Barton and Comcare
[2007] AATA 1907
•1 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1907
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2005/120, A 2006/265
GENERAL ADMINISTRATIVE DIVISION ) Re ANNE BARTON Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr M.D. Miller AO, Member
Date1 November 2007
PlaceCanberra
Decision Application A 2005/120
1. The reviewable decision of Comcare made 9 May 2005 is set aside, and in substitution it is decided that since 7 March 2005 Dr Barton has continued to be entitled to compensation under sections 16,19 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) as a result of an injury suffered by her on 2 November 1987.
Application A 2006/265
2. The reviewable decision of Comcare made 25 October 2006 is set aside, and in substitution it is decided that the injury in respect of which Comcare is liable to compensate is aggravation of rotator cuff syndrome and resulting chronic pain syndrome affecting the shoulders and upper limbs.
Applications A 2005/120 and A 2006/265
3. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Dr Barton.
....................................................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees - Chronic pain syndrome – Comcare ceased liability claiming no longer work related – Comcare refused to amend description of compensable injury – Whether Applicant still suffers from work related injury - Whether Applicant entitled to compensation under sections 16, 19 and 29 – Whether description of injury can be amended
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 16, 19, 29
Compensation (Australian Government Employees) Act 1971 (Cth), ss 27, 29
Abrahams v Comcare [2006] FCA 1829
Commonwealth of Australia v Borg (1994) 20 AAR 299
REASONS FOR DECISION
J.W. Constance, Senior Member
Dr M.D. Miller AO, Member
1 November 2007INTRODUCTION
1. In November 1987 Dr Barton was injured at work. She received compensation payments in respect of this injury from March 1988 until 9 March 2005 when Comcare decided that she was no longer entitled to any further payment. This decision was reached on the basis that Dr Barton no longer suffered from a condition related to her employment.
2. For the reasons which follow we have decided that the decision of Comcare should be set aside. We have decided also to set aside a further decision of Comcare refusing to amend the description of the compensable injury.
EVIDENCE AND FINDINGS OF FACT
3. Having observed Dr Barton give evidence we are satisfied that she is an honest witness, and has not exaggerated when describing the symptoms she has suffered and continues to suffer. We have also taken into account that a number of the medical practitioners who have assessed her have expressed opinions that she has not exaggerated her symptoms. Unless stated otherwise the findings of fact which follow are based on the evidence of Dr Barton.
4. Dr Barton was born in 1956. She gained her tertiary qualifications of Bachelor of Science and Doctor of Philosophy in Immunology from the Australian National University. Whilst at University she was actively engaged in sport including basketball, swimming, and bushwalking. Whilst studying she worked at various part-time jobs including assisting her parents on the farm on which she grew up.
5. About October 1982,[1] when she was working for the National Health and Medical Research Council, Dr Barton experienced a sharp pain in her left shoulder whilst carrying a tray of instruments. She sought medical treatment from Dr Furnass, General Practitioner, for this condition. Dr Barton’s evidence was that her symptoms resolved after several months, but we are satisfied that she is mistaken in her recollection and that her shoulder was symptomatic for at least two years. Dr Barton said that at a time when her shoulder was “pretty much okay” [2] she consulted Dr Chong to make sure that there was no serious damage. On the basis of Dr Chong’s notes we are satisfied that this consultation took place in November 1984.[3] In 1988 Dr Furnass reported that the pain in her left shoulder had continued intermittently for four years.[4] We are satisfied on the basis of Dr Barton’s evidence that she had no history of pain in her right shoulder prior to her starting work in the Department of Health and Ageing in August 1985.
[1] T16, report of Dr Furnass.
[2] Transcript 30/4/07 p-14.
[3] Ex.R14.
[4] T16.
6. Dr Barton joined the Department as a Science Officer Grade 3. As a Research Scientist her duties included extensive work with a pipette two days per week. This involved repetitive use of the hands and operation of the pipette with the thumb whilst working at a bench. Dr Barton estimates that on a normal day she would operate the pipette approximately six thousand times. On the remaining three days of the week Dr Barton was involved in some keyboard work.
7. In early 1987 Dr Barton began to experience pain in her right shoulder and by mid 1987 she had pain in both shoulders, it being worse in the right. By this time the pain was “starting to bother” her and by late 1987 it was “quite bad”. In late 1987 Dr Barton reported her condition to her supervisor and an assessment of Dr Barton's workplace was conducted. This resulted in changes to the manner in which she operated her computer, but no changes were made to her work area in the laboratory. Dr Barton reduced the time she was spending using the pipette, as the actions involved caused excessive pain in her shoulders.
