Barker and Telstra Corporation Limited
[2003] AATA 757
•5 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 757
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2001/175
GENERAL ADMINISTRATIVE DIVISION ) Re Colleen Michelle BARKER Applicant
And
Telstra Corporation Limited
Respondent
DECISION
Tribunal Mr G A Mowbray Date5 August 2003
PlaceCanberra
Decision The Tribunal varies the decision under review as follows:
(a) The determination of 4 June 1996 is set aside, and in substitution therefor the Tribunal decides that:
(i) Ms Barker’s compensable condition suffered on 5 June 1995 was one of tenosynovitis of both forearms (more left than right);
(ii) Ms Barker continued to experience this condition as at June 1996;
(b) The determination of 13 August 1999 is affirmed.
The Tribunal orders Telstra to pay Ms Barker’s costs as agreed or taxed.
..................[signed]...................
Member
CATCHWORDS
COMPENSATION – tenosynovitis – tendonitis – nature of compensable condition – whether condition resolved in 1996 – whether condition resolved at later date – whether current symptoms due to non-compensable motor vehicle accident
Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 19
Re Carson and Telstra Corporation (2001) 33 AAR 351
Lees v Comcare (1999) 29 AAR 350; 56 ALD 84
Australian Postal Corporation v Oudyn [2003] FCA 318
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Commonwealth v Borg (1991) 20 AAR 299n
Comcare v Nichols [1999] FCA 209
Re Musumeci and Department of Health (Northern Territory) (AAT 5957, 5 June 1990); (1990) 19 ALD 797
Australian Postal Corporation v Lucas (1991) 33 FCR 101; 25 ALD 266; 14 AAR 487
REASONS FOR DECISION
5 August 2003 Mr G A Mowbray 1. This is an application for review of a decision by GIO Australia as delegate of Telstra Corporation Limited (“Telstra”) which affirmed two previous determinations that Telstra was no longer liable to pay compensation in respect of conditions for which it had previously accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
2. The Tribunal heard this matter on 6 and 7 May 2002. Ms Barker was represented by Ms Lorraine Walker of counsel and Telstra was represented by Mr John Wallace of counsel.
Background and History of the Application
3. On 25 June 1995 Colleen Barnes (as she then was) claimed compensation for an injury to her left wrist and left elbow sustained on 5 June 1995. She indicated in her claim form that she had started experiencing pain while typing at work. On 22 November 1995 Telstra accepted liability for what it described as “temporary aggravation of tenosynovitis of both forearms”.
4. Telstra informed Ms Barker that it proposed to cease liability for her claim on 7 May 1996 and acted on that intention on 4 June 1996. More detail of the circumstances surrounding that determination is set out later in these reasons. Ms Barker did not seek a reconsideration of the determination at that stage.
5. On 7 May 1997 Ms Barker was involved in a motor vehicle accident. Her car was hit from behind while she was driving to work. On 28 July 1997 she completed a compensation claim for “cervical muscle spasm/pain left arm”. On 30 July 1997 Telstra accepted liability in respect of “cervical muscle spasm and tenosynovitis left arm".
6. Telstra determined it was no longer liable to pay compensation in respect of this second claim on 13 August 1999. The circumstances surrounding this determination are a matter of dispute between the parties. Again, Ms Barker did not seek a reconsideration of this determination at the time.
7. Ms Barker ceased her employment with Telstra on 5 February 2000. On 10 June 2000 she was involved in a severe head-on collision while travelling to her employment with a Commonwealth agency. It is not in dispute that this accident caused serious physical and psychological injuries and resulted in an ongoing incapacity for work. Comcare has accepted liability for a range of conditions and paid both medical treatment expenses and incapacity benefits.
8. On 8 January 2001 Ms Barker’s solicitors forwarded accounts to GIO Australia for reimbursement. On 12 January 2001 GIO informed the solicitors that the accounts could not be processed because Ms Barker’s “claim” was ceased and closed on and from 13 August 1999. On 9 March 2001 Ms Barker’s solicitors requested “that her matter be reopened and liability accepted”.. GIO initially responded with a letter that referred only to the determination of 4 June 1996, however the following reconsideration treated the request as also relating to the determination of 13 August 1999.
9. On 19 April 2001 GIO Australia as delegate of Telstra decided to affirm the determinations of 4 June 1996 and 13 August 1999. The Tribunal received an application for review of that decision on 24 April 2001.
Legislation
10. The following provisions of the Act are relevant. Section 19 is reproduced as it was before the amendments made by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act2001 (these amendments only apply to determinations made after 1 April 2002 – see Schedule 2, Part 3, item 20)
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
“aggravation” includes acceleration or recurrence.
…
“disease” means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
…
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…”
“16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…”
“19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks…
(3) Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation…
…”
Issues
11. In broad terms the issues before the Tribunal are
· what condition Ms Barker suffered from in 1995
· whether she continued to suffer from that condition as at 4 June 1996
· whether she continues to suffer the same condition.
Evidence
12. The documentary evidence before the Tribunal consisted of “T-documents” filed under section 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T103), Ms Barker’s documents A1 to A5 and Telstra’s documents R1 to R12. Oral evidence was given by Ms Barker, Dr Ireland, Ms Barker’s treating orthopaedic surgeon, Dr Rivett, a medico-legal consultant in musculoskeletal injuries and Dr Muirden, a consultant rheumatologist.
Evidence of Ms Barker
13. Ms Barker gave oral evidence that her very first job in Telstra had been as a data entry operator. She had not experienced any problems with typing at that time.
14. Some time prior to her compensation claim she had lost her previous supervisory position in a restructure and had become a Customer Service Officer. Her existing skills meant she was temporarily assigned to policy work rather than her new substantive position, but this only lasted six months. She returned to duty as a Customer Service Officer which involved receiving telephone calls and “typing all day”. It was not dedicated data processing work but there were lots of notes required to record conversations. She was only entitled to three breaks during the day.
15. About six weeks after she began this work she experienced a burning sensation in her left wrist and swelling. The burning sensation travelled up her arm to her elbow, which also became swollen. She went to see her local doctor, who diagnosed an occupational overuse syndrome and advised her to use only her right arm for her work and take a 10-minute break each hour. She was also prescribed some anti-inflammatory medication which she discontinued as it led to vomiting and nausea.
16. Unfortunately she began to experience the same symptoms in her right wrist. She returned to her doctor and was referred to Dr Ireland. He instructed her to stay off work for a period. She had physiotherapy 3 or 4 times a week and wore splints on each arm. The splint for the left arm was longer and that arm was also in a sling.
17. After some time off she returned to work on a rehabilitation program. She worked fewer hours and did not do any keying. Her duties mainly consisted of photocopying and running errands. At a later stage in her rehabilitation she moved to the Insolvency section where she spent a lot of time on the phone but also started doing some typing. On at least one occasion her symptoms were aggravated by this. She also increased her hours of work.
18. Telstra referred her to a Dr Preston for assessment. Dr Preston suggested the possibility of arthritis but a blood test proved negative. Following a second assessment by Dr Preston Ms Barker was ordered back to full time work and her rehabilitation program ceased. She did not feel she was in a position to challenge this decision as it would only be reconsidered with further medical evidence and Telstra already had all of Dr Ireland’s reports.
19. She continued to have some symptoms in her arms and her team leader was aware of the problem. She managed her condition by avoiding keying and focussing instead on phone calls. She wore splints on her arms at work on and off through this period and used gels, but received no active treatment by doctors in the period August 1996 to May 1997.
20. In about 1996 Ms Barker purchased a horse. Prior to that she had not ridden since childhood. She denied that she used her arms a lot in order to ride. She would stand on milk crates to mount the horse so that she did not have to grasp the saddle and could simply swing over the horse while holding the reins in her left hand. While riding she held both reins in her right hand (known as “Western style” riding) and merely guided the horse. She did not ride often, especially later when she was in a management position.
21. She acknowledged having two riding accidents and accepted April 1997 as the possible time of the second. She recalled injuring her right calf but did not remember injuring her left knee or left elbow. She suggested that the injuries other than to her right calf were relatively minor and could have been merely bruising.
22. She accepted that she had attended general practitioners in this period without mentioning ongoing symptoms of tenosynovitis. She was attending because of other issues and did not want to mix multiple issues in a single consultation. But she asserted that she had experienced all the symptoms since 1995.
23. When Ms Barker was involved in a motor vehicle accident in May 1997 the symptoms in both of her arms “flared up”, especially in the left arm. She also suffered a neck strain which she described as a muscle strain. She did not recall her neck pain from the accident radiating into her upper arm and down to her elbow as recorded by Dr Morton, but accepted this was possible.
24. She had two weeks off work. When she returned she was working as a trainer and was able to avoid use of her arms. She also saw Dr Ireland again and had a steroid injection in her left elbow to relieve her symptoms, although it did not take away the pain altogether. She did not have any time off work related to this condition after August 1997.
