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Administrative Appeals Tribunal of Australia |
Last Updated: 15 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 249
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2009/0117
Applicant
Respondent
DECISION
|
Decision
|
The Tribunal:
Application No 2008/5760
Application No 2009/0117
Application may be made to the Tribunal in relation to
the costs of these proceedings within 14 days of the date of this decision.
In
the event that no such application is made by that date, the Tribunal orders,
pursuant to s 67(8) of the SRC Act, that the costs
of these proceedings incurred
by the applicant be paid by the respondent in accordance with Section 6.8 of the
Tribunal’s Guide to the Workers’ Compensation
Jurisdiction.
|
..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
COMPENSATION – applicant employed by respondent – applicant suffered soft tissue injury to lumbar spine in employment-related motor vehicle accident in April 2006 – respondent accepted liability to pay compensation to applicant – respondent determined that not liable to pay compensation to applicant from October 2008 – applicant continues to suffer lower back pain symptoms resulting from injury – respondent continues to be liable to pay compensation to applicant for injury – applicant claimed compensation for psychological condition resulting from physical injury – respondent denied liability to pay compensation to applicant for psychological condition – applicant suffered major depressive episode and pain disorder associated with psychological factors and general medical condition as result of physical injury – applicant suffered major depressive episode also as result of reasonable administrative action taken in respect of his employment – major depressive episode not a compensable injury – respondent not liable to pay compensation to applicant for major depressive episode – pain disorder a compensable injury – respondent liable to pay compensation to applicant for pain disorder – decisions under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 5A, s 5B, s 6, s 7(4) and s 14(1)
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Trewin v Comcare (1998) 84 FCR 171
REASONS FOR DECISION
INTRODUCTION
THE EVIDENCE
THE APPLICANT’S EVIDENCE
“ ...
Personal Background
...
10. I left high school after completing Year 10.
11. Upon finishing high school I immediately sought employment.
Employment History
13. Two days after leaving the nursery I commenced working at Chicken Treat.
15. I worked at Chicken Treat for approximately 5 years.
Previous Injuries
Australia Post Incident of 18 March 2005
Australia Post Incident of 30 August 2005
The Motor Vehicle Accident
Treatment for MVA Injuries
(a) Dr Fischer, psychiatrist, approximately every 6 weeks;
(b) Dr Wendy Rappeport, my general practitioner, approximately once a month;
(c) Mr Hans Fisch, physiotherapist, approximately once per fortnight;
(d) Mr Colin Strydom, exercise physiologist, approximately once per month; and
(e) Dr Richard Yin, musculoskeletal physician, approximately every 6 weeks.
Current Symptoms
(a) disrupted sleep;
(b) restrictions in movement;
(c) difficulty walking;
(d) reduction in social activities to virtually nil;
(e) reduced ability to carry out gardening activities and home maintenance.
THE EVIDENCE OF THE MEDICAL WITNESSES CALLED BY THE APPLICANT
Dr Alan Home
“ ...
History From Examinee
Mr Mayo states that he has worked as a mail sorter for Australia Post for eight years. He was previously working for Australia Post as a cleaner for six months.
He was involved in a motor vehicle crash on his way to work as the seatbelted driver of a Toyota hatchback fitted with headrests, stationary in the right hand lane at a set of traffic lights on Great Eastern Highway bypass. His car was struck from behind by a large sedan vehicle and was pushed forward almost a car length onto the median strip.
His vehicle sustained rear end damage with the rear pushed in. He has obtained a quotation of $3000 but the car has not been repaired.
Following the accident he alighted from the vehicle and exchanged details with the other driver. He continued on to his workplace three minutes away, reporting the incident. He left work within 30 minutes.
He attended his general practitioner that day. He recalls symptoms of low back pain and neck pain. The neck pain has subsequently resolved.
He reports that subsequent treatment has included thrice weekly physiotherapy massage which was ceased due to symptom exacerbation several months ago. Hydrotherapy treatment over a three month period did not improve his symptoms.
He has undertaken an exercise programme under the care of Mr Tony Fulton at Australia Post, primarily range of movement exercises with the use of gym ball, which he undertakes in the gymnasium at the Perth Mail Centre.
He reports that low back pain symptoms have varied in intensity. He reports fairly constant ache in the lower back at this time.
He is reporting the current use of Tramadol analgesia 50 mg, two to four tablets daily. He ceased Stilnox due to over-sedation.
Current Symptoms
He describes ongoing symptoms of fairly constant low back pain, more prominent on the left side, with radiation to the buttock but not to the lower limbs.
He denies lower limb paraesthesia or numbness.
He experiences moderate back pain with coughing and sneezing, but no bowel or bladder dysfunction.
Abilities/Disabilities
He is right hand dominant. He reports a normal tolerance for sitting, up to 30 minutes.
His standing and walking tolerance is 40 minutes, after which he prefers to sit.
He describes a restricted forward bending capacity, and in general, stiffness of spinal movements.
He is unable to sleep through the night without waking with back pain.
He estimates a capacity to lift bags, several kilograms in each hand.
He is currently living in shared accommodation with two others. He does undertake a share of light domestic chores. He tries to avoid pushing a trolley at the shops. He does perform bench height tasks. He avoids heavy chores such as vacuuming, mopping and sweeping.
Prior to the accident he enjoyed gardening and bush walking. He has not been able to continue with these activities.
Past Medical History
There is a past history of mild side strain sustained at work, for which his compensation claim was rejected (sic) in 2005.
He has undergone surgery to treat a ganglion in his left foot.
He does report a history of ADD, however he does not take medication for that disorder.
He smokes 25 cigarettes daily.
Vocational History
Prior to commencing work with Australia Post, he worked at Chicken Treat for five years.
Rehabilitation
Mr Mayo reports that he is undertaking ‘a remedial job’ working in the label section. He has the opportunity to alter his posture at regular intervals. He is working up to six hours daily at present.
He describes variable work attendance over the past few weeks, due to periods of spontaneous symptom exacerbation.
He is hoping to return to his normal duties at work with recovery.
Industrial Relations Issues
He does report previous strained relations with colleagues regarding personal matters. He also reports a previous ‘stress’ claim, which did not proceed.
Investigations
I have reviewed all of the relevant imaging. I note that CT scan and MRI scans of the lumbar spine are essentially normal. Technetium bone scan of the lumbar spine is also normal.
Examination
Mr Mayo is a 28 year-old with medium height and thin build.
There is a restricted range of thoraco-lumbar spinal movement, with active spinal flexion performed to reach fingertips to the upper shins, restricted by tight hamstrings on each side. Extension is full. Right and left lateral flexion are performed to reach fingertips to 5 cm above the knee crease, two-thirds normal range on each side.
Tenderness is elicited to palpation across the lumbosacral junction. This is well-localised and reproducible.
Straight leg raise is restricted by tight hamstrings to 70˚ on the right, 65˚ on the left.
There is no abnormality on neurological examination of the lower limbs. Waddell’s signs are negative.
Assessment
Mr Mayo presents with a history of ongoing fairly constant low back pain with subjective clinical signs limited to the lumbosacral segment. He does present with some caution in relation to his lumbar movements. There may well be some anxiety and fear-avoidance contributing to his symptom experience and restricted spinal movement.
Diagnostic imaging has excluded significant structural damage to the lumbar spine, however this cannot exclude symptoms arising from minor damage to the lumbosacral facet joints.
I spent some time with Mr Mayo discussing his progress and his expectations. I do anticipate that with reassurance, commitment to his active exercise programme aimed at strengthening his supporting lumbar and abdominal musculature, and continuation of the vocational rehabilitation programme, he will go on to make a good recovery in the long term.
In the majority of cases, patients suffering from symptoms related to rear-end accidents causing soft tissue injury to the lumbar spine do go on to make a full recovery within eighteen months to two years.
In answer to your specific questions:
1. The history provided by Mr Mayo at examination is detailed above.
...” (T68)
“ ...
History from Examinee
Mr Mayo states that since last review he has attended Dr Gabriel Lee, consultant neurosurgeon. He underwent further MRI scanning of the lumbar spine and EMG examination of the lower limbs. These were reported to be normal. I reviewed the MRI scans and I confirm the findings.
Mr Mayo states that he has attended a series of physiotherapists including Mr Adam Floyd, exercise physiologist, Mr Peter O’Sullivan, physiotherapist, and Mr Colin Strydon (sic), exercise physiologist.
He is currently receiving treatment under the care of Dr Richard Yin, general practitioner, in Shenton Park. He attends Dr Yin at six weekly intervals.
He is currently attending a physiotherapist Mr Hans Fish (sic) for passive physiotherapy mobilisation directed towards his back at two to three week intervals. He self funds this treatment.
He is attending a gymnasium in Shenton Park at fortnightly intervals He cannot afford more frequent attendances. He also undertakes home based exercises incorporating use of an exercise ball and various stretching exercises.
He is self funding psychiatric management under the care of Dr Kurt Fisher (sic). He has been taking Effexor antidepressant medication. Currently he attends Dr Fisher (sic) at six weekly intervals.
He states that funding for the medical treatment related to his compensation claim was discontinued last year. He has since made a claim for reinstatement of benefits through the AAT.
He further confirms that he has attended Dr John Liddell, neurosurgeon, who recommended against surgical management.
He attended Dr Lee, neurologist, who found no evidence of nerve damage.
He has undergone bilateral sacroiliac joint injections. He recalls transient symptomatic benefit with the anaesthetic but no durable improvement.
There has been no other form of medical treatment.
Mr Mayo confirms that he has undergone further independent medical examinations including those conducted by my colleague Dr Overmeire. He also attended a medical panel convened by Australia Post.
He has taken to using a walking stick over the past four months. He holds the walking stick in his right hand to offload his left leg whilst weight bearing.
Current Symptoms
Mr Mayo reports chronic constant low back pain, average intensity 6/10 increasing to 9/10 with modest physical activities such as shopping for 30 minutes. There is occasional radiation of pain to the left buttock and the proximal half of the left thigh, but not below the knee.
There is occasional momentary sharp pain with coughing and sneezing.
There is increased back pain when straining on a stool.
There is no bladder dysfunction.
He denies lower limb paresthesia.
Sitting tolerance is estimated at 30 minutes with a necessity to stand after one hour. He is comfortable standing and walking for up to 30 minutes.
He states that low back pain is more prominent on the left side of his lumbar spine.
He has discontinued use of Durogesic and Fentanyl patches. He experienced withdrawal symptoms upon their cessation.
There is current use of the following medications:
Abilities/Disabilities
Currently he reports a normal capacity for personal care and dressing. He describes difficulty dressing in shoes.
He lives with two housemates. He undertakes light domestic chores. He avoids prolonged stooping such as when washing dishes. He undertakes his own laundry and hangs washing on an inside airer. He does some very light pruning in the garden. He performs food preparation and cooking. He avoids vacuuming, mopping and sweeping.
