Guirguis and Comcare [2010] AATA 139 (26 February 2010)

Last Updated: 26 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 139

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2006/2535

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Nadra Guirguis

Applicant

And

Comcare

Respondent

DECISION

Tribunal

Senior Member Jill Toohey Dr Thorpe, Member

Date 26 February 2010

Place Sydney

Decision

The Tribunal affirms the decision under review.

................[sgd]..............................
Senior Member

CATCHWORDS

COMPENSATION - chronic pain disorder – pain in ankles, feet and knees - whether chronic pain constitutes an ailment and therefore a disease – whether foot injury at work contributed to chronic pain disorder in a material degree – whether present symptoms related entirely to degenerative changes – evidence not consistent with diagnosis of Major Depression, Adjustment Disorder or any other form of psychiatric disorder – decision under review affirmed.

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

26 February 2010	Senior Member Jill Toohey Dr Thorpe, Member
Introduction

1. Nadra Guirguis was working for Centrelink as a customer service officer in 1998 when she slipped on stairs and injured her right foot.
2. In June 1999, Comcare accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for “a fracture of one or more phalanges” of Ms Guirguis’ right foot. In May 2002 Comcare denied liability for her subsequent claim for permanent impairment and non-economic loss and determined that she no longer suffered a compensable injury. Ms Guirguis sought review by the Tribunal of those decisions and her claims were finalised in January 2003 by consent orders.
3. Ms Guirguis’s current claim is that she suffers from chronic pain disorder resulting from the workplace injury. Comcare does not dispute that chronic pain disorder may constitute a compensable ailment within the meaning of the Act. However, Comcare disputes that Ms Guirguis suffers from a chronic pain disorder and says that, even if she does, it is not related to her fall at work.

The issues

4. We have to determine:
   • (i) whether Ms Guirguis suffers from a chronic pain disorder;
   • (ii) if so, whether it was contributed to in a material degree by the injury to her right foot.
     
5. For the reasons set out below, we are not satisfied that Ms Guirguis suffers from a chronic pain disorder. If she does suffer chronic pain, we are not satisfied that it constitutes an ailment, and therefore a disease, within the meaning of the Act, or that the fall at work in 1998 contributed to it in a material degree.

Ms Guirguis’ fall in 1998

6. Ms Guirguis’ accounts of how she tripped and fell in 1998, and how she injured herself, have varied at different times but we accept that details can become blurred over the years. There is no dispute that she suffered an injury to her right foot in mid-1998. She described in oral evidence how she tripped while walking up stairs, bending both feet under as she fell and hitting her left knee. She was able to return to her desk but the pain worsened over time. She was treated conservatively: in the months following the fall she had x-rays and a bone scan and, at the beginning of 1999, she had physiotherapy.
7. There is a question as to the actual date of this incident. It has been accepted for many years that Ms Guirguis fell on 9 July 1998 which was the date she nominated in her claim for compensation made in April 1999. However, the incident report form which she signed and dated at work on 28 June 1998 indicates her injury occurred on 18 June 1998. In a report in May 2001, her general practitioner, Dr Salem, refers to an injury on 26 June 1998.
8. There is no suggestion that Ms Guirguis has been untruthful or that the incident did not occur, although Comcare contends that the discrepancy in dates reflects on Ms Guirguis’ reliability as a witness. Comcare contends that the date of the incident is nonetheless significant: if 18 June 1996 is correct, then Ms Guirguis did not report her fall to her supervisor for 10 days; she had no time off until 9 July 1996; and nearly four weeks passed before she saw Dr Salem on 13 July 1996. Comcare contends that it is highly unlikely, in these circumstances, that the injury was serious or that it would have contributed in a material degree to any chronic pain disorder.
9. Counsel for Ms Guirguis contends that the discrepancy in dates is not significant because, even if not a particularly serious injury in itself, circumstances including Ms Guirguis’ emotional nature (her tendency to ”catastrophise”) meant it led to her current psychological condition.
10. We think the incident report form is probably correct and that Ms Guirguis’ injury occurred on 18 June 1998 but nothing turns on this in the end. Regardless of the severity of Ms Guirguis’ injury at the time, for the reasons set out below, we are not satisfied that she has developed a chronic pain disorder as a result.