25. On 17 November 1997 she began a new position as manager of a Telstra call centre in Goulburn. She was in charge of about 75 staff and had a secretary who performed her typing for her with the exception of e-mails. When typing e-mails she would have a break every ten minutes. She agreed that she was able to avoid prolonged typing for the remainder of her employment with Telstra. Nevertheless she continued to suffer pain in her arms and at night would use a sling, splints, elbow brace and gels. She deliberately kept staff unaware of her problems because there was a relatively high rate of compensation claims at the call centre and she did not think it was appropriate for them to know the manager had problems as well. Only her next in charge at Goulburn knew and she did not tell her superior who was located in Brisbane. Outside of work she continued to have problems with any arm use, for example lifting or pushing objects, turning taps or cleaning.
26. She worked full time and did not seek medical treatment for her condition while working at the call centre. At her last consultation with Dr Ireland shortly before transferring to Goulburn he had said there was nothing more he could do for her. That consultation had been for a third steroid injection in the elbow, which only provided short-term and partial relief. She did not discuss her condition with her general practitioners in Goulburn as she did not see any point. She was consulting them on other matters and they were not specialists.
27. She did not think about claiming the cost of gels that she was using. She wanted to “move on” and not be a burden to the system. She considered she had done a fairly good job of rehabilitation herself instead.
28. Ms Barker disputed the accuracy and completeness of a file note of a telephone conversation written by Mr Tony Polverino of GIO Australia on 31 March 1999 (T86) which says in part
“Told me that she is now the Manager of the Nowra (sic) Call Centre and has no problems whatever. As manager she has a secretary to do most of the keyboard work necessary.
She has no problem with GIO ceasing her claim.”
She pointed to the clear error as to her location as evidence of the inaccuracy of the file note. She recalled having this conversation. Her recollection was that she had said she was handling her situation in the workplace and was working full-time so there was therefore no need for incapacity payments. Mr Polverino had said that if she had problems in the future liability could be accepted again. Her understanding had been that it would require a claim form and medical certificate in the same fashion as previous claims.
29. She did not challenge the determination ceasing liability made in August 1999 because she did not have any further medical evidence she could provide. She also considered from her previous experience as a manager that writing to the officer who made the determination would not make any difference – “I know how that part works”.
30. In any event Ms Barker did not make any further claims while she was working with Telstra. After ceasing her employment with Telstra in February 2000 she took a break from employment and was careful in her selection of new work in light of her medical condition. She was also pregnant at this time.
31. She undertook casual work two to three days a week as a recruitment officer for Alectus Personnel. Her work included conducting interviews, telephone calls and role playing sessions. There was no repetitive work on her part. She was subsequently approached by the Australian Competition and Consumer Commission (ACCC) to work in a call centre for a short term. She led a team of 13 staff conducting training. Her work was supervisory and had no repetitive components. Nevertheless she continued to experience “the same problems as always” in her arms.
32. After only 3 weeks of work with the ACCC she was involved in a serious motor vehicle accident, which led to claims with both Comcare and NRMA at common law for multiple injuries. Ms Barker said the jarring in this accident in 2000 affected her arms in a similar fashion to the 1997 accident but to a greater degree. Her arms were inflamed for about three months.
33. She agreed she had sought legal advice and seen a range of specialists following the 2000 motor vehicle accident. She also accepted she had not told several of them about her arm condition. This was because she was seeing them about the consequences of the motor vehicle accident, which did not include her arm condition. In addition her other injuries were far more serious. It was the effects of the motor vehicle accident that the doctors were examining her for. In the case of Dr Goldberg she was specifically seeing him for her shoulder injury and he was a specialist in that area, so her forearms were not relevant.
34. She similarly did not tell a pain clinic in Sydney about her pre-existing arm condition. She was there for treatment of new pains due to the motor vehicle accident and had been able to manage her arm pain by herself for several years. She told them of her previous whiplash injury in the 1997 motor vehicle accident because that was relevant to what was being treated.
35. In June 2001 Ms Barker described her symptoms as
· burning, aching, throbbing, swelling and weakness in the left and right forearm and left elbow
· inability to lift weights
· difficulty engaging in twisting, pushing, pulling activities, typing or writing (Exhibit R3).
36. She confirmed that she still experienced these symptoms in May 2002. Ms Barker said the condition of her arms was essentially similar to their condition prior to the 2000 motor vehicle accident. It was slightly worse than it had been at Goulburn because she was caring for her son. Problems caring for him were contributed to by her other injuries, particularly to her shoulder, but her arms caused problems with removing and replacing lids and shaking bottles. She had to hold him in her left arm so that she could use her right arm. Her weight had increased since the motor vehicle accident and she was on a range of pain medications as a result of the injuries sustained in that accident.
37. Her arm symptoms were of a similar kind to when her problems had begun in 1995. Symptoms were present at all times but worsened at particular times and the exact symptoms would vary from day to day. She had swelling of her left elbow and both wrists, which she demonstrated to the Tribunal. She agreed that some doctors had said not all the swelling was due to tenosynovitis and that instead she may have a ganglion on her wrist. She would not have told Dr Rivett the swelling on her left wrist occurred in 1997. She would have said it occurred after her initial symptoms in 1995.
38. She needed steroid injections for symptomatic relief but also required these injections for her shoulder injury due to the 2000 motor vehicle accident and was told she could only have a total of 4 injections per year. A general practitioner had suggested physiotherapy but she did not want to pursue this as she now found physiotherapy only worsened her symptoms. She intended seeking another specialist opinion about her elbow and left wrist.
Consideration of Issues and Findings
“Cease liability/effects” decisions
39. As I have said before, in many “cease liability” or “cease effect” decisions under the Act there appears to be a misunderstanding of the nature and effect of the determination that is made and of the statutory provisions relied on. In Re Carson and Telstra Corporation (2001) 33 AAR 351 Deputy President Estcourt stated
“49. It would only be a rare case where a reconsideration of the substantive determination under s.14 that Comcare was liable to pay compensation in accordance with the Act would be warranted…
…
55. Telstra by its determination of 21 February 1995 was not, properly understood, denying those findings implicit in the original determination, it was merely determining that, on the available medical evidence, it was no longer liable for payment of medical expenses or incapacity payments.
56. That is to say, the effect of the determination that “liability in respect of this injury ceased on and from 5 February 1995” was not a decision to “cease liability” altogether or to “cease liability” under s.14, but rather a purported determination to cease the payment of compensation under s.16 and s.19 of the Act.”
40. Implicit support for this approach is found in Lees v Comcare (1999) 29 AAR 350; 56 ALD 84, especially at [34] upon which Deputy President Estcourt relies.
41. More recently Justice Cooper said in Australian Postal Corporation v Oudyn [2003] FCA 318
“30. The decision of the Full Court in Lees makes clear that a decision to accept liability under s 14 of the Act involves no more than acceptance of a liability to pay compensation under the Act in accordance with the provisions of the Act in respect of a particular injury. A decision to accept liability under s 14 of the Act involves findings as to the five elements identified by the Full Court in par [35] of its reasons.
31. The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act including s 24. These determinations give substance to the liability “... to pay compensation in accordance with this Act”, provided for in s 14. They do not require that the determination under s 14 of the Act to accept liability be reconsidered or revoked when the liability to pay under s 14 is satisfied by payment in accordance with the requirements of one or more of the other sections of the Act. The liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act. Once discharged it is terminated.
32. The power of APC to reconsider a determination under s 62 of the Act, when exercised in relation to a determination made under s 14, is a power limited to a reconsideration of one or more of the elements identified by the Full Court in Lees.. A determination on reconsideration that one or more of the elements did not exist is a determination that there was at no time a liability under s 14 of the Act to pay compensation for the particular injury. The position is different to, and to be contrasted with, the situation where a benefit is being paid under a particular section, in consequence of a determination having been made under s 14.
33. Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant. It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.
34. APC cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act: Plumb v Comcare (1992) 39 FCR 236 (FC) at 240. Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability, which correctly and effectively attached to APC in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury. The Act does not contemplate the making of such a determination once liability under s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 of the Act.”
42. I agree with and adopt these views. It is clear from these authorities that the determinations made by Telstra in this matter which purported to be made under section 14 of the Act were in truth determinations to cease compensation under other sections such as 16 (medical expenses) and 19 (incapacity payments).
The burden of persuasion
43. It is neither particularly apt nor appropriate to refer to a common law concept of a burden or onus of proof placed on a particular party in administrative proceedings in the Tribunal. However there has been a line of authority in both the courts and the Tribunal on what has been described as the “burden of persuasion” in these matters.
44. Where the relevant reviewable decision is one “ceasing liability” the authorities refer to an obligation on the Tribunal to be satisfied on the balance of probabilities that the particular condition has ceased. In Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 525 Justice O’Connor and Mr Barbour spoke of an obligation to produce material supporting a change in circumstances
“In our view, as it is clear from the statutory intention that the respondent can only reconsider a determination when there has been a change in circumstances, it seems justifiable to expect the respondent to be able to produce material in these proceedings supporting its assertion that the applicant is no longer entitled to compensation. There is no strict burden of proof as such but there must be additional evidence to indicate that there has been such a change in circumstances.”
45. Justice Jenkinson in Commonwealth v Borg (1991) 20 AAR 299n at 307 put it in these terms
“I think that the Act required on its proper construction that the delegate should not make the determination he did make unless he was persuaded that one of the entitling circumstances had on or before 28 July 1988 ceased to exist.”
