Alcock and Comcare
[2007] AATA 2024
•7 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2024
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/196, A2006/120, GENERAL ADMINISTRATIVE DIVISION ) A2006/121
Re SONIA ALCOCK
Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr M.D Miller AO, Member
Date7 December 2007
PlaceCanberra
Decision Application A2005/196
1. The decision of Comcare made 27 June 2005 (Reconsideration No.118473) is set aside.
2. In substitution it is decided that Comcare is liable to pay compensation to Ms Alcock in respect of the accepted injury of repetitive strain injury on the following basis:
1) that Ms Alcock has been totally incapacitated for work for the period from 11 September 2003 to the date of this decision;
2) that Ms Alcock is entitled to be compensated for medical treatment that it was reasonable for her to obtain in relation to the accepted injury during the period referred to.
Application A2006/120
3. The decision of Comcare made 2 May 2006 (Reconsideration No.119208) is set aside.
4. In substitution it is decided that the accepted injury of repetitive strain injury has resulted in a permanent impairment of ten per cent and Comcare is liable to pay compensation to Ms Alcock pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the injury.
Application A2006/121
5. The decision of Comcare made 2 May 2006 (Reconsideration No.119207) disallowing Ms Alcock’s claim for compensation for an injury being a psychiatric condition is affirmed.
Applications A2005/196 and A2006/120
6. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Ms Alcock.
……..............................................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees - Regional pain syndrome – Comcare ceased liability claiming no longer work related – Whether Applicant still suffers from work related injury - Whether Applicant entitled to compensation under sections 16 and 19 – Decision set aside and substituted - Whether injury resulted in permanent impairment – Assessment of degree under table 9.4 of the Guide – Decision set aside and substituted
COMPENSATION – Commonwealth employees – Depression – Whether a rehabilitation program contributed to the psychological injury in a material degree – Decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24
Canute v Comcare (2006) 226 CLR 535
Comcare v Fiedler (2001) 115 FCR 328
Commonwealth of Australia v Borg (1994) 20 AAR 299
REASONS FOR DECISION
J.W. Constance, Senior Member
Dr M.D Miller AO, Member
7 December 2007
INTRODUCTION
Application A2005/196
1. In 1984 Ms Alcock suffered what was then known as a repetitive strain injury to her arms. From that time until September 2003 she was paid compensation on the basis that she was totally incapacitated for work. In August 2003 Comcare decided that Ms Alcock was no longer entitled to compensation for incapacity and treatment expenses on the basis that Ms Alcock’s complaints at the time were not related to her employment. Ms Alcock is seeking a review of this decision.
2. For the reasons which follow we have decided that this decision should be set aside and in substitution it will be decided that Comcare is liable to compensate Ms Alcock for incapacity and medical expenses until the date of this decision.
Application 2006/120
3. Ms Alcock is also seeking a review of a decision refusing her claim for compensation on the basis that the injury suffered by her has resulted in permanent impairment. We have decided that the decision denying this compensation should be set aside.
Application A2006/121
4. The third decision to be reviewed is a decision refusing to compensate Ms Alcock for a psychiatric condition which she claims was caused by her attendance at a rehabilitation course arranged by Comcare in 1994. We have decided that this decision should be affirmed.
EVIDENCE AND FINDINGS OF FACT
5. Unless otherwise stated the following findings of fact are based on the evidence of Ms Alcock, including her written statement.[1] We are satisfied of the facts found on the balance of probabilities.
[1] Ex.A4.
6. Ms Alcock was born in 1954. In 1971 she was employed by the Department of Census and Statistics as a data processing operator which required extensive use of a keyboard. She received training for the first 18 months of her employment and once trained, she continued to work in this role.
7. About two years after starting work Ms Alcock began to experience sharp pains in her right arm, from her elbow to her fingertips. Initially she experienced these pains about twice per week, usually while using the keyboard. Sometime later she developed aching in her elbow and forearm. This was a dull ache which has continued. She consulted her general practitioner, Dr Tow, who prescribed anti-inflammatory and pain relief medication. Also she began to feel pain in her right shoulder, again while using her keyboard.
8. Ms Alcock continued working at the keyboard although she continued to suffer pain in her arm. However, because of the pain, in the late 1970’s she gave up her hobbies of painting and rug-making and restricted her fishing and camping trips. Her husband and her mother assisted with household tasks.