The consent orders made on 10 January 2003

11. It is not necessary to detail Ms Guirguis’ previous claims or the orders made in respect of each. For present purposes, the relevant parts of the consent orders made on 10 January 2003 are as follows:

“3.1 The applicant suffers from degenerative osteoarthritis in her right foot which pre-existed her employment with the respondent (“the foot condition”).

3.2 On 9 July 1998 the applicant sustained an injury to her right foot arising out of her employment with the respondent (“the foot injury”).

...

3.7 On and from 19 December 2002 the applicant does not require medical treatment as a result of the foot injury, and liability of the respondent to pay the applicant’s reasonable medical expenses as a result of the injury ceases on and from that date.

...

3.10 On and from 19 December 2002 the effects of the foot injury ceased and the applicant has no further entitlement to compensation pursuant to the Act in respect of the foot injury save as referred to herein.”

12. When these proceedings commenced, Comcare contended that Ms Guirguis was precluded by the terms of the consent orders from bringing her current claim. It is now common ground that no issue of estoppel arises but Comcare maintains that it is relevant that Ms Guirguis agreed in 2003 that the effects of the injury to her right foot had ceased and she no longer required medical treatment for it.
13. Parties often resolve a dispute by consent for purely practical, including commercial, reasons and we do not think undue weight should be placed on concessions made by Ms Guirguis in settling her earlier claim. However, in light of when and how her claim of chronic pain disorder arose, and our findings about her credibility, we think it relevant that she conceded that, from December 2002, the effects of the foot injury had ceased and she no longer needed treatment.

