The reconsideration decision in application 2010/4920 is set aside. Ms Manns is entitled to compensation for medical treatment expenses relating to right knee surgery on 16 September 2010.
The reconsideration decision in application 2011/0490 is varied to the extent that Ms Manns' entitlement to compensation under s 16 and s 19 of the (Cth) (the Act) in respect of her accepted right knee injuries continued to 6 April 2011. From 7 April 2011 to the present Ms Manns is not entitled to compensation under and of the Act in respect of her accepted injuries.
The applications are remitted to Comcare for determination of the amount of compensation that is payable to Ms Manns as a result of these decisions.
Submissions as to orders for costs, if any, are to be filed within 14 days of the date of this decision. If no submissions are forthcoming, Comcare will be ordered to pay Ms Manns' reasonable costs of these proceedings in accordance with the Tribunal's Guide to the Workers' Compensation Jurisdiction, as agreed or taxed.
COMPENSATION - accepted knee injury - decision to approve surgical treatment reversed after operation carried out - medical treatment in relation to the injury - reasonable to obtain in the circumstances - decision set aside
[6]
COMPENSATION - accepted knee injury - complaints of right knee pain and instability - decision to cease compensation for incapacity and medical treatment - multiple surgical procedures in relation to accepted injury - incapacity and medical treatment consequent to surgical treatment is compensable - abnormal illness behaviour - no entitlement to compensation in respect of incapacity for work or medical treatment expenses following recovery from surgery - decision varied
Carolyn Manns injured her right knee in two falls at work. She successfully claimed compensation. She obtained medical treatment. She underwent surgery, but continued to complain of disabling symptoms in her knee. Subsequently, she underwent a further six surgical operations on her right knee and obtained other medical treatments. Each of these treatments was approved and paid for by Comcare. Ms Manns continued to complain of incapacitating pain, instability and reduced motion in her right knee.
After the most recent surgical operation had been completed by Dr Caldwell, Comcare decided to reverse its approval and informed Ms Manns that it would not compensate her for the cost of the operation. Ms Manns applied for review of this decision (application 2010/4920). Subsequently, Comcare determined that from 29 November 2010 Ms Manns was no longer entitled to compensation in respect of incapacity for work and medical treatment expenses in connection with her accepted right knee injuries. Ms Manns applied for review of this decision (application 2011/0490).
(a) is the surgical operation Dr Caldwell performed on Ms Manns' right knee medical treatment in relation to her accepted right knee injuries that it was reasonable for her to obtain in the circumstances?
(b) from 29 November 2010 and presently, does she have any entitlement to compensation in respect of incapacity for work as a result of her accepted right knee injuries?
(c) from 29 November 2010 and presently, does she have any entitlement to compensation for medical treatment in relation to her accepted right knee injuries?
[19]
In 2004, Ms Manns obtained ongoing ACT Government employment at the Canberra Institute of Technology.
On 21 July 2004, she slipped while carrying a box up a flight of stairs. She fell, hitting her right knee on a metal stair. The documents in Exhibit R7 reveal that Dr Rahman, a treating general practitioner, diagnosed "sprain / strain patellar ligament" and Dr Browning, another treating general practitioner, diagnosed "Knee effusion. Possible ligamentous injury". Ms Manns was certified unfit for work. Dr Browning referred Ms Manns for an MRI scan and physiotherapy. Dr Howse, a sports physician, reported that the MRI "showed some soft tissue swelling around the medial patella with no obvious structural injury"[1].
On 4 August 2004 Ms Manns signed a compensation claim form that was lodged on 10 August 2004[2]. The following day, Comcare accepted liability for "sprain of patella knee (right)"[3]. Ms Manns gradually returned to work on modified duties. On 7 October 2004, Dr Browning certified that Ms Manns' right knee injury had resolved and that she was fit to resume her full pre-injury duties from 8 October 2004. This she did.
On 21 October 2004, Ms Manns slipped on gravel on a wet path while on her way to work and fell on her right knee[4]. She obtained treatment from Dr Browning and was certified unfit for work; she was referred for physiotherapy[5].
On 12 November 2004 she claimed compensation in respect of "contusion & associated graze; soft tissue injury to right knee"[6]. On 17 November 2004, she obtained treatment from Dr Howse[7], a sports physician, who reported "a healing abrasion over the tibial tuberosity with marked localised tenderness ... she had signs of chronic patellofemoral joint contusion with an acute contusion of the patella tendon near its distal insertion"[8]. On 26 November 2004, Comcare accepted liability for "bruise - knee (right)"[9].
Symptoms persisted in Ms Manns' right knee.
On 8 February 2005, Dr Cormick, a radiologist, performed an ultrasound on Ms Manns' right knee and identified two discretely focal abnormalities with the lateral patellar retinaculum, which he injected with Marcaine and Celestone[10].
On 2 March 2005, Dr Howse reported that treatment with iontophoresis over the patella tendon produced some improvement - "tenderness was now more localised over the patella tendon with diminished swelling" - and Celestone injections around the lateral retinaculum produced marginal improvement - "The pain now appears to be more retro patella in origin, and with crepitus on compressing the patellofemoral joint,she probably has some chondral injury. There's also tightness of the lateral retinaculum and increased Q angle"[11]. Dr Howse noted the "relatively normal MRI scan" and referred Ms Manns to Dr Gillespie, an orthopaedic surgeon, for examination and assessment.
