Anderson and Comcare

[2008] AATA 554

Administrative Appeals Tribunal

DECISION AND WRITTEN REASONS FOR DECISION [2008] AATA 554

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/581

GENERAL ADMINISTRATIVE DIVISION		)                 2007/1004
Re		CATHERINE ANDERSON

Applicant

And COMCARE

Respondent

DECISION

Tribunal   Senior Member, Mrs Josephine Kelly
  Dr I Alexander, Member

Date of decision                26 May 2008

Date of written reasons    30 June 2008

Place  Sydney

Decision   We affirm the decisions under review.

.......................[sgd]......................

Presiding Member
  Senior Member, Mrs Josephine Kelly

WRITTEN REASONS FOR ORAL DECISION

1. After the conclusion of the hearing of this matter in Sydney, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons.  The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and is furnished to the Applicant and to the Respondent. 

CATCHWORDS

COMPENSATION – Department of Immigration & Citizenship officer - claim for right arm condition - permanent impairment – household services - previously accepted claim for epicondylitis and tendonitis – whether suffers right arm condition or injury – whether caused by employment – medical opinion considered – held epicondylitis resolved – existing symptoms not caused by employment – reviewable decisions affirmed

Safety, Rehabilitation and Compensation Act 1988, ss 16, 19

WRITTEN REASONS FOR ORAL DECISION

30 June 2008 Senior Member, Mrs Josephine Kelly
Dr I Alexander, Member    

1.      This is the tribunal’s decision in the matter of Catherine Anderson and Comcare.  Ms Catherine Anderson has an accepted compensation claim for “right lateral epicondylitis and exterior tendon – tendonitis” sustained in 1995 in the course of her employment with the predecessor of the Department of Immigration and Citizenship.  We presume that the use of the word “exterior” was an error and that the word “extensor” was intended. The two proceedings before us concern Ms Anderson’s claims made in 2005 for permanent impairment affecting her right arm and for the provision of household services. 

2.      The issues that arise are:

(1)      Does Ms Anderson suffer a condition that affects her right arm?

(2)      If so, is it relevantly caused by her employment?

(3)      If so, does she suffer a whole person impairment?

(4)      If so, what is the extent of that impairment?;  and

(5)      If Ms Anderson does suffer a condition affecting her right arm as a consequence of her employment, is she entitled to household services and, if so, to what extent?

BACKGROUND

3. The following is not in dispute. Ms Anderson was paid benefits for the accepted conditions pursuant to s 19 and s 16 of the Safety Rehabilitation and Compensation Act 1988 for the period 13 December 1995 through the first half of 1997.  She commenced maternity leave in August 1997 and only returned to work on a part time basis between November 1999 and mid-February 2000. She resigned in January 2003.  She sought no treatment for the symptoms of which she complained from 1997 to the present.  She said that there was no point because she could not be helped. 

4.      Ms Anderson’s first child was born in September 1997, her second in March 2000 and her third in October 2004.  She is very busy looking after her children, including taking the older two to numerous activities outside of school, participating in school activities and taking the youngest to play group.

THE CASE FOR MS ANDERSON

5.      Ms Anderson relies on the evidence of Dr Lawford, rheumatologist, who treated her from 1995 to 1997 and Dr Dixon, orthopaedic surgeon, who provided a medico-legal opinion in February 2006.  We understood Mr Trainer, counsel for Ms Anderson, to rely also on the opinion of Associate Professor Youssef to the extent that he diagnosed mild epicondylitis when he saw Ms Anderson in August 2005, although, in his opinion, it had never been caused by her employment.  By the end of the hearing we did not understand Mr Trainer to rely to any extent on the report of Mr Mangipudi, occupational therapist, who had prepared a report about Ms Anderson’s need for household services. Rather, in relation to household services, we understand Mr Trainer to rely on the evidence of Ms Anderson and her husband, Mr Anderson.

CONSIDERATION

6.      We heard oral evidence from each of the medical practitioners as well as having reports which they had prepared.  Following is a summary of the diagnoses provided by the medical experts.

7.      Dr Lawford’s diagnosis when he saw Ms Anderson in November 2005 was regional pain syndrome involving the right arm with no physical signs to support a diagnosis of epicondylitis.  In his report dated 9 February 2006, Dr Dixon made no diagnosis but simply concluded that Ms Anderson suffered residual symptoms in her right elbow as a result of epicondylitis in 1995.  During his oral evidence, Dr Dixon asserted that Ms Anderson suffered from continuing unresolved epicondylitis since 1995.