8. Although we are satisfied that by late 1987 Dr Barton was experiencing pain in both shoulders, we are not satisfied that she first experienced the pain in her right shoulder as she recollects. Dr Nelson[5], Dr Szmerler[6] and Dr Hilton[7], all general practitioners consulted by Dr Barton in 1987/1988 have reported that her complaint was of pain in the left shoulder followed by pain in the right. On the balance of probabilities we are satisfied that whilst Dr Barton was working with the pipette she first experienced pain in her left shoulder followed by pain in her right shoulder.
[5] T41.
[6] T13.
[7] T44.
9. In February 1988 Dr Barton started a period of sick leave, as the constant pain she was suffering in her shoulders left her unable to continue her work. At the time she commenced the sick leave Dr Barton was affected by her condition in the following ways:
·she suffered pain in her arms and hands;
·she had difficulty raising her arms;
·she had difficulty in dressing and in self-care tasks;
·she was sleeping poorly and constantly felt tired;
·she had difficulty in performing household tasks, doing work involving fine motor skills, gardening, playing the piano and shopping;
·she stopped swimming.
10. In about April 1988 Dr Barton returned to work for three days on restricted duties, but was unable to continue with this work by reason of the pain she was experiencing. Since that time Dr Barton has attempted to undertake further employment on two occasions, but each time was unable to continue on a long term basis.
11. By a letter of 28 June 1989,[8] Dr Barton wrote to Comcare advising of her condition at that time. The matters set out are consistent with her condition in 1988 (as she now describes it) and with her present condition.
[8] Ex.A2 (T61).
12. In 1997 Dr Barton accepted a voluntary redundancy offer and retired from the Public Service. She had previously been declared an excess officer by reason of her inability to attend work. [9]
[9] Ex.A6.
13. When compared to the situation in February 1988 when she ceased work, the pain Dr Barton now suffers is “fairly constant and wide ranging.” [10] Additional symptoms to those experienced in 1988 are:
·cramping behind the shoulder blades;
·acute sensitivity of the skin on top of the arms;
·headaches of varying intensity;
·numbness in both arms.
[10] Transcript 30.4.07 p-34.
Dr Barton continues to experience pain in her hands, arms and across her shoulders. Although the pain varies in intensity depending on the activity she undertakes, Dr Barton is never pain free.
14. Dr Barton’s description of her symptoms was supported by the evidence of her daughter, Ms Preece, and a friend, Dr Gorrell. We have taken their evidence into account.
Medical and other Health Professional Evidence
15. In December 1987 Ms Keddie, Physiotherapist, reported that she was treating Dr Barton for bilateral shoulder pain. The previous month she had visited Dr Barton’s workplace and recommended changes to her working conditions.[11]
[11] T6.
16. In February 1988 Dr Furnass reported:
“Since Ms Barton’s shoulder pain developed before 1983 it was clearly not caused by her employment. Her employment as a microbiologist involved long periods of sitting in a fixed position. During this time she was also writing her PhD thesis in zoology at this University which also involved long periods of writing. In my opinion it is possible that her conditions of work may have contributed to persistence of a rotator cuff syndrome." [12]
[12] T16.
17. In March 1988 Dr Barton was assessed by Dr Hilton to determine a suitable rehabilitation programme. She had been referred by Dr Szmerler. Dr Hilton reported:
“It is interesting that whenever the shoulder pain occurred it was always when Ms Barton was doing numerous ELIZA viral assays, involving pipettes, bending forward etc. She had been doing ELIZAS in less quantity at the National Brucellosis Reference Centre where there was variation in tasks, and she had no problems until returning to the National Biological Standards Laboratory with the poor ergonomic setup …… Grip strength was normal but she had marked tenderness of the left and right clavicle and intraclavicular fossa, and both shoulders with pain in posterior neck and right paravertebral muscle right greater than left medial border scapula. Abduction of both arms above waist level was not possible due to pain and stiffness ..... Probable aetiology appears to be work-related, specifically to poor ergonomic setup initially and by actions involved in the ELIZA Viral Assays involving use of pipettes and bending forward constantly." [13]
[13] T44.
18. Dr Hilton saw Dr Barton again in October 1990. He reported that at that time her symptoms appeared to be fairly static and that her progress appeared to be poor.[14]
[14] T87.
