Cunningham v Homecare Service of New South Wales [2001] NSWCC 93

Compensation Court of New South Wales

CITATION : Cunningham v Homecare Service of New South Wales [2001] NSWCC 93 Carmel Cunningham PARTIES : v Homecare Service of New South Wales MATTER NUMBER(S) : 43540 of 2000 JUDGMENT OF: Neilson J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 28/03/01 EX TEMPORE JUDGMENT DATE : 03/28/2001

FOR APPLICANT: Mr R Goodridge instructed by Firths The Compensation Lawyers appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr T Wardell instructed by P W Turk & Associates appeared for the respondent.

JUDGMENT: 1. Miss Carmel Cunningham of Parkes claims amongst other things expenses under s 60. The parties have asked me to deal with their applicant's claims under s 60 first as it might offer them a guideline to resolving the other issues between them which relate to weekly payments of compensation and lump sum compensation. The current enquiry has been complicated by a demand by the Health Insurance Commission that the applicant pay out of any compensation paid to her the cost of all treatment she had had since the compensable injury of 14 February 1994. That demand is ludicrous. For example, the applicant has had numerous blood tests, none of which were necessary for the injury she sustained. She has also undergone gynaecological procedures; a haemorrhoidectomy, a colonoscopy, a colonoscectomy and other treatment of a medical nature and there is not any suggestion whatever that any such treatment was reasonably necessary as the result of injury arising out of or in the course of her employment on 14 February 1994. The applicant's solicitors have reduced what can realistically be claimed against the injury which befell the applicant on 14 February 1994 to a schedule to become Exhibit A to which are attached copies of accounts from the Dudley Private Hospital. 2. The medical evidence persuades me that the applicant struck her left buttock on the end of a shower screen on 14 February 1994. Shortly thereafter the applicant did complain of symptoms which could be referrable to her low back. I accept that the applicant did have some low back affectation as a result of the injury to her left buttock. Dr G David Champion has postulated - not unwisely, in my view - that a likely interpretation was that coincident with her striking her buttock on the door there was a rapid response by her which caused some mechanical stress to the applicant's low back. 3. Initially, the applicant's general practitioner, Dr Corbett Jones, thought that there was some sciatica in the "left hip", but when I look closely to all the medical evidence, there is no suggestion of any real sciatica - that is pressure - on the L5 or other nerve root caused by any discal protrusion or interference with the nerve roots at the low lumbar levels as a result of this injury. However, it is interesting to note that plain x-ray performed by Dr Robert Greenough in October 1995 indicated that the applicant had mild arthritis in both hips - and, of course, symptoms of mild arthritis can mimic radicular symptoms in the lower limb. One can postulate that in an injury where the applicant sustained frank injury to her buttock with a consequent mechanical stress on the low back, some mechanical stress may have been thrown on the left hip. 4. A large number of investigations have been performed and they definitively rule out any damage to any low lumbar disc and any damage to any spinal nerve root. The preferred diagnosis, therefore, as far as the back is concerned is of some musculoligamentous strain from which the applicant would have recovered within a relatively short period of time. An indication of that is the history which the applicant herself gave to Dr Gerry Locke on 17 August 1994 when that doctor saw the applicant at Orange. The applicant told Dr Locke that she had improved dramatically, although she had not fully recovered. The applicant told Dr Locke that she was very keen to get back to work but her orthopaedic surgeon, Dr Bosanquet, was impeding her return to full work. 5. The applicant told Dr Locke that she felt that she could do "almost anything". As far as Dr Locke was concerned the applicant had pain in her left buttock and in the area of the left sacroiliac joint. The applicant had a rather strange reaction to clinical examination. Dr Locke noticed a strange limp favouring the left leg and the applicant's jumping away from the slightest touch over the left sacroiliac region indicating some over-reaction. A large number of doctors have commented on the applicant's strange gait, but it is clearly intermittent, which makes it very difficult to relate to the injury now in question and cannot be a major problem for the applicant because there is no suggestion of any muscle wasting in the left lower limb or any altered use of her foot or any altered damage to areas of the applicant's shoes. 6. Dr Locke discussed the applicant with Dr Bosanquet and commented that Dr Bosanquet, like himself, was unable to find anything to account for the applicant's continuing complaints and Dr Bosanquet also found the applicant's reaction to examination peculiar. Dr Locke thought the applicant was fit for work. The applicant has in fact been paid compensation and medical expenses until 7 September 1995. Investigations performed prior to that time all exclude any discal injury and exclude any nerve root entrapment or nerve root damage. The only real support now offered for the applicant's continuing complaints is from Dr Stratton, an orthopaedic surgeon, of Dubbo, who saw the applicant for medico-legal purposes on 18 October 2000 and Dr G David Champion, a rheumatologist, who saw the applicant for medico-legal purposes in 1988 and 1999. Dr Stratton diagnoses direct trauma to her left superior gluteal nerve in the buttock caused by the heavy blow to the buttock in the accident of 14 February 1994. 7. According to Dr Stratton, the most striking feature was a positive Trendelenburgh test which he thought indicated significant gluteal weakness. Unfortunately, no other medical practitioner has found such a positive test and there is no suggestion of significant gluteal weakness on any organic basis at any time prior to Dr Stratton's examination on 18 October 2000. Furthermore the applicant was extensively investigated by a neurologist, Dr Simon Hammond, in 1995 and he could find no clinical or EMG evidence of any damage to any nerve in the applicant's back or legs. It is significant that there was no suggestion when Dr Hammond saw the applicant, of any damage to the superior gluteal nerve. If there is now such damage it appears to me to have arisen de novo and is not related to the injury of 14 February 1994. 