Barone and Comcare
[2005] AATA 1105
•8 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1105
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/184
GENERAL ADMINISTRATIVE DIVISION ) Re SARASVATHI BARONE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr D Weerasooriya, MemberDate 8 November 2005
PlacePerth
Decision The Tribunal sets aside the reviewable decision of the respondent dated 10 May 2004 and, in substitution therefor, decides that:
· the respondent continued to be liable on and from 23 January 2004, and is presently liable, pursuant to s 124(1A) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”), to pay compensation under that Act to Mrs Barone in respect of her injury, namely, occupational overuse syndrome involving her right upper limb;
· the respondent continued to be liable on and from 23 January 2004, and is presently liable, to pay compensation by way of incapacity payments to Mrs Barone in accordance with s 131 of the SRC Act.
The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by Mrs Barone be paid by the respondent.
............(sgd S D Hotop)................
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant commenced employment with Australian Taxation Office in 1977 – applicant sustained injury to right arm in February 1984 – applicant claimed compensation in March 1984 – respondent accepted liability to pay compensation – applicant retired on invalidity grounds in November 1984 – applicant has not worked since – applicant in receipt of pension under superannuation scheme –applicant continues to suffer from work-related injury diagnosed as occupational overuse syndrome involving right upper limb – applicant totally incapacitated for work as a result of injury – respondent continues to be liable to pay compensation to applicant – reviewable decision set aside
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 27, s 37, s 45 and s 46
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, s 14, s 123A, s 124, s 131 and s 132A
Re O’Halloran and Comcare Australia (AAT Decision No 10198, 25 May 1995)
Telstra Corporation Ltd v Warner (1994) 20 AAR 259
REASONS FOR DECISION
8 November 2005 Deputy President S D Hotop
Dr D Weerasooriya, MemberINTRODUCTION
1. Mrs Sarasvathi Barone, who is presently 57 years of age, commenced employment as a typist with the Australian Taxation Office (“ATO”) in 1977. In February 1984 she suffered a work-related injury which was then diagnosed as “tenosynovitis of the right wrist”, and, in the following month, she claimed compensation for that injury under the Compensation (Commonwealth Government Employees) Act 1971(Cth) (“the 1971 Act”). The respondent accepted liability to pay compensation to her under the 1971 Act and she was paid compensation initially under that Act and subsequently under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).
2. On 12 January 2004, however, a delegate of the respondent determined that, as from 23 January 2004, Mrs Barone had no further entitlement to compensation under the SRC Act. Following a request by Mrs Barone’s solicitors for a reconsideration of that determination, another delegate of the respondent decided, on 10 May 2004, to affirm that determination. Mrs Barone has appealed to this Tribunal against that decision.
THE ISSUE
3. The ultimate issue to be determined by the Tribunal is whether the respondent continues to be liable under the SRC Act to pay compensation to Mrs Barone in respect of the work-related injury which she suffered in February 1984.
4. For the reasons which follow, the Tribunal has concluded that the respondent continues to be liable under the SRC Act to pay compensation to Mrs Barone in the respect of that injury.
BACKGROUND
5. After sustaining the relevant injury Mrs Barone was medically certified as totally unfit for work, and she remained off work. Following an unsuccessful attempt at redeployment, she was retired on invalidity grounds in November 1984, and she has not worked since. She has been, and continues to be, in receipt of a pension under a superannuation scheme.
6. The decision to retire Mrs Barone was made following a report dated 31 August 1984 by Dr K C Ng, Rheumatologist, to whom she had been referred by a Commonwealth Medical Officer. Dr Ng has reviewed Mrs Barone on several occasions from August 1984, most recently in July 2004. She has also been treated by various general practitioners since sustaining the injury and they have continued to certify her as totally unfit for work from that time.
7. In December 2002 the respondent requested Dr Ng again to examine Mrs Barone and to provide a “full report”. Dr Ng subsequently provided a report dated 7 January 2003 and, it seems, it was largely on the basis of that report that the respondent decided that it was no longer liable to pay compensation to Mrs Barone in respect of the injury. That report will be referred to in more detail later in these reasons.
