Young and Comcare
[2003] AATA 588
•20 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 588
ADMINISTRATIVE APPEALS TRIBUNAL ) No. A2000/124
) No. A2000/125
GENERAL ADMINISTRATIVE DIVISION ) No. A2000/223
Re CATHERINE YOUNG Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr G A Mowbray Date20 June 2003
PlaceCanberra
Decision The Tribunal:
1. Sets aside the decision under review in matter A2000/124 and remits the matter to the Respondent for reconsideration with a direction that Mrs Young continues to suffer from “bilateral lateral epicondylitis both arms (more in left than right)”.
2. Sets aside the decision under review in matter A2000/125 and remits the matter to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal as set out in the reasons for decision that:
(a) Mrs Young suffered post traumatic stress disorder (PTSD) and other psychiatric conditions as a result of a motor vehicle accident on 6 April 1999;
(b) the PTSD was successfully treated and had been completely cured by June 2000;
(c) the other psychiatric conditions had resolved by the end of June 2001;
(d) Mrs Young was incapacitated for work between November 1999 and September 2000 as a result of her compensable psychological/psychiatric injuries;
(e) any incapacity for work after September 2000 was not due to her compensable psychological/psychiatric injuries.
3. Affirms the decision under review in matter A2000/223.
4. Orders the Respondent to pay the Applicant’s costs in matters A2000/124 and A2000/125 as agreed or taxed.
...................(sgd).......................
Member
CATCHWORDS
COMPENSATION – whether accepted epicondylitis condition continued or resolved – whether motor vehicle accident resulted in neck and back injuries – whether accident resulted in psychological or psychiatric injuries – whether incapacitated as a result of compensable conditions – entitlement to massage expenses
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19
Comcare v Nichols [1999] FCA 209
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Commonwealth v Borg (1991) 20 AAR 299n
Comcare v Mooi (1996) 69 FCR 439; 137 ALR 690; 23 AAR 160
Kirkpatrick v Commonwealth (1985) 9 FCR 36; 62 ALR 533
Rodriguez v Telstra Corporation Limited [1999] FCA 1400
Re Salters and Telstra Corporation Limited [2002] AATA 75
Wiegand v Comcare [2002] FCA 1464
Comcare v Watson (1997) 73 FCR 273; 46 ALD 481; 24 AAR 516
REASONS FOR DECISION
20 June 2003 Mr G A Mowbray 1. This matter concerns three applications for review lodged with the Tribunal by Mrs Catherine Young. The first (A2000/124) is for review of a decision by Comcare on 10 January 2000 affirming a previous determination that from and including 1 July 1999 it was no longer liable under section 16 of the Safety, Rehabilitation and Compensation Act 1998 (“the Act”) or any other provision of the Act to pay compensation for Mrs Young’s “bilateral lateral epicondylitis both arms (more in left than right)”.. Lateral epicondylitis is often colloquially known as “tennis elbow”.
2. The second application (A2000/125) is for review of a decision by Comcare on 15 March 2000, which revoked a previous acceptance of “neck sprain; thoracic sprain; lumbosacral (joint) (ligament) strain” as an injury under the Act and affirmed a determination denying liability for incapacity payments in relation to that condition during November and December 1999. The third application (A2000/223) is for review of a decision by Comcare on 10 January 2000 that revoked a previous approval of therapeutic massage treatment for “neck sprain”.
Background
3. On 12 April 1989 Mrs Young was involved in a motor vehicle accident (“the 1989 accident”) in the course of her employment. This led to a compensation claim that Comcare accepted. It is not in dispute that no further compensation is payable in relation to the effects of the 1989 accident because Mrs Young received compensation at common law. However the effects of that accident are necessary background to Mrs Young’s later claims.
4. On 7 February 1996 Mrs Young lodged a claim for rehabilitation and compensation for a possible disc problem in her back and tenosynovitis in her arm. After some further investigation this claim was ultimately accepted by Comcare on 10 May 1996 as “bilateral lateral epicondylitis both arms (more in left than right)”. In these reasons this is generally referred to as “the accepted epicondylitis condition” or “the epicondylitis condition”.
5. The accepted epicondylitis condition was said to have developed over a period of time during 1995 and early 1996. At that time Mrs Young was employed by Centrelink. She took a voluntary redundancy from her employment with the Commonwealth on 1 October 1998. On 21 October 1998 she began a new position with ACT Community Care as a disability support officer.
6. Mrs Young was involved in a second motor vehicle accident, this time in the course of her ACT employment, on 6 April 1999 (“the 1999 accident”). The occurrence of the accident is not in dispute, rather its severity and the consequences for Mrs Young both physically and psychologically.
7. It was in relation to the 1999 accident that Mrs Young completed a claim for rehabilitation and compensation on 1 July 1999, stating that she had suffered “whiplash” affecting her neck and back. This claim was allowed by Comcare on 19 October 1999 as “neck sprain; thoracic sprain; lumbosacral (joint) (ligament) strain”.. However ACT Community Care requested a reconsideration on 26 October 1999. While that reconsideration was being undertaken, Comcare approved therapeutic massage treatment on 7 January 2000 but promptly revoked that approval three days later. This was officially a reconsideration of Comcare’s own motion but it occurred more or less simultaneously with a request for reconsideration by ACT Community Care. This is the decision under review in matter A2000/223.
8. The following day, 11 January 2000, Comcare denied Mrs Young’s claim for incapacity payments covering parts of November and December 1999 because the relevant medical certificates said she was unfit for work due to “MVA”, that is, motor vehicle accident. Mrs Young sought reconsideration.
9. The reconsideration of both the acceptance of liability injuries arising from the 1999 accident requested by ACT Community Care and the denial of incapacity for November – December 1999 requested by Mrs Young was completed on 15 March 2000. Both aspects of the new decision were unfavourable to Mrs Young. This is the decision under review in matter A2000/125.
10. Meanwhile on 15 July 1999 Comcare had determined that on and from 1 July 1999 it was no longer liable to pay compensation for the accepted epicondylitis condition, on the basis that any condition now suffered was no longer connected to her employment with Centrelink which had ceased on 1 October 1998. Mrs Young sought reconsideration of this determination, but on 10 January 2000 it was affirmed. This is the decision under review in matter A2000/124.
11. At the hearing of these applications Mrs Young was represented by Mr Chris Ryan of counsel and Comcare by Ms Lorraine Walker of counsel. The hearing was initially conducted on 29 and 30 October 2001 but evidence was not completed on those dates and the proceedings were adjourned to a date to be fixed. The hearing resumed on 28 March 2002 and was completed on that date.