On 3 March 2005, Dr Gillespie reported "some painful patellofemoral crepitus both audible and palpable to knee flexion. She has an extremely tight retinaculum. Her knee is otherwise normal to examination" and recommended "an arthroscopy and, if necessary, chondroplasty to the damaged areas of the patella with a lateral release to decompress the patellofemoral joint"[12]. This was approved by Comcare[13] and promptly carried out by Dr Gillespie on 17 March 2005.
Ms Manns gradually returned to work. Her progress was interrupted by an alleged further fall on or about 6 June 2005[14].
Subsequently Ms Manns obtained extensive non-surgical and surgical medical treatments. Despite all, her complaints of right knee pain persisted in varying degrees. Ms Manns also complained of her right knee giving way, or of her right patella "subluxing", although it appears that her complaints of these symptoms increased after surgery. The surgical treatments she obtained included lateral release surgery performed by Dr Gillespie and Dr Miniter in 2005, tibial tubercle shift surgery performed by Dr Gillespie in 2007, a "second look" arthroscopy performed by Dr Gillespie in 2008 and surgery to tighten the biomechanical structures of Ms Manns' right knee, including an iliotibial band tenodesis, performed by Dr Gillespie in 2009, which was promptly followed by minor surgical revision to alleviate Ms Manns' complaints of increased pain.
On 31 August 2010 Dr Caldwell, an orthopaedic surgeon, sought approval to "perform a revision right patellofemoral reconstruction" on Ms Manns. Approval was given on 8 September 2010[15] - the primary determination in application 2010/4920. The surgery was performed on 16 September 2010. On 22 October 2010, Comcare, acting on its own motion, reconsidered and revoked the primary determination of 8 September 2010[16]. This reconsideration decision is the subject of application 2010/4920.
On 29 November 2010, Comcare determined that Ms Manns did not presently suffer from the effects of her compensable injury and she was not presently entitled to compensation under ss 16 and 19 of the Act[17]. On 1 February 2011 Comcare reconsidered and affirmed its 29 November 2010 determination in respect of Ms Manns' entitlements under ss 16 and 19 of the Act[18]. This reconsideration decision is the subject of application 2011/0490.
[20]
Comcare asserts that the surgery performed by Dr Caldwell was not medical treatment that was reasonably required in relation to Ms Manns' injuries. While accepting, correctly, that the surgery Dr Caldwell performed is 'medical treatment' under s 4 of the Act, in Comcare's submission, the surgery was not 'in relation to' Ms Manns' accepted right knee injuries: either the injuries resolved before Dr Caldwell recommended further surgery or the surgery was treatment for a condition that was not an 'injury' for which Comcare is liable. Furthermore, the symptoms of which Ms Manns complained were not readily explained by objective evidence and may be attributable to psychogenic factors and abnormal illness behaviour.
Additionally, and in any event, so the argument goes, it was not reasonable for Ms Manns to obtain the surgery in the circumstances: when the costs and benefits of the treatment options are considered, the weight of the contemporaneous and subsequent evidence is that further surgery was contra-indicated.
There is merit in some of these submissions, but the conclusion for which Comcare contends is not made out.
Under s 16 of the Act, Comcare is liable to pay compensation in respect of the cost of medical treatment in relation to an injury that it was reasonable for the employee to obtain in the circumstances, where the amount of the compensation is to be determined on the basis of that which is appropriate to the medical treatment. We must determine -
(a) whether the surgical procedure was medical treatment in relation to Ms Manns' injuries, and if so
(b) whether it was reasonable for her to obtain this treatment in the circumstances, and if so
(c) the amount of compensation that is appropriate to the medical treatment.
Undertaking this task, standing in the shoes of the original decision-maker and considering the circumstances at the time, we must have regard to all of the relevant evidence and material that is before us. The content of the original decision and the reconsideration decision that reversed it are beside the point of our inquiry.
[21]
The liability to pay compensation for medical treatment under s 16 is not confined to treatment 'of' or 'for' an injury, but extends to treatment 'in relation to' an injury. The phrase 'in relation to' has a broad meaning that is not confined to a direct or proximate relationship of cause and effect; it simply signifies that there is some relational connection between two matters[19]. Presently, the relational connection is between the medical treatment Ms Manns obtained and the right knee injuries for which Comcare accepted liability. The closeness of the relational connection must be ascertained "by reference to the natureand purpose of the provision in question and the context in which it appears"[20]. These are matters of degree[21], to be determined on the evidence applying the reasonable satisfaction civil standard without resort to indefinite evidence or indirect inferences[22]. The balance of probabilities test does not authorise us to choose between guesses, on the ground that one guess seems more likely than another[23].
In order to determine whether the medical treatment was obtained 'in relation to' Ms Manns' accepted injuries, it is necessary to consider the nature of her injuries. The incident reports, compensation claim forms and determinations accepting liability are all directed to physical injuries to Ms Manns' right knee, resulting from the falls she described. The terms of her claims must be construed broadly, without being confined to a particular diagnosis or accepted condition[24]. Even though Ms Manns asserts that the pain, instability and other right knee symptoms of which she complains are attributable to her accepted injuries, we have no difficulty in finding that Ms Manns' claimed injuries do not extend to include a secondary psychological injury in the form of a psychiatric disease or the aggravation of a disease of that kind.