19. Dr Nelson’s summary of treatment is important in this matter, bearing in mind that he became Dr Barton’s treating general practitioner in April 1988, within two months of her ceasing work in the laboratory:
“This is in continuation of what I have mentioned with emphasis on losing weight, upgrading activity, psychological methods for herself and her husband in controlling her pain and changing both their attitudes towards looking for a cure from outside rather than within themselves.
They responded well to this encouraging line of attack and I am hopeful that if they persist in using these strategies Anne will become employable again."
20. In September 1988 Dr Nelson reported that Dr Barton had a limited range of movement in both shoulders (with more limitation in the left) and that she had many tender trigger points in her scapula region which referred pain into the shoulder, arm and hand. Dr Nelson treated Dr Barton with injections to the trigger points which provided some, but not lasting, relief. He further stated that “she seemed confused as to what was wrong and had had numerous diagnoses of different treating people, which tended to add to the confusion. There were signs of development of abnormal pain behaviour and we discussed this in the first session with explanation from me about the implications of chronic pain and the very different way of looking at it as compared with acute pain.” [15]
[15] T41.
21. In February 1989 Dr Barton was examined by Dr Vance, Orthopaedic Surgeon, at the request of the Commonwealth Medical Officer. We assume this examination was for the purpose of assessing her ability to return to work. At the time Dr Barton complained of pain in her arms extending from her hands to her collarbones. On examination Dr Vance noted restricted active range of movement in the shoulders but almost full range of passive movement. He reported:
“This patient's widespread symptoms extending from headaches, to neck aches, shoulder pains, arm pains, transient sensory loss in the right arm do not suggest any definitive organic lesion ..... I cannot make a positive diagnosis of her condition which I feel may not be orthopaedic in nature. I can offer no recommendations for treatment while the prognosis for recovery at least in the short term is poor." [16]
[16] T50.
22. In November 1989 Dr Barton was reviewed by Dr Hilton. He reported that Dr Barton had been gradually improving until the birth of her baby in October that year but that she continued to suffer arm, and shoulder pain. In his opinion a return to work in December that year was “highly unlikely” to be successful in view of her symptoms.[17]
[17] T69.
23. In August 1989 Dr Barton was examined by Dr Knox, Consultant Psychiatrist, at the request of the Commonwealth Medical Officer. Dr Knox did not diagnose any psychiatric illness, although he was of the opinion that there was secondary reactive frustration and depression present, which was typically seen in chronic pain problems. Dr Knox was also of the opinion “that there is a genuine organic basis to this lady's shoulder pain, and I would attributed this to her having diligently, and perhaps to a degree excessively, continued to work in her laboratory duties at times in recent years despite shoulder pain.” [18]
[18] T192.
24. In 1990 Dr Barton was living on Norfolk Island and was examined by the Government Medical Superintendent, Dr Panter. At that time Dr Panter was of the opinion that Dr Barton’s capacity for employment was very limited as she had gross restriction of abduction of both arms, and it was likely that her condition was permanent.[19]
[19] T83.
25. Later that year Dr Barton was examined by Dr Coorey, Consultant Physician and Rheumatologist. Dr Coorey reported that he found it somewhat odd that Dr Barton exhibited the limitation in shoulder elevation which she did in the absence of wasting of the shoulder muscles concerned. In his opinion “anxiety factors about her condition have contributed largely to her condition”. [20]
[20] T88.
26. In 1991 Dr Duncan, Rheumatologist, examined Dr Barton and reported to Comcare.[21] He described Dr Barton’s case as “most unusual and difficult” and he found it difficult to answer the question of causation. However he was of the opinion that Dr Barton had a “major disability involving the upper limbs.”
[21] T119.
27. In July 1991, Ms Cursley, who is a Comcare Rehabilitation Provider, assessed Dr Barton’s functionality. Following the assessment Ms Cursley was of the view that “it is quite possible that Mrs Barton is suffering from myofascial pain syndrome affecting the shoulder girdle musculature rather than rotator cuff syndrome as currently diagnosed.” [22]
[22] Ex.R2.
28. In June 1993 Dr Hudspith, an Australian Government Health Services Medical Officer, reviewed Dr Barton to assess her fitness for continued duty in the Public Service. On examination he determined that both arms had restricted elevation, the best being the right arm with 60 degree abduction. He noted some wasting of the hand muscles. His assessment included that “Dr Barton has a marked degree of neurological involvement to both arms and hands and pain at neck and shoulders which restrict activity to a marked degree. She is totally unfit for her normal work……” [23]
[23] T144.