LEGISLATION
the src act
8. The SRC Act relevantly provides:
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
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.
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injurymeans:
(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;
…
the 1912 Act means the Commonwealth Workmen's Compensation Act 1912.
the 1930 Actmeans the Commonwealth Employees' Compensation Act 1930.
means the Compensation (Commonwealth Government Employees) Act 1971.
the 1971 Act…
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
123A Injuries suffered before the commencing day
A reference in this Part to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force.
…124 Application of Act to pre-existing injuries
(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2)A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a) where the injury, loss or damage was suffered before the commencement of the 1930 Act—under the 1912 Act;
(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c) in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.
…”
9. Sections 131 and 132A deal with the amount of compensation (by way of incapacity payments) payable to former employees who, on 1 December 1988 (the date of commencement of the SRC Act), were under the age of 65 years and in receipt of a pension under a superannuation scheme, and who are, respectively, not capable of engaging in any work (s 131) or capable of engaging in any work (s 132A). The “commencing day” referred to in ss 123A and 124 is 1 December 1988.
the 1971 act
10. The 1971 Act relevantly provided:
“27(1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.
…”
Section 37 provided for the payment of compensation in respect of the cost of reasonable medical treatment for an injury suffered by an employee, and ss 45 and 46 provided for the payment of compensation by way of incapacity payments where an injury to an employee resulted in total or partial incapacity for work.
ANALYSIS AND FINDINGS
does the respondent continue to be liable under the src act to pay compensation to mrs barone?
11. Because Mrs Barone suffered the relevant injury in February 1984 – that is, before the “commencing day” – the answer to the above question depends fundamentally on whether Mrs Barone continues to suffer from an injury in respect of which compensation was payable under the 1971 Act: see s 124(1A), (2) of the SRC Act.
Does Mrs Barone continue to suffer from a personal injury arising out of her employment with the ATO?
12. Mrs Barone’s evidence was that she has constantly suffered, and continues to suffer, pain symptoms in her right upper limb since she sustained an injury to that upper limb in the course of her employment with the ATO in 1984, and that she has not sustained any other injury to her right upper limb either before or after the 1984 employment-related injury. She said that her pain symptoms are exacerbated whenever she does any “repetitious work” using her right arm, and that she is accordingly unable to do any work of a repetitious nature involving the use of her upper limbs.
13. The Tribunal also heard evidence from 5 medical practitioners, namely Dr D Kennedy (a specialist in musculoskeletal medicine and sports medicine), Dr J Edelman (a specialist rheumatologist), Dr KC Ng (a specialist rheumatologist), Dr A Marsden (a specialist in occupational medicine), and Mr D Williams (an orthopaedic specialist).
Dr Kennedy
14. Dr Kennedy examined Mrs Barone on 3 December 2003 and prepared a report dated 11 December 2003 in which he expressed the following opinion:
“Mrs Barone, as a consequence of her occupational duties performed in 1984 has developed an occupational overuse syndrome involving her right upper limb which has occurred as a consequence of her keyboard duties at work. Mrs Barone now has a chronic occupational overuse syndrome involving the myofascial structures in the right side of her neck, right shoulder region extending into her right arm, such that Mrs Barone is currently totally incapacitated for any occupational duties for which she has the appropriate education, skills training and work experience.”
In his oral evidence Dr Kennedy opined that the pain symptoms experienced by Mrs Barone in her right arm probably originated from an injury affecting the nerve roots in her lower cervical (neck) region. He excluded age-related degeneration and rheumatoid arthritis as possible causes of Mrs Barone’s right arm pain. He said that in conducting medico-legal examinations he is concerned with whether there is a correlation between the patient’s history and symptoms and the findings on physical examination, and that he found there to be such a correlation in the case of Mrs Barone.