8.      We are not persuaded by Dr Dixon because we find he took no history for the period 1997 to 2005 but simply concluded that the tenderness he found at the lateral epicondyle and right radio humeral joint was as a result of Ms Anderson’s epicondylitis in 1995.  He conceded that most cases of epicondylitis resolved with treatment however, when trying to explain Ms Anderson’s condition, seemed to imply that all cases of epicondylitis never really resolve, but may become symptomatic whenever there was increased physical activity of the right arm. We note that he did not agree with the diagnosis of a regional pain syndrome given by Dr Lawford.

9.      In a report dated 10 August 2005 Associate Professor Youssef diagnosed mild right lateral epicondylitis.  In his oral evidence Professor Youssef asserted that the lateral epicondylitis in 1995 had resolved and that his current diagnosis represented a de novo condition which was not related to Ms Anderson’s previous episode in 1995 and is not work related.  Furthermore, he indicated that carrying children, breastfeeding, hand washing and wringing clothes can lead to mild lateral epicondylitis.

10.     In her report dated 20 July 2007, Dr Pascall, occupational physician, gave the opinion that Ms Anderson was currently not suffering from any injury but that she does suffer symptoms of muscle fatigue after performing forceful and repetitive tasks with her right arm.

11.     We accept the evidence of Associate Professor Youssef, which was supported by Dr Pascall, that the term regional pain syndrome is a description of symptoms and does not explain the underlying pathology.  We do not consider that Dr Lawford’s diagnostic label of regional pain syndrome assists us.  We note that he saw Ms Anderson for the first time in eight years in November 2005, for the purpose of the claims the subject of these proceedings.  We find that he relied entirely on Ms Anderson’s reporting of continuing symptoms from 1997 to 2005 to link her current condition with her injury at work. He noted that she had not sought any form of treatment since 1997. 

12.     Dr Lawford and Dr Dixon were of the opinion that the condition each diagnosed was causally related to the accepted condition.  Associate Professor Youssef and Dr Pascal did not.  

13.     Dr Lawford saw Ms Anderson for the first time in December 1995.  He diagnosed “work related extensor tendonitis of the right hand” with signs of “mild right lateral epicondylitis” (our emphasis).  In a report dated 14 March 1996 Dr Lawford noted that Ms Anderson had no signs of tendonitis in the hands and that there were very mild signs of right lateral epicondylitis. By December 1996, he noted very mild signs of right lateral epicondylitis and that Ms Anderson was tolerating typing up to four hours per day.  In a letter dated 27 March 1997 he noted that Ms Anderson’s lateral epicondylitis was asymptomatic and suggested that physiotherapy could be stopped.  In a letter dated 26 June 1997 Dr Lawford wrote that Ms Anderson’s right arm had been mainly asymptomatic over the previous few months and that she still complained of difficulty with lengthy typing duties.  He found no sign of epicondylitis at that time.  He discharged Ms Anderson from his care. Dr Lawford at that time provided Ms Anderson with a certificate, noting resolved lateral epicondylitis, but suggesting restricting typing from up to four hours a day for an indefinite period.

14.     Mr Trainer claimed that the restriction of four hours typing certified by Dr Lawford in June 1997 supported his argument that Ms Anderson was still suffering from epicondylitis at that time.  In our opinion Dr Lawford imposed the four hour typing restriction to prevent relapse during an indeterminate period immediately following Ms Anderson’s recovery.  We do not accept that on the single certificate the use of the word “indefinite” means for years into the future.

15.     Another piece of evidence referred to by Mr Trainer to argue that Ms Anderson’s condition had not resolved in June 1997 was an email dated 16 May 1997 from Ms Anderson to two people we infer were her superiors.  In that email Ms Anderson stated that her right arm and elbow had been good for quite a while but that she had had soreness each day during the week of 13 May 1997 and had been doing less typing to try and give it a break. 

16.     Mr Trainer also pointed to the following evidence in establishing that Ms Anderson continued to suffer right arm pain from June 1997 until 2005 and continuing to the present. First was Ms Anderson’s evidence about continuing pain since 1997 when undertaking activities such as writing Christmas cards at the end of 2004, pushing a pram, vacuuming and cleaning showers and baths.  Second, was Mr Anderson’s evidence of Ms Anderson’s difficulties.  Other contemporaneous evidence includes the following.  In April 1999 Ms Anderson’s general practitioner noted a number of pains affecting her feet, right elbow, wrist and forearm.  In a letter dated 9 July 1999 about arranging to return to work on a part time basis Ms Anderson stated that:

an additional issue is my work induced RSI condition which though improved during my period of leave appears to be a permanent condition.