9. By 1980 Ms Alcock had developed pain in her left arm but it was not as severe as in the right. The pain was not constant but occurred more frequently if she was using a keyboard. She resigned from her position in July 1981 when her first child was born.
10. After she ceased keyboard work Ms Alcock continued to experience pain in her arms, but not as severely as previously. This pain was worsened by activity. She does not recall that the shoulder pain continued.
11. Ms Alcock’s second child was born in 1982.
12. By the start of 1984 Ms Alcock was still suffering pain in her arms but she describes herself as being “still a very happy person” at that time.[2] In July 1984 she started work in the Department of Immigration and Ethnic Affairs as a data processor. She worked from 5 pm to 10 pm with a 5 minute break every hour. Her work was solely data entry using a keyboard.
[2] Ex.A4.
13. Within a month of her starting work Ms Alcock suffered severe pain and aching in her arms and hands; worse in the right than in the left. These symptoms were the same as she had experienced previously when working at Census and Statistics. She complained to her supervisor on 22 August 1984.[3] She also experienced a return of pain in the area of her upper right shoulder blade.
[3] Ex.A2.
14. Ms Alcock consulted her general practitioner, Dr Rea. He diagnosed her as suffering repetitive strain injury caused by her employment.[4] He prescribed anti-inflammatory and pain relief medication. She was treated by a physiotherapist and, on medical advice, wore splints on her wrists and at times a steel brace on her arm. On medical advice she took about two weeks off work.
[4] Ex.A5, doc.2.
15. On 3 October 1984 Ms Alcock was examined by the Commonwealth Officer and was told she was suffering epicondylitis of the right elbow and repetitive strain injury. She was certified unfit for work until 28 January 1985.[5] This was later extended to 29 April 2005.[6]
[5] Ex.A5, doc.7.
[6] Ex.A5, doc.8.
16. In 1985, on the advice of the Commonwealth Medical Officer, Ms Alcock was retired on the ground of medical invalidity. That advice included the following comment:
“Off work since August 1984 no improvement whatsoever in fact condition worsening. Prognosis: Unlikely to return to keyboard/clerical work is doubtful for at least one year...... to avoid undue hardship annual review strongly recommended." [7]
[7] Ex.A5, doc.9.
17. In 1985 Ms Alcock was involved in a motor vehicle accident but did not suffer any injuries relevant to her claim in this matter. In 1986 her third child was born.
18. Following her retirement Ms Alcock’s condition remained the same as it was at the time of her retirement. She continued with her medication and her husband and mother continued to help with the care of the children and with household tasks.
19. In December 1993 Ms Alcock was involved in a second motor vehicle accident. She was injured in this accident but it did not affect the pain which she was experiencing in her forearms or the intermittent pain in her shoulder. An injury to her back worsened the tingling in her fingers.
20. In September 1994 Ms Alcock commenced the New Horizons Program, a rehabilitation program conducted on behalf of Comcare. Ms Alcock completed five of the six weeks of the program but withdrew on the advice of her general practitioner, Dr Johnson. Ms Alcock says that she became depressed as a result of her attendance at this program. We shall return to the evidence as to the effects of the course on Ms Alcock later in these reasons.
21. In 1995 Ms Alcock underwent surgery to relieve symptoms of carpal tunnel syndrome in her right wrist. This lessened the “pins and needles” sensation she was experiencing in her right hand.
22. Ms Alcock described the present state of her health in relation to her arms as follows:
·she continues to experience severe pain in both arms but more so in the right than in the left;
·the pain in the right arm continues in the pattern of a “shooting” pain from the elbow to the fingers and a constant aching;
·the pain in the left arm is constant;
·the “pins and needles “ comes and goes both during the day and night;
·she experiences a burning and stinging sensation in her right forearm and hand which she describes as ‘discomfort”.[8]
[8] Ex.A4.
23. Having observed Ms Alcock give evidence, we are satisfied that she was an honest witness and that she gave evidence to the best of her recollection. Counsel for Comcare rightly pointed out that over the years Ms Alcock had been inconsistent in her description of her symptoms, and had not always described all her symptoms to the various doctors who had treated her or assessed her for the purpose of these proceedings. However, given the time which has elapsed since the date of the original injury and the number of medical practitioners who have questioned Ms Alcock, we do not find this surprising. We do not find that discrepancies in Ms Alcock’s account of her symptoms over the years are sufficient to impugn her credit. We accept her evidence.