46. In Comcare v Nichols [1999] FCA 209 Justice Heerey said at [22]
“In the present case, Mrs Nichols was receiving compensation in respect of an injury (RSI) which had been found in 1985 to result in incapacity for work. Comcare contended in 1996 that she no longer suffered from RSI. Comcare therefore had to establish this fact. Perhaps more accurately, it was the Tribunal, as an administrative decision-maker, which had to satisfy itself that this was the case. It was so satisfied.”
47. Nichols is consistent with the earlier authorities and is the approach I will adopt in considering the “cease liability” matter in these proceedings.
From what condition did Ms Barker suffer in 1995/6
48. The early history of Ms Barker’s condition includes a variety of descriptions and diagnoses
· in her claim form completed on 25 June 1995 (T5) she described her injury as “left wrist/elbow strain”. The initial symptom she describes is aching in her wrist
· a report from her supervisor completed on 27 June 1995 (T6) says “Colleen was typing at her desk when she experienced aching in her left wrist which spread to her elbow”. A brief witness statement from the supervisor (T8) similarly recorded “swollen left wrist, pain spreading to forearm and elbow”
· on 6 June 1995 Dr Morton, Ms Barker’s general practitioner, certified that she was suffering from left lateral epicondylitis (T3). The epicondyles are located at the elbow
· Ms Barker’s supervisor later reported that on 6 June 1995 that Ms Barker had arrived at work with a swollen wrist which was bandaged (T6)
· on 9 June 1995 Dr Kulisiewicz, another practitioner at the same general practice, certified left wrist tendinitis with a question mark (T4)
49. On 11 July 1995 Ms Barker was examined by Dr Cheetham of the Australian Government Health Service, who diagnosed “Resolved Repetitive Strain Injury to Bilateral forearms (left worse than right)” (T7). However her description of Ms Barker’s present condition and the clinical findings indicate ongoing symptoms
“[H]er condition has remained unchanged. She now is aware of intermittent mild pain after certain movements of her hands but generally is able to work and live normally as long as she takes regular breaks at work or if the pain returns.
…
There was mild generalised puffiness to her medical (sic) left elbow but it measured an identical diameter to the right (28.5cm).
Her forearms and hands did not appear swollen or inflamed.
She had full range of movement of her elbows, wrists and fingers.
There was some pain elicited in her left palm and medical (sic) distal forearm when abducting her fingers against force.”
50. On 4 August 1995 Dr Kulisiewicz certified Ms Barker as suffering left lateral epicondylitis and possibly tendinitis of the left wrist (T11). On 9 August 1995 she certified some form of tendinitis. The preceding word is not clearly legible but is likely to be “bil.” for bilateral. Dr Kulisiewicz later wrote a report of her treatment in this early period in response to enquiries from Telstra (T28)
“Miss Barnes presented to our surgery on the 6 June 1995 with complaints of left forearm pain, she was seen by Dr J Morton… I saw Miss Barnes three days later complaining that in despite of taking neurofen she felt worse, she complained of left elbow, forearm and some swelling at her wrist.
On examination, there was some decrease of active movement of the wrist and fingers of the left hand, some swelling, colour, pulses and sensation were normal… I saw Miss Barnes again on the 9 September 1995 (sic: most likely 4 August) complaining of worse pain over the ulnar side of her wrist above the elbow, the pain was worse after tapping (sic) at work and carrying shopping bags the previous day. On examination there was decreased active movement of the wrist, no swelling and no skin changes…
Miss Barnes was seen again on the 9 August 1995 with complaints of right hand pain after over using her right hand whilst tapping (sic) at work. On examination her wrist pain was on radial side and there was some wrist swelling, the pain worsening after finger movement…
Miss Barnes suffers from tendosynovitis (sic) related to the work she is doing.”
51. On 15 August 1995 Dr Ireland, an orthopaedic surgeon, completed his first certificate (T15) and report (T16) in relation to Ms Barker. Both diagnosed “tenosynovitis of both forearms”. The report included the following history and findings
“Apparently in June, after returning to data entry work from a management position for a period of time, began to get pain and swelling in the left wrist, radiating into the elbow.
She was placed on light duties for a period of a week, mainly using her right hand. She began to have minor discomfort in the right hand but the left settled down rapidly.
Throughout July, she was comfortable, although still working on reduced duties. In August the pain in the left wrist returned and she went to only using the right arm again, but this quickly deteriorated as well and currently she has pain and significant restriction in both arms.
…
On examination, she has generalised tenderness over both forearms, both flexor and extensor compartments, with some subjective diminution of sensation and power.
There was no evidence of any neurological or vascular compromise.”
52. Dr Ireland continued to diagnose tenosynovitis over the next several months. Medical certificates he wrote in that period vary in describing “tenosynovitis both forearms” (T15, T19, T23), “tenosynovitis both wrists” (T31) and “an elbow and wrist tenosynovitis” (T42). In oral evidence Dr Ireland indicated that when he examined Ms Barker her symptoms were originally in the wrist and forearm. Later there were a lot more symptoms around the elbows. Epicondylitis and tenosynovitis were part of a complex of symptoms and signs and it was not unusual for areas to join. The elbow pain was not referred from the wrist. This was demonstrated by the effect of steroid injections into Ms Barker’s elbow.
53. He confirmed that in his opinion the condition was due to the repetitive nature of Ms Barker’s work. While he acknowledged there was some controversy over the relationship of occupational overuse syndrome to work, tenosynovitis was a non-controversial subset with a known correlation with typing.
54. Telstra referred Ms Barker to Dr Preston for assessment in September 1995. Rather than attempting to set out her somewhat complex conclusions at this stage they appear in the discussion below. It is sufficient to note for present purposes that she eventually concluded Ms Barker was suffering from tendonitis (see T52). On her first examination (T22) her findings included
“Examination of the elbows revealed tenderness over the medial and lateral epicondyles in both left and right elbows, particularly the left.. There was also tenderness over both joint margins, particularly the left.
Range of movement was normal but discomfort was experienced in pronation and supination of the forearms in flexion and extension of the elbows in both upper limbs.
Examination of the wrists revealed tenderness over the joint margin. There was also pain along the common abductor extensor tendon sheath in both left and right forearms.
Pain on resisted wrist flexion and extension bilaterally produced pain in the wrist, but no discomfort at the elbows. There was a full range of movement at wrists, although both flexion and extension produced apparent discomfort.
…
There was tenderness over the right second and third and left second, fourth and fifth metacarpophalangeal joints. There was no flexor tenosynovitis in the hands.
There was a positive carpal tunnel compression test in the left hand.”
55. Telstra described the accepted condition as “temporary aggravation of tenosynovitis of both forearms” (emphasis mine). However, an examination of the process by which Telstra came to accept this description reveals that label to be flawed. It appears to have been used by Telstra in response to reports written by Dr Preston. In her first report on 19 September 1995 (T22) Dr Preston raised the possibility that Ms Barker suffered an underlying condition
“The possibility exists that this woman has an underlying arthritic process, most likely rheumatoid arthritis.
I note previous examinations which refer to tendonitis… but her symptoms and signs are more global on today’s examination and suggest a more diffuse process than isolated tendon lesions.
To further investigate this, I would recommend that she have a full blood count and erythrocyte sedimentation rate, rheumatoid factor testing of the serum, plain x-ray of the hands and feet and, if the above are normal, then possibly a bone scan to exclude an underlying inflammatory arthritis.
…
At the present time, I am not satisfied that she has isolated tendonitis of the elbow or wrist as the sole cause of her symptoms. The findings and history are more extensive and the possibility of an underlying arthritic process, most likely rheumatoid arthritis, needs to be considered. If she has rheumatoid arthritis, then this is not the responsibility of Telstra.”
56. Blood tests were subsequently performed (T25) and the results were forwarded to Dr Preston (T30). In her next report on 15 November 1995 (T33) Dr Preston commented on the results
“On the basis of these tests, there is no confirmation for an underlying inflammatory arthritis. This, however, does not entirely exclude the condition.
The diagnosis of rheumatoid arthritis has not been either definitively made or excluded. If she does have an underlying inflammatory arthritis, the conditions of her employment may have aggravated her symptoms with respect to the discomfort experienced in her wrists and hands.” (Emphasis added)
57. It was following this report that Telstra accepted liability for “temporary aggravation of tenosynovitis of both forearms”. However Dr Preston had clearly presented Telstra with two alternatives (see T22 and T33). Ms Barker was either suffering from tendonitis (or a related condition such as tenosynovitis) or she was suffering a temporary aggravation of an underlying inflammatory arthritis. At no stage had Dr Preston or any other medical practitioner suggested that Ms Barker was suffering from a temporary aggravation of a pre-existing tenosynovitis. There was no evidence that she had previously suffered any such condition or such symptoms in her wrist, forearm or elbows.
58. On 15 April 1996 Dr Preston wrote another report following a new examination of Ms Barker (T52). Her opinion was
“Given the gradual resolution of symptoms and negative blood tests a diagnosis of inflammatory arthritis seems unlikely. Symptoms in her right wrist have largely resolved. The ongoing symptoms in her left wrist and elbow appear to be due to tendonitis.”