Ms Guirguis’ injury: the medical evidence

14. Much of the oral evidence was taken up with exactly how Ms Guirguis fell and injured herself, whether she injured both feet and her knees, and the significance of pre-existing degenerative arthritic changes in her feet. She now claims to suffer from pain in both feet and ankles, and both knees, arising out of her 1998 fall.
15. It is relevant that, in June 1999, Comcare accepted liability for “a fracture of one or more phalanges” of Ms Guirguis’ right foot as a result of her fall. An injury of that kind is supported by reports from her physiotherapist, from Dr Salem, and a bone scan in November 1998 which concluded that the scan was “consistent with a degenerative arthritic process in the region of the right 3rd cuneiform and the cuboid and navicular bones [and] may be post traumatic and a chip or avulsion or compression fracture at this site would not be excluded”.
16. Dr Albert Bencsik, orthopaedic surgeon, assessed Ms Guirguis in December 2001 at Comcare’s request. Ms Guirguis reported that her symptoms in both feet and right ankle were getting progressively worse. Dr Benczik found she had mild degenerative changes in the right and left mid-foot and left ankle. He thought the likely cause of her symptoms was an aggravation of degenerative changes in her right foot which would be consistent with the injury she sustained. He explained that the aggravation sustained in 1998 would have settled and that her difficulties in 2001 were due to the natural progression of aging.
17. Dr Bencsik examined Ms Guirguis again in September 2007 when she reported equal pain in both feet and ankles. She said her symptoms were “100 times worse” than in 2001 which he thought “hardly possible”. She told him that “once in a blue moon” she would drive her car and her husband did all the shopping; she had not been to church for years because she could not stand during the service.
18. Dr Bencsik found “considerable difference” from 2001 when Ms Guirguis was complaining mainly of right foot pain. He found her current condition to be due to mild degenerative changes in both feet and ankles, particularly her ankles. He concluded that her 1998 injury would have caused only temporary symptomatology and that her present symptoms related entirely to degenerative changes “together with other factors of exaggeration and embellishment”. He thought her presentation one of “exaggeration and possibly fabrication”.
19. Dr Bencsik has passed away and so we have not had the benefit of his oral evidence.
20. Dr David Bornstein, orthopaedic surgeon, assessed Ms Guirguis in July 2009 at Comcare’s request. He found she was having pain in both ankles and not in the mid-foot. He found “no evidence for a chronic regional pain syndrome in either leg”. She had mid-foot and great toe osteoarthritis and possibly mid osteoarthritis in both ankle joints, the right worse than the left. He did not think she suffered from “a significant orthopaedic disorder, either traumatically caused or age-related”. He found her condition to be “mild in the extreme” and did not think her condition had been or contributed to in a material degree by the fall at work.
21. In oral evidence, Dr Bornstein maintained that Ms Guirguis’ injury in 1998 can be discounted as the cause of any present symptoms. He says there would need to be current altered physical signs or radiological changes, neither of which is present, to explain continuing pain after 11 years if the traumatic injury was its cause.
22. Dr Neil Berry, specialist general surgeon, examined Ms Guirguis in December 2001, March 2007 and September 2009 at her solicitors’ request. In 2001 he thought the injury had aggravated arthritic changes in her feet and left knee and that her mid-foot pain and left knee pain were the direct result of her fall. In 2007 he thought she had aggravated degenerative changes in her feet but that her “alleged limitation of ankle movements suggested a psychological overlay”.
23. In 2009, Dr Berry thought the osteoarthritis in Ms Guirguis’ feet could well have aggravated her injury and this could account for her ongoing pain. However, her disability was “far in excess of her pathology”. He thought she appeared to have chronic pain but “none of the criteria for chronic pain syndromes 1 or 2”.
24. Dr Drew Dixon, orthopaedic surgeon, assessed Ms Guirguis in June 2007 at her solicitors’ request. He noted in his report that she had fractured her right foot in the fall and that X-rays in 2000 and 2003 showed mild degenerative changes in both feet. Ms Guirguis told him she had pain in both feet and ankles and had difficulty with housework, standing, driving and so on. He considered her pain as described was consistent with his observations and thought her condition was attributable to her fall at work.
25. In oral evidence, Dr Dixon conceded he had seen no independent evidence about the 1998 injury and had relied on Ms Guirguis’ account. He accepted she has osteo-arthritis in both feet and that, if ankle problems occur some years after a fall in a person with osteoarthritis, it is more probable than not that the osteoarthritis is the cause.
26. Dr Makram Girgis is a consultant physician in neurology and psychiatry. Ms Guirguis started seeing him in 2001 for depression following conflict with her supervisor at work. That incident was the subject of earlier proceedings. Dr Girgis reported to Ms Guirguis’ solicitors in August 2006 that she had a chronic pain disorder which started in early 2001 “as a result of a trauma in the ankle join region”.
27. In a report dated 6 July 2007, Dr Girgis stated that, in January 2002, Ms Guirguis reported an injury to her right foot and ankle, and that she appeared to have “a severe injury of the ankle joint of the right foot, with complication of the left foot and knee”. He concluded, in 2007, that she was suffering from a chronic pain disorder because of the continuous painful ankle and knee joints, causing her to suffer “intractable insomnia and depressive state”.
28. We return to Dr Girgis’ evidence below.

Consideration of the medical evidence

29. In her claim for compensation in April 1999, Ms Guirguis claimed she injured her right foot. The weight of the medical evidence supports the conclusion that, consistent with the terms of settlement, she injured her mid-right foot in the fall at work. Further, that her symptoms were relatively short-lived and would have resolved by 2003. Records at the time do not support a finding that she also injured her left foot, her ankles, or her knees.
30. There is no evidence of Ms Guirguis having ankle pain until 2001, some three years after her fall. The evidence supports the conclusion that any continuing symptoms are the result of degenerative change due to aging. The evidence is also strongly suggestive of exaggeration, if not fabrication, of her symptoms.