29. In mid-1993 Dr Tuck, Consultant Neurologist, examined Dr Barton on referral by her general practitioner. In August 1993 he reported :
“Passive and active movements of the shoulders were very limited. There was no wasting of the shoulder girdle, arm or the intrinsic hand muscles. I could not test power in the shoulders but there was mild, give way weakness of the elbows, forearms and hands. There were no fasciculations and muscle tone was normal. The reflexes, including finger flexion reflexes were present. Light touch, joint position and vibration sense were normal." [24]
[24] Ex.R12.
30. Dr Barton was treated by Dr Morris, Orthopaedic Surgeon, in 1995. When he examined her in February 1995 Dr Morris found that Dr Barton showed evidence of frozen shoulders and noted that after activity she was getting a lot of pain on the medial aspect of her clavicles. He attributed this pain to the fact that that the scapulae were rolling through far more excursion than normal because of the stiffness in the shoulder joints. Dr Morris manipulated and injected the left shoulder and referred Dr Barton for physiotherapy. Although these procedures improved the range of movement in the shoulders they gradually returned to their pre-treatment state. By May 1996 Dr Morris recorded that Dr Barton continued to experience bilateral arm pains. He reported that “she genuinely has disability in both shoulders which were initiated by her original laboratory work. ……. She will, I think, be left with permanent pain and stiffness around the shoulder girdle extending down her arms. I think she remains permanently unsuitable to return to her previous occupation as a laboratory technician.” [25]
[25] Ex.A4, T190.
31. In 1996 Comcare referred Dr Barton to Dr Joubert, Consultant Neurologist, for assessment. Dr Joubert reported that the only limitation of shoulder movement demonstrated by Dr Barton was a limitation of abduction to 90 degrees. He described this limitation as “allegedly due to discomfort”. In his opinion Dr Barton’s condition was “inexplicable in physiological or patho-physiological terms” and was not related to her employment by the Department of Health.[26]
[26] Ex.R3, T183.
32. In the same year Comcare also arranged for Dr Barton to be assessed by Mr Williams, Consultant Orthopaedic Surgeon. He could not find any anatomical abnormality on examination but noted that Dr Barton was unwilling to perform a normal range of movement in her upper limbs because of a complaint of pain. In the opinion of Mr Williams, Dr Barton was suffering a chronic pain syndrome for which he could not demonstrate any physiological disease.[27]
[27] Ex.R4, T185.
33. Dr Barton was seen by Dr Boyapati in 1996 to assess her fitness for continued employment. Dr Boyapati noted that there was no muscle wasting and the limitation of abduction of both shoulders was 90 degrees. She could not find any organic cause for her disability and considered her fit to return to work. Further she considered “that Dr Barton had adapted well to a sick role and unlikely to wish to resume her duties.” [28] At the same time Dr de Livera, the Director of the Australian Government Health Service (ACT) reported that in his opinion Dr Barton had some work capacity, although it would fall short of her laboratory technician duties. In view of the time Dr Barton had been off work he recommended a return to work for limited hours on restricted duties.
[28] T198.
34. Dr Champion has been treating Dr Barton since 1992. Dr Champion is a Physician practising in the fields of rheumatology, musculoskeletal medicine and pain medicine. He gave evidence and a number of his reports are in evidence.[29]
[29] Ex.A12 (reports in T-Documents).
35. In his report of 3 June 1996 Dr Champion stated his diagnosis as “a cervicobrachial pain disorder including neuropathic pathogenesis with associated adhesive capsulitis/frozen shoulder syndrome bilaterally. The disorder arose in the course of her work and there was no indication of alternative or additional cause”[30] When he gave evidence he confirmed his view that “the central sensitisation of nociception has become widespread.” In his view Dr Barton all along “had features …… of disordered somatosensory processing – that is, an abnormal pain experience with persistence of pain, easily provoked pain, and a set of abnormal responses to sensory testing which, taken altogether, point to …… disturbance of somatosensory processing involving sensitised or switched on pain processing in the central nervous system.”[31]
[30] T194.
[31] Transcript 16.8.07 p-27.