Issues
12. In summary the issues before the Tribunal are
· whether Mrs Young continues to suffer from the accepted epicondylitis condition or whether it had resolved by 1 July 1999 or alternatively some later date
· whether she suffered a neck and back injury as a result of the 1999 motor vehicle accident
· whether she suffered psychological or psychiatric injuries as a result of the 1999 motor vehicle accident
· whether Mrs Young has been incapacitated for work as a result of her compensable injuries
· whether she is entitled to compensation for the cost of massage treatment.
Legislation
13. The following provisions of the Act are relevant
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
“disease” means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
…
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
“medical treatment” means:
…
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
…
…
“therapeutic treatment” includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
…
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…”
“14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…”
“16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…”
“19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
…”
Evidence
14. The documentary evidence before the Tribunal consisted of 3 sets of “T-documents” lodged under section 37 of the Administrative Appeals Tribunal Act 1975, Applicant’s exhibits A1 to A36 and Respondent’s exhibits R1 to R9. All exhibits were admitted in relation to all three matters. The T-documents lodged in matter A2000/124 are called “Set 1” in these reasons, and those lodged in matter A2000/125 are called “Set 2”. The only T-document lodged in matter A2000/223 was the statement required by section 37(1)(a) as other relevant documents had been lodged in relation to the existing applications.
15. Oral evidence was given by Mrs Young and Dr Saba Somasundaram, a general practitioner.
Evidence of Mrs Young
(i) History prior to 1995
16. Mrs Young gave evidence that in 1989 she was injured as a passenger in a motor vehicle accident on her way to work. As a result she suffered fractures to her right foot, headaches on the left side, pain in her neck primarily on the left side, pain in her lower back on the left side and left-sided sciatica radiating in to the buttocks. She was referred to a neurosurgeon because of her frequent headaches. As a result of these injuries she had periods off work from 1989 to 1991, including one long span. Her treatment included massage, physiotherapy, muscle relaxants and anti-inflammatories on an intermittent basis.
17. Mrs Young’s symptoms gradually improved over time. They had largely ceased when she returned to work, although she continued to have minor intermittent problems with her lower back when sitting at a desk. Mrs Young had transferred to the Department of Social Security, later Centrelink, in 1991 (Exhibit A2).
18. Mrs Young recalled seeing a psychologist based with a hospital’s pain management clinic in 1989 or 1990. She also went to see a psychologist, Ms Collett, because of her “depression” in 1992. She felt tearful, overwhelmed and confused about the future. She attributed these feelings to not having got over her neck and lower back pain. In 1994 Mrs Young was sent to Dr Tym, a psychiatrist. He diagnosed Post Traumatic Stress Disorder (PTSD) and over the course of several consultations reduced Mrs Young’s apprehension about being a car passenger and driver.
19. Mrs Young also acknowledged prior events that were relevant to her psychological history, such as the loss of her child to SIDS in 1982 and her divorce. She had mentioned these events to Dr Tym. She was less certain as to whether she had informed all the psychiatrists examining her more recently, although she would have answered whatever questions she was asked.
20. In December 1994 Mrs Young fell at work, injuring her left knee and thumb. She made a compensation claim in relation to this incident. The fall also caused her back to be a little bit sore, but this was not serious.
(ii) History c.1995 to 1999
21. Mrs Young’s work at the Department of Social Security involved sitting at a computer for long periods of time undertaking research and data entry. This was particularly true of her position in the Information and Public Relations Branch which she commenced in July 1994 (Exhibit A2). She began to notice pain in her left wrist but continued on with her work. Over time she began to experience pain in her elbows at night. Pain would sometimes travel down into her fingers, but more often into her left forearm. Eventually the pain reached her shoulder and spread across both her shoulders, her neck and between her shoulder blades. Mrs Young was uncertain as to the timeframe over which this spread of symptoms had occurred.
22. The problems were considered to be related to Mrs Young’s posture and her typing duties. A workstation assessment had identified that Mrs Young had been using a right-handed computer mouse in her left hand, causing her left wrist to be skewed. She did not attribute these problems to anything else as she had not experienced them before. She began to experience problems on the right hand side when she moved the mouse to her right hand, but the symptoms were in the forearm and elbow and not the wrist. It was after this that the symptoms spread into her shoulders and across the middle of her back and at times into her neck.
23. Mrs Young acknowledged experiencing similar symptoms while not at work, although her evidence was not clear as to the timeframe when this occurred. Symptoms could be brought on by daily activities such as cooking, hanging clothes on the line and driving. There were times when even cutting a piece of steak or a pizza was painful. The onset of pain was unpredictable both at work and away from work. There were times for example when she had expected typing to bring on more severe symptoms but it did not. However the arm pains had first occurred when she was working full-time at Centrelink on computers.
24. Mrs Young thought that epicondylitis was formally diagnosed in June 1995. She had been provided with a range of treatment including medications such as muscle relaxants and anti-inflammatories, massage, heat bags and physiotherapy. She had been advised to maintain good posture and ergonomics at work, diversify her work and rest and eat well.
25. Around 1995 Mrs Young’s condition was present “all the time”.. From 1995 to 1998 her symptoms and her treatment were intermittent. There had been good periods throughout this time, but she had problems with her arms not only at work but at home or driving. Doing more computer typing and research made things worse. The conditions had not gone away completely. She continued to see various practitioners in this period. She recalled feeling “pretty good” at the time of seeing Dr Burke at Comcare’s request in 1998.
26. The level of pain in Mrs Young’s arms also affected her psychological state. In evidence she referred to pain “flow[ing] through to how you feel about everything”, and to giving up tasks at home that were painful and feeling unhappy about it.
27. Mrs Young was uncertain when she had first made enquiries about obtaining a voluntary redundancy from Centrelink. She thought that her first enquiry was to her supervisor. At the time of expressing interest in a voluntary redundancy she had been on a return to work plan gradually increasing her hours of work. She was told that to be considered for redundancy she would need to return to work full-time and demonstrate her durability. She then told Dr Idowu, her general practitioner, of the requirement to return to full-time hours, and he certified her fit for full-time work in April 1998.
28. The voluntary redundancy was designed to take Mrs Young away from the very thing that was continuously aggravating her condition. Sitting behind a desk typing all day was not good for her physically and later mentally. She needed to have a change and find some other type of occupation. Her abilities at home and elsewhere were being eroded, and it was not good psychologically to be ringing in sick continually. A redundancy was an easy answer for moving on. In addition she had always planned to return to her studies. In her view Dr Idowu agreed to a return to full-time work because the ultimate aim was to remove her from her current work environment.
29. She agreed that she simply could have resigned, but a redundancy enabled her to leave with a sum of money. She was not confident of being able to “walk into” another job if she resigned. She was uncertain whether she had begun looking for other work prior to the voluntary redundancy or “around the time of” the redundancy. She did not think she had made enquiries about moving to more suitable work rather than pursuing the redundancy.