8. Dr Champion does not support the diagnosis of Dr Stratton. Equally it is extremely difficult to work out from Dr Champion's lengthy and verbose reports what exactly his diagnosis is. He concedes that no pathology has been discerned as a result of the injury and then goes to raise a suggestion of "central sensitisation of nociception accounting for pernicity" and damage to the neuropathic pathways. This is hypothesis and not orthodox medicine. It appears to me that the applicant probably had a musculoligamentous strain and some aggravation of her left hip arthritis in the injury now in question. 9. The applicant's presentation has been clouded and that is understandable when one reads with great sorrow and distress the unfortunate things which happened to the applicant in her personal life prior to the injuries which I am now dealing. The applicant had been the subject of physical, emotional and sexual torture requiring psychiatric admissions to hospitals and causing her major problems in her life and a requirement for ongoing psychiatric treatment for years prior to the injury with which I am not dealing. Indeed, reports were generated for the purposes of proceedings in another Court after the injury with which I am now dealing and there is no suggestion at that time that the applicant's injury made her psychiatric condition worse - in fact, it was improving. 10. It appears now that some complaints that the applicant has are attributed to the injury and not the psychiatric condition, but in light of the fact that the contemporaneous evidence does not suggest the injury had any effect on the psychiatric condition, it appears to me that the complaints should be referred to the psychiatric condition, and not the injury. In other words, the applicant's psychiatric injury has taken on the terminology of somatic injury and it is not a question of somatic injury taking on the vocabulary of psychiatric injury as was discussed in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626. Therefore, in my view, there can be no suggestion that there was any need for any psychiatric treatment or its sequelae as a result of the injury with which I am now dealing. 11. I shall shortly discuss the claims made in Exhibit A. The first is for "Spines Wines" where there remains $70 outstanding. That would appear to be a recently incurred manipulative investigation or treatment and there is no suggestion that it was reasonably necessary as a result of injury. There are various accounts from Dr Munk - but they are for treatment of the applicant's gall bladder and haemorrhoids and are not work-related. There are a number of accounts in the Dudley Private Hospital, only one of which could be felt to be any way referrable to the injury with which I am now dealing. That is the admission to the hospital on 27 March 2001 for an L5-S1 nerve root block. Unfortunately, it has been well established prior to that time that the applicant did not have any damage to the L5-S1 nerve root and therefore that investigation was not reasonably necessary as a result of injury arising out of and in the course of the applicant's employment with the respondent. 12. The next item claimed relates to treatment by Dr Worsley which I am apprised was afforded to the applicant in recent times. In 1995 it was suggested that the applicant go to Dr Worsley at the pain clinic which she did not. She went to the pain clinic I am told in 1998. However, treatment at pain clinic is in effect treatment for a psychiatric condition. I am not persuaded on the balance of probabilities the need for any treatment by Dr Worsley results from the injury of 14 February 1994 but results rather from the applicant's pre-existing psychiatric condition. There is also a claim for monies paid to Dr Birrell. He is an anaesthetist who applied an anaesthetic for one of the applicant's medical investigations which are just not related in any way to the injuries with which I am now dealing. 13. There were also claims for expenses of Dr McGarrity and Dr Meulman. Dr Meulman was treating the applicant for an irritable bowel syndrome and an anal fissure so that cannot be work-related. Dr McGarrity was treating the applicant again for an irritable bowel syndrome and haemorrhoids - again clearly not related. The applicant also claims the costs of seeing Dr Burgess, an orthopaedic surgeon, in April 1996 I am told that Dr Burgess really examined the applicant for the purposes of legal proceedings and therefore his account is not a treatment expense, but costs. 14. Another amount claimed is for the Bathurst Radiology which has been paid by Medicare but that was for a barium enema for investigation of the applicant's gastric problems. That clearly is not work-related. Also claimed is Castlereagh Radiology which provided the CT myelogram of the lumbosacral spine on 14 April 1994. That was when the respondent was paying compensation and although it is stated on the schedule to have been paid by Medicare, it is clear from Exhibit B that it was not charged to Medicare, and therefore the Castlereagh Radiology obviously mislead the applicant's solicitor, by saying it was paid by Medicare when it was in fact been paid by the insurer for the respondent. 15. The last item relates to treatment by Dr Draper. Dr Draper, I am told, is a general practitioner who has only recently seen the applicant, but for what he has been seeing the applicant, I do not know, and it appears to me that treatment in recent times would not - in light of the various afflictions which had unfortunately befallen Miss Cunningham - be causally related to the injury with which I am dealing, mainly that of 14 February 1994. 16. In regard to the applicant's claim for s 60 expenses as itemised and as generally set out in Exhibit B, the charge from the Health Insurance Commission, I make an award for the respondent. Mr R Goodridge instructed by Firths - The Compensation Lawyers appeared for the applicant. Mr T Wardell instructed by P W Turk & Associates appeared for the respondent.