36. When asked as to the possibility that Dr Barton’s chronic pain may be the result of osteoarthritis or rheumatoid arthritis, Dr Champion said that despite having carefully investigated the issue he had been unable to determine that Dr Barton suffered from any inflammatory rheumatic disease process. He agreed that Dr Barton does have osteoarthritis, but he is of the view that this condition has made only a minor contribution to her shoulder disorder and dysfunction. In his opinion the osteoarthritis was not relevant to the onset of her pain in 1987 and that the evolution of symptomatic osteoarthritis has occurred since about 2000. In his assessment Dr Barton is a very genuine person whose pain related disability has been relatively severe and has prevented her from working.
37. Dr Champion was cross-examined at length. He maintained the opinions he had expressed. It was clear that he had little regard for the opinions of those who disagreed with his views on the concept of sensitisation of nociception.
38. Dr Speldewinde specialises in rehabilitation medicine and in 1996 practised at a Canberra Pain Management Clinic. He treated Dr Barton on referral by her general practitioner. In a report in December 1996 he stated that “like Dr Champion, I regard her as having a neuropathic pain problem of uncertain etiology.” [32]
[32] Ex.R10.
39. In 1997 Dr Barton was referred by her Rehabilitation Case Manager to Ms Castles, Occupational Therapist. Ms Castles concluded that Dr Barton had a chronic pain condition of eleven years standing and that at that time she was not fit to undertake a rehabilitation program. Ms Castles saw the obstacles to rehabilitation (some of which were not related to Dr Barton’s injury) as including:
·"the long-term injury (11 years) and the continuing severity of her injury"
·"fear of re-injury"
·"pain behaviour"
·"limited belief in personal ability to return to work"
·"illness conviction"
·"deconditioning"
·"little recovery from a plethora of treatment undertaken over many years"
·"dissatisfaction and distrust of the compensation system".[33]
[33] T226.
40. In February 2000, Dr Kellett reported that there were no prospects of Dr Barton returning to work in the foreseeable future. [34]
[34] T254.
41. In February 2001 Dr Barton was visited at home by Ms Hogg, Consultant Occupational Therapist, at the request of Comcare. Her assessment was that Dr Barton “has a long-standing medical condition which seems to have improved very little over many years. While the pain, numbness, headaches and pins and needles are not directly observable Dr Barton's presentation is consistent with a pain syndrome." [35]
[35] T267.
42. In March 2001 Dr Champion referred Dr Barton to Dr Quain, Orthopaedic Surgeon. On examination Dr Quain observed that, with her elbows by her side, Dr Barton had “near normal” range of internal and external rotation of her shoulders which was against “a true capsulitis of the shoulder.” [36]
[36] Ex.R6, T268.
43. On 6 March 2001 Dr Barton underwent an x-ray and ultrasound of both shoulders. In a report of 6 March 2001 addressed to Dr Champion, Dr Durham commented that the appearance of the shoulders was consistent with adhesive/restrictive capsulitis bilaterally.[37]
[37] T269.
44. In June 2005 MRI scans of both shoulders was carried out at the request of Dr Champion. It was reported that there was “mild subacromial bursitis and mild AC joint sprain” in the left shoulder and “small joint effusion and synovitis within the AC joint …… associated with moderate subacromial bursitis” in the right shoulder.[38]
[38] T344.
45. In July 2005 Ms Dupont carried out a vocational assessment of Dr Barton at the request of her solicitors. Ms Dupont is a Vocational Consultant. She reported that Dr Barton may have some residual work capacity but that “without an improvement in her pain level and an increase in motivation” she believed that a return to work by Dr Barton would be problematic. [39]
[39] T346.
46. Dr Barton was assessed by Dr Eaton, Occupational Physician, in August 2005. This assessment was at the request of Dr Barton’s solicitors. Dr Eaton gave a written report of 11 September 2005 [40] and gave evidence. He agreed with the opinions of Dr Champion.
[40] T351.
47. Dr Eaton diagnosed Dr Barton as suffering “chronic bilateral cervicobrachial neuropathic pain disorder consequent upon an initial bilateral rotator cuff strain, adhesive capsulitis and associated headaches.” [41] In his opinion the initial injury occurred as a result of Dr Barton’s work activities and once a chronic pain disorder develops it may persist long beyond the healing of the tissue initially affected. This develops by reason of changes in the central nervous system. Dr Eaton regarded Dr Barton as genuine in her presentation.
[41] Transcript 16.8.07 p-5.