30. Mrs Young’s voluntary redundancy came into effect on 1 October 1998. She was then looking for client-based work. At this time she was still having problems with her elbows but had not felt problems with her neck or back for many months.
31. She commenced her new position as a Disability Support Officer grade 2 with ACT Community Care in late November or early December 1988 following an induction period starting on 21 October 1998. At this time she felt very good, apart from her elbows. Until May or June 1999 she worked 30 hours a week, then increased this to 32 hours a week when she moved to a different house in the disability program. She chose part-time hours so that she could do a good job, manage herself and not wear herself out. She needed rest and relief from the heavy duties of her position, to avoid calling in sick and having time off. Dealing with people rather than paperwork meant there were “duty of care” issues involved. She had not sought advice from Dr Idowu about her hours of work before starting the job.
32. Mrs Young said her duties were theoretically to “manage” a house whose residents had a range of physical, behavioural and psychiatric disabilities. The intention was for the residents to perform tasks such as cooking, cleaning, washing vacuuming and shopping, but in practice she did these tasks with them and had to finish all of the things that were not done properly. She also drove them to their activities outside the house. She did not undertake any computer work at the house. She considered the work very physical. It affected her arms and shoulders, although she made no formal complaint about this until after her motor vehicle accident in 1999. Sometimes her back was also sore. She would sometimes return from transporting her clients and just lie down on a bed.
33. Her typical work pattern was two 8-hour shifts from 2pm to 10pm and 6am to 2pm separated by an 8-hour “sleepover” for which she was paid a set amount. This did not equate to 8 hours of rest, as for various reasons she was usually still working and awake at 10pm and could be woken during the night.
(iii) History 1999-2000
34. On 6 April 1999 Mrs Young was driving a client from his employment to another activity when she was involved in an accident. She was stopped at a T-intersection at a Give Way sign waiting to turn left when a car ran into the back of the work van she was driving. Mrs Young was not aware exactly what had happened until she stepped out of the van, as she could not see the car. She then got back into the van, moved if off the road, checked that her client was alright and obtained the details of the other driver. She drove her client to his destination and completed her shift at the house. However while at the house she felt sick and vomited. She did not think she had recorded the incident in the house diary.
35. Mrs Young was cross-examined extensively on the circumstances of the accident and a number of propositions were put to her. She was uncertain whether she might have moved past the Give Way sign, but she did not think she had turned the corner and did not accept the proposition that the car had followed her past the sign. She was adamant that her own vehicle had been stationary at the moment of collision.
36. She thought her vehicle had been moved forwards by the impact but was unable to say how far. She could not disagree with the suggestion that the van had been moved “inches”, but felt it was more than a few inches because of the way it moved and the pain she felt. Another car was coming towards Mrs Young from a service station driveway across the T-intersection. She thought that she had put her brakes on after the collision when seeing this other car. She was concerned that she could be hit by this car, although she was not in its direct path. She was unable to agree that the collision had taken place at a “slow” speed because she did not know what a slow speed was.
37. When the collision occurred Mrs Young immediately felt pain in her neck. Over the next few days her neck pain became more right-sided. Initially she said she did not immediately feel pain in her lower back but it developed in the afternoon of that day, into that night and the next morning. Later in re-examination Mrs Young said “I felt the back”. At some later point in time she began experiencing “spasms” in her upper back, which she distinguished from back pain.
38. On 7 April 1999 Mrs Young went to see a general practitioner about her neck and back. Her normal doctor was not available. She had pre-arranged recreation leave and did not ask the doctor for a certificate as she did not intend to have any time off work. However, she wanted something if her neck was to continue to be bothersome during the holiday.
39. At the time of her evidence Mrs Young noted that she had not experienced the upper back spasms for a long period of time. However, she suffered continuing pain from the right side of her neck and in her lower back. She agreed that she had had intermittent minor lower back problems since the 1989 car accident.
40. When she returned from holidays Mrs Young went to see Dr Idowu. She returned to work as scheduled, but found the physical work was not as easy as previously. As a supervisor she delegated a lot of the more physical work to grade 1 officers. She made efforts to rest at home and avoid physical work. She also used pain killers and medication. She avoided having days off to ensure continuity of care and because she was attempting to set a good example to the grade 1 officers, as the issue of excessive time off work within the disability program had been raised previously.
41. Mrs Young said that she partially completed an Accident Report form on the day of the accident. She also reported the accident to the police within 24 hours. The Accident Report form was taken into the central office for her by a co-worker, who made a copy for her and put the original form in her supervisor’s pigeonhole. However her supervisor returned the form to her with a note saying that another part needed to be filled in. She completed the form when she returned to work after recreation leave.
42. It was not until July 1999 that Mrs Young made a compensation claim. Once it was filed she not only expected it would be processed but that the department’s rehabilitation case manager, Ms Tanya Wheeler, would contact her and discuss the claim. She had assumed that Ms Wheeler’s role included speaking to her and her doctor and making temporary arrangements for suitable work duties. Instead she found Ms Wheeler’s attitude to be very curt and condescending.
43. Mrs Young spent several weeks trying to discuss her duties with Ms Wheeler. At some point Ms Wheeler said there were various things she needed to know from Mrs Young’s doctor. Mrs Young then tried to arrange a meeting between Ms Wheeler and Dr Idowu but Ms Wheeler refused to meet Dr Idowu outside of regular work hours, which was when he was available. Eventually Mrs Young wrote down over the phone what Ms Wheeler wanted to know, took this to Dr Idowu and he responded. Mrs Young identified Exhibit T10 in Set 2 as Dr Idowu’s response. Mrs Young found this form of communication between her rehabilitation case manager and her doctor ridiculous and was worried that she might not ask Dr Idowu what Ms Wheeler in fact required. Following this Dr Idowu agreed to organise a meeting during work hours. Mrs Young passed this information to Ms Wheeler but Dr Idowu had consistently said during later consultations that he was never contacted.
44. Ms Wheeler had also told Mrs Young in a telephone conversation in about July 1999 that she had no information about the motor vehicle accident. In response Mrs Young retrieved information about where the van had gone for a repair quote and provided this to Ms Wheeler’s office. Some time later Ms Wheeler informed her that photographs had been taken of the van and there was not much damage. Mrs Young was bemused by this course of action and considered Ms Wheeler to be curt in this conversation. She never saw any paperwork from ACT Community Care on these issues until she received a copy of her employer’s request for Comcare to reconsider the initial acceptance of her claim, dated 26 October 1999 (Exhibit T14 Set 2). When she saw this letter she felt outraged, demoralised and deflated. Mrs Young said she would never write a letter like that or make judgments as Ms Wheeler had done.