59. This effectively removed one of the two alternative diagnoses Dr Preston had been considering. There was therefore no underlying condition and therefore no temporary aggravation of an underlying condition.
60. Liability for a condition does not require a precise diagnosis, so long as the required relationship with employment can be shown (see Re Musumeci and Department of Health (Northern Territory) AAT 5957, 5 June 1990; partially reported at (1990) 19 ALD 797) and Australian Postal Corporation v Lucas (1991) 33 FCR 101; 25 ALD 266; 14 AAR 487). In the same way Telstra’s liability should not be limited by its misdescription of the diagnosis of Ms Barker’s condition as a “temporary aggravation”, apparently on a misunderstanding of the medical evidence, when it had clearly otherwise accepted that medical evidence as to the nature of her symptoms, diagnosis of her condition and its relationship with her employment.
61. There appears to be also some confusion over the use of the terms “tendonitis” (occasionally spelt “tendinitis”) and “tenosynovitis” (occasionally spelt “tendosynovitis”) and in particular whether they are interchangeable. At one stage in oral evidence Dr Ireland appeared to equate the two terms. In his reports and medical certificates Dr Ireland consistently diagnosed tenosynovitis. On the other hand Dr Preston’s opinions consistently refer to the condition in question as tendonitis for both the elbow and wrist (T22, T52) with one notable exception that is discussed further below (paragraphs 69 and 71). She also described Dr Ireland as having diagnosed “tendonitis or tenosynovitis” and more generally referred to previous doctors as diagnosing tendonitis.
62. In his oral evidence Dr Muirden, a consultant rheumatologist, made a clear distinction between tenosynovitis and tendonitis based on whether or not there was a sheath surrounding the tendon. In his opinion it was a misnomer to speak of “tenosynovitis of the elbow” as only “tendonitis of the elbow” was possible. Conversely it was correct to speak of “tenosynovitis of the wrist”. He agreed however that the two terms were frequently interchanged.
63. The 3rd edition of Blakiston’s Gould Medical Dictionary published in 1972 relevantly defines tendonitis as “inflammation of a tendon” and tenosynovitis as “inflammation of a tendon and its sheath” (emphasis mine). The 40th edition of Black’s Medical Dictionary published in 2002 defines both tendinitis and tenosynovitis as “inflammation of a tendon”. The 3rd edition of Human Anatomy and Physiology by Elaine N. Marieb published in 1995 defines tendonitis as “inflammation of tendon sheaths” (emphasis mine). The discussion of tenosynovitis in the 2nd edition of Medicine and Surgery for Lawyers by Buzzard et al published in 1996 says that the condition “can occur in any tendon which runs in a tendon sheath” (emphasis mine).
64. These examples along with the evidence of Dr Muirden serve to illustrate that while there may be a distinction between the two terms a clear distinction is not always maintained.
65. On the evidence I am satisfied that the condition Ms Barker suffered from in 1995/96 was tenosynovitis of both forearms (more left than right).
Did Ms Barker still suffer from tenosynovitis at 3 June 1996
66. On 4 June 1996 Telstra determined that on and from 3 June 1996 it was no longer liable to pay compensation for “temporary aggravation of tenosynovitis of both forearms” (T62). This was because it was satisfied the effects of any such injury had now ceased (T63).
67. I have already indicated why I regard the description of Ms Barker’s condition as a “temporary aggravation” to be erroneous. I have also outlined the lack of a clear distinction between the terms “tendonitis” and “tenosynovitis”. It is in that context that events preceding Telstra’s determination of 4 June 1996 must be seen.
68. On 15 April 1996 Dr Preston re-examined Ms Barker. This was almost 7 months after her original assessment. In her report (T52) Dr Preston noted
“Since that time there has been a gradual improvement in Ms Barnes’ symptoms…
At the present time the right wrist is virtually asymptomatic. There are still intermittent symptoms in the left wrist and elbow after heavy lifting or typing…
…Symptoms in her right wrist have largely resolved. The ongoing symptoms in her left wrist and elbow appear to be due to tendonitis.
Given the improvement in symptoms, it is likely that Ms Barnes’s symptoms will gradually resolve. Conservative treatment should be continued and the mainstay would be an active physical therapy program.” (Emphasis added)
69. Telstra asked Dr Preston a series of direct questions to be addressed in her report (T51). In response to the question “Would you consider the temporary aggravation of tenosynovitis of both forearms to have now ceased.” Dr Preston replied
“I would consider the temporary aggravation of tenosynovitis of both forearms to have now ceased given symptomatic improvement.” (Emphasis added)
70. As a direct result of this report Mr Keith Dowling, a delegate of Telstra, notified Ms Barker on 7 May 1996 of its intention to cease liability (T54). This led to a series of phone conversations. On 8 May 1996 Mr Dowling recorded that Ms Barker had received the letter and
“Did not believe what was happening to her. Said Dr Preston told her she still had condition. I told her that’s not what the report indicated.” (T55)
The following day Mr Ron Stradbrook, a union representative, contacted Mr Dowling who recorded that
“He said Colleen indicated Dr Preston had said she should continue with light duties indicating her claim continued. I advised him that she may have an underlying condition which required restrictions but the medical evidence indicated the compensable condition had ceased.” (T57) (Emphasis added)
On 14 May 1996 Mr Dowling recorded
“Colleen rang re Dr Preston’s report. She disagreed with our interpretation that her condition had ceased because Dr Preston had indicated that she was still suffering from tendonitis and should continue on her [Return to Work] program.
I explained that her claim was for aggravation to tenosynovitis and Dr Preston had indicated that this aggravation had ceased…
Colleen believed tendonitis & tenosynovitis were the same. I said that was her opinion.” (Emphasis added)
71. Telstra was clearly confident in its interpretation of Dr Preston’s most recent report and saw no need to seek a clarification. I however find myself unable to share that confidence
· I am not satisfied that Dr Preston saw any distinction between tendonitis and tenosynovitis. I accept that some medical practitioners maintain a rigorous distinction between the two terms but there is evidence before me that the terms are often used interchangeably. Furthermore Dr Preston had consistently referred to Ms Barker’s condition as tendonitis but took no exception to a question about tenosynovitis. She also had been unconcerned to distinguish between the two terms when referring to diagnosis by other doctors including Dr Ireland
· Dr Preston clearly stated in her report that Ms Barker continued to suffer symptoms that Dr Preston attributed to tendonitis. This is entirely consistent with Ms Barker’s protest at T55 that Dr Preston had told her that her condition continued
· as I have previously demonstrated, there was no medical justification for Telstra’s apparent belief that Ms Barker’s symptoms at that time were contributed to by an underlying condition of tenosynovitis. In particular Dr Preston had never subscribed to that view. It is therefore unlikely that she considered the “aggravation” in question to be part of the description of the condition for which liability was in issue
· the apparent conflict in Dr Preston’s report between ongoing symptoms and a ceased aggravation disappears if the “aggravation” in question is understood as referring to factors aggravating the condition. In light of the improvement in Ms Barker’s condition her condition was no longer being aggravated by her work.. That is, the aggravation had ceased to act on the tenosynovitis. This is of course quite a different thing to saying that the tenosynovitis itself had ceased.
72. I venture to suggest that the confusion in language which appears to have arisen here is partly a consequence of the peculiar tendency of those of us who deal with the Act regularly to think of aggravations as separate medical conditions in their own right. While it is perfectly understandable for the purposes of assigning liability to describe an aggravation as a separate entity with an existence semi-independent from the underlying condition, to anyone outside the legal sphere it would be far more natural to think of a single medical condition that has been or is being made worse by an external factor.
73. In summary I consider it more likely than not that
· Dr Preston viewed tendonitis and tenosynovitis as interchangeable terms
· Dr Preston understood cessation of aggravation to refer to cessation of aggravating factors rather than to cessation of a condition that had been described mistakenly as an aggravation.
74. Having come to that conclusion I consider that there was simply no medical evidence to justify Telstra’s determination of 4 June 1996. Dr Ireland’s most recent report on 21 May 1996 (T60) had recorded “mild residual discomfort in the left forearm”. On the same day he certified her as suffering “tenosynovitis/tendinitis [left] forearm” and indicated she should avoid prolonged typing (T61). There was agreement between the medical practitioners that Ms Barker’s symptoms, though mild, were continuing.
75. I therefore find that Ms Barker was continuing to suffer tenosynovitis as at June 1996.
Does Ms Barker continue to suffer tenosynovitis
1996 to 1999
76. In a report dated 17 February 2001 (T96) Dr Ireland recorded that he had seen Ms Barker on 30 August 1996. She had noted discomfort in her elbows and underwent a steroid injection on that day.
77. On 7 May 1997 Ms Barker was involved in a work-related motor vehicle accident. On that day Dr Morton diagnosed her as suffering from “cervical neck spasm à pain [left] arm”, apparently implying a link between the two conditions (T65). In her description of the accident (T66) Ms Barker simply described her arm injury as “sore left arm”. She also said that the accident had jarred her neck, left shoulder and left arm and hand.