THE ISSUES
24. The following issues arise for determination:
A.Has Ms Alcock suffered from her compensable injury since 11 September 2003?
B.If so, is Comcare liable to pay compensation to Ms Alcock for medical treatment costs incurred and periods of incapacity since 11 September 2003?
C.Has the compensable injury suffered by Ms Alcock resulted in an impairment for which Comcare is liable to pay compensation?
D.Is Comcare liable to compensate Ms Alcock pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of an injury being a Major Depressive Illness and Generalised Anxiety Disorder?
A. Has Ms Alcock suffered from her compensable injury since 11 September 2003?
A.1 Medical Evidence
25. We have referred to the diagnosis of Dr Rea, the general practitioner consulted by Ms Alcock after the worsening of her arm pain in 1984, and to the opinion of the Commonwealth Medical Officer.
26. In 1986 Dr Rosenthal, General Practitioner, was of the opinion that Ms Alcock was suffering “a significant degree of disability from regional pain syndrome” [9] He referred Ms Alcock to Dr Miller, Consultant Rheumatologist. Dr Miller’s opinion was that Ms Alcock was suffering from a regional pain syndrome involving the cervico-brachial region and that she would be able to return to non-keyboard work when the pain settled. She could not say when that was likely to occur and recommended that Ms Alcock be referred to a vocational rehabilitation centre once the pain had settled.[10] Dr Miller reviewed Ms Alcock in January 1988 and confirmed that she was still suffering from regional pain syndrome. [11]
[9] Ex.A5, doc.11.
[10] Ex.A5, docs 12 and 15.
[11] Ex.A5, doc.20.
27. In June 1984 Dr Dunlop, Specialist in Rehabilitation Medicine, assessed Ms Alcock to determine her suitability for the New Horizons Program. He was of the view that her history was consistent with regional pain syndrome and that her account of her symptoms appeared to be genuine with little evidence of exaggeration.[12] He considered it was reasonable to proceed with a rehabilitation plan at that time.
[12] Ex.A5, doc.27.
28. In 1994 Dr Iansek, Consultant Neurologist, examined Ms Alcock in relation to the injuries she suffered in the 1993 motor vehicle accident. She complained of arm pain which was present prior to the accident and which was continuing. Dr Iansek was of the opinion that Ms Alcock’s work-related complaints were the main determining reason against her return to work and that overall her prognosis for normal work duties was “very guarded indeed.” [13]
[13] Ex.A5, doc.34.
29. Also in 1994 Ms Alcock was examined by Dr Tymms, Rheumatologist. She reported:[14]
“Ms Alcock has a chronic regional pain syndrome involving upper limbs, the initial onset being so-called RSI some twelve years ago and the more recent increase in symptomatology has been associated with a motor vehicle accident and I think foetal death earlier this year.”
[14] Ex.A5, doc.37.
30. Ms Alcock was examined by Dr Joubert, Consultant Physician, at the request of Comcare in August 1995. He diagnosed her as suffering from a Regional Pain Syndrome and that it was the same condition as resulted in her retirement in 1985 and which began in August 1984. In his opinion her prognosis was “extremely poor” and that ‘the major impediment to Ms Alcock’s return to work is the initial pain syndrome which developed in 1984.” [15]
[15] Ex.A5, doc.48.
31. When Dr Rosendahl examined Ms Alcock in July 2000 and again in December 2000 he was of the opinion that her condition and disability remained unchanged.[16]
[16] Ex.A5, doc.58.
32. In early 2003 Ms Alcock consulted another general practitioner, Dr Kelly. He referred her to Dr Cohen, Consultant Physician, Rheumatology and Pain Medicine. Dr Cohen examined Ms Alcock in May 2003. Dr Cohen reported that “it does appear to me that Ms Alcock has an established upper limb pain syndrome for the best part of two decades which has features suggesting a neuropathic pathogenesis.” [17] In a report of 11 March 2004 he expressed the opinion that the condition arose out of the tasks she had performed at work. [18] When he gave evidence he confirmed the opinions in the reports and expressed the further opinion that there is very little prospect of Ms Alcock returning to work. He knew of no specific medical intervention which would change this situation.