Rehabilitation
Mr Mayo confirms that he undertook labelling tasks at Australia Post until December 2008. He worked up to seven and a half hours daily but attended full days of work 2–3 days a week. On other days he would often leave early.
In December 2008 he was sent home on sick leave without pay due to cessation of his compensation benefits. He did utilise his long service leave thereafter.
He has been advised that he may be formally retrenched in May 2010.
Investigations
MRI scans of the lumbar spine dated 12 June 2006 were normal.
Technetium bone scan of the lumbar spine dated 18 January 2007 shows no abnormality.
MRI scans of the lumbar spine dated 7 January 2008 demonstrate no abnormality.
Plain radiographs of both sacroiliac joints dated 21 April 2008 are normal.
MRI scans of the cervical and thoracic spine dated 25 May 2008 are normal.
Bilateral SI joint injections were performed on 17 June 2008.
Examination
Mr Mayo is a 31 year old with short stature and thin build.
He entered the examination with a pronounced antalgic limp, with his left foot externally rotated and avoiding push-off through the left hallux during a prolonged left foot stance phase.
Ranges of active thoracolumbar spinal movements are mildly restricted with flexion to reach fingertips to the upper shins, smooth lumbar deflexion and extension to ¾ normal range at 15˚. Left lateral flexion is accompanied by reported ipsilateral pain and right lateral flexion with contralateral pain on the left side.
There is a prominent discomfort with left quadrant manoeuvre and with left hip extension whilst lying in a prone position.
There is pain associated with thoracic rotation to the left. There is less prominent pain with simulated left sided lumbar rotation, however no pain with axial compression.
Tenderness is elicited to palpation across the lumbosacral junction, more prominent overlying the left paravertebral structures. There is mild tenderness elicited to palpation overlying the sacroiliac joints.
Straight leg raise is restricted by tight hamstrings without reported back or leg pain. There is a negative Lasegue’s sign. Slump test is negative.
There is no pain reported with a figure-of-4 test for sacroiliac joint dysfunction.
There is a full range of pain free movement of both hips.
Neurological examination of the lower limbs is normal.
Assessment
It is my opinion that your client sustained soft tissue injury to the lumbar spine primarily involving the lumbosacral segment with probable involvement of the left sided facet joint. Pain is more prominent on the left side. Your client describes somatic referred pain to the posterior left thigh which is a common symptom experienced in patients suffering from facet joint dysfunction.
I agree with other examiners that your client has developed an abnormal gait. This is a rather exaggerated version of the gait often seen in patients with facet joint dysfunction with a tendency to walk with the left leg and foot externally rotated, avoiding push off through the left hallux.
Your client has taken to using a walking stick over the past four months.
I agree with other examiners that psychological factors are contributing to the presentation of disability.
In my opinion, in additional (sic) to a musculoskeletal disorder your client suffers from a Pain Disorder associated with both psychological factors and a general medical condition.
I again note that CT, MRI and bone scan investigations are normal. This does not exclude underlying soft tissue injury and facet joint dysfunction.
I do note the opinion of Dr Gemma Edwards-Smith. I do not agree with the opinion expressed. I do not agree that there is a consensus of medical opinion that ‘there is no evidence that the motor vehicle accident contributed to the onset or persistence of physical symptoms in this case’. I note that most of the examining physicians determined that Mr Mayo suffers from back pain, albeit with some difficulty in providing a precise patho-anatomical diagnosis due to normal imaging.
I note that my colleague Dr Overmeire, at the time of his independent medical examination of 1 August 2007, recommended physical lifting restrictions and a functional restoration program.
The physiotherapist, Mr Adam Floyd, found that the examinee presented with primarily left lumbar pain referring to the left buttock. I note that Mr Floyd found the gait pattern to be unusual in that the examinee appeared to unload the right side on stance phase and weighed more heavily on the left side. Whilst he reported that this is inconsistent with left sided mechanical pain, I have seen this gait pattern in many patients suffering from facet joint dysfunction as they do not wish to transfer weight on to the left hallux during the push-off phase.
I note that Mr Lee recommended ongoing exercise but understandably did not recommend surgical management.
It is not surprising in my view that EMG examination was normal as Mr Mayo does not represent (sic) with clinical features of nerve root entrapment. Again, normality of the MRI scans of the lumbar spine does not exclude an underlying spinal injury.
I would recommend that the examinee undergo diagnostic facet joint injections to determine whether the left sided L4/5 or L5/S1 facet joints are contributing to his pain experience. In the circumstance of a strongly positive analgesic response obtained, consideration could be given for referral to a pain specialist for rhizotomy treatment.
I have not reviewed any evidence that Mr Mayo suffered from significant chronic low back pain prior to the motor vehicle crash or indeed that he suffered from a somatoform disorder or pain disorder prior to the motor vehicle crash.
It is my view that this man has developed a psychiatric condition (pain disorder) as a secondary consequence of the persisting pain arising from the physical injuries associated with his motor vehicle crash.
I would recommend that you seek advice from Mr Mayo’s treating psychiatrist regarding his progress and recommended management of his psychiatric condition.
In relation to your specific questions:
1. The history provided by your client is detailed above.
2. Current symptoms and restrictions reported by your client are detailed above.
3. The current symptoms and restrictions result from the accident.
...
4. The detailed examination findings are detailed above.
The prognosis is most guarded in view of the persistence of symptoms and the development of secondary psychological complaints.
In my opinion there is a requirement for further diagnostic investigation with targeted left sided facet joint injections at L4/5 and L5/S1. This may lead onto treatment with rhizotomy.
Counselling is likely to be required in at least the short term. In the short term I would recommend that you seek specific from (sic) Mr Mayo’s treating psychiatrist regarding recommended psychiatric management.
Mr Mayo will benefit from exercise however I would defer further advice about exercise pending further diagnostic injection.
Your client does not require surgical management.
...” (Exhibit A8)
“ ...
Further History From Examinee
Mr Mayo states that there has been no further medical treatment directed toward his low back pain complaint. He reports that he does take Tramadol 50 mg one tablet thrice daily, Effexor 150 mg one tablet twice daily, and Endep 100 mg nocte.
He is currently under the care of Dr Richard Yin, whom he attends at six-week intervals. He is attending Colin Strydom, an exercise physiologist, whom he attends at six-week intervals for review and upgrade of his exercise programme.
He reports that he attends Dr Kurt Fischer, psychiatrist every month at Hollywood Specialist Rooms. He also attends a physiotherapist, Mr Hans Fisch at approximately five-week intervals. Overall, he feels some relief from physical therapy for a week or two at most.
He underwent a trial of facet joint injections during the early part of this year. He recalls several days of relief following each of the injections at the L4/5 and L5/S1 levels. There was no durable benefit.
Current Symptoms
Mr Mayo reports symptoms of chronic low back pain at average intensity 6-7 out of 10 on an analogue scale. He describes sharp pain with coughing and sneezing.
There is pain extending to the left buttock and left thigh. There is paraesthesia in the buttocks but not extending to the lower limbs.
He describes additional interscapular pain at times.
He complains of difficulty with dressing in shoes and socks.
Rehabilitation
He has not undertaken any work or training since last review. He has not identified a suitable goal for vocational rehabilitation. There is no current rehabilitation assistance.
He volunteers that he believes he may experience some difficulty with retraining due to his known dyslexia condition.
He reports that he is experiencing difficulty with depressed mood. He describes difficulty with his thought processes. He says that sometimes his thinking is confused.
Abilities/Disabilities
Currently he mobilises using a walking stick held in his left hand. He says that he is experiencing difficulty in improving his gait. He is aware that his gait is very unusual, but he says he experiences severe pain when attempting to load the left side of his back. He first began using a walking stick twelve months ago in an attempt to improve his gait pattern.
He describes a current sitting tolerance of approximately 40 minutes to an hour. He drives an automatic vehicle for short distances. He says that he has difficulty applying the brakes quickly.
He reports a restricted capacity for standing and walking.
He is able to crouch and kneel but avoids deep forward bending at the waist.
He is largely independent for dressing and other activities of self-care.
He reports prominent sleep disruption.
He estimates a capacity to lift 2-3 kg in weight, such as a light shopping bag. He undertakes very light shopping tasks. He describes difficulty carrying shopping bags.
He lives with his boyfriend and a housemate. He does not undertake vacuuming, mopping, sweeping, cleaning showers and baths. He will straighten the doona. He is able to hang several items of clothing. He performs bench height cleaning and dish washing. He is able to cook with a slow cooker.
He has not resumed previous active hobbies such as gardening and vigorous walking.
Examination
Mr Mayo is a 32 year-old with medium height and thin build, weighing 65 kg.
Examination of the thoracolumbar spine reveals a marked restriction of active spinal motion with flexion to reach fingertips to the knees. There is dysrhythmia during lumbar deflexion. There is a full range of spinal extension, however pain is reported during the return to neutral position. Right lateral flexion is performed to reach fingertips to the knees, left lateral flexion is restricted to two-thirds normal range.
There is pain with a left quadrant manoeuvre.
Straight leg raise is unimpeded to 70˚ bilaterally.
There is a mild left quadriceps wasting. The circumference of the left thigh measures 41 cm compared with 42.8 cm on the right.
He walks with an unusual collapsing gait through the left lower limb. I agree with other practitioners that this is a uniquely peculiar gait.
Tenderness is elicited to palpation overlying the left paravertebral structures between L4 and S1.
Assessment
Mr Mayo continues to present with a history of chronic low back pain, predominantly left sided, with referral to the left thigh. There are no true radicular complaints.
He has developed an abnormal gait pattern, likely to be driven by psychological factors.
There is objective evidence that he does not walk evenly, with mild wasting of the left quadriceps and a reduction in circumference of the left thigh. In this regard, my clinical findings do not tally entirely with those documented by Dr Hardcastle.
I do agree that this man has developed an abnormal psychological reaction to his pain symptoms such that he has developed an unusual ‘collapsing’ gait which can be regarded as an abnormal behaviour response to his injury.
I cannot determine that there is evidence that this man is asymptomatic or that he does not suffer left sided back pain. Apart from his bizarre gait, Waddell’s signs are negative.
I do note that MRI scans of the lumbar spine are normal.
The technetium bone scans of the lumbar spine performed in January 2007 are also normal.
Repeat MRI scans of the lumbar spine of January 2008 demonstrated no abnormality.
Saroiliac joint investigations were normal.
That is, all spinal imaging has been negative.
This, however, does not exclude the probability that Mr Mayo suffers from left sided lumbar facet joint dysfunction. There is currently no satisfactory diagnostic imaging modality to assess the facet joint and the surrounding soft tissues. Technetium bone scan will only show changes where the bony surface of the joint is damaged. To the extent that his symptoms improved for a short period after facet joint injection, this is confirmatory evidence that the facet joints represent an underlying pain source.
I would not recommend rhizotomy treatment. He is clearly not a candidate for surgical management.