17.     She referred to the physiotherapy she had had and stated:

I therefore believe I will need to return to keyboard work gradually so that the problem does not deteriorate.

18.     In December 2002 when she was refused an extension of leave without pay by her employer Ms Anderson decided to resign.  In the letter Ms Anderson wrote to her employer she said:

As this represents the termination of my employment I would like to raise another issue. 

19.     She referred to her RSI suffered in 1995, the extensive physiotherapy treatment organised by Comcare and said:

However, the problem was never fully resolved.  Since that time I have continued to experience problems with RSI.  Whilst remaining an employee of the Department with the potential to access support services I have taken no action in regard to seeking compensation.  Thus I would appreciate it if you would please advise me on my options regarding future treatment or compensation.

20.     On 7 February 2005 Ms Anderson wrote to Comcare requesting a copy of her file.  Comcare sent the file under cover of a letter dated 16 February 2005.  The next reference to pain in her forearm noted by her general practitioner was on 12 March 2005:

R forearm pain pushing pram, writing, tennis.  Occurs with use, better than before.  Pain when holding baby, after pushing pram, vacuuming.  Requires help for cleaning baths etc..

21.     Further entries referring to the right arm pain were made in June and September 2005.  The last entry in the clinical records which is not related to the right arm is difficult to decipher, but appears to be 29 June 2006.

22.     Ms Anderson’s renewed compensation claim was dated 29 March 2005.  She says that she has had to significantly alter her life to compensate for the injury including the use of paid domestic help and any avoidance of tennis and squash.  She said that experiencing significant pain when writing 2004 Christmas cards and letters made her finally decide:

That it was totally unreasonable that I should be required to tolerate this pain on an ongoing basis.

CONCLUSIONS

23.     Are the symptoms Ms Anderson complained of in 2005 to the present relevantly caused or contributed to by her employment?  Having considered all of the evidence before us we find that they are not. 

24.     On a fair reading of Dr Lawford’s reports in 1997, we are satisfied that, when Ms Anderson stopped seeing him in June 1997, her epicondylitis had resolved.  Dr Lawford had found Ms Anderson to be asymptomatic for some months and he had also found no signs of the condition for some months.  In our opinion Dr Lawford imposed the four hour typing restriction because he had tried for some time unsuccessfully to have Ms Anderson increase her typing beyond four hours.  It was a precautionary measure.

25.     While we accept that Ms Anderson believes that she has continued to suffer symptoms over the years, the only reference to right arm or wrist pain in her general practitioner’s clinical notes between 1997 and 2005 is in April 1999.  We accept that she had been very busy with her children.  However, she had attended medical practitioners many times over the intervening years for various conditions.  If her right arm was causing her pain we do not accept that should would not have complained as she did in 1999.  That she did not complain suggests that her right arm was not causing her any difficulties.

26.     Although Ms Anderson referred to her condition in the correspondence to her employer in 1999 and 2002, as summarised above, she took no steps to claim compensation from Comcare.  This supports our opinion that the symptoms that she was suffering during those years were not sufficiently significant to seek medical assistance or pursue her right to compensation following her 1995 injury. 

27.     Further, we find it somewhat curious that Ms Anderson said that the pain caused by writing Christmas cards and letters in 2004 prompted her to renew her compensation claim but she did not consult her general practitioner about that problem until March 2005 when she was in the process of resurrecting her claim.

28.     We find that Ms Anderson may have suffered episodes of right arm pain since 1997, however, we are not persuaded that they arose out of, or in the course of her employment.   

29.     We found the written and oral evidence of Professor Youssef about lateral epicondylitis to be comprehensive and the most persuasive evidence.  Therefore we accept his evidence that Ms Anderson’s present right arm symptoms represent a de novo condition and are not work related.   Given our conclusion it is unnecessary to consider whether Ms Anderson suffers a permanent impairment or requires household assistance.

DECISION

30.     For the above reasons, we affirm the decisions under review.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Dr I Alexander, Member.

Signed: ………[sgd]..………..

Steven Mulipola, Associate

Date of hearing:  22 and 23 May 2008

Date of oral decision:  26 May 2008

Date of written reasons:                 30 June 2008

Counsel for the Applicant:             Mr J Trainer

Solicitors for the Applicant:           Maurice Blackburn Lawyers

Counsel for the Respondent:        Mr M Best

Solicitors for the Respondent:      Dibbs Abbott Stillman