[17] Ex.A5, doc 59.
[18] Ex.A5, doc.63.
33. Dr Kelly gave evidence. He agreed with Dr Cohen’s diagnosis. When he last saw Ms Alcock (in 2003) he was of the opinion that her employment duties were the events which precipitated her condition, and that it had been compounded by other events. In his view the condition was chronic and permanent.
34. In January 2005 Ms Alcock was assessed by Professor Sambrook, Professor of Rheumatology, at the request of her solicitors. In his opinion she suffered a regional pain syndrome and was incapable of returning to work at that time and that there was a reasonable relationship between her work conditions and the onset of her initial symptoms. However he said that “it is unclear whether there is a persistent ongoing relationship between her present condition and the nature and conditions of her employment ……20 years ago.”[19] He recommended that Ms Alcock would benefit from a comprehensive pain management and rehabilitation program which would increase the likelihood of her returning to work successfully. In a later report [20] Professor Sambrook thought it unlikely that the regional pain syndrome suffered by Ms Alcock in 2005 was s sequelae of the original injury.
[19] Ex.A5, doc 64.
[20] Ex.A5, doc.65.
35. Dr Knox, Consultant Psychiatrist, examined Ms Alcock in July 2006 for the purposes of these proceedings. The examination was at the request of her solicitors. In his opinion Ms Alcock acted in line with the medical diagnoses and opinions expressed to her over the years and “she’s caught up in a whole pattern of reinforcing behaviours and opinions from other doctors about what was the matter with her.”[21] In his experience people such as Ms Alcock stay ill and damaged indefinitely.
[21] Transcript 15.9.07 p-84
36. Opinions contrary to those set out in the preceding paragraphs were expressed by several medical practitioners whose evidence was relied upon by Comcare.
37. Dr Stevenson, Consultant Physician, assessed Ms Alcock on behalf of Comcare in January 2003. In his view the RSI phenomenon was a “psychic epidemic” which attracted “the naïve, the vulnerable and the opportunistic.”[22] Although he stated that it was not for him to make a judgement on Ms Alcock’s motives, later in the same report he stated that her ‘continuing pain reporting has no realistic basis” and that “there has been no genuine or physical basis for her pain reporting for many years.” (Emphasis added) This leads us to conclude that it is the opinion of Dr Stevenson that Ms Alcock has, for many years at least, been opportunistic in claiming the ongoing effects of her initial injury. Dr Stevenson also is of the opinion that Ms Alcock made a voluntary decision not to be employed.[23] In his view she may have suffered epicondylitis as a result of her working conditions but this would have been self-limiting and would have fully resolved by 2005.[24]
[22] Ex.R3.
[23] Ex.R3.
[24] Ex.R4.
38. Comcare also arranged for Ms Alcock to be examined by Dr McGill, Consultant Rheumatologist. This examination took place in October 2005. It is Dr McGill’s opinion that if Ms Alcock’s symptoms were influenced by her work duties, the effect of those duties would have ceased within one month of her ceasing those duties. He concluded that the physical aspects of her work did not play a substantial role in the development of her symptoms as there was no improvement in the symptoms on her ceasing work. In his opinion Ms Alcock did not have any physical incapacity for employment.[25]
[25] Ex.R7.
39. Dr Chandran, examined Ms Alcock in 1990. He reported:
“On examination there was global weakness in the right arm, sensation being diminished from C5 to C7 on the right with tenderness in the forearm muscles. She was tender over the medial and lateral epicondyle. Extension of the wrist against resistance and forward flexion of the wrist caused some pain …… This lady has a neck problem with RSI and a functional overlay. It is not clear which one is contributing to most of the disability. I find it difficult to accept that six years of protection and lack of use of this nature can cause still symptoms of RSI……” [26]
[26] Ex.R11.
40. Comcare also relied upon a report of April 1996 by Dr Fuller, Neurosurgeon, who examined Ms Alcock on referral from her general practitioner. This report does not record a history of the arm pain of which Ms Alcock complains. However the referral was in relation to injuries suffered in the 1993 motor vehicle accident and we do not draw any adverse inference from this. In any event we do not know if Dr Fuller reported all of the symptoms described to him.
A2. Reasoning
41. Ms Alcock has complained of persistent pain in her arms since 1984 when liability to compensate her for repetitive strain injury was accepted. For the reasons already stated we accept her evidence in this regard. The question then arises whether the pain she has suffered since 11 September 2003 has been suffered as a result of the compensable injury.