Careful review of the contemporaneous medical evidence reveals that, prior to surgery in March 2005, Dr Howse and Dr Gillespie reported symptoms of pain, tenderness with reduced swelling, crepitus, tightness of the lateral retinaculum and increased Q angle in Ms Manns' right knee, which was otherwise normal.
There are troubling inconsistencies in the evidence concerning the onset of right knee instability. Ms Manns asserts that her right knee was unstable and "subluxed" following the original injury in June 2004. But there is no contemporaneous record to support this assertion. The first reference to her right knee giving way appears in January 2005 - "Ms Manns recalls that on several occasions her knee had 'given way' causing her to fall or experience a near fall"[25]. There is no objective evidence to support this proposition. The first medical report of any complaint of right knee instability is that of Dr Miniter on 28 November 2005 - "Ever since that time [the injuries in 2004] she has begun to experience feelings of insecurity, particularly when she twists on the knee"[26]. On 30 May 2006, Dr Warfe reported that "[h]er knee became increasingly unstable [following lateral release surgery on 17 March 2005], frequently giving way without warning"[27]; whereas, on 2 June 2006, Dr Howse refers in retrospect to instability prior to surgery in March 2005[28].
On 21 June 2006, Dr Billett took a history from Ms Manns in which four fall-related injuries appear and the mechanism of the October 2004 injury was described thus - "On 21 October 2004 Ms Manns was walking down a path on her way to work when her right knee gave way and she fell onto her right knee, experiencing pain in the infra-patellar area of the right knee"[29]. Hitherto Ms Manns described the mechanism of the fall differently, in the incident report and the compensation claim form for example: "It was raining and the gravel had washed over the path causing me to slip and fall with my right knee underneath me"[30]; and "I slipped on the gravel (it became stuck in the grips of my shoes) causing my sore leg to fall under me"[31]. It appears to us that there is a significant difference between falling, having slipped on gravel, and falling because a knee has given way. The contemporaneous account will carry greater weight than those alleged a number of years later.
On 3 August 2007, Dr Gillespie reported that "it now seems she has developed dislocation as a further complication of either her original injury or the treatment so far"[32]. On this evidence, it appears that Dr Gillespie considered 'dislocation' was a 'complication' that had developed post-injury, and possibly as a result of treatment. This assessment is consistent with Dr Miniter's evidence, but it does not sit easily or well with Ms Manns' evidence, or with the history she provided to a number of examining doctors, Dr Billett for example. To our minds, Dr Gillespie was in a position to be well informed about these matters, as he was Ms Manns' treating surgeon over several years from March 2005, and his account is preferred to that provided by Ms Manns. Nonetheless, it appears that Ms Manns may have perceived right knee instability from January 2005.
Ms Manns asserts that she suffers from chondromalacia patellae as a result of her injuries. This proposition is raised on the evidence of Dr Stubbs and Dr Musgrove, with some support from the evidence of Dr Billett in 2006, Dr Gillespie in 2007 and MRI scans in 2009 and 2010.
The evidence on surgical investigations by Dr Miniter in 2005, Dr Gillespie in 2009 and Dr Caldwell in 2010 does not support this assessment, however. The surgical findings are also supported by the evidence of Dr Smith in 2009 and Dr Burns in 2006. Most compelling are Dr Caldwell's findings in September 2010 that the "the patella and trochlear were in good condition". It appears that Dr Caldwell probed the medial and lateral compartments of Ms Manns' right knee and, in both cases, "the chondral surfaces were in good condition"[33]. This accords with Dr Cairns' assessment on 31 August 2010.
It can be accepted (and there is much agreement) that a blow directly to the patella, such as occurred in Ms Manns' first fall, is one classic cause of chondromalacia patellae. It does not follow, however, that every person who suffers such a blow will develop this condition, or if the condition does develop that it will persistently result in incapacity for work or require medical treatment.
There appear to be divergent reports of relevant clinical findings, concerning patellofemoral crepitus for example. In March 2005, Dr Howse reported "crepitus on compressing the patellofemoral joint"[34], whereas on 2 June 2006 the Doctor reported "no abnormality of the chondral surfaces of the right knee joint" following surgery by Dr Miniter in December 2005, even though the Doctor reported that "objective signs of diffuse tenderness, patellofemoral joint irritation and knee joint swelling indicate continuing symptoms"[35]. Presumably, Dr Howse would have reported patellofemoral crepitus if he had found it on clinical examination - the absence of such a finding suggests that it was not present. Within 3 weeks, on 21 June 2006, Dr Billett reported "patellofemoral crepitus and tenderness during compression of the patella" on examination of Ms Manns' right knee[36], whereas on 23 November 2006 Dr Burns reported a normal examination of Ms Manns' right knee with "no patella femoral crepitus" and no apprehension signs[37]. Several months later, on 3 August 2007, Dr Gillespie reported "patellofemoral crepitus in deep flexion and a mildly positive patellar apprehension test"[38]. Subsequent medical examinations by Dr Low, Dr Cross, Dr Gillespie, Dr Speldewinde, Dr Musgrove, Dr Smith, Dr Cairns, Dr Navin and Dr Champion did not indicate the presence of retropatellar crepitus. We note the MRI scan report dated 6 May 2010[39], which refers to stage III chondromalacia patellae. On 16 September 2010, however, following surgical examination of Ms Manns' right knee, Dr Caldwell reported that "the patella and trochlear were in good condition" and the medial and lateral compartments were examined and probed. In both cases, "The chondral surfaces were in good condition and the meniscus was intact" [40]. On 3 February 2011, however, Dr Stubbs reported that Ms Manns had "articular cartilage damage in the under surface of the patella", noting that "Her right patella is rough and tender when compressed"[41]. It is difficult to know what to make of such apparently inconsistent clinical findings, although the surgical findings are most compelling.