45. At some point Ms Wheeler had made a comment in a phone conversation that immediately after the accident Mrs Young was on recreation leave and having a good time. Mrs Young considered this at least an implication that because she had been on recreation leave there was therefore nothing wrong with her. She asked Ms Wheeler if that was what she meant, but received no direct reply. Mrs Young then said that if it was the right thing to do, she would obtain a medical certificate for the days when she would have been working if not on recreation leave. She did not think Ms Wheeler responded to this either. She had been quite happy before this to leave those days as recreation leave. Dr Somasundaram provided the medical certificate (Exhibit T18 Set 2) after checking the clinical notes from that time.
46. Ms Wheeler as a rehabilitation case manager was “the very person who is in a position to assist you with your rehabilitation and take advice from treating doctors”.. Mrs Young said she had never experienced problems with any of her earlier rehabilitation. There had always been rapid and frequent communication. She felt that if Ms Wheeler had spoken to her and met with her doctor things could have been cleared up, but she also felt Ms Wheeler had never really wanted this to happen. She had never met Ms Wheeler in person but thought she was very odd. She was also angry, upset and frustrated at Ms Wheeler’s apparent lack of organisational skills or ability to find information for herself. Mrs Young did not think it was her own responsibility to supply information and felt Ms Wheeler had not tried very hard. Her feelings were reflected in the letter she wrote to Comcare on 7 November 1999 (Exhibit T19 Set 2).
47. Mrs Young’s condition was variable but at some point she began to be “not very good at all”. Mrs Young said by the time she ceased work in November 1999 she “was absolutely no good to anybody at work, and my duty of care to the clients there was very suss…”.. She did the management side of things and left physical duties for others. But the job became too demanding and she realised she could not “keep going on like this”.. She specifically recalled one consultation with Dr Idowu where he asked her whether she should be going to work, and she burst into tears and said no. When she finally “gave in” and took some time off work, she thought this would only be for a couple of weeks rather than the far longer period that occurred.
48. Mrs Young recalled expecting ACT Community Care would find her some interim duties to return to after she had gone off work in November 1999. However weeks and months went past and no action was taken. She kept asking Dr Idowu whether he had heard from Ms Wheeler. She maintained an expectation that “things were happening behind the scenes”, and would get dressed for work in the expectation that something would happen. In addition to medical certificates, which “weren’t getting through”, Dr Idowu wrote a report on 2 February 2000 (Exhibit T37 Set 2) detailing her work restrictions. At no stage did ACT Community Care contact her about resuming work within these restrictions.
49. Mrs Young resumed nursing studies in 2000, enrolling in one full-year subject and adding a correspondence course in the second semester. She had always planned to return to nursing at some point, to improve her chances of being employed in that field. In the context of her situation at that time she also saw it as a social outlet and it enabled her to feel she was doing something worthwhile.
50. The enrolment deadline for the 2000 academic year had been somewhere in September to November 1999. Mrs Young could not recall whether that deadline had been before she ceased normal working hours, but she was adamant she had not left work for the purpose of studying. She had similarly enrolled in previous years without continuing. Being accepted into the course gave her the options of accepting the offer, deferring or not accepting. If a job had been available in late 1999 or early 2000 she would have taken it. She also would have considered whether she could fit in studies depending on her health, but she would take a job in preference. Her intention was to return to work as soon as she had heard from work. Nursing studies filled part of the week, involved her with people and imposed a discipline of a timetable and work to complete.. It was preferable to sitting at home waiting for “the phone call”.
51. Mrs Young had understood from Dr Idowu that she was not fit to return to her normal DSO2 duties because of the physical nature of the position. This was supposed to be temporary, but she could not say how long she would be incapable of those duties. She generally agreed with whatever Dr Idowu recommended. She could not specifically say whether or not she would have felt able to return to DSO2 duties in February 2000.
52. Mrs Young resumed treatment with Dr Tym after accidentally seeing him in the street. She thought she should probably speak to him. She was uncertain exactly when this was but accepted records indicated she resumed treatment in April 2000, that is after she had resumed her studies. She recalled not being very well emotionally at the first consultation.
53. At some point while she was being treated by Dr Tym (other documents suggest approximately August 2000) she received a letter from the Chief Executive Officer of ACT Community Care saying he was not aware why she was off work. The letter said if she did not provide evidence as to the reason or return within a certain time her employment could be ceased. Mrs Young herself did not respond the letter. She mentioned it to Dr Tym, who then asked her to show it to him. He then faxed it to her solicitor.
54. To begin with she did not understand why the CEO would not know why she was off work. This could be found out with only a small amount of investigation. She was upset and shocked and lost respect for the organisation. The letter was unfriendly, short and impersonal and she felt that a department that spoke of the respect and dignity of its clients should treat its staff in a similar manner. It made her ambivalent about returning to work there.
(iv) History 2001-2
55. Mrs Young gave evidence that the end of 2000 and beginning of 2001 was a time when her neck and nerve pain was at its worst, and it was the longest such period she had had. She was in a great deal of pain and tearful as a result. She went to see Dr Idowu and then Dr Speldewinde. The latter sent her for an MRI scan – which she was aware found a broad-based disc protrusion – and referred her to Drs Fuller and Andrews and also for a nerve block injection in her neck. This was done on the more troublesome left side. Mrs Young found the procedure unpleasant but was very satisfied with the result, and intended to have a second injection on the right hand side. However, she still had not had this injection by March 2002 as Dr Speldewinde had referred to possible side effects. The benefit of the first injection had continued.
56. Mrs Young resumed her nursing studies in the 2001 academic year because she had not heard from work. She initially enrolled in two subjects. At some point Mrs Young wrote to NRMA, the insurer of the vehicle that had collided with her van on 6 April 1999. As a result NRMA appointed a rehabilitation consultant, Ms Hine. In the course of Ms Hine beginning her involvement and negotiating with ACT Community Care to find suitable duties, Mrs Young withdrew from the subject she considered more difficult so that she could attend work and cope. She did this in about March or April 2000 before the HECS payment due date.
57. Mrs Young continued the strategies she had begun the previous year to avoid aggravating her condition at university. These were largely aimed at avoiding writing, which was a hazard for her arms – use of a tape recorder in lectures, copies of notes being provided by lecturers to her personally or though a website, and use of a friend’s notes. She sometimes experienced problems reading books for long periods. She obtained extra time in exams for rest breaks.
58. Mrs Young began working at ACT Community Care’s Northern Regional Office at Kippax in June 2001. She had mixed emotions on returning to work – happiness that “the door had been opened”, apprehension at starting a new job and hope that it would lead to increased duties and hours. Ms Hine was present on the first day and discussed her duties with her. She found her supervisor and a co-worker to be very supportive. She began working 12 hours a week, then increased it to 15 hours. However both she and Ms Hine were aware this was a temporary arrangement and her supervisor began to find it difficult to supply her with duties. She also experienced some problems with her right shoulder and neck as a result of retrieving files from cabinets. Her neck had been “pretty good” when she started. There were “no real problems” with her back at this point.