42. Since 1984 Ms Alcock has been examined by many medical practitioners, including treating practitioners, who have diagnosed her as suffering from either repetitive strain injury or a regional pain syndrome. These practitioners are Dr Rea, the Commonwealth Medical Officer, Dr Rosenthal, Dr Miller, Dr Dunlop, Dr Iansek, Dr Tymms, Dr Joubert, Dr Cohen, Dr Kelly, Professor Sambrook and Dr Knox. None of these practitioners has suggested that Ms Alcock was fabricating her complaint of pain.
43. Dr Rea, the Commonwealth Medical Officer, Dr Iansek, Dr Tymms, Dr Joubert, Dr Cohen, Dr Kelly, Professor Sambrook and Dr Knox all related Ms Alcock’s condition to her work at the Department of Immigration and Ethnic Affairs, or were of the view that its onset was in 1984. Professor Sambrook did not agree with the view that Ms Alcock’s pain syndrome was related to the original injury.
44. It does not matter that the diagnosis of the condition may have changed from repetitive strain injury to regional pain syndrome over the years. Under the Act the injury is the “resultant effect of the incident or ailment upon the employee’s body” : Canute v Comcare (2006) 226 CLR 535 at paragraph 10. The effect upon her body as described by Ms Alcock has consistently been pain in her arms and hands.
45. We prefer the opinions of the practitioners to whom we have referred above to those of Dr Stevenson, Dr McGill and Dr Chandran.
46. The basis for Dr Stevenson’s opinions has not been established as we are satisfied that there has been a genuine basis for Ms Alcock’s reporting of pain over many years and we are not satisfied that she made a voluntary decision to cease work. On the basis of Ms Alcock’s evidence, supported by the medical evidence, we are satisfied that Ms Alcock was prevented from continuing to work by reason of the pain she suffered in her arms and hands. We also accept the evidence of Dr Knox that Ms Alcock has acted in accordance with the medical opinions and diagnoses given to her over twenty years. Even if the effects of the initial muscle strain ceased shortly after Ms Alcock stopped work (although we are not satisfied on the evidence that this was so) we accept the view of Dr Knox that she has been caught up in a pattern of reinforcing behaviours and opinions which have caused her to remain ill.
47. Whilst Dr McGill is of the opinion that Ms Alcock has no physical incapacity for employment, and that the effects of any injury would have resolved in 1984, he offers no explanation as to why Ms Alcock has continued to experience severe pain since that time.
48. In 1990 Dr Chandran doubted that after six years Ms Alcock would still suffer the symptoms of repetitive strain injury. However he accepted that she had suffered from that condition and said that he was unable to determine which of a number of conditions was contributing most to her disability. Again, he did not offer an explanation for the ongoing pain.
49. We also take into account that some of those expressing opinions supporting Ms Alcock’s claim that she suffers continuing pain were treating practitioners. They had the advantage of assessing Ms Alcock over a greater length of time, and at a time nearer to the onset of symptoms than either Dr Stevenson or Dr McGill.
50. In assessing all of the evidence we need to be persuaded that there has been some change in circumstances to justify the cessation of the payments of compensation which were being made: Commonwealth of Australia v Borg (1994) 20 AAR 299 at 307. Even had we not been positively satisfied that Ms Alcock has continued to suffer the effects of the compensable injury since 11 September 2003, in view of the conflicting opinions, we would not have been persuaded that there has been a change in circumstances disentitling Ms Alcock to ongoing compensation.
B. Is Comcare liable to pay compensation to Ms Alcock since 11 September 2003 for medical treatment and incapacity?
51. It follows from our decision that Ms Alcock continues to suffer the effects of the compensable injury that she continues to be entitled to compensation for medical expenses pursuant to section 16 of the Act. We do not have evidence as to particular expenses claimed during the relevant period.
52. We do not accept the opinion of either Dr Stevenson or Dr McGill that Ms Alcock is fit to return to work. For the reasons previously stated we do not accept the opinion of Dr Stevenson, as we have found that there is a genuine basis for Ms Alcock’s complaint of pain. Neither Dr Stevenson nor Dr McGill appear to have given consideration to the effect of the long absence of Ms Alcock from employment on her ability to return to work. Further Dr McGill qualifies his opinion when he states that Ms Alcock has no physical incapacity for employment. He does not address the incapacity which may arise from a chronic pain syndrome.