I do note that Mr Mayo’s symptoms and level of disability have increased over time and I do concur with other specialists that psychological factors have contributed to his pain perception and to his presentation of disability.
I agree that this man has developed a psychiatric Pain Disorder, as a secondary consequence of the physical injuries associated with his motor vehicle crash.
It is probable that other factors such as adverse industrial relations have impacted upon his psychological reaction to his injuries and his presentation.
Overall, the diagnosis has not altered from that outlined on page 7 of my medical report dated 12 January 2010.
In answer to your specific questions outlined in your referral letter dated 12 July 2010:
1. Brief history given by my client.
The history provided by your client is detailed above.
The current symptoms and restrictions reported by your client are detailed above.
The current symptoms and restrictions complained of by your client appear to result from the accident in question.
I have detailed the clinical findings on examination.
The diagnosis has not altered. The prognosis is guarded, noting the chronicity of symptoms since 2006 and an increase in the severity of disability several years ago.
If so, please provide your estimate of the likely frequency, duration and costs of same.
Your client remains under review by his general practitioner.
It is reasonable that he attend a counsellor for cognitive behavioural therapy.
He is currently attending an exercise programme and should continue with that programme over the next three months, with review after that timeframe.
The current medication requirements are likely to be required over at least the short term, possibly the medium to long term. There is no indication for passive physiotherapy treatment or surgery.
Your client will be restricted to sedentary or semi-sedentary forms of employment in the short to medium term. At this stage Mr Mayo remains certified unfit for work.
I would recommend that a lifting limit of 5 kg be imposed. He should avoid work requiring repetitive bending to reach below knee height.
In my opinion he should commence future work on a part-time basis, with a possibility of increasing hours of work with work hardening over a six month period.
I anticipate that he will experience difficulty with vocational rehabilitation to a sedentary role due to his unrelated complaint of dyslexia.
I note also his bizarre gait pattern, that may cause him difficulty accessing employment.
...” (Exhibit A9)
Dr Wendy Rappeport
Dr Richard Yin
“ ...
History of Injury
In April 2006, Mr Mayo was driving on his way to work when his car was hit from behind while stationary at a set of lights. The main chassis of the car was buckled, he recalls walking away from the accident with slight pain in his low back. This worsened over the next 30 minutes.
His ongoing current issue is one of persisting low back pain... In addition he has an unusual gait due to his pain and continues to be treated for depression through his psychiatrist Kurt Fisher (sic). His pain is severe. It profoundly affects his life. He struggles to walk, manage his activities of daily living, or do the shopping. He no longer works, his employment ending in December 2008. At that time he was managing 7.5 hours per day but was in severe pain and requiring opioid analgesics to cope.
I note that Mr Mayo has been seen by numerous specialists and that you are already in receipt of numerous medical reports detailing his history, progress and treatments to date. I therefore will not reiterate this clinical course.
On examination
He has an antalgic gait with pain on left weight bearing. The pain extends from his back to his left buttock.
In answer to your specific questions:
...
...
Given it is now over three years since the accident and Mr Mayo is no better, that he has not been working for over a year, one would assess his prognosis as poor.
6. Regarding future treatment:
He does not require surgery.
...” (Exhibit A10)
Dr Kurt Fischer
“ Thank you for asking me to see Ben. From the medical review panel report that you provided I understand that he was involved in a low-speed rear end collision in April 2006. His neck pain settled quickly with physiotherapy but the low back pain has persisted. The diagnosis is one of non-specific benign mechanical low back pain. Treatments recommended by specialists have been pursued without any benefits or functional improvement. Ben had apparently had one prior episode of low back strain which had resolved after two months of physiotherapy. He was said also to have had a previous episode of work-related stress after his promotion as acting supervisor in air logistics. Since the accident his gait has been abnormal but pertinently on orthopaedic examination he has not had an absence of antalgic reduction in weight transfer through his painful left leg. He was said to have been unable to successfully implement skills taught to him by psychologist Chris Semmens, he had had fear-avoidance behaviour unresponsive to incremental goal-setting, and he had apparently repeatedly failed to bring his activity diary to sessions. I understand that Mr Semmens had not found any obvious emotional or psychological issues to explain a psychosomatic process. Ben’s levels of distress and disability have been noted to deteriorate with time. The panel thought it likely that he had a somatoform disorder as a result of the accident, but speculated that his psychological reaction may have been due to factors unrelated to the accident.
When I met Ben in July he told me that prior to the accident he had been well thought of at work and if not for the accident he would have been progressively promoted. Although he does not dislike his current job he feels like ‘a lackey’, he said that curtains had been removed from his office nine months ago and at times he has been in tears because of lack of privacy, and he has heard disparaging comments from other workers. Even the limited physical expectations of his current job can cause significant pain and he has felt pressured by the need to prove himself capable of returning to his previous job. He feels stressed about the demands on him at work, he feels lonely at work because of his isolation from other people, he is quite angry about work policies that will probably see him lose his job for something that is not his fault, he is frustrated by the lack of a medical solution, and he feels that people have not realised how severe the accident had been. He believes that the solution to his difficulties would have been an administrative job but he has been unsuccessful in repeated applications for sedentary work.
He has pain in his lower back and buttocks, with altered sensation down his legs. He is most comfortable when recumbent but he can nevertheless have uncomfortable nights. He is never completely free of pain but it tends to be better earlier in the week. He felt that his pain had changed little over the past year although for a few months the edge had been taken off it with cortisone. He also said that in more recent months the pain had not been as severe or as constant.
With weight transfer his left leg ‘goes to jelly’. If he does not take care and inadvertently walks normally sometimes his back suddenly becomes very painful and his leg collapses. He is aware of his abnormal gait and said that it has become ‘automatic’. His gait is worse when his pain is worse. He knows that it attracts attention and sometimes he gets annoyed about this.
He and his partner had been together for only a few months before the accident. Despite the effects of the accident his home life has remained ‘quite good’ and he has not felt as much pressure at home as at work, but he has been aware of being moody and he believes that his partner has been concerned about accidentally hurting him. He had previously loved gardening but has lost a lot of plants for lack of tending, weekend walks are difficult, he is unable to pick up animals, and if he Is too sore he cannot sit for any length of time. Increasingly he has become concerned about the loss of his job and therefore the loss of his house.
He said that he used to be happy and bubbly but he now felt like a different person, more irritable, withdrawn, and not as enthusiastic. Intellectually he has been able to think of happy things but he has not felt them. He has had a sense of loss about what has transpired and there have been days when he has cried at work and has felt ‘so sad and angry’. All in all he considered himself to have been depressed, although his mood has probably been more one of frustration, particularly when his pain has been worse. He has felt depressed for a few weeks at a time ‘here and there’ but he also said that his mood has often changed from hour to hour. He thought that his sadness was generally related to pain and disability. If work was difficult he could have fleeting suicidal thoughts, he believed mostly related to pain but at times also because of the impact of organizational policies on him and feeling pressured to perform despite pain. He feels ‘like a leper ... a nobody’.
He thought that at his worst, perhaps a couple of months before I met him, he had been persistently depressed for at least a full month. He imagined that this had largely been the result of the pressure that he had felt at work. During that time his mood had been one of anger, frustration and sadness. Although he had had some mood reactivity this had not been consistent and for most of that time he had felt ‘down’ and without much spontaneity. There had been no obvious diurnal mood variation although he thought that his mood might have been slightly better on weekends, perhaps because of some reduction in pain. Despite some better moments he had generally been anhedonic, he had felt less energetic, and had found work tiring. He had had some loss of interests but mostly these had been retained. His appetite and weight seemed to have fluctuated although he thought that he had probably lost some weight. Sleep had been more difficult, he thought mostly because of pain, and he had noticed that if not well slept he had been more frustrated. His concentration had been impaired, he had found it difficult to think, and speed of thinking had probably been a bit slower. He said that he had mostly felt helpless and ‘a bit useless’ and had been unable to see a future. Perhaps a couple of times a week he had fleetingly thought of suicide, but without any planning. He had previously been a ‘clean freak’ but he had lost interest in self-care, he had found it difficult to sit in a barber’s chair so his hair had grown longer, he had become unhappy with the way he looked, and generally his self-esteem had deteriorated. He thought that he had withdrawn a bit from his partner. He had not had any pathological guilt.
His contention is that as far as had (sic) dysfunction for work is concerned pain rather than depression is the principal issue. He was aware of anxiety but believes that it is mostly about the prospect of losing his job and then finding his house in jeopardy. At times when his mood does deteriorate he believes that increased pain is usually the trigger. He believed that relaxation training with psychologist Mr Semmens had helped his pain and his emotions.
At age twenty-one he was apparently diagnosed by psychiatrist Wesley Rigg with ADD and had dexamphetamine for about a year. It had helped him feel more relaxed but had also caused him to feel angry. He recalled having had an antidepressant eight years ago after a relationship ended but he had not taken it for long because of side-effects. He has difficulties with closed spaces. Since being robbed by a friend he has had checking behaviours involving doors and windows.
When I met him he had been on amitriptyline 100 mg nocte and Fentanyl for the previous 15 to 18 months, with occasional Panadeine Forte. Tramadol had caused some problems with sleep. He has occasionally used marijuana in small quantities in social situations, at a maximum once a fortnight. He has not used other substances.
...
In summary, apart from the abnormal gait he has presented in a normal way. I take it that he has pain that has been judged by other doctors to be in excess of that explained by physical pathology but I cannot find sufficient evidence of psychological factors that might explain this. There is no evidence of significant ‘secondary gain’ and there is no evidence to me that he is malingering. The fact that he is conscious of his abnormal gait by definition rules out a conversion disorder. Ben says that this is a response to pain but I cannot make sense of why his gait is as obvious as it is.
On close questioning Ben describes features that could be construed as evidence of a mild major depressive syndrome, mostly secondary to pain but also secondary to what he finds to be a difficult situation at work. For this reason, and because of some literature suggesting that it might be helpful as an adjunct to pain management, I had him start the antidepressant venlafaxine in July. I have put quite a bit of effort into trying to tap his sense of hopelessness about his current situation and to tap his anger and resentment, and to try to link these to developmental issues. He has responded to these enquiries in a very reasonable way and nothing has been thrown up that would explain his difficulties at the moment.
He has progressively increased the dose of venlafaxine and has recently been taking 300 mg/d. There have not been any obvious changes in pain experience. Although there have not been positive benefits to mood he feels that all his emotions are a bit ‘numbed’ (SSRIs can occasionally do this) but he sees this as a useful thing at the moment.
I am struggling to find a focus for intervention. Ben believes that a desk job would help his pain and this seems plausible. He feels that it helps to talk and for this reason some regular psychiatric follow-up would seem to be indicated. I think that a trial of hypnotherapy would be worth pursuing.