Weighing the evidence, we are reasonably satisfied that Ms Manns did not suffer from chondromalacia patellae in September 2010, when Dr Caldwell performed surgery on her right knee. We are also reasonably satisfied that this condition was not present in 2005 when Dr Miniter performed surgery on her knee.
Dr Caldwell's evidence suggests that the biomechanical changes effected by earlier surgical procedures were an impediment to the resolution of Ms Manns' right knee problems and may have prolonged or possibly exacerbated instability, loss of range of motion and discomfort in her right knee. The evidence of Dr Musgrove, Dr Cairns, Dr Stubbs, Dr Navin, Dr Skinner and Dr Champion tends to support this conclusion. Even though these doctors did not describe an iatrogenic medial subluxation syndrome, their evidence does not contradict or contra-indicate Dr Caldwell's assessment on this point.
There is no dispute that the surgical treatments performed by Dr Gillespie and Dr Miniter resulted in physical changes to the biomechanical conformation of Ms Manns' right knee. These changes (lateral release, tibial transfer and an iliotibial band tenodesis) did not resolve the symptoms of which Ms Manns complained consequent to injury. We note that the last two surgical procedures Dr Gillespie performed were intended to tighten the biomechanical structures medial to the patella in Ms Manns' right knee[42].
We accept Dr Caldwell's evidence that, unless the surgical changes to the biomechanics of Ms Manns' right knee (most particularly the lateral release and the tibial tubercle shift) were revised, the persistent right knee symptoms of pain, loss of range of motion and actual or perceived instability were likely to continue unabated. The revisionary surgery he performed was intended to address this by restoring Ms Manns' right knee, as closely as possible, to its original conformation.
A chain of connection can clearly be seen linking the surgery Dr Caldwell performed and Ms Manns' accepted compensable injuries. Simply put, if the surgery that produced the biomechanical changes and the consequent prolongation of symptoms that may, in part, be attributable to injury was medical treatment in relation to Ms Manns' accepted injuries, and we accept that it was, it follows that surgical revision of those changes to effect a reduction in those prolonged symptoms is also medical treatment in relation to the injuries.
Whether the relationship between the surgical operation Dr Caldwell performed and Ms Manns' accepted injuries is direct or indirect, we are reasonably satisfied that it is sufficiently close to establish that the treatment Ms Manns obtained from Dr Caldwell was 'in relation to' her accepted injuries for the purposes of s 16 of the Act. We so find.
It is beside the point that Dr Caldwell's surgery was revisionist in nature or that the earlier surgical treatments may, conceivably at least, have resulted in one or more fresh injuries under s 4(3). These are not matters for us to decide. The earlier surgical procedures were approved and paid for by Comcare, and those determinations stand - Comcare has power to reconsider these determinations on its own motion, but it has not done so. It is not for us to determine whether or not these determinations were well made, or whether the surgical procedures performed on Ms Manns' right knee by Dr Gillespie and Dr Miniter were medical treatments that it was reasonable for her to obtain in the circumstances at the time. Comcare accepted that they were and there the matter rests. Our task on this point is confined to the treatment Ms Manns obtained from Dr Caldwell. The important point is that the surgical treatments were all medical treatments 'in relation to' Ms Manns' accepted injuries. The present evidence does not compel us to make any contrary factual findings.
[22]
Reasonable to obtain the treatment in the circumstances
[23]
Comcare asserts that the surgery performed by Dr Caldwell was not reasonable for Ms Manns to obtain in all the circumstances.
When addressing this issue, it is necessary to consider the circumstances at the time, and in so doing to have regard to all the relevant materials pertaining to those circumstances. Furthermore, the test of reasonableness involves objectivity[43] and requires us to consider the costs and benefits of treatment options, including no treatment at all[44]. It is important to note that the consideration of reasonableness is squarely directed to Ms Manns obtaining the treatment in the circumstances; it is not directed to the reasonableness of the treatment, although, of course, that is a factor that may bear upon the reasonableness of Ms Manns obtaining it.
On the contemporaneous evidence of Dr Musgrove, Dr Cairns, Dr Caldwell, Dr Moulding and Ms Rothwell, and considering the medical evidence as a whole, the objective medical treatment options in respect of Ms Manns' right knee in or about September 2010 included:
[24]
pain management treatment, such as she had obtained from Dr Speldewinde, but including a residential component and psychological counselling;
2. manual therapies, including physiotherapy, exercise and muscle-strengthening, especially in relation to her right quadriceps;
[25]
pharmacological treatments, including analgesic medications;
[26]
patella-femoral reconstructive surgery as recommended by Dr Caldwell;
2. patella-femoral or right knee replacement surgery as discussed (but not recommended) by Dr Musgrove; or
3. no treatment at all.