78. On 20 May 1997 Dr Ireland certified Ms Barker as suffering from tenosynovitis in her left arm (T67). He appears not to have written any reports during this period. In his report of 17 February 2001 (T96) he commented
“She was next seen on 20 May 1997… She had been in a motor vehicle accident on 7 May 1997 and this had aggravated her elbow. She returned hoping there would be a prospect of a further steroid injection as the previous one had given her good relief.
Examination at that stage revealed she was particularly tender around the elbow joint over both the extensor and flexor compartments.
I injected the elbow joint again and she was not seen again until 10 October 2000”
79. In oral evidence Dr Ireland said he should have recorded forearm or wrist symptoms if they were significant at that consultation. However in re-examination he said he did not always record Ms Barker’s specific complaints. He did not have any record of a horse accident or injury to Ms Barker’s elbow in April 1997. He would expect an elbow injury to be brought to his attention if it was significant.
80. At some point Ms Barker attempted to forward a medical account to Telstra but was advised she needed to complete a compensation form first (T69). When Ms Barker completed a claim for rehabilitation and compensation for both her neck and arms in late July 1997 she indicated the existence of her prior arm claim but provided little additional detail (T71). However her then supervisor attached a statement to the claim form (T73)
“I understand that Colleen has had a previous compensation claim approved for Tenosynovitis in both forearms injury on the 25th June 1995.
Due to the car accident, Colleen was off work for 4 days… Colleen had injured her shoulder, neck and left arm.
Colleen return (sic) to work on the 12th May 1997, however, she was still suffering from her injuries she sustained in the accident. Colleen’s Tenosynovitis in her left elbow and wrist was aggravated by the accident… as well as additional injuries to her shoulder and neck.
It was necessary for Colleen to return to her Orthopaedic Surgeon, Dr Ireland, for a steroid injection in her left arm to relieve the Tenosynovitis symptoms, it was necessary for her to take another 2 days sick leave… to recover from the injection in her arm.
During this time, Colleen work performance was greatly effected (sic). Colleen was not able to perform all of her normal duties (computer, keyboard work, telephone enquires (sic)) and was reduced to merely coaching staff during this time period.” (Emphasis added)
81. Telstra then accepted liability for “cervical muscle spasm and tenosynovitis left arm”. It is somewhat ironic that on this occasion the term aggravation was not used in relation to the arm condition.
82. On 9 September 1997 Dr Morton certified Ms Barker as suffering “Pain & swelling [left] arm [more than right] arm (TENOSYNOVITIS)” (T77) and unfit for work. Two days later Dr Kulisiewicz certified “TENDOSYNOVITIS due to overwork” (T78) and again certified Ms Barker unfit for work. On 15 September 1997 Dr Morton certified “Bilateral forearm pain [left more than right] (tenosynovitis)” (T79) but fit to return to her pre-injury duties from the following day.
83. There appear to be no more records in relation to this condition for some time. On 1 February 1999 Dr Morton provided a report to GIO Australia (T82) which refers to consultations in May 1997 and September 1997 but not beyond that, which is unsurprising when Ms Barker’s move to Goulburn is taken into account
“The above was seen on the 7th May 1997… On examination she had severe cervical muscle spasm and pain radiating to her left arm with tenderness in her left upper arm musculature. This was consistent with a whip lash type injury… Diagnosis of cervical muscle spasm and tenosynovitis of the left arm was made. She was placed on non-steroidal anti inflammatory drugs and given pain relief and was next seen on the 15th May 1997 when she still had pain of her neck that increased tenderness over lateral epicondryle (sic) on the left side. Because of the persistency of her pain she was referred to Dr Ireland who reiterrated (sic) the above statement and suggested continuing conservative mangement (sic) with physiotherapy. She was not seen untilt he (sic) 9th September 1997 when over use of her wrists and forearms have resulted in a flare up of the previous injury… She was seen on the 15th September 1997 when her pain and tenderness had settled and she wsa (sic) off medication and was referred back to full time duties.
In conclusion Ms Barnes had suffered a typical whip lash type injury necessatating (sic) anti inflammatories and pain relief and resulting in a soft tissue injury to the neck and left arm. However I don’t anticipate any long term sequelae.” (Emphasis added)
84. There was oral evidence in relation to an appointment with Dr Ireland on 28 October 1997 that Ms Barker did not attend. Dr Ireland said that he would normally have a follow-up appointment after a steroid injection. Initially Ms Barker was unsure why she did not attend but in re-examination said she had moved to Goulburn in October a couple of weeks before beginning her job as call centre manager (which commenced on 17 November 1997).
85. Ms Barker conceded in evidence that she had not consulted her general practitioner in Goulburn in relation to her arm condition.
86. When Dr Rivett examined Ms Barker in September 2001 the history he was given included the motor vehicle accident in 1997. He concluded that
“The accident in 1997 seems only to have given a possibly transient aggravation of the symptoms in the upper limbs and it is not possible to ascribe any particular portion of the problem to this.”
87. In May 1999 Dr Chandran, a neurosurgeon, reported
“I thank you for referring this lady who saw me on 30/4/99 with symptoms in her neck and arm…
She is now complaining of left-sided occipital frontal headaches, neck pain, with pain radiating into the left shoulder and left arm. She also has pain at the elbow with swelling. She does have a history of tennis elbow which has been treated with steroid injections.
…
Examination showed normal power and reflexes in the upper limbs with diminished sensation in the left thumb. The left elbow was tender suggesting tennis elbow in the lateral aspect.” (Exhibit A4, 3 May 1999)
“She complains of neck pain and headaches and I have suggested a left-sided facet block and also consider an injection into the left tennis elbow.” (Exhibit A5, 19 May 1999)
88. I note that there is little evidence covering the period from the May 1997 motor vehicle accident to the August 1999 cease liability determination. All the medical evidence points to the 1997 motor vehicle accident being at most an aggravating factor with no long term consequences in itself. The more pertinent question is whether the original compensable tenosynovitis continues to affect Ms Barker.
Dr Ireland
89. On 10 October 2000 Dr Ireland wrote a report after Ms Barker was again referred to him, this time by Dr Wilden-Constantin her general practitioner in Goulburn (T91)
“As you may be aware, she began to experience problems in 1995 while working as a data entry operator, and had pain in her forearms. This was treated with physiotherapy and steroid injections and she has managed on and off for quite some time with a more management style position rather than utilising the keyboard to some extent.
However, over the last three years she had had several flareups, with further aggravation following a motor vehicle accident, and more recently the birth of her child. She is very concerned about the weakness and the swelling in her arms, generalised arthralgia and the presence of some subcutaneous lumps.
It concerns me that we may be missing something here, and I have suggested that she see one of the Rheumatologists, Dr Ian Gotis Graham, for a further opinion.”
90. Dr Ireland reported on 29 November 2000 that “she has noted no significant improvement in her arms, and Dr Gotis-Graham’s investigations have revealed no underlying arthropathy” (part of Exhibit R5).
91. On 17 February 2001 Dr Ireland wrote a report for Ms Barker’s solicitors (T96). In it he set out the history of all his consultations from 1995 onwards and his referral to Dr Gotis-Graham for further assessment. He stated that Dr Gotis-Graham “felt that she had a regional pain syndrome”.. Nevertheless his own summary was that
“This lady has a tenosynovitis involving both forearms, precipitated by the repetitive nature of her work.”
92. On 26 November 2001 wrote a brief additional report (Exhibit A2) that stated essentially the same conclusion
“I consider, on the balance of probabilities, that your client’s current forearm condition is a direct result of her employment with Telstra, namely engaging in typing.”
93. In oral evidence Dr Ireland said that Ms Barker’s typing duties continued to contribute to her condition even though she had been removed from regular typing many years ago. It was not entirely surprising that her symptoms had continued. Many patients continued to have symptoms after ceasing repetitive activity. Any other repetitive activity or manipulative work with the forearms and hands would aggravate the existing condition. Once tenosynovitis had developed less repetition was required to aggravate it.. In re-examination Dr Ireland accepted opening mail as an example of an aggravating activity.
94. Ms Barker’s symptoms stemmed from 1995 and Dr Ireland did not think that Dr Gotis-Graham’s interpretation of “regional pain syndrome” had any bearing on that. He agreed that he had recorded significant improvement in her symptoms by May 1996 but he had no indication that she had ever made a complete recovery. It was possible to have low-level symptoms and the level of symptomatology could fluctuate.
95. Ms Barker’s horseriding was not inconsistent with continuing tenosynovitis. It was much the same as driving a car. She would continue to be able to perform activities with tenosynovitis.
96. While swelling was an old symptom, subcutaneous lumps were a new symptom he observed in 2000. He had no idea what they were or whether they were significant. He did not think Ms Barker had a ganglion on her wrist. The lumps may well have arisen from the 2000 motor vehicle accident, but he was unable to say whether that was more likely than the lumps having arisen from her original employment.