I have put most of the preceding in a report to claims manager David Howard, including asking for consideration to funding hypnotherapy. Unfortunately, Ben contacted me a few days ago saying that his employer has stopped ‘comp’. I will continue to see him, at least in the short term.” (Exhibit A6)
[The Tribunal notes that Dr Fischer’s report of 20 October 2008 to Mr Howard, referred to in the final paragraph of his above report, is contained in the T Documents (T169).]
“ 5) current diagnosis and prognosis I cannot frame Mr Mayo’s pain and abnormal gait in terms of a psychiatric disorder and for this reason it is difficult to offer a comment about prognosis.
Mr Mayo thought that his mood had been at its worst perhaps a couple of months before I met him in July 2008. From what he had described of himself during that time I thought it probable that he had had a mild Major Depressive Episode (persistent depression of mood for at least a month, some but inconsistent reactivity of mood, mostly he had lost the capacity for pleasure, he had had some loss of interests, he had had less energy, he had been more easily tired, he had probably lost some weight, concentration had been impaired, speed of thinking had probably been somewhat slower, he had mostly felt helpless, self-esteem had been affected, he had felt hopeless about the future, a couple of times a week he had fleetingly thought of suicide, he had experienced some reduction in normal self-care, and there had been some interpersonal withdrawal).
In March this year I referred Mr Mayo to Counselling Psychologist Dr Robert Segal, wondering whether a trial of hypnotherapy might have something to add to management of his pain and abnormal gait. As yet no major benefits seem to have come from this avenue of treatment.
In my opinion the outcome for his Major Depression (now diagnostically, Major Depression in Partial Remission) is linked to the outcome of pain and future physical disability. If the prognosis for his pain were positive then the prognosis for his mental state would also be positive.
6) agreement with diagnosis of Somatoform Disorder My position as a clinician is that whilst it is important to have working hypotheses it is also important not to argue beyond the evidence. Especially when it comes to unconscious processes and the difficult issue of psychiatric aetiology it is too easy to be wrong, something that can damage therapeutic relationships.
With regard to Somatoform Disorder, this diagnosis requires the judgement that psychological factors have an important role in the onset and maintenance of the pain. In Mr Mayo’s case, given what I understand to be the absence of radiographic and other findings to explain the extent of his pain, and given the unusual nature of his gait, it is very reasonable to wonder about what non-physical processes might be at play. However, at no point have I had access to psychological material from Mr Mayo that is sufficiently obvious for me to be comfortable to judge that it has an important role in the onset and maintenance of his pain, and for this reason I do not agree with the diagnosis of Somatoform Disorder.
...
8) current and future restrictions to work and activities My impression is that Mr Mayo’s disability for work is principally a consequence of pain. His psychological state presents little or no disability for work and this should also continue to be the case.
...” (original emphasis) (Exhibit A7)
“ Applied for 10 admin jobs since Jan all knocked back”. (part of Exhibit A5)
He said that the applicant wanted a sedentary, administrative position at Australia Post that would be within his physical capacity and he opined that the applicant’s failure to obtain such a position, despite numerous applications, was “one of a number of issues playing a role in” the onset of his depression.
THE EVIDENCE OF THE MEDICAL WITNESSES CALLED BY THE RESPONDENT
Dr John Low
“ ...
History of Current Complaint
Mr Mayo stated that he was on the way to work on 21 April 2006 when he sustained the injury. He stated that he was the driver of a Toyota Starlet hatchback which was stationary at a red light. He stated that without warning, he felt his vehicle being pushed forward from behind. He stated that he had his foot on the brake at the time. He stated that he did not quite hit the vehicle in front.
He could not recall direct impact to any part of his body. He stated that he was wearing a seatbelt at the time. He stated that his vehicle had a headrest. He stated that his vehicle was seven years old.
He stated that the vehicle that hit him from behind was either a Commodore or Falcon.
He stated that he managed to get out of his vehicle unassisted and was able to drive his car away and attend work. He stated that the other vehicle was also driven away.
He stated that he had not had his vehicle fixed as yet and was able to drive his vehicle around.
Mr Mayo stated that he may have worked for a short period that day but recalled being referred to Carepoint. He stated that he started to feel pain mainly in the lower back and neck whilst at work on the day.
Mr Mayo stated that interventions undertaken subsequently included:
I note in the documentation provided the lumbar spine CT scan report dated 12 May 2006 which commented that there were no significant findings identified.
I note the lumbosacral spine MRI scan report dated 12 June 2006 also identified no significant abnormality. There were very minor degenerative changes identified at T12/L1.
Mr Mayo stated that the doctors at Carepoint suggested an exercise program and ongoing physiotherapy.
Mr Mayo stated that he was working four hours a day, three days a week, and five hours a day on the other two days a week. He stated that he had been on the same hours for the previous 1½ weeks (at the time of the initial assessment).
He stated that he continued working alternate duties and was not tying off bags. He stated that he was not lifting tubs or trays. He stated that he was sorting on the conveyor. He stated that he was sorting letters into frames (sitting to sort small letters and standing to sort large letters). He stated that he was doing light housekeeping and paperwork.
Current Symptoms (18 July 2006)
Mr Mayo stated that he felt better sometimes and other times felt worse. He felt that overall there was marginal improvement in his range of movement. He stated that the pain was now more localised to the neck and lower back.
LOWER BACK
He described constant pain of variable intensity localised to the midline and both sides of the lower back. He stated that sometimes, the pain felt worse on the right but ‘it does move a little bit’.
He stated that the low back pain was worse with:
NECK
He described constant interscapular pain in the upper back. He stated that the ‘neck’ pain was not as severe as the lower back.
He stated that the pain was worse when working on the conveyor belt and sorting letters which he attributed to the sustained neck flexion.
...
Current Symptoms (17 August 2006)
Mr Mayo stated that there had been no improvement since I saw him a month previously. He stated that his symptoms had ‘slightly changed’. He described the change to involve the pain being more localised to the midline of the lower back. He stated that he had slightly more movement now.
LOWER BACK
He stated that he continued to experience left-sided low back pain worse since increasing his work hours to six hours a day, five days a week. He stated that his work hours had been reduced again to 4-5 hours a day as previously. He stated that he was working five days a week but had been off sick this week.
He stated that the left-sided low back pain was constantly present and of variable intensity.
He stated that the pain was worse with ‘nearly everything’. When asked to elaborate, he stated that this included prolonged lying down, sitting, standing, walking up a slight hill.
NECK
He stated that the neck was ‘nowhere near as bad as the back’. He described intermittent pain which he localised across the base of the neck.
He stated that the neck pain was worse with head movement for example sorting mail and looking upwards.
Current Function (17 August 2006)
WORK
He stated that he was currently alternating four and five hours a day at work. He stated that he was working five days a week. He stated that he continued working alternate duties and had increased his weight of occasional lifting to 7.5 kg. He stated that he was sorting mail into bags and sorting mail into the vertical sorting frames as well as on the conveyor belt. He stated that he was not tipping bags and not pushing or pulling cages.
HOME
He stated that he could not wash his clothes. He stated that he could not lift his washing basket because of back pain. He stated that he could not wash too many dishes because standing stooped over aggravated his condition. He stated that he was not vacuuming or sweeping. He stated that he was not scrubbing or doing any cleaning. He stated that he was doing some cooking but ‘I haven’t been doing a lot at home’.
...
Examination Findings (17 August 2006)
Mr Mayo walked slowly and moved cautiously. He arrived late for the second appointment without apology or explanation.
He weighed 50 kg and was 171 cm in height.
CERVICAL SPINE
Range of movement of the cervical spine was full however he complained of discomfort at end range forward flexion, extension, lateral flexion and rotation on the right. He localised the discomfort to the left side of is neck.
He was tender to palpation at the left C3/4 facet joint and the levator scapular insertion on both sides. He was also tender to palpation in the suprascapular area on both sides.
Neurological examination in the upper limbs was normal.
BACK
He demonstrated full range of movement of the back however complained of discomfort at end range back extension.
He was tender to palpation between the L1 and S1 facet joints on the right.
Straight leg raise was 60˚ on both sides, seated and supine.
Slump test for nerve root entrapment was negative in both lower limbs.
He was able to walk on his tiptoes without any obvious signs of weakness. Walking on his heels resulted in complaints of sore back. Sensation in the lower limbs was intact. Tendon reflexes were reactive and equal in both lower limbs.
Assessment
Mr Mayo describes cervico-thoracic as well as lumbar spine pain which has changed in quality and location between the first and second assessments one month apart.
The precipitating motor vehicle accident described did not appear to involve significant violence with him being able to continue driving his car around at this point in time.
The findings on radiology have excluded significant pathology.
Given the mechanism of injury described, the variable and non-specific findings on clinical examination, and the lack of significant findings on radiology, I believe that the extent of the physical injury (if any) is minor and cannot account for his significant ongoing symptoms of pain and disability.
He demonstrated significant fear avoidance behaviours and beliefs which are adversely affecting his full recovery and rehabilitation.
...” (T29)
Dr Brian Dare
“ ...
MECHANISM OF INJURY
Mr Mayo stated on 21 April 2006 he was driving to work in a 1998 Toyota Starlight Hatchback when he was hit from behind while stationary. He stated was (sic) wearing his seat belt and described no loss of consciousness. He stated he was able to drive the vehicle away and has not had the vehicle repaired. He stated he has not had time to get an assessment on the cost of repairs and is concerned as he is unable to get a replacement vehicle while it is being repaired. He stated there is damage mainly done to the bumper and also to the boot which can not be opened due to damage done to the locks.
He stated his principal symptoms following the motor vehicle accident were lower back pain and also pain in his thoracic spine between his shoulder blades. As Mr Mayo works for the Commonwealth his injury is being put through as a Worker’s Compensation claim as they are covered for driving to and from work.
He was sent to a doctor that day by his employer and has had no days off work but has continued on restricted duties working 4 to 6 hours per day.
Treatment has consisted of physiotherapy, hydrotherapy and also using a Fit Ball.
Investigations have included a CT scan and MRI scan of his lumbosacral spine which was performed in May and June respectively. The scans demonstrated no abnormality.
CURRENT STATUS
Mr Mayo states he continues to have intermittent lower back pain. He states his pain tends to be worse with activity and find (sic) a number of the activities he performs at work can aggravate his pain. He stated he is sleeping poorly due to his back pain. There was no pain radiating into his legs.
PRESENT WORK STATUS
Mr Mayo stated he is presently working 4 to 6 hours per day with restrictions, specifically with lifting.
PRESENT ACITVITES
Mr Mayo is continuing to drive.
He stated he has reduced his activities at home and is not performing any housework which is being performed by a lodger.
He is not involved in any sporting activities but stated in the past he was a keen gardener and also was involved in hiking but is unable to return to this.
PRESENT TREATMENT
He is continuing to take Panadeine Forte and Tramal and (sic) night and also Panamex (sic) during the day.
He stated he is attending hydrotherapy 3 times per week and physiotherapy once a fortnight.