Dr Edelman
15. Dr Edelman examined Mrs Barone on 5 December 2003 and prepared a report of that date in which he opined that:
·Mrs Barone’s symptoms and signs are consistent with an occupational pain syndrome or a regional pain syndrome which began when she was working at the ATO some 20 years previously and which is continuing at the present time;
·Mrs Barone is unable to return to work, whether part-time or full-time.
In a later report dated 27 October 2004, Dr Edelman opined that the diagnosis of tenosynovitis of the right wrist, which was made in respect of Mrs Barone in the 1980s, was “really a regional pain syndrome”, and that the condition from which she now suffers is “the same [as] that she would have had in 1984”.
16. In his oral evidence Dr Edelman acknowledged that the condition which he had diagnosed in Mrs Barone’s case has no underlying pathology and he agreed that it is a “condition basically of complaint”. He also acknowledged that he did not understand this condition but he believed that it is “very, very multi-factorial”, and he agreed that psychological factors and other factors, including “secondary gain”, are involved in this case.
17. Dr Edelman said that Mrs Barone presented with pain in her neck, shoulders and down the arm, and he agreed that the pain she was feeling was “real pain” which can, of itself, be debilitating. He confirmed the opinion, expressed in his abovementioned report, that Mrs Barone is unable to return to work, whether full-time or part-time. Finally, Dr Edelman said that he did not believe that Mrs Barone was “malingering” and that, if he had had any suspicions about her or noticed any inconsistencies between her history and complaints and his findings on examination, he would have commented on them. The Tribunal notes that no such comment appears in either of Dr Edelman’s reports.
Dr Ng
18. Dr Ng examined Mrs Barone, in connection with her compensation claim, initially in August 1984 and subsequently in September 1985, April 1986, August 1988, January 1990, June 1993, March 1994, March 1997, June 1997, December 2002, and July 2004.
19. In his initial report dated 31 August 1984, Dr Ng diagnosed a “repetitious strain injury” in Mrs Barone’s right arm and said that he had no doubt that that condition was work-related. In subsequent reports, however, he described Mrs Barone’s condition as “overuse syndrome” and “occupational overuse syndrome”.
20. In a comprehensive report dated 7 January 2003, in response to questions put to him by the respondent, Dr Ng stated that:
·in his opinion Mrs Barone’s current medical condition was “due to a combination of an underlying degenerative arthritis as part of the natural ageing process and whatever remains of her previous compensable condition”;
·he had “no explanation as to why there is ongoing nexus between her current symptoms and her previous employment, especially since she hasn’t worked since 1984”;
·“(w)ith her history of ongoing pain since 1984 and the presence of muscle tenderness [especially in the forearms and to a lesser degree in the upper arms and neck], it is difficult to state that the effects of her employment have ceased and that her current symptoms are entirely due to degenerative arthritis associated with age”;
·in his opinion “there were no aspects of the clinical examination which suggested that Mrs Barone was voluntarily exaggerating her symptoms” and that, on physical examination, he did “not find any evidence of functional overlay”.
21. In his most recent report dated 26 July 2004 Dr Ng stated that:
·symptomatically, Mrs Barone had not changed since he last saw her in December 2002;
·her symptoms are predominantly those of pain in her right upper limb and, to a lesser degree, in her left upper limb;
·he could not find any inconsistencies in his examination;
·his diagnosis of her presentation is that of an ongoing occupational overuse syndrome involving predominantly her right upper limb;
·although he had previously suspected an underlying inflammatory arthritis, there was now no convincing evidence to confirm that diagnosis;
·since he was unable to find any other explanation for her present symptoms, he “ha(d) to attribute her symptoms to an occupational overuse syndrome related to her previous employment with the Department of Taxation”;
·he was unable to explain why her symptoms had not improved with time;
·he did not think she was able to return to her pre-accident employment as a full-time typist, nor was she capable of working in other occupations which required the repetitive use of her upper limbs, even on a part-time basis.
22. In his oral evidence Dr Ng agreed that “secondary gain” was playing a part in Mrs Barone’s claim that she was still suffering from compensable pain. He also agreed, however, that “secondary gain” can operate to reinforce pre-existing genuine pain.