59. Ms Hine then wrote to Ms Wheeler asking for her input and assistance in finding new work. This led to duties being offered in ACT Community Care’s central office, although only 12 hours a week were available. Mrs Young was worried about encountering Ms Wheeler and other people in the central office whom she believed had never provided support. She was unsure what her reaction would be if she met them in the corridor. When Ms Hine informed her of the duties offered she initially rejected them for this reason – a position Ms Hine accepted – but overnight Mrs Young reconsidered and decided she wanted to attempt these duties.
60. At the time of giving evidence in October 2001 she had been working in the central office for a couple of weeks. She was looking forward to work, but expressed concern over the uncertainty of how long the position would last or what she would do in the future.
61. At that time Mrs Young was undergoing muscle-strengthening exercises with Dr Speldewinde, consulting her general practitioner, receiving massage and taking a range of medication including painkillers, a muscle relaxant and sleeping aid. She considered her major problems were mostly physical, other than her concern over the future and worrying about the possibility of having an operation even though Dr Fuller had said surgery on her neck was not indicated. She found massage soothing, relaxing and good for her mental state. In her own mind she was uncertain of the best way of managing her condition.
62. Her present activities included gardening, walking, collecting wood and horse work. As well as the physical exercise Dr Tym had recommended playing with her horses for the psychological benefit.
63. Mrs Young still did not feel she would be able sustain DSO2 duties because of her sore neck and back. Performing these duties “day after day” would wear her out, leading to her ringing and saying she would not be able to work. It was physically draining work and she could not cope with 30 hours per week. She also felt her inability to fulfil her obligations to her clients and the disability program generally would lead to further emotional difficulties. However she thought Dr Tym had successfully completed her treatment for PTSD.
64. Mrs Young gave additional evidence when the hearing of this matter resumed in March 2002. In the intervening period she had regularly seen an exercise physiologist working with Dr Speldewinde. An assessment had shown the muscle strength in her neck had improved, which was also having a positive effect on her own outlook. She was scheduled to discuss a less invasive form of injection with Dr Speldewinde. She was continuing to receive massage although she conceded that this did not make much difference apart from making her feel good. Dr Idowu was certifying her fit for 15 hours of work a week although she had had increased levels of pain on some occasions. She had resumed treatment with Dr Tym and was discussing her feelings over her work situation.
65. The position in ACT Community Care’s central office had no more effect on her body than what she had previously experienced. There was a lot of typing involved. She nevertheless enjoyed the job. In this position she could stretch and stand at her workstation but could not walk away to take a break, because the telephones could not be left unattended. She also could not talk on the phone standing up because headphones were used.
66. Mrs Young’s evidence on her current work situation was somewhat unclear. She appeared to state that in about February 2002 she had begun a training module, still located in the central office. Her supervisor then decided she should move to the Woden office. She was now sharing a space that other staff also used for training and had to move when training sessions or meetings were scheduled. She considered this a concern ergonomically and was worried about further contribution to her condition. At one point in her evidence Mrs Young said she had requested an ergonomic assessment and been told she would not be receiving one. However in cross-examination she specifically stated she had not requested an assessment at the Woden office and while at the central office someone had promised to look into an assessment occurring.
67. She was undertaking two nursing subjects. Notes were available from a website and she added further material by hand during lectures. She was now using a wheeled bag to carry her books. She had passed her exams in 2001. She had some problems with concentrating or having her head tilted forward, and avoided copious reading and writing. She expressed concerns that two subjects were too heavy a workload for her but saw studies as her only avenue for obtaining another position. She currently felt at some disadvantage seeking jobs because of her inability to provide referee reports. All going well she would finish her course in June 2003.
68. She had tried to apply for positions she was qualified for. However she did not think she had the capacity – physically or emotionally – to perform credibly in a full-time job. Physically Mrs Young referred to her inability to maintain full-time work in the past. She was fearful of letting both herself and the people she worked with down. She wanted to work well and continue working. With reduced hours she believed she could cope “and go home and the rest of my life doesn’t fall apart.” She would like to try full-time work with some assistance available, or gradually progressing towards full-time.
69. Mrs Young said that her bodily well-being had not really changed over the previous five months. She was worried about her pain and the fatigue of doing full-time jobs. In her earlier evidence Mrs Young acknowledged that apart from her concern about the future, her major problems as she saw them were her physical ones.
Evidence of Dr Somasundaram
70. Dr Saba Somasundaram, a general practitioner, gave brief oral evidence in relation to his clinical notes (Exhibit R8). On 7 April 1999 Mrs Young had been seen at the Kambah Medical Centre by Dr Harvey, who worked part-time for Dr Somasundaram. As far as he could make out Dr Harvey’s note of the consultation read “Rear end collision Saturday now neck hurts. … movements … voluntarily limited, no specific trauma.”
71. Dr Somasundaram was consulted by Mrs Young on 16 June 1999. On that occasion, or possibly at a later consultation, she had said she had not received a certificate from Dr Harvey. Dr Somasundaram then provided her with a certificate for 12 to 14 April 1999 (Exhibit T18 Set 2). He could not explain why the certificate was dated 6 November 1999 rather than 16 June 1999. He also noted she was still having pain in the neck and back and was having physiotherapy. Her neck muscles were tender to palpation, which led him to conclude she was internally bruised.
Documentary medical evidence
72. This evidence is set out in date order but multiple reports from one practitioner have been grouped together.
73. In January 1991 a MRI of Mrs Young’s cervical spine (Exhibit A14) revealed
“At the C6-7 level, there is a slight posterior disc bulging.”
But concluded
“Posterior disc protrusion is not seen.”
74. Dr R. Adler, a consultant physician in rehabilitation medicine, completed a report on Mrs Young on 29 April 1996 (Exhibit T10 Set 1). The conclusions included the following
“Mrs Young has evidence of a bilateral, lateral epicondylitis. The majority of her symptoms relate to the left arm. There is a mild degree of neck stiffness associated, related to muscle tightening. She does have positive neural irritation signs, indicating that her symptoms are consistent with an over use type injury.
Mrs Young’s present condition is related to the static extension of the wrist required when involved in typing.
The prognosis is that Mrs Young is likely to experience continuing arm pain symptoms when she is exposed to long periods of typing or writing.
