing anatomical propensity towards dislocation".   (T documents page 172).

32.     Dr Tuffley, an orthopaedic surgeon, examined the applicant and provided a report dated 9 September 2004.  He said in his report:

"I consider that Ms Colson's major problem is developed abnormal illness behaviour.  Her pre-occupation with pain, and her perception of her level of disability has caused her illness behaviour to become increasingly dissociated from any physical problem, and to become more related to emotional distress, depression, disease conviction, and an adaption to chronic invalidity.  Over time, not only does the patient (Ms Colson) become adapted to chronic invalidity, but additionally, her friends, family, and colleagues threat her as a chronic invalid reinforcing the patient's disease conviction".  (Transcript page 257).

He also said:

"I consider it most likely that the chondromalacia patellae she has developed related to constitutional anatomical factors, and little if at all to the falls that she experienced while in the Navy". n (Transcript page 257).

33.     Dr Michael Coroneos, a neurosurgeon, said in a written report dated 15 September 2004 that:

"I am unable to find any clinical, musculoskeletal or neurological abnormality, impairment or incapacity that can be in any way related to any of the reported injuries or activities whilst in the Navy".  (T Documents page 266).

He later added:

"I am unable to identify any demonstrable physical pathology in respect of the lower back, knees or skin but rather there is clear evidence of an attempt to mislead and exaggerate her presentation with her advice of the intent to find discrepancies in her file in respect of her claim for compensation and benefits.  I am unable to find any basis for her reported incapacity and I am unable to find any basis for her being restricted from engaging in normal occupational activities".  (T Documents page 268).

34.     The Tribunal finds the opinions of Dr Stevenson and Dr Coroneos to be most persuasive.  It accepts that the applicant has exaggerated her injuries and the pain she suffers.

35.     The Tribunal finds that the applicant did suffer injuries to her knees in the course of her employment by the navy, however it also positively finds that prior to September 2004 she had ceased to suffer any incapacity for work, impairment or need for medical treatment in respect to those injuries.

Injury to L4-L5 and L5-S1 Discs:

36.     As previously mentioned on 11 December 2000 the respondent accepted liability for an injury to L4-L5 and L5-S1 discs leading to early degeneration, facetal arthropathy and disc bulges.  In its decision of 12 September 2006 the respondent affirmed its determination that the applicant had, on 26 August 2005, ceased to suffer any incapacity for work, impairment or had any need for medical treatment resulting from that lower back injury. 

37.     The applicant maintains that she continues to suffer debilitating pain from the back injury sustained on 17 November 1999 when she tripped and fell during a training exercise.

In her oral evidence the applicant said:

"I have good and bad days with my back, as anybody with any injury probably does.  When I’m not medicated I’m incredibly uncomfortable.  I have days where I cannot move around very well at all.  I have other days when I’m medicated where I can move very, very well.  I don’t take the amount of medication that I used to take.  I chose to come off of that because it was doing me quite considerable damage.  I take as little as possible.  However, I do still need pain medication".  (Transcript page 75)

The applicant was asked where is the pain that you suffer?  She replied:

"The pain is in my lower lumbar region, in the lower – between the lower vertebrae, between the lumbar 4/lumbar 5, lumbar5 and sacral 1 disc.  Vertebrae are discs".  (Transcript page 75)

She was further asked how often do you feel that pain?  The applicant replied:

"I feel pain every day.  It’s the level of pain that can be debilitating.  Some days it’s far more debilitating than others.  If I find that if I do too much around the house, for instance, sweeping and mopping the floors is completely out of the question.  I don’t do it".   (Transcript page 75).

38.     Several medical specialists have examined the applicant from time to time and expressed opinions on her injuries.  Some of those specialists raise very serious doubts about the reliability of the applicant's account of the pain she suffers.  A number of those specialists are firmly of the view that the applicant no longer suffers any incapacity as a result of the injuries that she suffered during her service in the navy.

39.     Dr Stevenson stated as follows:

"Radiologically she has minor changes in neck and back which are not actually service injury.  Psycho-social factors are major determinants".  (Report page 11)

As far as the fall in 1999 is concerned he expresses the opinion that:

"Disc injury is most implausible with such a manoeuvre ...".

He said he can't identify any "chronic pathology".   (Report page 9).

Dr Stevenson recognised the applicant's depression as most significant.  He stated that:

"... persons who suffer depression have a very high incidence of medically inexplicable pain".  (Report page 10).

40.     In his report of 9 September 2004 Dr Tuffley made quite a telling comment, reflected to a degree at a number of other medical reports.  The Tribunal has quoted it in paragraph 32 above.  It has relevance to both the knee and the back injuries.

41.     The other medical specialist called by the respondent was Dr Macintosh.  He expressed views about the back injury and the injuries to the knees. 

Dr Macintosh said in his report of 28 May 2007 that:

"there is some evidence of non-organic factors and voluntary or involuntary exaggeration of symptoms.  Her symptoms are out of proportion to her physical injuries and there is inconsistency in relation to the range of movement in her spine and straight leg raising compared to sitting with knees extended in front of her".  (Report page 10).

He said that the applicant did have:

"... some continuing impairment from the low lumbar injury from 1999  but this is relatively mild".

Dr Macintosh also stated that:

"Her symptoms however are out of proportion to her injury and on examination today she has physical signs that are inconsistent and suggestive of some degree of abnormal pain behaviour".  (Page 6 of the report).