23. Dr Ng said that Mrs Barone had, from the outset, always been very consistent about her complaints of upper limb pain going from the middle digit to the neck, and he had never found any inconsistency between the history which she gave him and his findings on physical examination. He said that his overall view was that her complaints of pain were genuine and that he did not think that she was exaggerating her symptoms.
24. Dr Ng confirmed that in some of his reports regarding examinations of Mrs Barone he noted that he had measured the circumference of each of her forearms, with the following results:
·on 26 August 1988, he noted that the circumference of her right forearm was “at least ½ cm larger than the left”;
·on 23 March 1994, he noted that the circumference of the right forearm was 25 cm and that of the left forearm was 24cm;
·on 26 July 2004, however, he noted that the circumference of the right forearm was 24 ½ cm and that of the left forearm was 25 cm.
In his report of 26 July 2004 Dr Ng commented that that discrepancy of ½ cm between the two forearm circumferences denoted that Mrs Barone (who is right-handed) had been underusing her right upper limb – “presumably because of her ongoing symptoms”, he added.
25. As regards the statement in his report of 26 July 2004 that, in the absence of any other explanation for Mrs Barone’s symptoms, he had to attribute them to an occupational overuse syndrome related to her previous employment with the ATO, Dr Ng said that he was “not very comfortable” in expressing that opinion. He explained that, with the passage of time and with rest and supportive treatment, his expectation was that there should be gradual improvement in the pain symptomatology. In Mrs Barone’s case, however, the history was that her pain symptoms had not improved over a period of 20 years, and in latter years had been getting worse, and that made him “a bit uneasy”. Nevertheless, as stated in his report, he felt that, in the absence of any alternative cause, he had to attribute her ongoing pain symptoms to her ATO employment in 1984, but he did so “uneasily”.
Dr Marsden
26. Dr Marsden examined Mrs Barone on 3 August 2004 and he prepared a report dated 5 August 2004 which concluded as follows:
“In my opinion her current disability is not related directly to typing work 20 years ago. In my opinion it is not medically reasonable to still have ongoing injured tissues associated with typing activities for a number of years, and ceasing these activities 20 years ago … She is physically deconditioned, and any activities now lead to aching as unaccustomed exercise. There are also all manner of secondary gains associated with her situation, with a lot of help around the house from her husband, and financial gain from continuing with a Workers’ Compensation claim.”
27. In his oral evidence Dr Marsden agreed that he has an “index of suspicion” about whether there is a pathology associated with Mrs Barone’s complaints of pain in her right arm. He said that, because of his doubts regarding the existence of an underlying pathology, he rejected diagnoses such as cervico-brachial syndrome which implied the existence of such a pathology. He preferred to describe the applicant’s condition simply as “regional arm pain” or “pain in the arm”, but he reiterated his opinion that the applicant’s pain is not work-related.
Mr Williams
28. Mr Williams saw Mrs Barone on 1 and 8 May 1997 and he prepared a report dated 13 May 1997 in which he stated that:
·Mrs Barone presented with pain in the fingers, wrist and elbow in her right upper limb, radiating to the right shoulder and neck;
·there was “distinct pathology” in her right wrist, the “possibility of pathology” with epicondylitis in her right elbow, “perhaps some rotator cuff irritability” in her right shoulder, and some degenerative change in her mid-cervical spine (neck), which may explain her tenderness in those areas;
·he could not see any evidence of a persisting repetitive strain injury or overuse syndrome dating back to 1984;
·he found it “hard to directly relate her problems at presentation in the main to any work injury” in 1984;
·Mrs Barone was “currently unfit for work activities that would involve any repetitive activities to her upper limbs”, but that her current incapacity for work was “not … substantially related to her previous repetitive strain injury of 1984”.
29. In his oral evidence Mr Williams confirmed that, although the opinions expressed in his report regarding the lack of a relationship between Mrs Barone’s presentation in May 1997 and her work activities in 1984 were somewhat qualified, his opinion was that there was no such relationship. He also confirmed that it was his opinion that Mrs Barone, on her clinical presentation in May 1997, was totally incapacitated for work activities that would involve repetitive use of her upper limbs.