The costs and benefits of treatment options must be assessed having regard to therapeutic, monetary and other considerations.
The monetary cost of the surgical procedure Dr Caldwell performed was $4,599.30[45]. Other related costs may be inferred, but these are not quantified on the present evidence. On the evidence of Dr Musgrove and Dr Cairns, further surgery may have exacerbated Ms Manns' pain and disability, thereby extending and possibly increasing the requirement for further treatment. This would apply particularly if Ms Manns was suffering from chondromalacia patellae, which does poorly with surgical treatment. But we are reasonably satisfied that Ms Manns was not suffering from chondromalacia patellae when she was operated on by Dr Caldwell in 2010 and by Dr Miniter in 2005. Despite the evidence of Dr Stubbs in 2011 and MRI scans from 2009 and 2010 (and supporting evidence of Dr Musgrove, Dr Gillespie and Dr Billett), the surgical findings of Dr Caldwell and Dr Miniter do not reveal chondral damage consistent with that diagnosis.
Nonetheless, at the time, the predicted benefits of the (then) proposed surgery were uncertain. On Dr Caldwell's evidence, optimistically perhaps, the surgery would rectify the biomechanical cause of the medial subluxation and related symptoms in Ms Manns' right knee, although it may not entirely alleviate her discomfort. Failure to proceed with the surgery would leave the cause of the medial subluxation symptoms untreated, thereby extending the symptoms and the requirement for treatment. On this basis, surgical revision may have reduced the likelihood that Ms Manns would require further medical treatment in respect of right knee instability and related symptoms.
There is no sound basis on the present evidence to conclude that right knee replacement surgery was required or justified. It is not necessary to consider this treatment option any further.
The monetary cost of continuing with non-surgical treatments, including physiotherapy, exercise, pain management, psychological counselling and analgesic medications can be estimated by reference to the schedule of treatment costs paid by Comcare[46]. As can be seen, these costs are not insignificant. The benefits of non-surgical treatment modalities, apart from avoiding further surgery and associated risks of exacerbating pain and disability, relate to increasing quadriceps strength, improving flexibility in Ms Manns' right knee and mitigating, or better managing, her pain and other symptoms.
But non-surgical treatments of this kind, or no treatment at all, would not address the structural biomechanical changes brought about by earlier surgery and the consequent prolongation of symptoms. The present evidence does not indicate that non-surgical treatment modalities resulted in significant improvement of Ms Manns' right knee condition prior to surgery in 2010, although some improvement and symptomatic relief may have been achieved from time to time, especially in relation to quadriceps strength. It appears that symptoms of right knee pain and instability persisted despite pain management treatment under the supervision of Dr Speldewinde, and despite extensive physiotherapy and treatment with powerful narcotic analgesic medications. While it is possible that non-surgical treatments may have mitigated or alleviated Ms Manns' symptoms to a degree from time to time, treatments of this kind were unlikely to address the injury-related biomechanical cause of her symptoms; to correct the cause, surgery would be necessary. The likelihood that failure to address the biomechanical cause may prolong the symptoms and related non-surgical treatments (and costs) must be weighed in the balance.
We are reasonably satisfied that Ms Manns' complaints of right knee pain, instability and loss of motion prior to surgery in 2010 are only partly explained by the objective pathology Dr Caldwell identified. While Dr Cairns and Dr Champion described a chronic regional pain syndrome, we prefer and accept Dr Skinner's assessment. Thus, where Ms Manns' complaints of symptoms are not explained by objective pathology or clinical findings, it is probable that they are the result of a psychiatric disorder in the form of abnormal illness behaviour. It is unlikely that any of the medical treatments (surgical or non-surgical) Ms Manns has obtained since 2004 would address the psychiatric causes of this disorder, which is not an injury under the Act, but remains untreated. We note that this disorder stimulates Ms Manns to seek medical treatment, and surgical treatment in particular. Even though we are satisfied that there were sound medical reasons for Dr Caldwell to proceed with the surgery, it appears that Ms Manns' psychiatric disorder may also have been an operative factor in her seeking further surgical treatment from Dr Caldwell. This weighs against it being reasonable for Ms Manns to obtain such treatment without a good medical reason for doing so.
Weighing the costs, risks and benefits of the surgical treatment proposed by Dr Caldwell against those of non-surgical treatment, including no treatment at all, it appears to us, on balance, that surgical treatment recommended by Dr Caldwell was medical treatment that it was reasonable for Ms Manns to obtain in the circumstances. We so find.
The amount of compensation that is payable in respect of the medical treatment will be remitted to Comcare to determine.
[27]
Incapacity for work and medical treatment from 29 November 2010
[28]
Ms Manns says that she has suffered total incapacity for work and she has required on-going medical treatment in respect of her accepted right knee injuries from 29 November 2010 and presently. In her submission, the surgical procedure Dr Caldwell performed did not improve her disability or her symptoms - she has continued to experience pain, loss of motion and instability with frequent medial subluxation. She asserts that the effects of her compensable injuries did not come to an end on or before 29 November 2010 or subsequently; on the contrary, her symptoms and her disability have become worse.