He stated he has also seen the psychologist as part of the Employer Assisted Program at work.
PAST MEDICAL HISTORY
Mr Mayo states he has had no previous motor vehicle accidents resulting in any significant injuries. He describes no previous injuries to his back.
He stated his only work injury in the past was a left lower back strain 12 months ago which required no time off work but he was on restricted duties for 2 months. He stated this injury resolved by the time he had his recent motor vehicle accident.
Surgery in the past has included removal of a ganglion in his ankle and also surgery for wisdom teeth.
He describes his general health as good.
PERSONAL/SOCIAL HISTORY
Mr Mayo has a partner but does not live with his partner and lives with a housemate.
He is a smoker and drinks a minimal amount of alcohol.
PHYSICAL EXAMINATION
Mr Mayo presented in a cooperative manner in no obvious distress.
He was 172 cm in height and weighed 56 kg.
Examination of his lumbosacral spine demonstrated a full range of movement, although he had some pain on movement.
He was able to squat with no difficulty.
He described some minor tenderness in his lumbar spine and lower thoracic spine.
In answer to your specific questions:
1. The exact nature of the injuries complained of at the examination.
I consider Mr Mayo suffered minor soft tissue injuries principally involving his thoracic and lumbosacral spine. His main ongoing symptoms relate to pain in his lumbar spine.
Findings on clinical examination demonstrated some pain on movement of his lumbosacral spine but clinically there was no evidence of nerve root impingement and he had a good range of movement.
There are no obvious discrepancies.
I consider Mr Mayo would be fit for his normal work duties and all his activities outside of work.
...” (T31)
“ ...
EMPLOYMENT/WORK DUTIES
In regards to work, Mr Mayo stated he is now up to 7 hours per day, working 5 days per week. He stated he is still avoiding the heavier work. He stated his rehabilitation is being provided in-house by Australia Post as his accident occurred on his way to work and this is covered by Comcare, the Commonwealth Worker’s Compensation Provider.
He stated he is also attending the gymnasium at work and at home is also doing light weights and also exercises. He stated his exercise at work is being managed by an exercise physiologist.
CONTINUING SYMPTOMS/DISABILITIES
Mr Mayo stated his symptoms have been improving although he still has intermittent discomfort. When I examined him previously he had lower back pain which tended to be worse with activity and still has some poor sleep. However he feels he is improving and making progress.
He continues to drive a motor vehicle and do as much as he can around the home but stated his house mate is still doing most of the household duties. He stated he has not been able to get back to his gardening or hiking. However he stated he is taking regular walks for exercise.
CONTINUING TREATMENT/INVESTIGATIONS
Mr Mayo continues to take Tramal as required.
He has now stopped his hydrotherapy and passive physiotherapy. As outlined he is attending the gym at work and also doing exercises and weights at home.
PERSONAL/SOCIAL HISTORY
Mr Mayo stated there has been no change in his social or personal circumstances since I last examined him.
PHYSICAL EXAMINATION
Mr Mayo presented in a cooperative manner in no obvious distress.
His weight was around 60 kg.
Examination of his lumbosacral spine demonstrated a good range of movement although he still had some minor pain on movement.
He was able to squat with no difficulty.
In answer to your specific questions:
1. His (sic) description of his injuries.
As outlined in my previous report, I consider Mr Mayo suffered soft tissue injuries principally involving his thoracic spine and lumbosacral spine as a result of his motor vehicle accident. He still has some ongoing lower back symptoms related to this injury.
2. Clinical findings and your diagnosis.
Findings on clinical examination demonstrated pain on movement of his lumbosacral spine however his various investigations including CT scan, MRI scan and bone scan do not demonstrate ongoing injury. As outlined he suffered minor soft tissue injury as a result of his motor vehicle accident.
There are no obvious discrepancies.
I would consider his minor symptoms are related to his motor vehicle accident.
...
Although his injuries have affected his capacity to perform his usual household, social and recreational pursuits I consider he would now be fit for all his normal activities. There is no reason why he will not be able to lead a normal lifestyle.
He requires no assistance.
9. Whether he is unfit for work? If so, for what period?
I consider he is fit for his full duties without restriction.
...” (T76)
“ ...
PROGRESS SINCE LAST ASSESSMENT
Since I last examined Mr Mayo, I note he has undergone nerve conduction studies in his lower limbs. He has also had further MRI scans of his spine including neck, thoracic and lumbosacral spine which all demonstrated no abnormality. He has had injections into his sacroiliac joints in June 2008 which did not result in any long term benefit. He has recently had facet joint injections on the left side at L4/5 and L5/S1. These were performed in February 2010 but again, not resulting in any long term reduction in his pain. He continues to be regularly seen by his general practitioner and I note he is also seeing a consultant psychiatrist on a regular basis with Mr Mayo stating this is once every six weeks.
He remains on medication including Tramadol, Endep and Effexor. He stated he is continuing on with exercise at home as he stated he has seen an exercise physiologist and also has seen Dr Yin who is a Physiotherapist, for various physical treatment.
I note since I last examined Mr Mayo, he developed a significant increase in his back pain associated with a severe left sided limp, around mid-2007. He stated he continues to use a walking stick for his limp. He stated he has been using the walking stick for the last 18 months.
I queried Mr Mayo regarding his limp and on reviewing my reports when I examined Mr Mayo, there was certainly no evidence of a limp or any symptoms of complaints of a limp. Mr Mayo stated this was not the case and that he has always had a limp since the motor vehicle accident and he stated when his pain got worse he tended to limp and the people at work used to notice it. He certainly did not describe any incident occurring in mid-2007 which would explain an increase in his pain or the cause for him to limp. I note he has also seen spinal surgeons who have not recommended any surgical treatment for his symptoms.
Mr Mayo stated unrelated to his motor vehicle accident, he has been reasonably well otherwise, although he stated he was bitten on the right wrist by a cat at the beginning of this year and required hospitalisation due to an infection with what appeared to be cellulitis. He stated this has now resolved.
EMPLOYMENT/WORK DUTIES
When I examined Mr Mayo in April 2007, he was still on restricted duties but working seven hours per day and he stated he never got up to full unrestricted duties but did remain at work up until the end of 2008 when he was told unless he could do his normal duties, he could not come back to the workplace.
Mr Mayo stated he is still employed by Australia Post but I note his benefits have been stopped in regard to the Workers’ Compensation claim and he has been on disability benefits since the end of 2008.
CONTINUING SYMPTOMS/DISABILITIES
Mr Mayo describes constant ongoing lower back pain. I asked him with regard to the severity of his symptoms and note he had a pain chart completed when he was reviewed by Dr Yin on 6 July 2009 and I asked him whether his pain was any different to what it was then and he stated no. He described in the pain chart that most days his pain is ‘horrible’ and at its worst it is ‘excruciating’ and at its best it is ‘discomforting’. He stated he does get pain into his left leg but it is more that he lacks power and describes his left leg as being like ‘jelly’ when his pain worsens and this causes him difficulties with walking and that is when he tends to use the walking stick.
He stated he does drive a car but not for long distances. He describes doing very little around the home. He stated he lives in his own home with his partner and a friend and they do most of the household duties. He stated he does a small amount of cooking but stated he is unable to do vacuuming, sweeping or mopping and stated he just does some minor cleaning up or dusting. He stated he does have some small animals at home including ducks, rabbits, budgie and cats and stated he is able to look after these. He stated he does not do any heavy gardening such as weeding or digging in the garden. He stated he does go shopping with his partner and friend and stated he is unable to do the shopping on his own. He stated he does not go for regular walks, stating he prefers to stay at home. He stated he does watch a lot of television.
CONTINUING TREATMENT
Mr Mayo continues with his general exercise and stretching which he does at home. He continues to take Tramadol, Endep and Effexor. He sees his general practitioner once a month and sees the psychiatrist once every six weeks. He stated he also sees his exercise physiologist and also Dr Yin, the Physiotherapist.
PERSONAL/SOCIAL HISTORY
Mr Mayo stated he is living in his own home which he owns but has a mortgage. He lives with his partner and friend.
PHYSICAL EXAMINATION
Mr Mayo presented in a cooperative manner in no obvious distress.
He stated his weight was now 70 kilograms. He walked with a walking stick, using the walking stick in his left hand and holding the walking stick next to his left leg which he moved stiffly, taking the weight on his left side on his walking stick.
Examination of his lumbosacral spine demonstrated pain on movement but he had relatively good range of movement. He was able to squat. He was unable to stand on his heels or toes due to discomfort.
Examination of his lower limbs demonstrated normal straight leg raising and he had normal power, sensation and reflexes in both lower limbs.
In answer to your specific questions:
...
Mr Mayo’s motor vehicle accident on 21 April 2006 was a very minor accident where he was driving a 1998 Toyota Starlight Hatchback and he was hit from behind while stationary. There was only minor damage done to the back of his vehicle, stating he did not get the vehicle repaired and he was able to drive it away.
I noted when I first examined Mr Mayo, his principal symptoms were related to lower back pain and pain radiating into his thoracic spine. I obtained no real history of significant neck discomfort.
Since I last examined Mr Mayo, he has had injections into his sacroiliac joint and facet joints but these have not resulted in any lasting benefit or reduction in his pain.
When I last examined Mr Mayo in April 2007, he appeared to be going reasonably well, describing his symptoms had been improving but only described his discomfort as being intermittent. However, he stated he was not back to his pre-injury state, saying he was not doing a lot around the home and had not got back to gardening or hiking but had been walking regularly.
Mr Mayo then described increasing pain and increasing weakness in his left leg and foot when he was walking about 2007. There was no apparent reason for this increase in pain or the difficulty he was having with walking.
Various investigations including bone scan, MRI scans and nerve conduction studies were unable to demonstrate any objective abnormality or any abnormality to explain this increase in his symptoms and his difficulty with walking.
d. any previous or current substance abuse;
I obtained no history of previous or current substance abuse.
I asked Mr Mayo regarding depression in the past and I note he had had depressive symptoms in the past when he was younger and took anti-depressant medication but he was off these at the time of his motor vehicle accident and stated his mood was reasonably good at this time.
As I have outlined in my report, Mr Mayo describes significant ongoing subjective symptoms of impairment. He describes a severe, constant ongoing back pain and describes difficulty with walking and in fact he is using a stick to walk with. He does very little around the home but does continue to drive. He has been on a disability pension since the end of 2008.
2. Your findings on examination.
On physical examination, he has a relatively good range of movement in his lumbosacral spine but describes pain on movement. There are no signs of radiculopathy. He was able to squat but he had difficulty standing on his toes and heels due to pain. As I outlined in my report, I asked Mr Mayo regarding the pain chart he undertook in July 2009 and asked him to compare his present symptoms with that pain chart. He describes his pain as being no better than it was in July 2009, describing the pain in the same location as the pain chart.