Does Ms Guirguis have a chronic pain disorder

31. Ms Guirguis says that the pain in her feet became progressively worse after her fall and, by 2005, it was hard for her to walk and she had to sit most of the time; her husband did most of the housework and she paid someone to do the laundry; by mid-2006 she was having difficulty standing for more than a few minutes.
32. Ms Guirguis says the pain is worse now; she can walk for ten to 15 minutes at best and needs someone with her at all times because she gets “attacks” and fears she will fall; the only time she can go anywhere is with her husband or children. She says her husband does most of the cooking and she pays someone to do the major cleaning.
33. Ms Guirguis has suffered depression since an incident at work in June 2000 involving her supervisor. That incident was the subject of an earlier claim. Ms Guirguis says the depression, together with the pain in her feet, have ruined her life and she can see no future. She says she hardly sleeps, she always cries and her home life is a complete “write-off”; she has constant fights with her children because she can no longer do things for them or go anywhere with them.
34. Ms Guirguis says she cannot walk to the nearest shops, and the only way she can go anywhere is to be driven around. She described an occasion when she went out with her children but she could only walk for seven or eight minutes and another child had to come and pick her up. She says she can no longer go to church because she cannot stand up and she cannot wear proper shoes; she has tried suicide “a few times”.
35. Asked to describe the pain in her feet on a scale from one to ten, Ms Guirguis described it in oral evidence as “mostly over ten” and says medication gives limited relief. She sees her general practitioner sometimes for medication depending on when someone, usually her husband, can drive her.
36. On occasions, Ms Guirguis’ recall when under cross-examination was poor, and she could not remember details of her injury that she recalled with certainty in examination-in-chief. While that might be due to the pressure of cross-examination, it nevertheless tended to undermine her credibility as a witness.
37. Under cross-examination Ms Guirguis maintained that she has an extremely debilitating pain condition in her lower limbs which she described as “100 per cent” and for which she takes painkillers 24 hours a day. However, she resiled somewhat from her earlier evidence. For instance, under cross-examination she said she could do “very little things” in the house, like dusting, although she only sweeps in the house once a week; she drives herself occasionally and will go out if she needs something and no one is around to accompany her; if she has to go somewhere on her own, it would be for something important. She maintained that she always uses a handrail when walking up stairs. She conceded that she goes to church “once every so many months” and occasionally visits her sister.

Video evidence

38. The respondent produced a video and report of a surveillance investigation conducted each day from 21 May and 5 June 2009 from outside Ms Guirguis’ home and from a vehicle following her when she left her home.
39. Ms Guirguis is seen, on ten days, sweeping the front porch of her house without any apparent difficulty and sometimes quite vigorously. She is seen putting out rubbish, carrying shopping bags from the car into her house and, on one occasion, pulling a large bag. She drives herself and others on many occasions and walks distances of up to 70 metres without any apparent difficulty. She is seen on several occasions having animated conversations with others in her front garden, on one occasion standing for approximately ten minutes talking to a person at her front gate. She comes and goes from her house frequently and is seen at a hotel for lunch with two young women, possibly her daughters; walking unaided down two flights of stairs at the hotel; and attending church on one occasion. She is seen on several occasions standing for several minutes without apparent difficulty including with her car door open, when she could have sat if she needed to.
40. Ms Guirguis is seen repeatedly in the company of an elderly man. He drives to her house where they greet each other affectionately. When they leave together, she always drives. They go to the beach, to the cinema three times, and to a shopping centre. On one occasion she is seen helping him from his car and pulling him to his feet.
41. Ms Guirguis maintained in oral evidence that her outings are a way of overcoming her depression and that she takes any chance if someone asks her to go out. She maintained that careful scrutiny of the video would show that she could “barely walk”. She claimed that she had been so frightened after motor vehicle accidents some years previously that she now prefers to drive rather than be a passenger. She maintained that her front porch is a very small area and that she does not sweep inside the house.
42. Counsel for Ms Guirguis urged on us that the video showed Ms Guirguis at her best, when out in company of people who lifted her spirits; that we could not know how she is when inside the house; that people often say they cannot do something when they mean they cannot do it without pain; that it would be important to know what Ms Guirguis was talking to neighbours and others about before judging her mental state from the video; that she is an emotional person who “tends to be a little bit catastrophic” with her problems but that the nothing in the video undermines her claims.
43. We agree that video evidence must always be regarded with caution. What is captured in a limited snapshot is liable to misinterpretation. However, what we saw over 16 days of video footage was so at odds with Ms Guirguis’ evidence about the effect on her life of chronic pain and depression that we cannot sensibly reconcile the two.
44. Contrary to her claim that she can barely do housework, Ms Guirguis is seen sweeping her front porch, sometimes quite vigorously, without any apparent difficulty, on ten of the 16 days over which the video was taken. Nothing in her manner suggests a person who might be disabled from doing other housework inside.
45. Far from someone whose life is hardly worth living, Ms Guirguis comes and goes from her house at least every couple of days, sometimes more than once in a day. She appears socially active and engaged, talking on her mobile phone and conversing and smiling with others in her garden. She goes out and about including to the pictures three times. She walks rather heavily, in the manner of many overweight people, but she gets around without any apparent difficulty.
46. The video evidence is so at odds with Ms Guirguis’ claims about her chronic pain and so seriously undermines her credibility that we reject her claims of chronic pain unless supported by independent medical evidence.