In her submission, the correct diagnoses of the conditions afflicting her right knee are post-traumatic chondromalacia patellae and a chronic regional pain syndrome, both of which are attributable to her accepted injuries. These conditions, she says, result in incapacity for work and require ongoing medical treatment.
Ms Manns will be entitled to compensation after 29 November 2010 if she has suffered incapacity for work 'as a result of' her accepted injuries or if she has obtained medical treatment 'in relation to' those injuries. While these phrases of connection are broad in scope, for compensation to be payable the requisite connection to a compensable 'injury' must be established.
We have found that the surgery Dr Caldwell performed in September 2010 is medical treatment that was reasonable for Ms Manns to obtain in relation to her accepted right knee injury. It follows that any resulting incapacity for work or related medical treatment will be compensable, subject to claim.
The evidence of Dr Caldwell and Dr Moulding is that Ms Manns suffered a period of incapacity for work following the surgery in September 2010. We note Dr Caldwell's contemporaneous post-operative progress reports[47] and Dr Moulding's medical certificates[48]. On 3 February 2011 Dr Stubbs reported that Ms Manns "has total incapacity for work" and "[h]er working capacity should be taken as that of someone in a wheelchair" [49]. It appears that Ms Manns' condition improved. On 7 April 2011, Dr Navin reported that "Ms Manns' surgical condition has now resolved given that she reports stability and lack of falling since her last surgery by Dr Caldwell"[50]. He reported that "I have no doubt that Ms Manns can participate in a return to work program"[51].
Dr Navin's comments concerning a graduated return to work program must be assessed in relation to his opinion that Ms Manns could return to full time duties as a payroll officer. It appears that the requirement for a graduated return to work program arose because "Ms Manns has no intention of returning to work except under conditions under which she has complete control... Ms Manns has the capacity should she be ever oriented so to do to return to the environment in a normal workplace and without any device"[52]. This assessment is consistent with that of Dr Skinner - "[t]he condition restricts the applicant because she is not motivated to work", "[t]he incapacity is due to her desire to assume an invalid role"[53].
Even though Dr Navin could not identify clinical examination notes to support aspects of his report, concerning Ms Manns' workplace and "difficulties with her supervisor"[54] for example, we accept his evidence that he may not have written down everything that Ms Manns said, but he wrote his report promptly after the examination, while the matters reported and discussed were clear in his mind. We are mindful of the principles in respect of expert evidence and the passages to which we were taken in Makita (Australia) Pty Ltd v Sprowles[55]. It appears to us that Dr Navin's assessment is consistent with and supported by the evidence of Dr Caldwell and Dr Skinner. We do not accept the submission that the entirety of Dr Navin's evidence should be discounted because he was not able to establish from his notes the facts on which each of his opinions and findings were based.
The submission that Dr Navin did not assess Ms Manns' workplace or her work duties is only partly on point. The suitability of her workplace does not go to the extent of her injury-related incapacity for work. Dr Navin correctly assessed Ms Manns' incapacity for work in relation to her previous work as a payroll personnel officer. It is very clear from his report that, in his opinion, Ms Manns' complaints of right knee pain and disability were not productive of incapacity for work of that kind; nor did he consider that the muscle wasting he identified was the cause of any incapacity for work. His reported conclusion is that Ms Manns' illness orientation was the only impediment to her return to full duties. This assessment is consistent with Dr Skinner's subsequent assessment.
We note Dr Caldwell's observation in January 2011 that "as strength returns to her quadriceps her [right knee] function will improve"[56]. Dr Caldwell's oral evidence is that Ms Manns had fully recovered from surgery when he examined her on 8 April 2011. Nevertheless, in January 2012, Dr Champion examined her and concluded that she was totally incapacitated for work.
While Dr Champion was critical of reports produced by Dr Navin and Dr Skinner, he accepted that Ms Manns suffers from a significant psychological disorder and a significant illness orientation, as do we. But he reported that her psychological disorder "is integrated with the neurobiological features of a chronic regional pain syndrome" and her illness orientation "is not by any means a sufficient explanation for her chronic pain and disability"[57]. The neurobiological features to which Dr Champion refers are not presently established by other probative evidence, although the observations of Dr Speldewinde and Dr Cairns are noted. His clinical findings were not reproduced by Dr Stubbs or Dr Navin, and they are not supported by other reliable evidence. In sum, his assessment stands alone with little corroborative support. It is conceivable that Dr Champion's propositions concerning altered nociception and the neurobiological nature of post-traumatic chronic regional pain may, in time and with advances in medical science and understanding, be proved correct; but presently, weighing the evidence before us, Dr Champion's assessment is no more than a persuasive possibility that is not established on the balance of probabilities and for this reason it is not preferred. It follows that Dr Champion's assessment that Ms Manns was totally incapacitated for work in February 2012 as a result of a chronic regional pain syndrome consequent to injury is not one that we accept. Dr Skinner's assessment is more compelling on the present evidence.