Finding
30. The Tribunal regards Mrs Barone as a credible witness and it accepts her evidence (as summarised in paragraph 12 above). The Tribunal notes the measurements of the circumferences of Mrs Barone’s forearms, as recorded by Dr Ng in 1988, 1994 and 2004 (see paragraph 24 above), and it regards the 2004 measurements (which, as Dr Ng commented, indicate an underuse of the right upper limb) as persuasive objective evidence in support of Mrs Barone’s claim that she continues to suffer pain symptoms in her right upper limb.
31. As regards the specialist medical witnesses who gave oral evidence:
·Dr Kennedy and Dr Edelman opined that Mrs Barone presently suffers from an occupational overuse syndrome or a regional pain syndrome in her right upper limb which originally developed in 1984 by reason of her employment with the ATO and which continues at the present time;
·Dr Ng likewise opined that Mrs Barone presently suffers from an ongoing occupational overuse syndrome involving predominantly her right upper limb which is related to her employment with the ATO in 1984 but, having regard to the long period of time (now in excess of 20 years) since the commencement of her pain symptoms without any improvement in her symptomatology, he expressed that opinion “uneasily”;
·Dr Marsden accepted that Mrs Barone presently suffers from pain in her right upper limb, but he opined that that pain was not directly related to her employment with the ATO in 1984;
·Mr Williams (who saw Mrs Barone in May 1997 only) accepted that she was then suffering from pain in her right upper limb but opined that that pain was due to pathological causes which were not related to her employment with the ATO in 1984.
32. Of those abovementioned medical specialists, only Dr Ng has examined Mrs Barone on numerous occasions over an extended period – indeed, from August 1984 (approximately 6-7 months after she first developed the relevant pain symptoms) until July 2004 – and the Tribunal, having regard to that consideration and to the fact that Dr Ng is a specialist rheumatologist of 24 years’ standing, attaches greater weight to his opinion than it does to the opinions of the other medical witnesses. The Tribunal accepts Dr Ng’s opinion that Mrs Barone presently suffers from an occupational overuse syndrome involving her right upper limb which is related to her employment with the ATO in 1984. The Tribunal, however, shares Dr Ng’s reservations about the continuation of a relationship between Mrs Barone’s ongoing right upper limb pain symptoms and her ATO employment given the passage of over 20 years, but, like Dr Ng, the Tribunal is nevertheless prepared to accept, in the absence of a satisfactory alternative explanation of the cause of her ongoing pain symptoms, that those pain symptoms are related to her employment with the ATO in 1984. The Tribunal notes that that view was also expressed by Dr Kennedy and Dr Edelman, without any reservations of the kind expressed by Dr Ng.
33. Accordingly, the Tribunal finds, having regard to the whole of the material before it, that Mrs Barone continues to suffer from an occupational overuse syndrome involving her right upper limb, which is related to her employment with the ATO in 1984, and that that is a “personal injury arising out of” her employment with the ATO in 1984, within the meaning of s 27(1) of the 1971 Act, and that the respondent, therefore, continues to be liable, pursuant to s 124(1A) of the SRC Act, to pay compensation in accordance with the SRC Act to Mrs Barone in respect of that injury.
Has Mrs Barone’s injury resulted in incapacity for work?
34. The opinions expressed by the abovementioned medical witnesses regarding this matter were as follows:
·Dr Kennedy opined that Mrs Barone, as a result of her employment-related right upper limb condition, is “currently totally incapacitated for any occupational duties for which she has the appropriate education, skills training and work experience”;
·Dr Edelman opined that Mrs Barone, as a result of her employment-related right upper limb condition, is unable to return to work, whether full-time or part-time;
·Dr Ng opined that Mrs Barone, as a result of her employment-related right upper limb condition, is incapable of working, full-time or part-time, in occupations which require the repetitive use of the upper limbs;
·Mr Williams opined that, when he saw Mrs Barone in 1997, she was totally incapacitated for work activities that would involve the repetitive use of her upper limbs, but, as previously mentioned, he did not attribute her current incapacity for work to her 1984 employment-related injury.