…
The period of physiotherapy required should not exceed a twelve week period and should then have provided Mrs Young with a home exercise program, which she can continue also in the work place, using the exercises in her rest breaks. Extended periods of heating or mobilisation beyond a twelve week period are not indicated, as they would not provide any additional benefit. They would be appropriate should she experience any periods of marked exacerbation of her symptoms.
…
Currently, Mrs Young would benefit from having rotation of non typing duties added to her daily routine. A period of four hours typing per day would be appropriate, with other non typing duties added, so that she works in a full-time capacity.
She does require a five minute rest break each hour, so that she can apply stretching exercises to prevent tightening of the forearm extensor muscles…
Such restrictions are likely to be required for a further six months.
…
I consider that Mrs Young’s symptoms and condition will improve with institution of the above work restrictions.”
75. On 31 May 1996 Ms Kate Foran, an occupational therapist, completed an initial rehabilitation assessment for Mrs Young (Exhibit T19 Set 1). Under the heading “Current Status” she wrote
“Ms Young described pain in her left wrist extending along her forearm extensor muscles into her elbow and up the back of her upper arm. She described similar pain on the right side however not as intense.
Pain was also reported in her neck region, across the top of her shoulders and around her shoulder blades. The pain in her arms was reported to fluctuate with a “heavy” feeling described in her arms during some activities.”
76. On 23 August 1996 Ms Foran prepared a Rehabilitation Closure Report (Exhibit T26 Set 1). On this occasion she described the “Current Status” as follows
“Ms Young continues to report ongoing symptoms, predominantly in her left forearm and elbow region, but also in her right elbow, and neck and shoulder region. However, she is managing full time work on her current level of symptoms. Ms Young advised that her massage and home help approvals have expired and that Dr Idowu has requested extensions for both.”
At the conclusion of the report Ms Foran wrote
“Rehabilitation services are no longer considered necessary as Ms Young has sustained full time work since 05.08.96 and is reporting her current level of symptoms as manageable at work full time. It is recommended that she continue to restrict her keying, writing, reading and sitting to within her current activity tolerance levels and that the above recommendations for her new workstation be implemented as soon as possible. Ms Young has been informed of case closure.”
77. Dr David Burke, a consultant rehabilitation medicine physician, assessed Mrs Young on three occasions. The first was on 10 June 1998. In his report of that assessment (Exhibit T72 Set 1) Dr Burke recorded the following
“Mrs Young advised that she currently experiences no symptoms, although she had experienced symptoms, as previously described, on an intermittent basis since the time of her last assessment [by Dr Adler].
Although her left arm symptoms appear to be particularly aggravated by typing or writing activities, she commented that she was not entirely convinced that these activities were the only factors that aggravated her arm pain on occasions.
She reported that she had considered changing from full-time work to part-time work because of the apparent association with her work, and had even considered changing her job completely.
However, at present she is coping with her work satisfactorily.
Mrs Young denied any difficulty with her personal activities of daily living, with driving or with home duties at present. She admitted, however, that she had experienced difficulty in these areas in the past when arm pain had been present.”
In his conclusions Dr Burke stated
“It is not clear what is causing occasional aggravation of Mrs Young’s symptoms at this stage. It appears that typing and other computer oriented activities are the main factors causing intermittent aggravation of her symptoms but there may well be other factors unrelated to her employment which are also aggravating her symptoms on occasions, eg home duties or even psychological stress. In some ways she appears to have developed a type of regional pain syndrome as an aggravation of her original injury to the extensor muscles of her forearm. There is no evidence that this is the natural progression of a pre-existing or underlying condition.
Mrs Young should avoid long periods of keyboard operation on a computer or typewriter.
I do not consider that Mrs Young requires any treatment at the present time.
It is likely that Mrs Young will continue to experience recurrent wrist and forearm pain on occasions but if she is careful to avoid identified aggravating factors, such symptoms are unlikely to cause major difficulties.
There does not appear to be any major indication to recommend that Mrs Young change to part-time or alternative employment at this stage as her symptoms appear to have been very much reduced at present by her current employment.”
78. Dr Burke re-assessed Mrs Young on 26 July 2000. In his second report (Exhibit R6) he wrote
“Ms Young’s course has now been affected by a new injury following a motor vehicle accident on 6 April 1999 and her symptoms currently appear to be predominantly due to an injury sustained in that accident with right-sided neck and shoulder pain particularly but also with increased right arm pain, which is probably more related to her new injury to the right side of her neck and shoulder than as a result of an aggravation of her previous condition.
Again, on this occasion I was unable to find any convincing evidence of lateral or medial epicondylitis on my examination.
In addition, it is my impression that Ms Young has become significantly depressed, which appears to have been recognised by her treating medical practitioner and she has been referred to a specialist psychiatrist who is treating her with antidepressant medication.
It is my opinion Ms Young has probably sustained a musculoligamentous injury to her right neck and shoulder with some radiation of symptoms into her right arm particularly and that this condition is being aggravated by a significant clinical depression.”
79. Dr Burke again assessed Mrs Young on 14 March 2001. In his report of that assessment (Exhibit R7) he stated
“It is considered that Mrs Young probably did sustain an intervertebral disc injury at the C6/7 level on the left side and that this is the cause of at least her left-sided neck pain with radiation into the shoulder-blade and down her left arm. The explanation of her right-sided neck pain is not so apparent but presumably this is the result of some form of musculo-ligamentous injury to that side of her neck. However, there is no evidence that this pain is coming from an intervertebral disc lesion nor is there any evidence that the neck pain is an aggravation of pre-existing degenerative changes in her cervical spine.
Her low back pain appears to be a simple musculo-ligamentous injury and may have been an exacerbation of a previous injury to this region.
She also had a past history of bilateral epicondylitis of her elbows which continues to cause some symptoms but does not appear to have been aggravated in this accident.
In my opinion, this injury is consistent with the stated cause of being involved in a rear end motor vehicle accident.
…
It appears that Mrs Young’s inability to resume her pre-accident employment is partly due to the neck injury, ie the physical requirements of that job, but also particularly from the significant psychiatric and psychological problems she has developed which have been well covered by Dr Tym and Dr Duke in their reports.
Mrs Young’s neck symptoms appear to have been somewhat excessive for such an injury and undoubtedly the psychological components of her presentation have contributed to the development of significant chronic pain syndrome in relation to the musculo-ligamentous injury to her neck and to the disc injury. It is not clear how significant the disc injury is clinically as there is no evidence of any neurological signs in her left upper limbs in association with this injury.
…
Mrs Young is probably fit for at least part-time work at present, probably more of a sedentary nature… However, I do not consider she is currently fit for full-time work, though this may be more due to her psychiatric problems than her physical problems.
I do not consider that Mrs Young’s capacity for work has been diminished currently or in the future with respect to her neck injury.”