I note in the initial pain chart in April 2006, he was describing pain in his neck region and thoracic spine but as I have stated in my previous reports, I never obtained history of significant neck pain with Mr Mayo principally complaining of pain in his lower back.
The significant discrepancies are the significant subjective ongoing symptoms of impairment despite objectively, there being no evidence of an ongoing injury to his spine, notably, his lower spine. Mr Mayo was involved in a minor motor vehicle accident which, at the most, would have resulted in minimal soft tissue injuries to his spine and as already outlined, all his various investigations including MRI scans, bone scans and nerve conduction studies have demonstrated no evidence of a significant injury or any ongoing injury.
4. Your diagnosis.
Mr Mayo does not have an ongoing injury to his spine and particularly, his lower back.
He describes significant ongoing pain and impairment for which there is no objective evidence of a cause for these ongoing symptoms.
I do not believe he is suffering from any significant or chronic low back pain or ongoing low back injury. He is certainly not suffering from any ongoing injury related to his motor vehicle accident.
No, I do not believe his alleged symptoms and abnormal gait pattern are related to any facet joint dysfunction.
I have seen a considerable number of persons with facet joint injury over my years of practice as an occupational physician and none of those patients have presented with an abnormal gait or the type of symptoms Mr Mayo is complaining of. I do not believe his abnormal gait or his difficulty with walking is in any way related to the lower back injury as I do not consider he has evidence of a lower back injury.
As I have already stated in the previous question, there is no reason any minor soft tissue injury he had in his lower back would result in an abnormal gait and certainly not the abnormal gait or difficulty Mr Mayo had with walking.
Mr Mayo’s injuries to his lower back were minimal and only soft tissue in nature and would not cause an abnormal gait, especially with his various investigations demonstrating no abnormality.
The usual cause (sic) of symptoms associated with the type of accident involved, is for quick resolution of pain over a number of months.
There is no mechanism whereby his symptoms should have become worse or associated with abnormal gait especially considering the normal investigations.
As outlined in previous questions, I consider he has recovered from any minor soft tissue injuries he would have suffered in his motor vehicle accident in 2006 and any (sic) of his present ongoing symptoms are related to other factors.
As stated, there is no evidence of an ongoing injury to his lower back, either from his motor vehicle accident or any other cause.
...” (Exhibit R17)
Mr Philip Hardcastle
“ ...
DETAILS OF INJURY
He reports on 21 April 2006 he was the seatbelted driver of a Toyota Hatchback stationary at lights when he was suddenly hit from behind without any warning. He is not sure of the speed of the vehicle behind and he reports being pushed across onto the middle island but did not hit anything. He is not specifically sure as to what happened. The vehicle was driveable and there was a lot of damage and he was able to get out without any specific symptoms and drove about 5 minutes to work. He said that after about 10 or 15 minutes he started to get pain in the neck and back region which became quite severe and he had to go off and see the doctor at Carepoint and was put off work for that day.
PROGRESS
He reports going on light duties with part time work doing 4–5 hours a day for he thinks initially about 4 days per week. He had difficulty doing this and may have been taking some medication, though he is not certain.
Physiotherapy has been fairly regular and he had hands-on treatment with a gym program and this was over about 12 months with hydrotherapy, though he does not report any specific progress. He changed from the gymnasium to using the work gym and also saw a number of different physiotherapists.
He did this up until he left in December 2008 and since has been going to the Body Logic gym on a regular basis having assessments every 2 weeks, although recently it has changed to every month and he combines this with some home exercise.
He has been using a stick since he left work because he said he can get a better posture and walk further with this.
He has been taking a variety of different medication and was on Durogesic patches, though these caused constipation but he found it quite good but then changed to Tramal. At present he is taking Effexor once a day, Tramal 150 mg three times a day and Endep 100 mg at night.
Other treatment he has had in this period are facet injections which provided only mild relief of symptoms for a couple of weeks and sacroiliac injections which gave minimal relief.
Presently he reports symptoms as fairly stable.
I understand he has been seen by a number of psychologists and psychiatrists from the enclosed reports.
STATUS AT PRESENT
He complains of generalised pain throughout the entire spine from the upper thoracic to the low lumbar and upper sacral region. It is worse in the low back where it is a constant moderate to more severe ache and the more severe symptoms occur regularly once or twice a day and he has to lie down and do some stretches.
There is stiffness in the morning, but symptoms are not as severe as they are during the day and he does wake regularly at night.
Aggravating factors include cold, walking, standing and sitting. He gets relief with local heat in the area. Tablets do help and sometimes stretching can be beneficial but not always.
He has no specific leg symptoms but does get occasional tingling in the left leg. He has some neck stiffness around the trapezius but no specific pain and no arm symptoms.
Bowel function is normal and bladder function also reported as normal.
CURRENT ACTIVITIES
He can drive an automatic car and he said around the house he does very little except for some paperwork, occasional dishes but has trouble because of the leaning forward and some cooking. Otherwise he does very little. He cannot do any specific gardening activities and he has to have someone with him while shopping as he cannot push the trolley. He has a wheelchair at home which he sometimes uses when he is shopping.
He said he rarely goes out but occasionally does visit and go to movies, otherwise spends most of his time at home watching television or DVDs as he is dyslexic and has difficulty reading.
On his self-assessed Oswestry questionnaire he reports the following:
CLINICAL ASSESSMENT
He was a well looking man with short brown hair and a beard who walked with a stick in his left hand, putting weight through this and limping on the left leg. The gait was not antalgic nor was it neuromuscular. He weighed 65 kg.
Head/Neck
There was some tenderness to the left at C6 and a full range of cervical movement in all directions with no pain with compressional distraction.
Upper Limbs
These had a normal appearance with no laxity, swellings, callosity or tremor and he had a full range of upper limb movement and normal reflexes.
Back/Spine
There was slight asymmetry and mild tenderness throughout the spine from T4 to the sacrum, maximum to the left at L2 and L4. On forward flexion the fingertips came to the knees with extension at 20 degrees and on lateral flexion the fingertips came to the lower thigh with rotation at 30 degrees to both sides. Spinal rhythm was normal.
Head Compression and Simulated Rotation Tests were equivocal.
Lower Limbs
There was normal alignment and there was no gluteal wasting or evidence of lower limb wasting.
Straight-leg raising was 90 degrees on both sides and he had reasonable abdominal muscles on active bilateral straight-leg raising.
Reflexes were symmetrical and intact with motor and sensory examination being normal. Slump and Femoral Stretch Tests were both negative.
Quadriceps circumference on the left was reduced by 0.5 cm which was within normal limits and calf circumference is equal.
There were no upper motor neuron signs.
He had difficulty standing on his toes on the left but the heel seemed normal and he had a negative Trendelenburg Test on both sides, though on the left he tended to be a little unstable. He could squat with the knees flexing to 80 degrees.
...
OPINION
There was no clinical or radiological evidence to support the significant complaints of chronic pain which raises the probability that the problem is more of a psychiatric nature. I would not recommend any further investigations in relation to the accident of 21 April 2006 and treatment should be aimed at getting off his analgesic medication as the dose of Tramal he is on is relatively high and is only having a minor effect on the reported symptoms. He should be encouraged to do regular exercise and otherwise his treatment should be supervised by the psychiatrists and psychologists who have been involved in his past management. There is a previous history of psychiatric problems from my review of the enclosed literature. There is no evidence to support any specific injury of any significance in relation to the motor vehicle accident and certainly not one that would lead to the present symptoms that he is complaining of. I would not expect the motor vehicle accident to lead to a chronic pain syndrome as a result of organic pathology.
The motor vehicle accident has possibly caused him minor low back strain type injury reviewing the enclosed information and medical reports from the earlier assessments. The radiology does not support any specific injury of any significance and there has been no change between the two MRI scans which supports this. There is a background of psychiatric problems and his present presentation is more in relation to non-organic pathology.
There is no evidence that there has been any permanent disability as a result of the accident.
In answer to your specific questions:
...
Examination did not demonstrate any specific discrepancies apart from his gait which was not antalgic or neurological. I note reference to this being a gait seen in people with facet syndrome, but it is not my opinion that this is the situation and it is more likely to be a conversion reaction type gait and the fact that he uses a wheelchair is against it being a facet type gait.
5. Your diagnosis.
I am not able to make a physical diagnosis as to the cause of his pain and there is no evidence either from clinical or radiological findings to support any pathology that would lead to a chronic pain disability as described. This raises psychiatric causes for which there is a strong pre-existing history of being the aetiology of his present disability.
It is not my opinion that the motor vehicle accident is having any effect on his current pain situation.
I do not support this. The clinical findings, apart from some restricted movement are within normal limits. He does have some local tenderness in the back region but no specific features of facet dysfunction and his gait is not, in my opinion associated with a chronic physical disorder. It is noted that he puts a lot of weight through his left lower limb and also the pressure on the stick and if there was a facet pain problem on this side, he would have more of an antalgic gait but in fact his stance phase is relatively long compared to an antalgic or painful gait.
It is not my opinion that a gait disorder relates to the motor vehicle accident on the basis that it has started at a later date and is more likely to be related to the underlying psychiatric pathology as I was not able to find any evidence that the gait is of (sic) a physical underlying condition.
It is not my opinion that his current condition relates to the motor vehicle accident.
...” (Exhibit R14)
Dr Gemma Edwards-Smith
“ Presenting Complaints:
Mr Mayor (sic) is a 30 year old man living with his partner ... He reported involvement in an accident on 21 April 2006 while driving to work. He said that while the driver of a vehicle he was stationary at traffic lights and that a car had hit his vehicle from behind. Mr Mayo said that he was then shunted forward and to the right over the kerbing and into the middle of an island.
He said that at first he had suffered from some physical symptoms described as feeling ‘a bit sore’, however that his physical symptoms had deteriorated over the following days. At the time of the accident he had been able to get out of the vehicle and exchange details with the driver of the other vehicle. He had driven his car to work, however said (sic) that after 15 to 30 minutes his pain was such that he had attended a medical practitioner. I understand that his hours of work have been subsequently reduced.
At the time of the accident Mr Mayo was a full-time postal worker, however I understand that he has been unable to work full-time since then; that he has generally required one to two days off work every week due to his physical symptoms. He said that this was generally towards the end of the week, he said ‘I try and push through it’, however he was in tears at work. Mr Mayo said to me that he had not had long periods of time off work. He has required treatment for his physical symptoms with physiotherapy, hydrotherapy, a gym program. He said that he continues to use the gym regularly and visits a swimming pool a couple of times a week.
In June 2008 he had undergone cortisone injections which I understand to have been bilateral sacroiliac injections. He said that this had taken the severe edge off his pain although it had not totally resolved. He recalled that he had seen a number of surgeons who said to him ‘structurally my spine isn’t damaged’ and that no one had been able to explain to him the cause of his physical symptoms.