48. Dr Barton was assessed in August 2005 by Dr Stevens, Clinical Psychologist, at the request of her solicitors. He gave evidence and confirmed the contents of his report of 6 September 2005.[42]
[42] T350.
49. Dr Stevens diagnosed Dr Barton as suffering from a Pain Disorder associated with both psychological factors and general medical conditions. In his opinion, Dr Barton's history, subsequent course and current complaints are consistent with a chronic pain condition. Psychological testing carried out by Dr Stevens indicated that Dr Barton did not magnify her symptoms.
50. Dr Stevens was also of the opinion that Dr Barton has a somatic tendency “that changes emotional pain into physical pain and this has been a maintaining factor in her condition.” [43] Dr Stevens believes that Dr Barton has a personality style which meant that when she was injured in 1987 it took a chronic course and although the factor which started the process may have ceased, the psychological continuance of the problem will still be experienced as pain all the way through. This somatisation was at a non-conscious level. [44]
[43] T350, line 54.
[44] Transcript 2.5.07 pp-112, 119.
51. Also in August 2005 Dr Barton was assessed by Dr Lethlean, Consultant Neurologist. This assessment was at the request of Dr Barton’s solicitors. Dr Lethlean’s opinion is that Dr Barton developed use-related muscular pain in the course of using a pipette in an apparently ergonomically unsatisfactory setting. He reported:
“I see no evidence for a primary neural process. …… Cervicobrachialgia is a descriptive term, and fully applicable to her earlier symptoms, 1987-1988, and 8 September 1992 when she first attended Dr Champion, but a neuropathic basis for this is not evident ……….. [H]er illness was initiated by work related activity but is not maintained by this. Fibromyalgia has developed with its own diagnostic criteria and its own momentum, not modified by extensive treatment.
I would not attribute her continuing disability which is severe, to her employment/employment-related factors.”[45]
[45] Ex.R13.
52. Dr Searle, Orthopaedic Surgeon, examined Dr Barton in November 2005 at the request of her solicitors. He provided a report of 12 November 2005[46] and gave evidence.
[46] T353
53. In the opinion of Dr Searle, in 2005 Dr Barton suffered from a combination of complex regional pain syndrome with capsulitis on both shoulder joints. He described this condition as being caused by repetitive movements gradually causing problems with the shoulder joints and arms, then linking to the autonomic nervous system, leading to the regional pain syndrome. In his view Dr Barton’s employment was “a substantial contributing factor” and that any previous shoulder symptoms had recovered completely.
54. At the time of the examination Dr Searle observed that Dr Barton’s left rhomboids and trapezius were in the “most severe unrelenting spasm” he had ever seen.[47] He described this as a protective mechanism which may not be present at all times.
[47] T353
55. Dr Barton was examined by Dr Smith, Orthopaedic Surgeon, in December 2005 at the request of Comcare’s solicitors. Dr Smith was of the view that the weakness in her arms and restriction in shoulder movement exhibited by Dr Barton was “manufactured” and she is fit for any work suitable for a woman of her age. In his view there is no organic illness which could produce these symptoms.[48]
[48] Ex.R8, T355.
56. Dr Barton was assessed by Dr Pascall, Consultant Occupational Physician, in February 2006. This assessment was on behalf of Comcare for the purposes of this application. She diagnosed Dr Barton as suffering Chronic Pain Syndrome manifested in the thoracic region, neck and upper limbs. In March 2006 she reported:
“I believe that she has a combination of clinical conditions causing the symptoms she claimed compensation [sic]. There would have been osteoarthritis of the left sternoclavicular joint; it now involves both. There was probably subacromial bursitis arising from her Type II acromion (bilateral) and aggravated by the repetitive arm movements at work. There is probably a degree of muscle fatigue causing pain at that time. There was a strong psychogenic contribution in interpreting these discomfort and pain and that escalated into the current situation of Chronic Pain Syndrome..... Her current problems are primarily that of the underlying condition of her shoulders and spine and of her perception of the symptoms being from a work-related condition. I believe any association with work, apart from Dr Barton’s and Professor Champion’s opinions, had ceased by the time Dr Vance assessed in February 1989. They clearly had ceased by the time Dr Morris carried out the manipulation under anaesthetic in 1995……. I believe that the pursuit of treatment for her shoulder pain has actually perpetuated the problem, both in Dr Barton's perception of pain and disability but also possibly in irritating a condition that might have been better left alone. It is clear that there are means within pain nerve cells to circumvent, after a short period, any attempt to block the perception of pain." [49]
[49] Ex.R7, T357.