80. The documentary evidence before the Tribunal includes numerous certificates and other correspondence from Dr Femi Idowu, Mrs Young’s general practitioner. On 14 August 1999 he wrote to Comcare in the following terms
“I write to inform you that Mrs Young’s accepted claim of bilateral lateral epicondylitis is a condition that will wax and wane.. I refer you to (a) my earlier letter in which I stated that the condition is for fluctuating impairment and deterioration and (b) Dr Burke’s remarks that Mrs Young is likely to continue to experience recurrent wrist and forearm pain on occasions.
Everyday household chores can affect Mrs Young’s condition and has nothing to do with new duties or employment.” (Exhibit T79 Set 1, emphasis original)
81. On 18 September 1999 Dr Idowu set out the conditions suffered by Mrs Young as a result of the motor vehicle accident of 6 April 1999 (Exhibit T10 Set 2)
“(1) Severe neck sprain with moderate spasm i.e. Moderate Torticollis
(2) Moderate lumbosacral strain with moderate spasm of L2-S1 i.e. Mild low back instability
(3) Midback spasm (moderate to severe) i.e. thoracic spine spasm”
82. On 17 November 2000 Dr Idowu reported on both Mrs Young’s compensation claims, for “bilateral lateral epicondylitis” and “whiplash type syndrome/injury” respectively (Exhibit A7)
“Diagnoses relating to ●(1): Bilateral lateral epicondylitis (intermittent in nature with frequency and severity depending on the level of activity in the upper limbs).
●(2): Whiplash type syndrome in association with backache and secondary emotional/psychological disorder i.e. post traumatic stress disorder/depression/anxiety – phobia.
Condition ●(1) is solely attributable in the first instance to her employment factors (repetitive duties) in the Dept of Social Security in 1995 and was aggravated somewhat (up to 10%) by her duties in the Disability Program Department.
●(2) occurred in the course of her duties with the Disability Program Department and was subjected to aggravation (up to 65%) by certain duties (e.g. lifting, carrying, long hours of work etc) in the Dept.
Condition ●(1) has been aggravated (up to 25%) by the motor vehicle accident.
Both conditions have restricted Mrs Young’s ability to carry out preinjury duties by up to 40%.”
83. On 25 February 2000 Dr Neil McGill, a consultant rheumatologist, interviewed and examined Mrs Young and prepared a report (Exhibit T44 Set 2). His conclusions as to any neck or back condition suffered by her were
“This… lady has a long history (at least since 1989) of musculoskeletal symptoms…
…
I think there is no physical disorder of the neck or back. In association with emotional/psychological problems she may at times have increased muscle tension (which may produce pain) but I do not think there is any primary physical disorder.
…
[In response to a question on whether the motor vehicle accident on 6 April 1999 materially contributed to any neck or back condition or the aggravation of any condition] The nature of the motor vehicle accident (minimal damage to the vehicle) and the pattern of widespread symptoms, in conjunction with her long history of similar symptoms, I think all indicate that her symptoms subsequent to April, 1999 have not been due to a physical injury caused by the motor vehicle accident but are a reflection of her emotional/psychological problems which long pre-dated the motor vehicle accident.
I think her problem is an emotional/psychiatric problem and review by an expert in that area would be appropriate.
There is no indication for any restriction on her employment on any physical basis. Whether she is emotionally/psychologically fit to perform normal work duties is outside my area of expertise except to say that any psychological disturbance has not led to a physical abnormality.”
84. Dr Peter Wirth, a specialist in emergency medicine, prepared a report on 2 August 2000 at the request of NRMA Insurance Limited (Exhibit A5). In summarising his assessment he wrote
“On 6 April 1999 she was the driver of a van and whilst waiting at a Give Way sign, the vehicle was struck from behind, pushing the van into the opposite lane.
She subsequently experienced pain in the right side of her neck, shoulder, upper lumbar and lower lumbar back.
More significantly, it would appear that Ms Young has been disabled by symptoms which have been diagnosed by Dr Tym, Psychiatrist, as Post Traumatic Stress Disorder.
She described symptoms which are consistent with moderately severe depression. She has frequent thoughts of wanting to go to sleep forever and not wake up, or suddenly turning the steering wheel to run her car into a tree at high speed.
…
… [H]er current physiotherapy program of one treatment per week seems not to be producing any further improvement in her physical symptoms. It is quite possible that her psychological state could be impairing any further improvement.
I consider that my findings are consistent with Ms Young’s version of the accident circumstances. In particular, they are likely to be the result of the accident as described.
It is significant that after her previous motor vehicle accident [in 1989] she suffered symptoms similar to those now diagnosed as Post Traumatic Stress Disorder, albeit diagnosed by the same psychiatrist after both accidents.
…
Ms Young’s current fitness for work is greatly reduced due to her ongoing psychological condition. Her concentration and memory impairment, together with her emotional fragility, make her currently unsuited to work with people who have any physical or psychological disabilities requiring her support.
…
Ms Young’s symptoms, particularly her psychological symptoms, were probably increasing over a period [of] time to the point that she was subsequently unable to cope any further at work.
Further, Ms Young’s depressive constellation of symptoms would include a lack of motivation to notify the claim.”
85. On 8 August 2000 Dr Robert Tym, a consultant psychiatrist, wrote a report of his treatment of Mrs Young (Exhibit A3)
“I had first seen her on 17 March 1994. On that occasion she had been suffering from Post-traumatic Stress Disorder… that had originated in a motor vehicle accident on 12 April 1989… On completion of the treatment for the PTSD it became apparent that she had, in the intervening five years since the car accident, developed a co-morbid post-traumatic Major Depression… This depressive illness had eventually responded to treatment with antidepressant medication. I had last seen her on 10 June 1994.
I next saw her on 4 April 2000… She told me that she had been perfectly well, mentally, until she had been involved in a motor vehicle accident on 6 April 1999…
…
She told me that she experienced symptoms of both anxiety and depressed mood, increasingly, to the time of November 1999, when she stopped work.
When I saw her, the clinical presentation once again satisfied the diagnostic criteria for Post-traumatic Stress Disorder (PTSD) combined with a co-morbid post-traumatic Major Depression.
The PTSD was successfully treated… An attempt was made to have her withdraw from her antidepressant medication… but this led to a prompt return of her depressive illness. The medication was re-instituted… A trial of this medication will continue for the immediately for[e]seeable future.