The Tribunal notes that Dr Marsden did not express a clear view regarding the degree of Mrs Barone’s incapacity for work.
Finding
35. The Tribunal accepts the opinion expressed by Dr Ng regarding Mrs Barone’s incapacity for work and finds that Mrs Barone’s employment-related injury to her right upper limb sustained by her in 1984 has resulted in her ongoing total incapacity for work involving the repetitive use of her right upper limb.
The respondent continues to be liable under the SRC Act to pay compensation to Mrs Barone
36. It follows from the abovementioned findings that the respondent continues to be liable under the SRC Act to pay compensation to Mrs Barone in accordance with that Act in respect of her right upper limb injury.
Medical expenses
37. The respondent is liable to pay to Mrs Barone compensation in respect of medical expenses, pursuant to s 16 of the SRC Act. There was, however, no evidence before the Tribunal regarding particular medical expenses incurred by Mrs Barone in relation to her right upper limb injury since 23 January 2004 (the date from which the respondent determined that she had no entitlement to compensation under the SRC Act). The Tribunal, therefore, is unable to make a finding regarding the amount (if any) of compensation presently payable to Mrs Barone by the respondent pursuant to s 16 of the SRC Act.
Incapacity payments
38. It is common ground that Mrs Barone is a “former employee” who, on 1 December 1988, was under 65 years of age and “in receipt of a pension under a superannuation scheme”, within the meaning, and for the purposes, of ss 131 and 132A of the SRC Act. Which of those two provisions governs the amount of compensation by way of incapacity payments to which Mrs Barone may be entitled depends on whether she is “not capable of engaging in any work” (s 131) or whether she is “capable of engaging in any work” (s132A): see Telstra Corporation Ltd v Warner (1994) 20 AAR 259; Re O’Halloran and Comcare Australia (AAT Decision No 10198, 25 May 1995).
39. The opinions of the medical witnesses set out in paragraph 34 above confirm that Mrs Barone is totally incapacitated for suitable employment. There is, however, no evidence before the Tribunal regarding any forms of employment – suitable or otherwise – which Mrs Barone might be capable of undertaking. The Tribunal notes, furthermore, that Mrs Barone has consistently been certified by general practitioners, for workers’ compensation purposes, as totally unfit for work by reason of pain in her right upper limb. The most recent workers’ compensation progress medical certificate which is in evidence, dated 15 January 2004, certifies that Mrs Barone is totally unfit for work “permanently”.
40. On the basis of the whole of the material before it, the Tribunal is satisfied, and finds, that Mrs Barone is “not capable of engaging in any work”, within the meaning, and for the purposes, of s 131 of the SRC Act.
41. Accordingly, the respondent has been, and continues to be, liable to pay compensation by way of incapacity payments to Mrs Barone in accordance with s 131 of the SRC Act.
DECISION
42. For the above reasons, the Tribunal sets aside the reviewable decision of the respondent dated 10 May 2004 and, in substitution therefor, decides that:
· the respondent continued to be liable on and from 23 January 2004, and is presently liable, pursuant to s 124(1A) of the SRC Act, to pay compensation under that Act to Mrs Barone in respect of her injury, namely, occupational overuse syndrome involving her right upper limb;
· the respondent continued to be liable on and from 23 January 2004, and is presently liable, to pay compensation by way of incapacity payments to Mrs Barone in accordance with s 131 of the SRC Act.
The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by Mrs Barone be paid by the respondent.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr D Weerasooriya, Member
Signed: (Sgd D Brodie) .....................................................................................
Associate
Date/s of Hearing 4 - 6 May 2005
Date of Decision 8 November 2005
Counsel for the Applicant Mr T Offer
Solicitor for the Applicant Trewin Norman & Co
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Phillips Fox
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