57. Dr Pascall accepts that there is a condition of neuropathic pain and in her view Dr Barton did not consciously exaggerate her symptoms. In the opinion of Dr Pascall the fact that Dr Barton submitted to surgical procedures in 1985, 2001 and 2002, is explicable on the basis that Dr Barton genuinely believed that surgery could do something for her pain.
58. In April 2006 Dr Barton was assessed by Dr Glaser, Consultant Psychiatrist. This assessment was at the request of Comcare. In the opinion of Dr Glaser, Dr Barton was not suffering from any identifiable psychiatric disorder. It should be noted that Dr Barton has never claimed, nor suggested, that she did suffer such a disorder.[50]
[50] A copy of Dr Glaser’s report of 3 May 3006 is ex.R9, T360.
STATUTORY BACKGROUND
59. Subsection 16 (1) of the Act provides:
“Where an employee suffers from 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 it appropriate to that medical treatment."
60.Subsection 19 (2) of the Act provides:
“Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated……”
61. When Dr Barton suffered the injury for which liability to compensate her was accepted, and at the time of acceptance of liability, her entitlement to compensation was governed by the Compensation (Australian Government Employees) Act 1971 (Cth). Relevant provisions of that Act follow.
Section 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.”
Under section 29 the contraction, aggravation, acceleration or recurrence of a disease is deemed to be an injury arising from the employment.
ISSUES FOR DETERMINATION
Application A2005/120
62. In Commonwealth of Australia v Borg (1994) 20 AAR 299 at 307, the Full Court of the Federal Court was dealing with the 1971 Act but the principle stated by the Court is applicable to the present legislation. In that matter Jenkinson J. said that a decision that compensation is not payable (in a situation where it has been paid previously) should not be made unless the decision maker “was persuaded that one of the entitling circumstances had, on or before [the date of the decision], ceased to exist."
63. Taking into account the decision in Borg the issues for determination are:
1)what is the injury for which liability to compensate Dr Barton has been accepted?
2)are we persuaded that since 7 March 2005 Dr Barton has not been incapacitated for work as a result of the injury?
3)are we persuaded that since 7 March 2005 there has been no medical treatment that it was reasonable for Dr Barton to obtain in relation to her compensable injury?
4)are we persuaded that since 7 March 2005 there have been no household and/or attendant care services which Dr Barton reasonably requires as a result of her compensable injury ?
Application A2006/265
64. Should the description of the compensable injury be amended to include “a chronic pain syndrome (however described)”?
DETERMINATION OF THE ISSUES
What is the injury for which liability to compensate Dr Barton has been accepted?
65. In the claim form completed by her on 4 January 1988, Dr Barton described the injury claimed as follows:
“Aggravation of left rotator cuff; right rotator cuff new injury …. Left – May 1983 Right – July 1987 …. Constant severe bilateral pain.” [51]
[51] T7.
In an Occupational Injury Report of 16 December 1987, directed to her employer, the details of the injury were described as “Rotator cuff syndrome in both left and right shoulders causing severe bilateral shoulder pain and inflammation.” [52]
[52] T10.
66. In response to a request by the employer, in February 1988 Dr Szmerler advised that Dr Barton was initially seen by him concerning “chronic shoulder pain involving her left shoulder over a period of months and more recently her right side as well as pain and parasthesiae of her upper limbs.” [53]
[53] T13.
67. On 8 March 1988 the Commissioner for Employees Compensation found liability under sections 27 and 29 of the 1971 Act to compensate Dr Barton in respect of “aggravation of rotator cuff syndrome”.[54] It should be noted that liability under section 29 is in respect of disease. The date of injury is noted as 2 November 1987 and is followed by the notation “(Date FSMT)”, which we interpret as meaning the date on which medical treatment was first sought.
[54] T21.
68. In construing a notice of injury “a broad, generous and practical interpretation should be made…….”Abrahams v Comcare [2006] FCA 1829 para 18. This statement of principle is equally applicable to the interpretation of a claim for compensation.
69. We are satisfied that the injury claimed by Dr Barton included ongoing pain in both shoulders and parasthesiae of both upper limbs, including an aggravation of a left shoulder injury and a new injury to the right shoulder. Although the Commissioner described the injury as aggravation of rotator cuff syndrome it is not that description which determines the injury for which compensation was claimed.