Furthermore, as a number of medical assessors have noted, Ms Manns' presentation was highly unusual and perplexing - her affect and presentation did not sit easily with her complaints of high level symptoms. We observed this during the hearing. It is possible that Ms Manns was deliberately lying or malingering when giving her evidence about her symptoms and disabilities, but it appears to us more likely that her behaviour stems from perceptions and beliefs she has adopted in a sick role that she now holds to be true. Of course, we cannot make too much of observations of this kind and must rely on the medical evidence concerning her presentation, diagnosis and related relevant matters. Nonetheless, it appears to us that Ms Manns' unusual behaviour is properly explained by Dr Skinner's diagnosis.
Dr Champion's evidence concerning variations in resilience to pain and "an uncommon ability to remain cheerful"[58] suggests that a person experiencing pain may display a range of behaviours that may be misconstrued by an untrained observer. That may be so, but an assessment of the veracity of a complaint of pain may be tested, inferentially at least, by reference to inconsistent concomitant behaviours or representations. For example, Ms Manns' evidence that she is not able to walk or sit for long periods because of pain must be assessed against evidence of her walking and sitting for extended periods without apparent difficulty.
We accept that assessing the veracity of complaints of pain in a compensation context is a matter of some complexity that may often be reduced in cases such as this to over-simplified and rather unsatisfactory determinants, such as whether the claimant can be believed and whether the complaints of pain are credible and true. While an assessment may be made in respect of the credibility of a witness or a piece of evidence - whether the evidence is reliable and true - making this assessment in respect of a complaint of pain is rendered more difficult by the complex interaction of psychological, neurological and biological processes. We are not aware of any reliable way to test whether a complaint of pain is true. The literature adduced before us concerning the use of pulse or heart rate in pain assessment, such as the pulse rate variation test applied by Mr Beswick, is inconclusive. Mr Beswick was given opportunity to produce evidence to support the use of pulse rate testing in cases involving pain, and the proposition he advanced that variations in pulse rate may indicate the veracity of a complaint of pain, but he failed to do so. Several research reports were tendered, but these suggest that testing of this kind may not be reliable.
Mr Beswick's assessment that Ms Manns' representation was not valid is not based upon pulse rate variation testing alone, however, and his conclusion from other testing is, to our mind, consistent with the weight of the medical and other evidence suggesting that Ms Manns has greater capacity than she will admit. For this reason, we do not accept the submission that Mr Beswick's report, and his invalidity finding, should be rejected on the basis that he did not set out the detailed graphs on which he determined that Ms Manns' results were inconsistent.
In this context, it is necessary, briefly, to note the video surveillance material in evidence (a surveillance report and related materials, including four discs containing film recordings)[59]. While breaks in the continuity of the footage raise questions about its reliability, the persons who conducted the surveillance were not called to give oral evidence. Nonetheless, the recorded material stands in stark contrast to Ms Manns' evidence concerning the extent of her disabilities, in relation to purported limits on her ability to walk, stand, bend, negotiate stairs, carry items and get in and out of her car. Her explanations do not adequately explain the apparent inconsistencies - there is only so much that may be explained away by alleging that the footage was taken on a good day. We note the oral evidence of Dr Cairns, Dr Navin and Dr Skinner in respect of the surveillance materials. On this evidence, particularly that of Dr Navin, it appears to us that, even though Ms Manns is shown moving about with a wheelie walker, as she did at hearing, she moved freely and evenly with a normal gait, walking or standing for periods of up to 45 minutes without reliance on the wheelie walker for support, sitting for extended periods without apparent discomfort, as well as bending and reaching, rising from a seated position and negotiating stairs without apparent difficulty. But these are matters of little moment; this case turns on other issues that are determinative.
On Dr Skinner's evidence, Ms Manns' complaints of chronic symptoms and disability, whether or not she believes the symptoms are true, have a psychiatric explanation. In that frame, the significance of assessing the veracity of Ms Manns' complaints of pain is somewhat different: the complaint of symptoms may arise in relation to factors other than experience, including invention, secondary gain, personality dysfunction or psychiatric disturbance. Dr Skinner observed that "it is usually not possible to know whether the symptoms are intentionally exaggerated or manufactured"[60], and that is presently so - we cannot determine whether Ms Manns has intentionally exaggerated or manufactured the right knee symptoms about which she complains, although that possibility cannot be ruled out. It appears to us that it is equally possible that Ms Manns may believe that the symptoms complained of are true and for this reason she favours her left leg, resulting in muscle wasting on the right. For present purposes, we need go no further on this point. We are reasonably satisfied that Ms Manns' complaints of right knee symptoms and disability are mediated by a psychiatric disorder that arose when Ms Manns was a child, well before her employment by the ACT Government: her right knee injuries became the focus of her already existing mental illness.
On balance, we prefer the evidence of Dr Navin, Dr Caldwell and Dr Skinner to that of Dr Stubbs and Dr Champion. Dr Stubbs assessed Ms Manns in January 2011, before she had fully recovered from surgery and reported that she had the capacity of a person in a wheelchair. That assessment is not consistent with the subsequent evidence. We are reasonably satisfied that Ms Manns' condition improved after January 2011. We are also satisfied, on balance, that her complaints of pain and disability on 7 April 2011, following her recovery from surgery, are not attributable to her accepted injuries. Our finding on this point should not be misconstrued to mean that Ms Manns was entirely well and no longer complaining of symptoms of pain and disability on 7 April 2011, as she plainly was. It appears to us that the symptoms of right knee pain and disability on and after 7 April 2011 are, in all likelihood, attributable to her abnormal illness behaviour disorder.