53. On the basis of the evidence of Dr Joubert, Dr Cohen, Dr Kelly, Professor Sambrook and Dr Knox we are satisfied that from 11 September 2003 until and including the date of this decision Ms Alcock has been totally incapacitated for work. In coming to this conclusion we have taken into account that since 1994 Ms Alcock has not received the benefit of any rehabilitation services. Had she done so she may have now been able to return to some form of employment. We note that Professor Sambrook recommended such action.
C. Has the compensable injury suffered by Ms Alcock resulted in a permanent impairment for which Comcare is liable to pay compensation?
C1. Statutory Background
54.Section 24(1) provides:
“Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.”
In section 4 “permanent” is defined as meaning “likely to continue indefinitely.”
“Impairment” means “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.”
Subsection 24(2) provides:
“For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.”
55. Table 9.4 of the Guide to the Assessment of the Degree of Permanent Impairment provides for an assessment of 10% whole person impairment where a claimant “can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity”. 20% whole person impairment exists when the person “can use limb for self-care BUT has NO digital dexterity OR has difficulties grasping and holding.”
C2. Further Findings of Fact and Medical Evidence
56. The evidence of Ms Alcock in relation to the degree of her impairment was limited. She can use her arms and hands for self-care. We accept her evidence that, by reason of the pain in her arms, she experiences the following difficulties:
·at times she becomes concerned that she will drop a cooking pot she is carrying;
·she cannot open jars;
·she has difficulty turning on taps;
·she cannot peel vegetables;
·she cannot use a can-opener;
·she cannot change bed-linen.
As we have indicated we accept Ms Alcock as a truthful witness.
57. Dr Stevenson expressed the opinion that there is no neurological or musculoskeletal basis for Ms Alcock to have impairment of digital dexterity.[27] Dr McGill observed that she had neat handwriting and able to pick up paper clips and that her dexterity appeared normal.
[27] Ex.R4.
58. In 1995 Dr Joubert expressed the opinion that Ms Alcock’ prognosis was “extremely poor” and that his assessment was that it would be impossible for her to embark upon a future work trial. [28]
C3. Reasoning
[28] Ex.A5, doc.48.
C3.1 Is there an “impairment” and if so, is it “permanent”?
59. On the basis of the evidence of Ms Alcock we are satisfied that she has suffered a loss of use of, and a malfunction of, her arms and hands and therefore has an impairment. On the basis of the medical evidence to which we have already referred we are satisfied that the impairment is a result of the compensable injury.
60. We have found that Ms Alcock has suffered a regional pain syndrome since 1984 and continues to suffer this condition. The impairment arising from the injury has persisted for twenty-three years and is continuing. We have also taken into account the opinions of Dr Iansek, Dr Joubert, Dr Rosendahl, Dr Kelly, Dr Cohen, Dr Knox and Professor Sambrook referred to earlier in these reasons. On the basis of these opinions we are satisfied that there is little likelihood that her condition will improve. Although Professor Sambrook has suggested the possibility of further rehabilitative treatment this has not been offered and the views of other practitioners are that rehabilitation is not likely to be successful. In these circumstances we remain of the view that the impairment is permanent.
C3.2 What is the degree of permanent impairment?
61. We are satisfied that Ms Alcock can use her upper limbs for self-care but has difficulty with digital dexterity. This means that under Table 9.4 of the Guide she has a 10% whole person impairment.
62. Dr Stevenson’s evidence that Ms Alcock has no impairment based on difficulty with digital dexterity is qualified (ie. that there is no neurological or musculoskeletal basis). In view of this qualification there is no reason to reject Ms Alcock’s evidence to the contrary. While Dr McGill observed digital dexterity to be normal he does not give consideration to the particular functions with which Ms Alcock says she experiences difficulty. We are satisfied that the pain which Ms Alcock suffers causes her the problems with dexterity which she has described. It is not necessary that substantial difficulty be shown, and despite the shortcomings in the drafting of Table 9.4, it must be given a reasonable and proper interpretation: Comcare v Fiedler (2001) 115 FCR 328.