Current Physical Symptoms:
This was described as pain affecting the lower back. He said that it spreads up to either side of his spine to the left buttock and also to the right buttock although to a lesser degree. Mr Mayo said that his pain was constant, rating his baseline level of pain as 5 to 6 out of 10, however that at times it increases to 9 to 10 out of 10 and in doing so he felt unable to do anything. Mr Mayo said that his pain was increased for example by walking, excessive movement and cold weather.
Although he said that he found it difficult to acknowledge that pain medication was helpful, he now uses a three day patch and notices that if he does not change the patch every three days that (sic) his pain increases.
Psychological Symptoms:
Mr Mayo said that he felt worried, for example about his work. He said ‘my whole life has changed’. I understand that he has been working light duties however said (sic) ‘my memory isn’t the best’. He said that he had felt depressed more of late. He said ‘I don’t feel strong anymore, I am sick and I am tired of not sleeping’. With respect to work, he said ‘I do everything I am asked’ and ‘I don’t want to lose my job’. He said that he had applied for 15 positions within Australia Post in the administrative area and that he had been unsuccessful. He recalled seeing a psychologist, Chris Semmens in late 2007 and early 2008 and instruction with relaxation techniques which he felt had been helpful and EFT which had not been helpful.
From July 2008 Mr Mayo has been seeing a psychiatrist, Dr Fischer. He said that Dr Fischer had suggested that he suffered from chronic pain and that he now sees Dr Fischer every two to three weeks. He has been prescribed the antidepressant Effexor which he said makes him ‘slower or numb’ and that he did not feel his mood had improved. He agreed that he was depressed stating ‘yes, I am depressed’. He also stated that at times he was angry and upset and struggles as to know what to do. He reported the development of suicidal thoughts although without any intent or planning and stated ‘I would never act on it’. He described his sleep as being disturbed by pain and commented that his appetite tended to vary depending upon his stress and pain. Although he said that he liked his job, Mr Mayo said that he felt he was unfairly treated by his employer, and that out of 50 office workers he was the only one with an office without curtains and that he was the subject of excess scrutiny.”
As regards diagnosis of the applicant’s mental condition, Dr Edwards-Smith opined as follows:
“ ... Of significance I noted his very abnormal gait and having reviewed him and reviewed the accompanying reports I am of the opinion that there is evidence of a somatoform disorder pursuant to the DSM IV.
A somatoform disorder describes a condition which includes the presence of physical symptoms that suggest a general medical condition, but which are not fully explained by a general medical condition, and occur in association with a clinically significant distress or impairment.
It should be noted that the physical symptoms in such a case are not deemed to be intentional under voluntary control.
Given the very clear consensus of opinion in the reports provided, which have concluded that there is no underlying pathology to account for his presentation, in addition to other factors suggestive of a somatoform disorder, for example his bizarre gait, I believe that a diagnosis of a somatoform disorder is appropriate. I did consider whether a diagnosis of a conversion disorder is relevant, given that a conversion disorder describes the presence of a somatoform disorder where neurological symptoms are the focus of attention. However, Mr Mayo did indicate to me that he feels that his gait arises out of an attempt to manage his pain and that his pain is the predominant focus of his clinical presentation, and therefore I have made a diagnosis of a Pain Disorder associated with psychological factors.
He does also present with secondary emotional symptoms consistent with the diagnosis of major depressive episode and hence the diagnosis pursuant to the DSM IV and AXIS I is of (1) Pain Disorder associated with psychological factors and (2) Major Depressive Episode.”
Dr Edwards-Smith also opined that the applicant’s motor vehicle accident of 21 April 2006 was not responsible for his ongoing presentation.
“ In conclusion, I remain of the opinion as expressed in my report of 30 June 2009. I remain of the opinion that the applicable diagnosis is of a Somatoform Disorder pursuant to the DSM IV, ie with the patient presenting with a focus of physical symptoms associated with psychological factors. The medical reports which have been provided to me, in my opinion, present a relatively clear consensus that there is no underlying pathology to account for his presentation, either with respect to his pain or his gait.
There has also been evidence of secondary emotional symptoms. Hence, as I opined in my previous report, I have made a diagnosis of a pain disorder associated with psychological factors.
He does not present with classic symptoms of depression, hence it is difficult to make a diagnosis at this time of major depression. Nevertheless, he is treated with a high dose of antidepressants and therefore it is certainly possible that he has an underlying depressive illness. It is not clear to me from Dr Fischer’s notes as to the precise diagnosis made by Dr Fischer. However, I note that he has presented with significant depressive symptoms over a period of time.”
As regards the causation of the applicant’s psychiatric condition, Dr Edwards-Smith stated:
“ I remain of my opinion with respect to causation as outlined in my report dated 30 June 2009. I remain of the opinion that the motor vehicle accident of 21 April 2006 was not a significant contributing factor with respect to the development of the psychiatric condition.
In formulating my opinion, please note that I have taken into account the opinions I have been made aware of with respect to the cause of the physical symptoms and that my understanding of the consensus of medical opinion is that the motor vehicle accident has not contributed to a significant degree to the ongoing report of physical symptoms.”
“ I am providing this further to my report to you of 1 September 2010. I have taken the opportunity to further review the report by Dr Alan Home of 12 January 2010, hence I wish to clarify some of the conclusions of my report to you.
I have noted that Dr Home, in his report of 12 January 2010, takes issue with my comment that there is a consensus of opinion that there is no physical pathology underpinning Mr Mayo’s presentation with ongoing pain. Therefore, as Dr Home disputes this comment, I do not believe I can therefore conclude that there is indeed a consensus of opinion with respect to the cause of Mr Mayo’s physical symptoms, noting that these do not appear to be confined to pain but also related to his gait disturbance.
However, I believe that there is ongoing evidence of a somatoform disorder. Given that the pain is the prominent focus of physical attention, pursuant to the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition, the applicable diagnosis is of a pain disorder.
The DSM IV allows for further subclassification of a pain disorder. If the disorder arises from physical pathology then the diagnosis is coded for an Axis III or Physical Conditions as a pain disorder due to a medical condition.
In my opinion whether or not there is a medical condition underpinning Mr Mayo’s presentation is outside the range of my expertise. However, I wish to comment that firstly I have relied upon the accompanying physical documentation noting the multiple comments made upon inconsistencies. However, as Dr Home has rightly pointed out, there is not a consensus of opinion with respect to the cause of the physical symptoms.
Furthermore, however, I am of the opinion that I can conclude as a consultant psychiatrist that there is evidence of psychopathology. Firstly, there is evidence of pre-existing psychopathology based upon the previous psychiatric history which I was able to further review with you in my report of 1 September 2010.
Secondly, other physicians, such as Dr Dare, have commented upon inconsistencies. That is not to say that in the presence of psychological symptoms that (sic) Mr Mayo is consciously exaggerating or distorting his symptoms, but rather that these may be deriving from unconscious processes. In this case such factors do include avoidance of the work role, an increased level of support from both his current partner and former partner.
Mr Mayo is a vulnerable individual. In my opinion, therefore, the issues to consider with respect to the ongoing diagnosis are firstly, there is evidence of a pain disorder and whether or not this is a pain disorder associated with both medical condition and psychological factors or of (sic) psychological factors alone, depends upon whether there is evidence of a medical condition causing his physical symptoms.” (Exhibit R11)
Dr Lawrence Terace
“ 1. Events of the date of accident the 21st April, 2006 –
1.1 Mr Mayo was driving to work at the time as the driver of his vehicle. He was stationary at a red light. Another vehicle impacted with the rear of his vehicle. He emerged from the vehicle and exchanged information with the other driver. There appeared to be no injury to either party. Mr Mayo did not experience any immediate symptoms except for some minor soreness in the back. However, within half-an-hour the pain increased. He attended work for 15 minutes but the pain increased such that he then saw a General Practitioner.
...
4. Current physical symptoms –
4.1 Low back pain – This radiates to both buttocks, left more than right. It also radiates to the shoulder blades and intermittently is associated with a stiff neck.
He describes constant pain that varies in severity. He relies on a cane using the cane on his left side and weight bears on his right side.”
He then commented as follows:
“ Customarily a Consultant Psychiatrist would review the Medical Documents of the experts in physical medicine whenever a physical injury presents in a psychiatric context. This is to confirm or exclude whether abnormal illness behaviour is present. The term abnormal illness behaviour essentially means there is a disparity between the physical symptoms claimed and what should be expected on the basis of the examination and investigations of an appropriate expert ...”
He then noted the reports of Dr Low, Dr Dare, Dr Home, Dr Overmeire and Mr Hardcastle, and continued:
“ Thus, in this case, there is sufficient evidence to argue that abnormal illness behaviour is present on the basis of the preponderant medical opinions supporting that view. (original emphasis)
As regards diagnosis, he opined as follows:
“ In my opinion, the appropriate diagnosis in this case is of a pain disorder associated with psychological factors. The pain disorder is a form of somatoform disorder or abnormal illness behaviour. This is supported by the preponderant medical opinions supporting the presence of abnormal illness behaviour (or somatoform disorder) in this case.
A pain disorder with associated psychological symptoms is a type of somatoform disorder or abnormal illness behaviour where chronic pain cannot be adequately explained by a general medical condition in the opinion of the relevant experts.”
As regards causation, he stated:
“ Based on the opinions provided by the experts in physical medicine I could not conclude that any pain disorder associated with psychological factors is materially contributed to by” [the applicant’s motor vehicle accident of 21 April 2006, physical injury connected therewith, or any aspect of his employment with Australia Post.]”
ADDITIONAL MEDICAL EVIDENCE
“ Thank you for asking me to Chair a Medical Review Panel on Mr Mayo.
The Panel took place at the Perth Mail Centre today. In attendance were Dr Wendy Rappaport (sic), general practitioner, Mr Chris Semmens, clinical psychologist and myself.
Clinical review
Prior to the Panel, I briefly reassessed and examined Mr Mayo with Dr Rappaport (sic).
Mr Mayo reported no significant progress in his low back condition. He said that the exercise programme had increased his upper body strength, but not his lower back. He admitted that he performs only those exercises that do not cause pain.
He reported ‘lightning bolt’ pain from the left lower back to the posterior aspect of the left knee on weight bearing. He described the pain as ‘agony’.
He currently uses Fentanyl patches, 12 mcg/hr every three hours, and Endep, 100 mg at night. He takes intermittent Advil. He reports some benefit from meditation and relaxation techniques, but there has been no significant improvement in his functional status.
In terms of work duties, he has not increased beyond labelling and three 20-minute sessions in the sorting frames. I note that his attendance remains poor and, in fact, has deteriorated over the past two months. Mr Mayo suggested that he would cope better at work if he was able to secure a full time administrative or supervisory role, as long as it did not involve significant manual handling.
Review of recent reports
He was recently reassessed by Mr Lee, neurosurgeon. Following a repeat MRI scan and EMG studies, no new findings or treatment recommendations were made.