Dr Rivett
97. On 17 September 2001 Dr Rivett, a medico-legal consultant in musculoskeletal injuries, completed two reports after examining Ms Barker. His principal report (Exhibit A3) begins with a history including the following
“In May 1995 she was working for Telstra and was put on typing all day over a period of 6 weeks. She developed pain in the left wrist and forearm and deep in the elbow but there were no paraesthesiae. She was restricted to using her dominant right arm but this eventually developed similar symptoms. She was seen by an orthopaedic surgeon who prescribed anti-inflammatory drugs and she was off work for 5 months. She was treated with physiotherapy which gave only transient relief, and the wearing of forearm splints. She made a slight improvement but this recurred whenever she did any lifting or repetitive work. She was virtually obliged to resume work on a rehabilitation programme, but in fact was put on to doing nothing at all. She was technically on non-repetitive, non-heavy work but in point of fact there was nothing she could do. She eventually obtained a position in the Insolvency Group and coped with this.
She was involved in a car accident in 1997 when it was struck in the rear by a four wheel drive. This aggravated the symptoms in her upper limbs… She was off work thereafter for 2 weeks and wore the splints and had physiotherapy. She was given injections of steroid around the left elbow. She then obtained a job in directory assistance which did not involve any typing. She had difficulty with housework especially lifting, twisting etc. She tended to develop swellings at the left wrist (? Ganglia). She tried to cope with help but tended to drop objects. She eventually accepted redundancy. She thereafter did some light contract work but the swellings increased.”
The history also includes the motor vehicle accidents in 1988 and 2000 but no reference is made to arm symptoms arising from these accidents.
98. Much of the report relates to other parts of Ms Barker’s body. The examination findings and diagnoses related to the arms were
“Hand grip on the dominant right side was 170 mm of mercury and on the left only 50 mm.
In the left forearm there was slight tenderness of the extensor muscle bellies. Pain occurred on tensing the tendon of the abductor pollicis longus and extensor pollicis brevis. The wrist moved through a normal range. There was a small ganglion over the extensor carpi radialis area.
Right forearm: The only problem here was pain on tensing the abductor pollicis longus and extensor pollicis brevis.
…
In the left forearm there is abductor pollicis longus tenosynovitis and some mild generalised tenosynovitis. There is myofascial syndrome in the forearm extensors leading to weakness of hand grip."
Dr Rivett concluded Ms Barker’s forearm problems were consistent with “typing for Telstra”.
99. In his second report of 17 September 2001 (Exhibit R6) Dr Rivett assessed a permanent impairment of 20% due to problems with the left upper limb and 10% due to problems with the right upper limb. In a supplementary report of 1 October 2001 (Exhibit R7) he apportioned those impairments
“There is in my opinion a 14% impairment of whole person due to problems with the left upper limb attributable to employment with Telstra. There is a 6% impairment of whole person due to the left upper limb connected with the motor vehicle accident of June 2000.
In my opinion all of the impairment of 10% whole person in the right upper limb is attributable to the motor vehicle accident of June 2000.”
100. In oral evidence Dr Rivett said his attribution of part of Ms Barker’s left upper limb impairment to the motor vehicle accident was due to her shoulder problems. There was only one table applicable to the upper limb generally. Contrary to Exhibit R7 her right upper limb problems were not solely attributable to the motor vehicle accident, as they had obviously begun in 1995.
101. He identified the abductor pollicis longus tendon’s location as the lower forearm and wrist area on the thumb side. He only considered the wrist to be affected by tenosynovitis per se and not the elbow. In the left elbow region some form of injury, whether repetitive, a blow or a wrenching, had led to muscle inflammation and what he described as “myofascial syndrome”.. This involved swelling, tenderness, pain and particularly pain on use. He did not find any evidence of epicondylitis. A ganglion was usually a manifestation of tenosynovitis. As tenosynovitis was an inflammatory condition it could be diffuse.
102. From the history given there was high probability that typing was responsible. Once the condition was established there was pathology and removal from typing would not cure it. Any overuse or repetitive activity would aggravate the established condition. It was consistent with the condition for Ms Barker to have low-level symptoms with flare-ups. Her clinical signs would also vary depending on how much she had rested her arm.
103. He did not consider that a motor vehicle accident would generally aggravate tenosynovitis. It could however aggravate a myofascial syndrome if there was a blow to the affected area.
104. Normal grip strength would be well over 100mm of mercury, although a precise figure was not possible.
105. He considered Dr Gotis-Graham’s clinical findings on 24 October 2000 (such as swelling) inconsistent with his comments on 14 November 2000 that Ms Barker had a regional pain syndrome without identifiable clinical cause. The latter was a “copout” rather than a diagnosis.
Dr Muirden
106. On 24 July 2001 Dr Muirden, a consultant rheumatologist, completed a report after assessing Ms Barker (Exhibit R2). The history he took included the following
“She was employed with Telstra for several years and was a call centre manager in Goulburn in her last position. She undertook a number of different workplace activities during this period and the amount of typing she undertook was very limited as a secretary performed the majority of the keyboard activities.
I was advised that the onset of her condition occurred in June 1995. She… was placed in a position where she was required to answer the telephone “all day long”.. This involved keyboarding and utilizing her mouse, primarily with her left hand.
Her left hand and wrist became swollen and she experienced a burning sensation that extended from her left hand to her elbow.
She said that at the time she attended a medical practitioner and she was advised to preferentially utilize her right arm in the course of her employment. When she attempted this, she developed the same symptomatology in her right arm.
…
On 7 May 1997… she was involved in a rear-end motor vehicle accident.
She was reported to have jarred her neck, left shoulder and arm but she denied that there was any major exacerbation of her condition induced by that motor vehicle accident.
Approximately at this stage, Dr Preston… discussed the possibility of Ms Barker having an underlying arthritic process, most likely rheumatoid arthritis. Further investigations were suggested but the diagnosis of rheumatoid arthritis was later excluded and… and underlying inflammatory arthritis was also considered most unlikely.
…
In June 2000, Ms Barker was involved in a major motor vehicle accident… She was 28 weeks pregnant at the time and she sustained numerous, apparently significant, injuries.
… [S]he suffered from Post Traumatic Stress Disorder with flashbacks and severe depression.
…
Her injuries appear to be a major component of her difficulties.
As well as the symptomatology aforementioned, Ms Barker said that her arms are “sore all the time” and her left elbow is particularly painful. If she performs activities the pain increases in severity.
She has noticed lumps in the region of her left wrist enlarge when she increases her activities and she suffers numbness and a sensation of “pins and needles” in her hands. She has been investigated for carpal tunnel syndrome and nerve conduction studies were said to be normal.”
107. On physical examination
“She exhibited a degree of abnormal illness behaviour during the course of the examination.
…
Movements of her cervical spine were all restricted but it was not clear to me how much of this restriction was voluntary and how much was due to organic causes.
She complained of diffuse tenderness of her para-vertebral muscles and, I note that this tenderness extended to the trapezius muscles bilaterally and to the rhomboid muscles.
…
Abduction of her shoulders was limited bilaterally but again it was difficult to be certain how much of this was voluntary and how much was organic in nature. Attempts to move her shoulder provoked groaning and grimacing on behalf of Ms Barker.
Both elbows moved normally and showed no swelling. There were tender points over the lateral and medial epicondyles of her left elbow. Her right elbow exhibited similar but milder signs.
I noted that both wrists exhibited a full range of movement, although she complained of tenderness in association with her left wrist. There was an ill-defined swelling proximal to her wrist on the ulnar side and there was a suggestion of mild puffiness over the dorsum of her left wrist.
Her finger joints moved but muscle power of abduction of her shoulder and grip strength on the left was reduced. Deep tendon reflexes were equal and active and there was no loss of sensation. Tests for the carpal tunnel syndrome were negative.
…
The range of movement of her spine was normal but movements provoked a degree of groaning and moaning from Ms Barker.”
108. After recording some imaging of the left wrist Dr Muirden commented
“The swelling proximal to her left wrist noted on clinical examination could be a ganglion as the most likely diagnosis as the X-rays and ultra sound appeared to rule out any more significant abnormality.”
His main summary and assessment was
“Ms Barker… developed left arm and hand pain in the course of her workplace activities. These were initially diagnosed as being related to tenosynovitis.
Although commencing in her left arm and hand, the condition also affected her right side and eventually spread to her neck and shoulders. The condition was aggravated by a motor vehicle accident on 7 May 1997.
I have noted the comments of Dr Ireland… I acknowledge that he considered the “tenosynovitis” of both forearms to be related to repetitive workplace activities.
…
The term tenosynovitis is occasionally used as an expression for what was also called repetitive strain injury but is now preferentially referred to as occupational over-use syndrome.
It appeared that Ms Barker’s condition did improve as far as her occupational over-use syndrome was concerned, particularly when she became manager of the Goulburn… call centre when she had less responsibility for repetitive keyboarding. I accept this as being likely.
Ms Barker however has a different clinical picture from an individual with an intermittent occupational over-use syndrome related to excessive keyboard activities.
The critical incident that Ms Barker describes fully was a life-threatening motor vehicle accident that occurred in June 2000… [S]he said that she has suffered from a Post Traumatic Stress Disorder and has become severely depressed.
…[S]he has required continuous treatment from a psychiatrist on a weekly basis and extensive medication for a widespread pain syndrome.
She is clearly severely disabled emotionally and physically and is on a variety of medications for pain and depression.
…
My diagnosis is of a regional pain syndrome, which is occasionally referred to as regional fibromyalgia. This is associated with a Post Traumatic Stress Disorder.