63. The only evidence that suggests Ms Alcock has difficulty grasping and holding is her evidence that she has concerns she may drop cooking pots. However Ms Alcock said that she could lift pots and it seems that she has a concern that she may drop these rather than experiencing actual difficulty. We are not satisfied that Ms Alcock has shown that she has a degree of permanent impairment based on this criterion.
D. Is Comcare liable to compensate Ms Alcock pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of an injury being a major depressive illness and generalised anxiety disorder?
D1. Additional Findings of Fact
64. Ms Alcock was injured in the motor vehicle accident in December 1993. These injuries caused her to suffer pain in her back and worsened the numbness and tingling in her hands. As a result of the accident the insurer of the other vehicle involved claimed $14,000 from Ms Alcock. This was of great concern to her. About a year after the accident Ms Alcock’s claim was settled and the claim against her was withdrawn.
65. From the time Ms Alcock first met her husband he was a binge drinker. This caused difficulties in the relationship and her husband’s bouts of drinking distressed her.
66. In May 1994 Ms Alcock suffered a miscarriage which was upsetting for her.
67. In August 1994 Ms Alcock was assessed for suitability to attend a six-week New Horizons course, a rehabilitation program arranged by Comcare aimed at achieving her return to work. The assessor reported that “she was extremely anxious, almost to the point of phobia, about undertaking the vocational assessments.”[29] Ms Alcock had previously become distressed at the prospect of undertaking tests and assessments.
[29] Ex.A3.
68. Ms Alcock commenced the New Horizons course in September 1994. During the program she suffered attacks of vomiting, diarrhoea and a twitch in her left eye and she felt very nervous about attending. She attributed these conditions to the stress she felt in attending the course. On the advice of Dr Johnson, her general practitioner, she ceased to attend the course after five weeks. During and after the course she took anti-depressant medication prescribed by Dr Johnson. She developed suicidal thoughts but says that the thought of her sons prevented her proceeding any further.
69. About one year after Ms Alcock attended the course she began to gamble excessively. She sought and obtained counselling for this.
70. On one occasion, in approximately 2000, Ms Alcock spent an excessive amount on household appliances, well in excess of what she and her husband could afford. This was not conduct in which she had engaged previously.
71. Ms Alcock believes that her outlook on life has changed significantly since the time of the New Horizons program. In her view she suffers from depression. She cries more often than she did previously and feels sad all the time. Commencing in the late 1990’s she became reluctant to leave her home and since then has visited family and friends less frequently than she did previously.
D2. Medical Evidence
72. Dr Kelly referred Ms Alcock to Dr Veness for treatment in 2003. He diagnosed her as suffering a Major Depressive Illness and Generalised Anxiety Disorder. In the opinion of Dr Veness these conditions “have evolved from an adjustment disorder, which resulted from the chronic pain and the consequent losses in job and other activities. The development of these more major conditions resulted from the failed attempt at rehabilitation”[30] When he gave evidence Dr Veness confirmed his opinion that the New Horizons rehabilitation program had been forced on Ms Alcock when circumstances were not appropriate (as she was subject to other psychological pressures) and without proper preparation, particularly as at the time she had been off work for ten years.
[30] Ex.A5, doc.61.
73. Dr Veness’ opinion is supported by Dr Knox. In 2006 Dr Knox diagnosed Ms Alcock as suffering mild chronic Major Depressive Disorder, Generalised Anxiety Disorder and Panic Disorder. He is of the opinion that Ms Alcock’s psychiatric conditions have been present since her attendance at the New Horizon’s program and that “there is a strong connection between [her] initial physical injuries, the subsequent rehabilitation program and her subsequent chronically disturbed mental health.”[31] Dr Knox indicated when questioned that he was not aware of all of the stressful events which had occurred in Ms Alcock’s life prior to the rehabilitation program but he said that having been made aware of these and subsequent matters such as Ms Alcock’ gambling, his opinion as to her condition remained unchanged.
[31] Ex.A5, doc.69.
74. In June 2006 Dr Glaser, Consultant Psychiatrist, assessed Ms Alcock, at the request of Comcare, for the purposes of these proceedings. Dr Glaser diagnosed Ms Alcock as suffering a chronic Adjustment Disorder with Anxiety and depressed Mood[32] which probably had its onset around 1993 and was initially a response to marital difficulties and injuries suffered in the 1993 accident. When questioned he indicated that in reaching this conclusion he had been unaware of the extent of the distress Ms Alcock was suffering at the time of the rehabilitation program, but he did not agree that this indicated that the cause of the distress was the course itself.