She also showed evidence of suffering from a Specific (isolated) Phobia… of her immediate-past workplace. She attributed this to the intense psychological stress she had experienced at work, following the motor vehicle accident on 6 April 1999…
155. The evidence before me allows a finding of incapacity at least until June 2000. But by that date Dr Tym said Mrs Young had been cured completely of PTSD. Although in August 2000 and January 2001 Dr Tym felt that Mrs Young was unfit to return to work at her previous workplace, but fit to return to an entirely different workplace, in September 2000 Dr Duke found Mrs Young fit to undertake duties modified to cope with her physical not psychiatric limitations, in February 2001 Dr Saboisky said she was able to return to work and in July 2001 according to Dr Knox Mrs Young was psychiatrically fit to return to work. There had been a minor degree of disability arising out of her psychiatric injury in the past. In view of this evidence I cannot be satisfied that any incapacity for work after September 2000 was a consequence of the psychological/psychiatric injuries suffered by Mrs Young as a consequence of the April 1999 accident. Any such incapacity appears to be due to her non-compensable physical injuries. I have reached the September 2000 date hesitatingly and note that it is somewhat arbitrary. However, it is my best estimate on the evidence before me.
156. I therefore find that
· Mrs Young did suffer incapacity for work as a result of psychological/psychiatric injuries flowing from the April 1999 accident
· she was entitled to incapacity payments under section 19 of the Act for the period 8 November 1999 to 18 December 1999
· any incapacity resulting from psychological/psychiatric injuries had ceased no later than September 2000.
Is Mrs Young entitled to compensation for massage expenses
157. Section 16(1) provides
“Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.”
158. Medical treatment is defined in section 4(1) to include
“(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner”
and therapeutic treatment includes
“[A]n examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.”
159. On 7 January 2000 Comcare approved payment for massage treatment requested by Mrs Young’s medical practitioner for January to March 2000 for the neck condition. Three days later this determination was revoked.
160. Mrs Young is entitled to reasonable medical expenses under section 16 for a compensable injury, including for therapeutic treatment. There can be no doubt following Comcare v Watson (1997) 73 FCR 273; 46 ALD 481; 24 AAR 516 that massage treatment may be therapeutic treatment if it is
“A course of treatment designed to, or aimed at, alleviating the pain caused by an injury…”
Furthermore
“…therapeutic treatment in this setting is a purposive activity – that is, its purpose or object must be the treatment of the particular injury in question. If such is not the actual, specified purpose of the activity then notwithstanding its beneficial effects, it will not relevantly be therapeutic treatment for present purposes.” (at 276; 484; 519)
161. I have found that during the relevant period January to March 2000 Mrs Young was still suffering from the compensable epicondylitis condition and certain compensable psychological/psychiatric injuries. However, any compensable neck and back injuries had resolved by this time. Her ongoing neck and back problems were unrelated to the April 1999 accident.
162. Mrs Young’s evidence was that
· the massage treatment was primarily on the neck and the back, but with some work on the arms
· she found it soothing, relaxing and good for her mental state
· it had provided “great benefits, otherwise I probably wouldn’t have gone for so many times”
· by March 2002 she was still receiving massage, although it did not make much difference
· however, “it’s beautiful laying there, psychologically, just to lay there and just relax completely… I come out of there feeling good”.
163. Mr Ryan said that medical evidence supporting massage was to be found in the reports of Drs Idowu and Fuller. For Mrs Young he said massage contains pain levels and benefits her physically and emotionally.
164. Ms Walker submitted that the evidence of Mrs Young was that massage makes her “feel beautiful”. However she had also said “I feel the same, whether I have a break from massage or not”. It thus provided no therapeutic benefit.
165. Although it is far from clear, Dr Idowu appears to be recommending massage for the neck and back condition (which he describes as whiplash arising from the accident) – see Exhibit T24 Set 2, also Exhibit A7 although the latter is somewhat ambiguous. Dr Fuller does not specifically recommend massage although he supports an “ongoing physical program” for the neck (Exhibit A34).
166. I have not been directed to nor can I find any medical evidence that the massage is recommended for any of the conditions that I have accepted as compensable. Furthermore, on the material before me I have real doubts that in this case it was therapeutic within the terms of Comcare v Watson. But even if I accepted that it was therapeutic and for a compensable condition, which I do not, I am not persuaded it was reasonable for the purposes of section 16.
167. The reviewable decision of 10 January 2000 must be affirmed.
Conclusions
168. In summary, I conclude
· Mrs Young’s accepted epicondylitis condition had not resolved at 1 July 1999 and is ongoing
· she is therefore entitled to medical treatment for the accepted epicondylitis condition in accordance with section 16 of the Act
· Mrs Young sustained musculo-ligamentous injuries to her neck and back in the 1999 motor vehicle accident but these were short-lived and have long since resolved
· the disc protrusion in her cervical spine at C6-7 was not a consequence of the 1999 accident
· Mrs Young suffered PTSD as a consequence of the 1999 accident
· the PTSD was successfully treated and had been completely cured by June 2000
· Mrs Young also developed other psychiatric conditions, variously described as major depression, adjustment disorder, adjustment reaction with depressed mood, depressive disorder and adjustment disorder with depressed mood, which were materially contributed to by the 1999 accident
· these other psychiatric conditions had resolved by the end of June 2001
· Mrs Young was not incapacitated for work during the period 1 to 21 October 1998
· Mrs Young was incapacitated for work between November 1999 and September 2000 as a result of her compensable psychological/psychiatric injuries
· any incapacity for work after September 2000 was not due to her compensable psychological/psychiatric injuries
· Mrs Young is not entitled to the cost of massage treatment.
Decision
169. In matter A2000/124 the decision of 10 January 2000 relating to epicondylitis is set aside and the matter is remitted to Comcare with a direction that Mrs Young continues to suffer from “bilateral lateral epicondylitis both arms (more in left than right)”.
170. In matter A2000/125 the decision of 15 March 2000 is set aside and the matter is remitted to Comcare with directions that
· Mrs Young suffered Post Traumatic Stress Disorder (PTSD) and other psychiatric conditions as a result of a motor vehicle accident on 6 April 1999
· the PTSD was successfully treated and had been completely cured by June 2000
· the other psychiatric conditions had resolved by the end of June 2001
· Mrs Young was incapacitated for work between November 1999 and September 2000 as a result of her compensable psychological/psychiatric injuries
· any incapacity for work after September 2000 was not due to her compensable psychological/psychiatric injuries.
171. In matter A2000/223 the decision of 10 January 2000 relating to massage treatment is affirmed.
172. The Tribunal orders Comcare to pay Mrs Young’s costs in matters A2000/124 and A2000/125.
I certify that the 172 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:
............(Trevor Mobbs)...............................
AssociateDates of Hearing 29-30 October 2001, 28 March 2002
Date of Decision 20 June 2003
Counsel for the Applicant Mr Chris Ryan
Solicitor for the Applicant Mr David Lander, Lander & Co
Counsel for the Respondent Ms Lorraine Walker
Solicitor for the Respondent Ms Helen Tilley, Blake Dawson Waldron
8
0