42.     He did not, however, describe in any detail the pathology supporting his opinion that there was continuing impairment as a result of the applicant's fall in 1999 during her service in the navy.

43.     Ms Fisher-Nusenu, a consulting psychologist, provided a detailed report following an assessment of the applicant conducted on 5 August 2004.  Ms Fisher-Nesenu completed a "Personality Assessment Inventory" which she summarises in her report.  According to Ms fisher-Nesenu the various scales indicated some elements of exaggeration and malingering.  The summary of the inventory was that:

"as a result of these scores the clinical scales of this test are uninterpretable".

44.     A detailed and persuasive written report was provided by neurosurgeon, Dr Coroneos.  In his thorough report dated 15 September 2004 he made the following comments:

"Her current clincial, musculoskeletal and neurological examinations show gross evidence of exaggerated and non organic response to examination.  A bizarre and varying non organic gait has been noted".  (Report page 10)

...

"The reporting of pain travelling up from the left ankle to the back on assessing ankle clonus is another bizarre non organic and non neurological response to examination".  (Report page 10)

...

"I believe that this is a non organic exaggerated and non clinical presentation and I can find no basis for her reported incapacity"

And he further said:

"I am unable to indentify any demonstrable physical pathology in respect of the lower back"

And further:

"I am unable to find any basis for her being restricted from engaging in normal occupational activities".  (Report page 11)

45.     Dr Jamieson, consultant orthopaedic surgeon, provided a written report dated 18 October 2004.  He said the:

"... cause of her lumbar spinal condition is degenerative".  

Dr Jamieson also offered the opinion that:

"assessment of severity is difficult as there were inconsistencies between observed physical findings on examination and observations during consultation".  (Report page 8).

He added that:

"Ms Colson appears to me to have features of a chronic pain disorder".

46.     Dr Morris, a consultant orthopaedic surgeon, in his report of 16 November 2005 described the disc prolapse and spondylosis as "minimal".  He expressed the view that:

"... in my opinion, there is no condition preventing Ms Colson from working".

47.     The Tribunal has before it a number of other medical opinions and a range of written information about the applicant's medical conditions.  All of those opinions and that other information have been fully considered by the Tribunal. 

48.     The Tribunal accepts Dr Stevenson's opinion that the applicant suffered soft tissue strains in the course of her employment in the navy and that the MRI of the spine shows only degenerative changes which are common in a person of the applicant's age.  Any ongoing problems with her back are not related to her service in the navy. 

49.     After examination of the medical evidence before it the Tribunal concludes that the opinions expressed by Dr Stevenson, Dr Tuffley and Dr Coroneos are the most persuasive.  The Tribunal is satisfied that there has been a significant degree of exaggeration by the applicant about her injuries and the pain she suffers.  That finding is not only supported by those three medical specialists but also by the psychological testing undertaken by Ms Fisher-Nesenu as well as remarks in the reports of a number of other medical practitioners in their reports. 

50.     The Tribunal accepts that the following opinions expressed by Ms Fisher-Nesenu were soundly based and good advice on the best way forward for the applicant:

"In the writer's opinion, based on the clinical interview, Mrs Colson's presentation is complex.  At times her symptoms mirror a factitious disorder, except for the existence of external incentives.  Mrs Colson, by her own admission stated that it is her belief the RAN must 'fix her up'.  The writer suggested to Mrs Colson that as 'devils advocate', what would she do if these investigations showed there was no evidence of any physical/medical conditions, and the Royal Australian Navy dismissed her claims as unfounded, and there was no longer any intervention required.  Mrs Colson responded that she would then seek a good lawyer.  Therefore, there is an indication of intentional production of some symptoms, which may be motivated by maintaining a sick role, or there may be possible associated iatrogenic conditions.

However, the writer suggests that Mrs Colson is still a relatively young woman and has much to offer.  She currently seems to have distorted thinking patterns in relation to her abilities and strengths, and as a consequence tends to negate her capacity to move on.  This distorted thinking contributes to the maintenance of some of her alleged symptomology and her self-report of being quite debilitated.  However, her presentation often appears quite disproportionate to the pathology she describes.  Other factors that should be considered as contributing to her alleged conditions are her current prescribed regime of medication.

The writer recommends that Mrs Colson continue to consult with her GP, and undertake a program to gradually reduce her current medication regime.  It is also recommended that Mrs Colson receive on-going psychological intervention and develop strategies to manage a graduated and successful return to some meaningful employment".  (T Documents page 247, 248)

51.     The Tribunal finds that the applicant did suffer a lower back injury in 1999 but also positively finds that prior to September 2004 she had ceased to suffer any ongoing incapacity for work, impairment or any need for medical treatment with respect to the work-caused injury to L4-L5 and L5-S1 discs for which liability had previously been accepted.

52.     The Tribunal makes this finding despite the fact that the respondent had previously paid lump sum compensation to the applicant for permanent impairment under section 24 of the Act.  (See T Documents page 123).

Decision:

53.     The decision under review is affirmed.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  6, 7 October 2008
Date of Decision   19 November 2008
Representative for the Applicant    Mr E J McDermott
Counsel for the Respondent          Mr J Wallace
Solicitor for the Respondent          Ms L Demetrios, Sparke Helmore