…
From the information provided and based on my consultation with Ms Barker, I consider it is extremely unlikely that Ms Barker’s current condition has been caused or materially contributed to by her employment with Telstra between 1995 and 2000.
Ms Barker on my current examination has a total incapacity for employment due to her regional pain, regional fibromyalgia and Post Traumatic Stress Disorder that is primarily related to the June 2000 motor vehicle accident and other constitutional factors..
I would like to state that I considered that any incapacity for employment is not due to the compensable condition.
…
I considered that the effects of the compensable condition have ceased to any significant extent and had almost certainly ceased by the time Ms Barker accepted her voluntary retirement from Telstra in February 2000.” (Emphasis added)
109. Dr Muirden prepared a second report (Exhibit R4) after receipt of a large amount of additional material (Exhibit R5) from Telstra’s solicitors
“The point of issue, as I see it, is how much Ms Barker’s disability, that prevents her employment, is related to her previous employment at Telstra and how much is related to a serious motor vehicle accident that occurred on 10 June 2000.”
Dr Muirden outlined the material he had received and then concluded
“There is nothing in the documents submitted and discussed above that negates my view, as stated in my previous report…
Ms Barker’s treating doctors… have concentrated upon her widespread Pain Syndrome, affecting the neck, shoulders, back and knees, with there being only a brief reference to the left elbow joint. Also emphasised by these doctors have been her Post-Traumatic Stress Disorder and her depression.
The possible exception is the comments of Dr Gotis-Graham, who was specifically asked to comment upon the possibility of an arthritis being present in Ms Barker’s hands and wrists.”
110. In oral evidence Dr Muirden said he was reluctant to confirm that the swelling on Ms Barker’s left wrist was in fact a ganglion. He did not think it was related to her work activities in 1995 as it was not in the correct position in relation to the tendon sheaths. A ganglion could come and go over time.
111. He described “regional pain syndrome” as relating to Ms Barker’s neck and shoulders arising from the 2000 motor vehicle accident, and probably her forearms as well. There could however have been some epicondylitis, or tenderness of her elbows. He could not rule out some residual effects from her workplace, but these were minor findings when compared to her neck and shoulder symptoms. Her past problems with Telstra were “rather trivial” in comparison to the 2000 motor vehicle accident. Nevertheless he was prepared to accept the symptoms could be significant to Ms Barker although mild. Her forearm symptoms were probably largely referred from her elbow.
112. He did not regard tenosynovitis and tendonitis (which he distinguished between) as subsets of regional pain syndrome. They involved swelling along the line of a tendon and could be readily identified. If a person were removed from the original cause of tenosynovitis or tendonitis for several years their condition would “settle down” without provocation. Symptoms of tenosynovitis could fluctuate depending on provoking factors. It was occasionally a chronic condition and was easier to provoke once established.
Dr Gotis-Graham
113. Dr Gotis-Graham, a rheumatologist, saw Ms Barker on referral from Dr Ireland. He described his initial consultation in a report dated 24 October 2000 (part of Exhibit R5)
“Thank you for referring this 32 year old lady who is currently on Workers Compensation and is seeking a compensation claim pay-out. I note that the main problem is that of left wrist and forearm pain. Colleen states that her current problems began in May 1995… working on a computer key board for two months continuously. She states that this resulted in pain in both forearms. She has noticed ongoing pain around the left elbow medial and lateral epicondyle regions. I note that she has had several injections of steroids around the left elbow. She complains of lumps around the left wrist. She has a lump along the ulna and the radial aspect of the wrist. She also complains of ongoing pain and swelling along the medial aspect of the left elbow.. She complains of aching pain which is felt diffusely through the left forearm.
…She states that she does not have significant pain above her elbows, apart from neck and bilateral shoulder injuries that occurred two months ago in a motor vehicle accident.
She has pain around the ulnar aspect of the right wrist. She states that this pain is relatively mild compared to the left side and rates this as being 20% as severe as on the left side.
…
There was swelling along the extensor tendon sheath of the left thumb, either due to ganglion or tenosynovitis. There may have been mild swelling of the left wrist joint, although, this was difficult to be certain of. There was a 2 x 2cm subcutaneous swelling along the ulnar aspect of the left wrist on the volar surface suggestive of either a ganglion or a lipoma. There was left elbow medial and lateral epicondylitis. The right hand, wrist, forearm and elbow were all normal… There was no radiation of pain from the cervical spine into the upper limbs…
There are several issues:
1. Swelling around the left wrist. I suspect that she has a ganglion or possibly tenosynovitis of the extensor tendons of the left thumb. She may have a lipoma or a ganglion along the ulnar aspect of the wrist.
2. Left elbow medial and lateral epicondylitis.
An overriding factor to her current problems is her compensation claim. She has diffuse pain in the forearm and wrist which does not easily correlate with any clinical condition. The clinical picture is consistent with a regional pain syndrome. In view of the chronicity of her symptoms and the fact that she is awaiting a compensation claim pay-out, her prognosis is guarded. It is unlikely that her current problems are due to an inflammatory arthritis.
I have organised an ultrasound of the wrist and extensor tendons.”
114. The ultrasound requested by Dr Gotis-Graham was performed on 13 November 2000. The report of that ultrasound was as follows (part of Exhibit R5)
“Sonographic evaluation does not define any distinct ganglion. There is some subtle thickening of the tendon sheath in the region of the abductor pollicus longus tendon as well as the extensor pollicus tendon. It is difficult to evaluate this region further and I would strongly advise this patient undergo an MRI examination of her wrist in order to clarify the anatomical problems that arise. I note that at today’s examination clinical examination did reveal swelling over the areas of interest as indicated on your referring information.” (Emphasis added)
115. On 14 November 2000 Dr Gotis-Graham reported to Dr Ireland (part of Exhibit R5) that
“The ultrasound of the left wrist did not reveal any significant abnormalities. There was no evidence of ganglia or lipoma or significant tenosynovitis…
…
Colleen has a region pain syndrome involving the left forearm. There is no identifiable anatomical cause for her pain. Her compensation claim is a significant factor, modifying her pain. I note that she is seeing a psychiatrist who is planning to start antidepressants.”
116. On 22 January 2001 Dr Gotis-Graham reviewed Ms Barker
“Colleen states that her forearm pain has not altered. The pain is worse on the left side…
There was tenderness throughout the muscles in the forearm. There was no local evidence of lateral epicondylitis or any other specific identifiable condition in her forearm.”
Mr Leicester
117. Mr Andrew Leicester, an orthopaedic surgeon, saw Ms Barker on 28 December 2000 (part of Exhibit R5). In his examination findings he refers to her being “globally tender to even light percussion of the skin”.. However this is in the context of a series of findings that entirely relate to Ms Barker’s shoulders. In fact the report as a whole makes no mention of any symptoms other than in her shoulders. The referral from Dr Wilden-Constantin (also part of Exhibit R5) relates specifically to the shoulder.
118. Mr Leicester provided another report on 7 February 2001 following a MRI scan of Ms Barker’s left shoulder (part of Exhibit R5). In that report he commented
“She is having a lot of pain in both arms with numbness and paraesthesia and I suspect that a large proportion of her pain is arising from the cervical spine.”
119. Mr Leicester’s report of 20 August 2001 refers to general tenderness and pain with light percussion of the skin. Again, this appears in the context of a discussion focused on her shoulder and follows up a physiotherapist’s report that relates entirely to the shoulder (also part of Exhibit R5)
Associate Professor Dan
120. Professor Dan, a neurosurgeon, first saw Ms Barker less than a fortnight after the motor vehicle accident in June 2000. In his report of 20 June 2000 (part of Exhibit R5) he recorded that immediately after the accident “she had pain in the neck as well as across the shoulders, chest and down the left upper limb and at the left thigh” (emphasis mine). In his examination findings he recorded that “upper limb power was normal although it was reduced by pain”. Otherwise the descriptions of pain and loss of sensation refer to other parts of the body, principally the neck, shoulders and chest.
121. On 22 February 2001 Professor Dan reported following a further consultation that
“[S]he complained of increasing pain in her neck and of significant difficulties… When she clenched her left hand she had a dysaesthetic feeling in the index finger together with a cramp. Sometimes the whole of the right upper limb became numb. She complained of being unable to lift her infant son because of the pain…
…
She had greatly reduced cervical movement… Upper limb power and reflexes were intact but pin prick was dull over the left thumb, index finger and little finger. It was also dull over both the medial and lateral aspects of the forearm.”
122. On 16 March 2001 Professor Dan reported on the findings of cervical and cerebral MRI scans. In the course of doing so he said
“Because of the symptoms radiating to the arms I have arranged for her to have bilateral interscalene blocks.”
Comcare paid for this procedure as part of Ms Barker’s compensation claim for the June 2000 motor vehicle accident but the blocks did not settle her pain (Professor Dan’s report of 25 May 2001) (all part of Exhibit R5).
Dr Goldberg
123. Dr Goldberg, a shoulder surgeon, reported on 2 March 2001 (part of Exhibit R5) that since the 2000 motor vehicle accident
“[S]he has had severe and constant pain about her neck radiating to both upper limbs. She also gets shoulder pain which is worse with overhead movements. She has night pain as well as parasthesia in her hands.