[32] Ex.R1.
75. In his report of 5 July 1994[33] (i.e. before the rehabilitation program), Dr Dunlop reported that the possibility of a major financial loss arising from the 1993 motor vehicle accident “posed a significant additional stress” on Ms Alcock and that “a further set of issues arose from an unexpected pregnancy early in 1994 and subsequent miscarriage in April.”
Dr Dunlop further stated:
“She reports her mood had been relatively good prior to the motor vehicle accident in December. Because of the sequence of events noted above, she reports increasing stress levels, anxiety, irritability and difficulties with her relationships with her husband and children.”
[33] Ex.A5, doc.27.
76. Also in 1994 [34] Dr Tymms reported that it was not surprising that there had been a flare up in the pain Ms Alcock was experiencing in her arms “with significant stressful life events over the last twelve months.” Dr Tymms referred to the motor vehicle accident, the unexpected pregnancy, the miscarriage and the rehabilitation course. However Dr Tymms observed that “[the] course is not stressful although Mrs Alcock does not see herself returning to the workforce.”
Ms Alcock gave evidence that she could not remember telling Dr Tymms that the course was not stressful and that in fact the course was very stressful.
[34] Ex.A5, doc.37.
D3. Reasoning
77. Having considered the evidence we have referred to, we are satisfied that since about 1994 Ms Alcock has suffered a psychiatric condition which is an “ailment” within the meaning of the definition in section 4 of the Act. However we need to be further satisfied that this condition was contributed to in a material degree by Ms Alcock’s employment before we can be satisfied that Ms Alcock has suffered a disease and therefore an injury as defined.
78. None of Dr Veness, Dr Knox nor Dr Glaser had the advantage of assessing Ms Alcock at the time or shortly after her involvement in the New Horizons program, although they did have access to various records as to her condition nearer that time. Dr Veness has the advantage of being Ms Alcock’s treating specialist who has assessed her on several occasions. However having considered the various opinions carefully, we cannot reach the required degree of satisfaction that the psychiatric condition was contributed to in a material degree by Ms Alcock’s attendance at the New Horizons program in 1994. Dr Glaser has provided a detailed and comprehensive report and maintained his view that other stressors contributed to Ms Alcock’s condition, and that the contribution of her employment (if any) was negligible. None of the doctors’ varying opinions have been shown to be unreliable to the extent that we should prefer one opinion over another.
79. In reaching this conclusion we have assumed that had Ms Alcock’s attendance at the program contributed in a material degree to her condition this would have satisfied the requirement that her employment contributed to the condition in a material degree. In the light of our conclusion it is not necessary that we determine this issue in this application.
DECISION
Application A2005/196
80. The decision of Comcare made 27 June 2005 (Reconsideration No.118473) is set aside.
81. In substitution it is decided that Comcare is liable to pay compensation to Ms Alcock in respect of the accepted injury of repetitive strain injury on the following basis:
1)that Ms Alcock has been totally incapacitated for work for the period from 11 September 2003 to the date of this decision;
2)that Ms Alcock is entitled to be compensated for medical treatment that it was reasonable for her to obtain in relation to the accepted injury during the period referred to.
Application A2006/120
82. The decision of Comcare made 2 May 2006 (Reconsideration No.119208) is set aside.
83. In substitution it is decided that the accepted injury of repetitive strain injury has resulted in a permanent impairment of ten per cent and Comcare is liable to pay compensation to Ms Alcock pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the injury.
Application A2006/121
84. The decision of Comcare made 2 May 2006 (Reconsideration No.119207) disallowing Ms Alcock’s claim for compensation for an injury being a psychiatric condition is affirmed.
Applications A2005/196 and A2006/120
85. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Ms Alcock.
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M.D. Miller AO, Member.
Signed: .....................................................................................
Geoff Foley, Associate
Date/s of Hearing 14-16 May, 14 September 2007
Date of Decision 7 December 2007
Counsel for the Applicant Robert ClynesSolicitor for the Applicant Slater & Gordon inc. Gary Robb & Associates
Counsel for the Respondent Lorraine Walker
Solicitor for the Respondent Australian Government Solicitor
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