The Administrative Appeals Tribunal has refused to accept an employee's evidence that she was unwilling to undertake medical treatment when assessing entitlement to permanent impairment compensation. The Tribunal did not assess the reasonableness of the refusal to undergo the treatment, but instead found that it was likely that she would in fact undergo the treatment in the future.
Background
Ms Newton-Edwards was injured in 2003 whilst she was employed by the Australian Broadcasting Corporation. She suffered bilateral carpal tunnel syndrome, and Comcare accepted liability for the injury. Ms Newton-Edwards claimed that the injury has resulted in the following three impairments (all of which were claimed to be permanent):
- pain and paraesthesia in both arms and hands;
- depression caused by the pain; and
- headaches caused by the effects of the injury.
Comcare denied that the injury resulted in Ms Newton-Edwards suffering any permanent impairment.
Recommended Medical Treatment And Employee's Refusal To Undergo Treatment
In 2004, Ms Newton-Edwards was referred to Dr Roberts for advice regarding her carpal tunnel syndrome. Dr Roberts recommended injections of cortisone as a 'first-line treatment'.
Dr Roberts told the Tribunal at hearing that, because of the time which has elapsed since Ms Newton-Edwards injured her wrists, cortisone injections would no longer be effective treatment for her injury. However, in the doctor's opinion, these injections could still be used as a diagnostic tool in that the effectiveness or otherwise of the injections in relieving Ms Newton-Edwards' symptoms in the short term would indicate the likely effectiveness of surgery as a treatment.
Dr Roberts also gave evidence that he continued to recommend that Ms Newton-Edwards receive the cortisone injections and that he would offer surgical treatment to Ms Newton-Edwards if the injections were of benefit to her.
Ms Newton-Edwards gave evidence that she had, for a number of reasons, decided not to have the cortisone injections and/or surgical treatment of her carpal tunnel syndrome. She did not explain why she did not undergo the cortisone injections when they were initially recommended by Dr Roberts.
The Tribunal also was told that approximately six weeks before the hearing Ms Newton-Edwards spoke to Dr Roberts by telephone and told him that she was considering having the cortisone injections.
The Tribunal's Decision
The Tribunal was satisfied that the symptoms experienced by Ms Newton-Edwards in her hands and forearms, her headaches and her depression were all consequences of the bilateral carpal tunnel syndrome. Consequently, if the Tribunal was not satisfied that the impairment suffered as a result of the carpal tunnel syndrome was permanent, it could not be satisfied that impairment from any of the conditions were permanent within the meaning of the Safety, Rehabilitation and Compensation Act 1988.
The Tribunal was satisfied that, at the time they were first recommended by Dr Roberts, cortisone injections represented reasonable rehabilitative treatment for Ms Newton-Edwards.
The Tribunal was also satisfied, despite Ms Newton- Edwards' statements to the contrary, that it was likely that she would undertake the diagnostic procedure of having cortisone injections in the immediate future. This conclusion was based on Ms Newton-Edwards' inquiries from time to time as to the means of her receiving the cortisone and the conversation between Ms Newton- Edwards and Dr Roberts prior to the hearing. Essentially the Tribunal rejected Ms Newton-Edwards' evidence that she had decided not to have the injections, commenting that:
'There is no dispute that Ms Newton-Edwards has not undertaken this treatment. In some circumstances a failure to undertake reasonable treatment may support a finding that an injured employee is determined not to accept such treatment and that consequently the impairment is permanent. However this is not the situation here. In our view the availability of reasonable treatment as yet unavailed of supports our conclusion that Ms Newton-Edwards is likely to undergo further diagnosis and subsequent surgery if she is advised to do so.'
In coming to this conclusion, the Tribunal was not required to make a finding as to whether Ms Newton-Edwards' refusal to undertake treatment was 'reasonable' or not, but did not consider this to be a factor of vital importance, stating that:
'During the hearing the parties devoted considerable time and effort in addressing the question of whether Ms Newton-Edwards' refusal to undergo treatment was reasonable. In determining whether an impairment is permanent this is a consideration of minor importance. It is not necessary to decide this question in this matter as even assuming that we decided that Ms Newton-Edwards' refusal is reasonable this would not outweigh the other factors to which we have referred.'
The Tribunal also considered, based on the evidence of Dr Roberts, that there was a likelihood that the surgical procedure would be recommended subsequent to the cortisone injections being administered, and in view of Ms Newton-Edwards' evidence that she could see no point in having the injections unless she was prepared to have the surgery, that Ms Newton-Edwards was therefore prepared to have the surgical treatment (if this was indicated as being useful by the results of the injections and the advice of Dr Roberts).
Consequently, the Tribunal was satisfied that there was a reasonable likelihood that there will be an improvement in Ms Newton-Edwards' carpal tunnel syndrome injury in the immediate future and that none of her impairments resulting from the conditions were permanent.
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