Mr Mayo has seen Mr Semmens for cognitive behavioural therapy (rational emotive behaviour therapy). He was educated about pain mechanisms and he was instructed on self-management techniques, including relaxation. Although Mr Mayo was positively responsive to the treatment outline, he was not able to effectively implement these skills. He continued to demonstrate fear avoidance behaviour, which did not respond to an incremental, goal-setting approach of normalising this behaviour (particularly his gait). His level of compliance was uncertain due to Mr Mayo’s repeated failure to bring in his activity diary. Mr Semmens did not find any obvious unresolved emotional or psychosocial issues to suggest a psychosomatic process, but he did suggest psychiatric referral to investigate this possibility.
Examination
He displayed a dramatic, slow, broadbased gait which does not fit a clear physiological pattern. The gait pattern included an equal stance phase for both legs, reflecting the absence of antalgic reduction in weight transfer through the reportedly painful left leg.
Mr Mayo was generally tense. There was reported tenderness at L4/5 in the midline. The paraspinal musculature was very reactive, contracting on light palpation but not during movement.
He demonstrated a good range of thoraco-lumbar movement, reaching the middle of his shins in forward flexion. Slump testing was limited by hamstring tightness. Axial compression testing and simulated rotation were positive. No other significant findings were made.
Panel Discussion
1. Summary of facts
Mr Mayo was previously fit and well, other than one prior reported episode of low back strain, which resolved after two months of physiotherapy. He had reported a previous episode of work-related stress, which he related to his promotion as acting supervisor in air logistics, combined with issues surrounding his sexual orientation. This may or may not be relevant in terms of his current presentation, but Mr Mayo has downplayed this episode.
On 21 April 2006, Mr Mayo was involved in a low-speed rear collision, after which he reported neck and low back pain. The neck pain settled quickly with physiotherapy but the low back pain has persisted. He has been investigated with a lumbar CT scan, two MRI scans, bone scan and EMG. No structural abnormalities or lesions have been found. He has developed increasing levels of distress, disability and an increasingly bizarre, non-physiological gait pattern.
He was assessed by four occupational physicians (Dr John Low, Dr Alan Home, Dr Brian Dare and myself), two neurosurgeons (Mr Gabriel Lee and Mr Wayne Thomas), and a pain specialist (Dr Geoff Gee). Each assessment confirmed the diagnosis of non-specific, benign mechanical low back pain. The recommended treatment of analgesia, exercise and cognitive behavioural therapy has been extensively pursued, without any positive effect on reported symptom severity or functional status.
2. Recommendations for further management
Mr Mayo’s persisting functional disability relates predominantly to his psychological distress, noting in particular his emotive description of pain as ‘agony’ and the non-physiological physical findings. The Panel considered it possible that Mr Mayo is suffering from a somatoform disorder, such as a conversion disorder. It is therefore recommended that Mr Mayo undergo psychiatric assessment to assess this possibility and to ascertain optimal treatment for his psychological distress.
No other medical treatment is indicated. Spinal injections are not indicated, given that no specific structural lesion has been identified. Feldenkreis therapy is felt to be inappropriate, given the extensive, evidence-based exercise therapy undertaken so far. There may be a role for such further physical therapy in the future, but only once Mr Mayo’s significant distress and emotional response have been addressed.
3. Work fitness
Given his poor progress to date, despite extensive physical and psychological treatments, it was unanimously agreed that Mr Mayo’s functional capacity is unlikely to improve significantly in the foreseeable future. Permanent redeployment is therefore recommended.
Mr Mayo needs to be permanently restricted from repetitive bending, lifting, twisting, sustained walking and static standing. A maximum lifting limit of approximately 5 kg, at waist height, is recommended. He is fit for full time office-based duties that allow postural variety, but no specific sitting limit is required.
It was felt by the Panel that a meaningful, long term role, in which Mr Mayo has autonomy and a level of responsibility consistent with his past skills and experience, will increase the probability of a successful rehabilitation outcome.
I now turn to the specific questions posed in your letter of 11 February 2008.
Q1. What was the history provided at examination?
Please refer to ‘Clinical review’ in the body of this report.
Q2. From what specific medical condition does Mr Mayo currently suffer?
Mr Mayo has non-specific mechanical low back pain. It is possible that he is concurrently suffering from a somatoform disorder, such as conversion disorder, but this needs verification by a psychiatrist.
Q3. How is the above condition related to his employment and specifically the incident of 21st April 2006?
The mechanical low back pain reportedly arose immediately after the incident of 21 April 2006 and, from that point of view, it is considered to be related to his employment. His psychological reaction, on the other hand, may be due to unrelated factors, but this would need verification by a psychiatrist.
Q4. Did the incident of 21st April 2006 aggravate a pre-existing condition and if so, was that aggravation permanent or temporary?
There is no clear evidence of any pre-existing condition affecting the lumbar spine or Mr Mayo’s emotional state.
Q5. If Mr Mayo is still suffering from a physical condition what is your prognosis?
On objective findings, one would expect Mr Mayo to have a good prognosis, given the absence of a structural lesion. Nevertheless, his levels of distress and disability have deteriorated with time and there is no immediate prospect for improvement in this regard. The long term prognosis is therefore guarded and he is likely to remain disabled in the foreseeable future.
Q6. What treatment if any, do you recommend and what would be the expected duration of this treatment?
No further specific medical treatment is warranted. I would recommend that he continue with regular analgesia and self-managed spinal exercise. A psychiatric assessment is recommended, to determine whether any further psychological treatments can help Mr Mayo to deal with his distress.
Q7. Are there any additional non-work-related barriers impeding Mr Mayo’s recovery and how can these best be addressed?
There are significant psychological, and possibly psychosocial, issues hampering Mr Mayo’s functional recovery. It is possible that he has developed a conversion disorder. I would recommend psychiatric review for further advice.
Q8. Will Mr Mayo have the capacity to return to full pre-injury duties and hours as a Mail Officer in the long term? What would be the expected timeframe for a return to full duties and hours? If not, please explain why Mr Mayo will not attain pre-injury capacity.
It is unlikely that Mr Mayo will resume full pre-injury duties as a Mail Officer in the long term. His lack of progress and, in fact, deterioration over the past twelve months, despite evidence-based medical management, suggests that full recovery is unlikely.
Q9. Mr Mayo is currently undertaking a Graduated Return to Work Program, undertaking predominantly Quality Control duties of a very light physical demand level.
The following permanent restrictions are recommended;
He is fit for general administrative or office-based duties with optimal ergonomics and regular postural variety.
Q10. Is Mr Mayo able to undertake any form of employment? If yes, please detail what types of employment he would be able to undertake. Please specify the types of duties that Mr Mayo would be able to undertake. What would be the expected timeframe for him to demonstrate fulltime work capacity in suitable employment?
Mr Mayo is fit to undertake full-time administrative, office-based duties. A meaningful role with autonomy and a level of responsibility that is consistent with his skills and experience will increase the chance of a successful rehabilitation outcome. He is considered fit for such duties on a full time basis.
...” (T130)
“ The reported onset of symptoms occurred shortly after the motor vehicle crash of 21 April 2006. He denied any previous symptoms. There is no evidence of significant pre-existing degeneration. Therefore I believe that his condition is directly related to the motor vehicle crash.”
In his findings on examination, Dr Overmeire noted (inter alia):
“ He walked with a dramatic limp, with a reduced right leg stance phase and a jerking motion of the pelvis.” (T91)
THE RELEVANT LEGISLATION
“ 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.”
The word “impairment” is defined in s 4(1) of the SRC Act to mean:
“ the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”
As regards the phrase “incapacity for work”, s 4(9) provides:
“ 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.”
“ 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.”
“ 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.”
“ (1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
...
(b) while the employee:
...
(ii) was travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment;
...”
“ 5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.”
“ For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”
ANALYSIS
Has the applicant’s “muscle strain back and neck” injury, sustained on 21 April 2006, continued to result in impairment on and from 16 October 2008?
Conclusion and finding
“ ...
...
...
...”
Dr Home subsequently came to the conclusion, as expressed in his reports of 12 January 2010 (Exhibit A8) and 18 October 2010 (Exhibit A9), that psychological factors have been contributing to the applicant’s presentation of disability and that his lower back pain symptoms have become chronic. The Tribunal accepts Dr Home’s analysis and concludes that, although soft tissue injuries of the kind sustained by the applicant in the motor vehicle accident of 21 April 2006 generally resolve within 2 years, in the particular circumstances of the applicant’s case, including the operation of the psychological factors, he has not yet recovered from the soft tissue injury to his lumbar spine which he sustained in that motor vehicle accident and has continued to experience chronic lower back pain symptoms resulting therefrom.
Has the applicant’s “muscle strain back and neck” injury, sustained on 21 April 2006, continued to result in incapacity for work on and from 16 October 2008?
Has the applicant suffered a mental injury for the purposes of the SRC Act?
Major Depressive Episode
As regards the aetiology of the applicant’s Major Depressive Episode, Dr Edwards-Smith opined that the motor vehicle accident of 21 April 2006 was not “responsible for his ongoing presentation” and she referred, in general terms, to various non-employment-related factors which were “adequate ... to account for his ongoing presentation”, although she had noted, in her statement of his history, that he said that “he had applied for 15 positions within Australia Post in the administrative area and that he had been unsuccessful” and that he said that “he felt he was unfairly treated by his employer”.
“ does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”
Section 5A(2) provides that, for the purposes of subs (1), “reasonable administrative action” is taken to include (relevantly):
“ (f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.”
“ Mr Mayo is fit to undertake full time administrative, office-based duties. A meaningful role with autonomy and a level of responsibility that is consistent with his skills and experience will increase the chance of a successful rehabilitation outcome. He is considered fit for such duties on a full time basis.”
Whether or not the applicant was entitled to be redeployed to such a position, as a matter of right, is not to the point. Such redeployment would clearly have been beneficial to him, for the reasons stated in Dr Overmeire’s report, and that is sufficient for it to constitute a “benefit” within the meaning of s 5A(2)(f) of the SRC Act.
Pain Disorder
“ With regard to Somatoform Disorder, this diagnosis requires the judgement that psychological factors have an important role in the onset and maintenance of the pain. In Mr Mayo’s case, given what I understand to be the absence of radiographic and other findings to explain the extent of his pain, and given the unusual nature of his gait, it is very reasonable to wonder about what non-physical processes might be at play. However, at no point have I had access to psychological material from Mr Mayo that is sufficiently obvious for me to be comfortable to judge that it has an important role in the onset and maintenance of his pain ...”
CONCLUSION
DECISION
Application No 2008/5760
Application No 2009/0117
I certify that the 109 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...............[sgd D Brodie]........................
Associate
Dates of Hearing 14–18 March 2011
Date of Decision 14 April 2011
Representative of the Applicant Ms L Makinda
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr G Johnson SC
Solicitor for the Respondent Sparke Helmore
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