Ms Manns' complaints of pain, loss of motion, instability, subluxation and related disability associated with her right knee after 7 April 2011 are not consistent with the objective evidence, and we are reasonably satisfied that they are not the result of her accepted injuries. It is probable that this holds in relation to some, but not all, of the symptoms of which she has complained from 2005. We are satisfied that the muscle wasting noted by Dr Navin and Dr Caldwell on 7 and 8 April 2011, and that noted by Dr Champion in February 2012, is not the result of injury and is most probably attributable to abnormal illness behaviour.
In sum on this point, we are reasonably satisfied that Ms Manns' right knee injuries have not resulted in incapacity for work and they have not required medical treatment from 7 April 2011 to the present. The medical treatments Ms Manns has obtained in that period are not treatments obtained in relation to those compensable injuries. We are reasonably satisfied that from 7 April 2011 Ms Manns' complaints of pain, altered movement, instability and disability in her right knee, and any related psychological symptoms are not attributable to her accepted right knee injuries. There is clear evidence of muscle wasting in her right thigh following her recovery from surgery; but we are reasonably satisfied that the wasting was not incapacitating and it did not require further medical treatment. It appears to us that the cause of this muscle wasting was probably Ms Manns' abnormal illness behaviour and not the injuries she suffered in 2004 or the surgery Dr Caldwell performed.
The proposition that Ms Manns' frank physical injuries may in some way have exacerbated or aggravated her abnormal illness behaviour disorder was not squarely raised or agitated before us, but it was dealt with peripherally and in closing submissions. It appears to us that the injuries Ms Manns suffered in 2004 may have become the focus of her already existing abnormal illness behaviour disorder. Presently, there is no sound evidentiary basis to conclude that Ms Manns' abnormal illness behaviour disorder is an impairment resulting from her accepted right knee injuries. We are satisfied that it is not.
Our task is to determine whether from 29 November 2010 Ms Manns' suffered any incapacity for work as a result of her right knee injuries, and whether she required medical treatment in relation to those injuries. In so doing, we are mindful that her claim is not confined to the original diagnosis or description accepted by Comcare. Nonetheless, it is very clear that the injuries under claim are physical injuries consequent upon the two falls she reported.
It is not necessary for us to determine whether or not Ms Manns suffered a fresh injury as a result of the medical treatment she obtained; nor is it necessary for us to determine whether she has suffered any incapacity for work as a result of such an injury, or whether she has required medical treatment in relation to it. We are satisfied that the right knee injuries she suffered in 2004 did not result in incapacity for work from 7 April 2011 to the present.
We make no finding about whether Ms Manns has suffered a new and different injury, in the form of a frank physical injury or a disease, such as post-operative arthritis, opiate addiction or aggravation of a psychiatric disorder, or as a result of medical treatment, including surgical and pharmacological treatment, she obtained in relation to her accepted right knee injuries. These are not matters that have been claimed. They were not agitated before us, and they are not for us to determine.
[29]
The surgical procedure Dr Caldwell performed on Ms Manns' right knee on 16 September 2010 is medical treatment in relation to her accepted right knee injuries that it was reasonable for her to obtain in the circumstances.
Following that surgery, Ms Manns suffered incapacity for work and required medical treatment until 6 April 2011. The incapacity for work and post-operative medical treatment she obtained in this period were attributable to her accepted right knee injuries. We use 'attributable' to encompass the two tests of connection we must apply - 'as a result of' and 'in relation to'. From 7 April 2011 and presently, Ms Manns' accepted right knee injuries have not resulted in any incapacity for work and no medical treatment has been required in relation to them.
The reconsideration decision in application 2010/4920 is set aside. Ms Manns is entitled to compensation for medical treatment expenses relating to right knee surgery on 16 September 2010.
The reconsideration decision in application 2011/0490 is varied to the extent that Ms Manns' entitlement to compensation under s 16 and s 19 of the Act in respect of her accepted right knee injuries continued to 6 April 2011. Thereafter, from 7 April 2011 to the present Ms Manns is not entitled to compensation under s 16 and s 19 of the Act in respect of her accepted injuries.
The amount of compensation that is payable to Ms Manns as a result of these decisions remains to be determined. For this purpose, the applications are remitted to Comcare.
The parties have not been heard as to orders for costs. Written submissions on this point may be filed within 14 days of the date of this decision. If no submissions are forthcoming, Comcare will be ordered to pay Ms Manns' reasonable costs of these proceedings in accordance with the Tribunal's Guide to the Workers' Compensation Jurisdiction, as agreed or taxed.
Finally, Ms Manns was critical of Comcare's decision to reverse its approval of the surgery Dr Caldwell performed, after the fact. Plainly, it is open for Comcare to do so. Considering the circumstances of Ms Manns' case, we feel compelled to remark that very careful consideration is required in respect of every claim (or prospective request for approval) in respect of surgical treatment, especially when the ailment being treated is one involving chronic pain without objective explanation. It is highly desirable for Comcare to thoroughly assess the evidence and, if necessary undertake further investigations or enquiries, prior to approving surgical treatment. Doing so after the fact and reversing a primary approval decision will always be controversial and it may give rise to further claims. This should be avoided.
[30]
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member and Dr P Wilkins, Member.