The evidence of Dr Makram Girgis

47. The first medical reference to Ms Guirguis having a chronic pain condition is in a letter dated 28 March 2006 to Comcare from Dr Girgis in connection with Comcare’s attempt to recover an overpayment from Ms Guirguis. In the letter, he expressed his surprise that Ms Guirguis was expected to pay an overpayment and said she was suffering a great deal of stress on account of chronic pain disorder due to the injury “to her left ankle joint and foot ...” and that “even the right foot is now swelling”.
48. In July 2007 Dr Girgis reported that Ms Guirguis’ prognosis was not good at all; she had “intractable insomnia and depressive state” and would need medication for a very long time. She had what he believed to be “severe injury of the ankle joints to the right foot with complication of the left foot and knee”.
49. In oral evidence Dr Girgis confirmed his diagnosis of chronic pain disorder which he says is getting worse so that Ms Guirguis’ prognosis is now “really bad”.
50. By any measure, Dr Girgis’ oral evidence was unsatisfactory. His responses were frequently unhelpful, if not evasive, and he lacked objectivity. For instance, he volunteered that the video was biased and unfair and that Ms Guirguis had felt scared and bullied under cross-examination. It is telling that he was not actually present during her cross-examination.
51. Despite several requests by the respondent, including under summons, Dr Girgis was unable to produce clinical notes other than two pages of brief handwritten notes covering the period from January 2001 to December 2006.
52. We do not accept Dr Girgis’ claim that he maintained detailed records but could not produce them because they are held by another medical practice. On 23 January 2008, in response to a summons, he wrote to the respondent’s solicitors enclosing the two pages of handwritten notes which he described as “the required records”. In a letter dated 24 November 2009 to Comcare he says “I am herewith faxing you all the reports in my possession”. If clinical notes were with another practice, Dr Girgis could almost certainly have obtained them without too much difficulty. The paucity clinical records of treatment over several years makes his evidence even less reliable.
53. It emerged in Ms Guirguis’ evidence that the elderly man in whose company she is seen repeatedly on the video is in fact Dr Girgis. When first asked who the man was, Ms Guirguis said he was a “family friend”. It was only when asked again that she told us who he was. Dr Girgis is seen accompanying her to the cinema and on other outings on seven of the 16 days over which the video was filmed. We do not suggest anything improper in their friendship but it is evident from how they greet each other and act together that they are close.
54. Dr Girgis rejected any suggestion that his medical opinion might be compromised by his personal relationship with Ms Guirguis. His failure to recognise even the potential for conflict of interest only confirms our view that his evidence is so compromised by his obviously close personal friendship with Ms Guirguis that we can give it no weight at all unless it is supported by other medical evidence.
55. It is relevant that, after settling her claim in January 2003, there is no further mention or complaint by Ms Guirguis of chronic pain until Dr Girgis’ letter to Comcare in 2006 about the overpayment. It is relevant that only Dr Girgis now considers that Ms Guirguis has a diagnosis of Major Depression or chronic pain disorder.