…
Clinical examination revealed a rigid and tender neck. She had tenderness about both shoulders, her upper limbs, chest wall and back. Shoulder movements were limited by pain.
…
Opinion: Mrs Barker has a severe soft tissue injury involving the soft tissues of both shoulder, her neck and upper limbs. She has developed a well entrenched chronic pain syndrome.”
Dr Hopkins
124. On 22 March 2001 Dr Hopkins, a consultant orthopaedic surgeon, completed a report for Comcare after assessing Ms Barker (part of Exhibit R5). The history section of the report makes no mention of symptoms in the arms or hands whether in relation to the 2000 motor vehicle accident or previous medical history. Dr Hopkins’ physical examination included
“Examination of Ms Barker’s arms revealed diffuse tenderness over each trapezius in a wide fashion and she claimed that pressure over this area produced pins and needles in her hands, which is a non-anatomical phenomenon.
…
Both elbows had a full range of movement, as did hands, wrists and fingers.
Muscle power appeared to be normal in the upper limbs, although there was a global involuntary reduction of grip on the left side.
…
Testing of sensation indicated that this is intact, although Ms Barker claimed a slight diminution of light touch over her left thumb and little finger, which again is not indicative of a nerve root distribution or peripheral nerve distribution abnormality.”
125. Dr Hopkins concluded
“It is my opinion that Ms Barker sustained soft tissue strains to her cervical spine and possibly to her left shoulder…
Reports accompanying your correspondence suggest that Ms Barker has suffered a very significant post-traumatic stress reaction and has significant psychological difficulties associated with the accident. I consider that these factors are quite clearly modifying her pain perception and her responses.
On examination, Ms Barker demonstrated hyper-sensitivity to extremely light touch to the back of her neck and shoulder, as well as significant apprehension in demonstrating the range of movement of her shoulder, which was carried out to a degree less than she demonstrated in conversation.
It is my opinion that this is indicative of a significant degree of overlay in pain behaviour associated with this.
…
Based on the information I have to hand, the cause of her condition was the motor vehicle accident on 10 June 2000, as described.”
…
…I do not consider that she will progress in any significant way without ongoing psychological input. Furthermore, I consider that the emotional and psychological factors of her condition produce a major impingement on her pain perception, general presentation and capability.”
Dr Carroll
126. In May-June 2001 Ms Barker had attended the Sydney Pain Management Clinic. In a report dated 30 June 2001 Dr Carroll noted (part of Exhibit R5)
“Currently Ms Barker is experiencing continuous pain in numerous regions. She complains of ongoing neck, shoulder and posterior thoracic pain with radiation to the occipital region of the head. She describes an intensity of pain of generally 6/10 on a Visual Analogue Scale but, with exacerbations, to 8-10/10 every day. She describes a “bad pressure, tight, sore, stiff, aching, shooting, spasming, throbbing, cramping” pain. She is also experiencing ongoing facial pain which is generally 4/10 in intensity in the anterior and posterior auricular regions as well as in the temporal regions and along the jaw to the chin. She describes a “sore, sharp, burning” pain with restricted jaw range of motion. She is also experiencing intermittent knee pain which is especially worse with walking and on stairs. She also complains of intermittent aching lumbar back pain which can be of a sharp quality which is worse with prolonged sitting and standing.
…
Mrs Barker’s previous medical history includes a whiplash associated disorder in 1998 with resolution of symptoms. She has also previously had a fractured left ankle, cholecystectomy and appendicectomy.”
Findings
127. The issue before the Tribunal is whether Ms Barker continues to suffer from tenosynovitis, ie the tenosynovitis precipitated by the events in 1995. I have already found that the condition was still evident in June 1996 (paragraph 75) and I am satisfied that the 1997 motor vehicle accident only temporarily aggravated the condition (paragraph 88). But was the condition still of concern in August 1999 and did it remain so at the time of the hearing?
128. Mr Wallace for Telstra challenged the credibility of Ms Barker’s evidence, pointing in particular to her failure to inform most medical practitioners about her arm condition and of other significant events such as horse riding accidents. While I do not doubt Ms Barker’s honesty and truthfulness, her failings in this regard are a matter of concern and of relevance.
129. It is indeed unfortunate that Ms Barker chose not to inform a range of doctors of her pre-existing arm condition. It is nevertheless understandable why she did not do so. She was seeing those doctors in relation to the consequences of the 2000 motor vehicle accident and was quite clear in her own mind that her arm condition was not among those consequences, nor of major concern. However, her failure is significant when considered with the other evidence.
130. Having regard to all the evidence before me I am satisfied on the balance of probabilities that by August 1999, and certainly by the time of the hearing, Ms Barker’s condition of tenosynovitis had resolved. In reaching this conclusion I had particular regard to
· the significant period from about September 1997 to the June 2000 motor vehicle accident where no complaint was made to general practitioners about the arms or elbow
· the failure of Ms Barker to mention any lower arm problem to virtually all of the treating specialists to whom she was referred following the June 2000 motor vehicle accident
· the views of Drs Gotiis-Graham, Muirden and Goldberg (with possible support from Dr Hopkins) that Ms Barker was now suffering a chronic pain syndrome flowing from the June 2000 motor vehicle accident and those of Drs Gotis-Graham and Muirden that she was not experiencing tenosynovitis
· the complete absence of any mention of an arm condition either currently or in the past in the June 2001 report of Dr Carroll from the Sydney Pain Management Clinic, where one could reasonably expect this to be raised
· the fact that although Dr Chandran suggested in May 1999 that Ms Barker consider “an injection into the left tennis elbow” she did not take this up
· Ms Barker’s removal from regular keyboard duties for many years.
131. I have also considered the file note of Mr Polverino of 31 March 1999 recording a conversation in which he says Ms Barker “has no problems whatever” (T86). Ms Barker points to one clear error in this note (the reference to Nowra rather than Goulburn) and disputes its accuracy as a record of the conversation. Nevertheless, it is contemporaneous and is consistent with the other evidence, or to some degree the lack of it, before the Tribunal.
132. On the other hand Ms Barker relies especially on the evidence of her treating specialist Dr Ireland and Dr Rivett. Although Dr Ireland does assert that tenosynovitis is ongoing, he did not examine her for three years and four months from May 1997 to October 2000. He last saw her in November 2000. His evidence overall points to progressive resolution of her symptoms. Dr Rivett’s evidence was inconsistent and indeed Ms Walker for Ms Barker submitted that he “struggled” under pressure in his oral evidence.
133. There is no doubt that some of the evidence does suggest some mild ongoing problems with Ms Barker’s original condition
· Ms Barker’s evidence of self-management with topical gels, splints and arm supports
· the evidence of Drs Ireland and Rivett discussed above
· Dr Gotis-Graham’s report on 24 October 2000 from which he appeared to resile in his 14 November 2000 and 22 January 2001 reports
· the ultrasound report of 13 November 2000 which nevertheless provided the basis for Dr Gotis-Graham’s 14 November 2000 assessment
· Dr Muirden’s refusal in oral evidence to rule out “minor” or “trivial” “residual effects”
· the general agreement that tenosynovitis was prone to flare-ups with lesser stressors and could be chronic.
134. The evidence is not clear-cut. However, having weighed it all up I am satisfied on the balance of probabilities that the compensable condition had resolved by August 1999. In my view the failure of Ms Barker to mention her arm condition on occasions where one would most expect it, ie with most of her medical practitioners, is decisive. There is no contemporaneous evidence to support Ms Barker’s own evidence and views. In my opinion there is good evidence that Ms Barker does suffer a regional pain syndrome from the 2000 motor vehicle accident. This accident is not before the Tribunal.
135. That part of the reviewable decision relating to the 13 August 1999 determination must be affirmed. This is not to say, of course, that consistent with Oudyn Ms Barker could not claim compensation for any future flare-ups of her compensable tenosynovitis.
Conclusions
136. In summary
· the compensable condition Ms Barker suffered from in 1995/96 was tenosynovitis of both forearms (more left than right)
· Ms Barker was continuing to suffer tenosynovitis as at June 1996
· the 1997 motor vehicle accident temporarily aggravated the compensable condition
· the compensable condition had resolved by August 1999.
Decision
137. The reviewable decision of 19 April 2001 is varied as follows
· the determination of 4 June 1996 is set aside, and in substitution the Tribunal decides that
- Ms Barker’s compensable condition suffered on 5 June 1995 was one of tenosynovitis of both forearms (more left than right)
- Ms Barker continued to experience this condition as at June 1996
· the determination of 13 August 1999 is affirmed.
138. The Tribunal orders Telstra to pay Ms Barker’s costs as agreed or taxed.
I certify that the 138 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:
...........[Trevor Mobbs]........................................
AssociateDates of Hearing 6-7 May 2002
Date of Decision 5 August 2003
Counsel for the Applicant Ms Lorraine Walker
Solicitor for the Applicant Ms Rachel James, Slater & Gordon
Counsel for the Respondent Mr John Wallace
Solicitor for the Respondent Mr Stuart Marris, Sparke Helmore
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