The evidence of Dr Teoh and Dr Champion

56. Dr Ben Teoh and Dr John Champion are both psychiatrists. Dr Teoh saw Ms Guiguis in October 2008 at the request of her solicitor. Dr Champion saw her in March 2009 at the request of Comcare. Both provided written reports prior to the hearing.
57. Dr Teoh reported that Ms Guirguis’ presentation was “consistent with a diagnosis of Major Depression” which he thought was caused by her initial injury which had resulted in chronic pain. He thought her prognosis for recovery was poor.
58. Dr Champion reported that Ms Guirguis complained of symptoms consistent with a significant episode of depression, possibly Major Depression; she was specifically angry about what happened with her supervisor at work and linked her depression to that incident. However, he found “considerable inconsistency between her presentation and the claimed symptoms” and thought that, while she might have some level of depression, it was likely to be considerably exaggerated. It was possible that she was suffering from a “mild to moderate Adjustment Disorder with depressed mood in relation to her pain” although he had reservations about the actual pain and disability in light of Dr Bencsik’s comment that he thought Ms Guirguis was exaggerating, and possibly fabricating, her symptoms.
59. Dr Teoh and Dr Champion were shown the video surveillance of Ms Guirguis before preparing a joint written report and giving concurrent oral evidence. Both revised their written opinions. Neither considered Ms Guirguis’ presentation in the video to be consistent with any form of psychiatric disorder; in particular, there was no indication in the video of Major Depression, Adjustment Disorder or any other form of psychiatric disorder.
60. In their joint written report, the doctors stated that neither thought Ms Guirguis was suffering “from a mental ‘disease’, that is an ailment outside the bounds of normal human functioning”. In oral evidence, Dr Teoh still thought Ms Guirguis was depressed and has emotional distress and psychological symptoms related to her chronic pain but not that she has Major Depression. He agreed that, if the cause of her pain could be traced to her osteoarthritis rather than her fall, then that causal link would be broken.
61. Dr Champion thought it “most unlikely” Ms Guirguis had any form of depressive illness; her activity on video conformed to his earlier observation that her behaviour was not consistent with that of a person suffering a significant depression. He does not think she suffers from a chronic pain disorder.

Conclusion

62. We reject Ms Guirguis’ claims of chronic pain. We find she has exaggerated, if not fabricated, her symptoms. Her claims are not supported by the medical evidence other than by Dr Girgis. His evidence which is so compromised by his personal relationship with Ms Guirguis that we can give it no weight.
63. We find, on the evidence, that Ms Guirguis injured her mid-right foot in the fall in 1998. It is likely that the injury itself was relatively minor. In any event, by January 2003, there were no longer any effects of the injury. We are satisfied that her agreement in January 2003 that she no longer required treatment and that the effect of her injury had ceased, reflected the true state of things.
64. We find that Ms Guirguis had degenerative arthritic changes in both feet and ankles before the 1998 fall. Any symptoms or pain in her feet and ankles and knees after January 2003 related to those degenerative changes alone and not to her 1998 injury. That injury did not contribute in a substantial or significant way to any ongoing pain.
65. We are not satisfied that Ms Guirguis suffers from chronic pain or a chronic pain disorder. If she does suffer from either, it is on account of the degenerative changes and not the 1998 injury.
66. We affirm the decision under review.

I certify that the 66 preceding paragraphs are a

true copy of the reasons for the decision

herein of Senior Member Jill Toohey

Signed: .............[sgd].................................................................

Diana Weston Associate

Date of Hearing 1 December 2009, 2 December 2009 and 22 January 2010
Date of Decision 26 February 2010

Representative for the Applicant Mr Tom Mithieux, Carroll & O'Dea Lawyers

Counsel for the Applicant: Mr Leo Grey

Representative for the Respondent: Ms Lyn Brady, AGS

Counsel for the Respondent: Mr Grant Elliot