70. We are satisfied that this condition is an “ailment” within the definition in section 4 of the Act. It will be necessary to consider whether Dr Barton’s employment by the Department has ceased to contribute in a material degree to this ailment.
Are we persuaded that since 7 March 2005 Dr Barton has not been incapacitated for work as a result of the injury?
71. This matter highlights the difficult situation which arises when Comcare pays compensation to an injured worker over many years and then ceases payment on the basis of opinions of medico-legal practitioners who examine the worker and express opinions that the effects of the injury ceased within a relatively short time of the date of the injury. The matter is made even more complicated by the extent of medical opinion now before us which arises from medical assessments ranging over a period of twenty-four years. In some instances medical practitioners have expressed opinions as to Dr Barton’s state of health almost twenty years prior to the date of their examinations of Dr Barton.
72. We have taken into account all the various medical opinions before us and to which we have referred earlier in these reasons. The reports of the general practitioners who cared for Dr Barton around the time of her injury (Dr Furnass, Dr Hilton and Dr Szmerler) confirm that these practitioners considered that Dr Barton had suffered a significantly disabling injury. We accept this evidence, including the view of Dr Nelson that by September 1988, Dr Barton was developing signs of abnormal pain behaviour. The opinions of the general practitioners are supported by the views of Dr Vance.
73. We also take into account that Dr Barton’s employer offered her a redundancy in 1997 on the basis that she was unable to continue in her position within the Department. In 1993 an Australian Government Health Services Medical Officer, Dr Hudspith had assessed her as totally unfit for her normal work. In 1995 Dr Morris was of the view that Dr Barton was permanently unsuitable to return to her previous occupation. In 1996 Dr de Livera also thought that Dr Barton was unable to return to her previous duties.
74. An alternative view as to the explanation of the pain being experienced by Dr Barton has been put by Dr Champion, who is of the opinion that she has suffered a disturbance of pain processing in the central nervous system. This view was supported by Dr Eaton.
75. There is considerable evidence that Dr Barton has suffered, and continues to suffer, some form of chronic pain disorder which developed from the pain she suffered in her shoulders which was caused or aggravated by her employment. We have already referred to the evidence of those who examined Dr Barton prior to he voluntary retirement. Dr Champion, Mr Williams, Dr Speldewinde, Ms Castles, Ms Hogg, Ms Dupont, Dr Eaton, Dr Stevens and Dr Searle all support this view. Dr Pascall, who assessed Dr Barton in 2006 on behalf of Comcare, is of the view that she suffered a chronic pain syndrome but that it ceased to be associated with her employment by February 1989. Dr Pascall is of the opinion that Dr Barton did not exaggerate her symptoms. Dr Lethlean is of the opinion that Dr Barton’s illness was initiated by her work but not maintained by it.
76. The view has also been expressed that Dr Barton consciously exaggerates her symptoms and that for many years she has chosen voluntarily not to work in her previous occupation. This is the view of Dr Smith, which is supported to some extent by the opinion of Dr Joubert, in 1996 that Dr Barton was not physically incapacitated and that her condition was not related to her employment. However he did qualify his opinion by saying that Dr Barton’s condition was “inexplicable in physiological or patho-physiological terms.” [55] Dr Boyapati considered Dr Barton fit to return to work in 1996 and Dr de Livera considered she had some work capacity.
[55] T183.
77. Having considered all of the medical evidence, the evidence of other health professionals and the evidence of Dr Barton, we are not satisfied that the circumstances entitling Dr Barton to compensation for incapacity up until 7 March 2005 have ceased to exist. In our view there is no reason to prefer the evidence relied upon by Comcare to support its contention in preference to the evidence that Dr Barton continues to suffer the effects of the injury for which liability is accepted. In fact, we prefer the evidence of those practitioners who treated Dr Barton during the late 1980’s and during the 1990’s to those who assessed her within recent years for the purposes of providing medico-legal opinions. In our view the former practitioners had the advantage of being able to assess Dr Barton at a time nearer to the onset of the symptoms of which she complains.
78. In reaching this conclusion we have taken into account the evidence of Dr Barton that the symptoms she has experienced have remained relatively constant from the time of their onset. We have also taken into account that there is no evidence to suggest a reason for Dr Barton to voluntarily abandon a career she had worked hard to obtain over a number of years, particularly so early in that career. Further we have considered relevant that she underwent three surgical procedures on advice that such procedures may alleviate her symptoms.
79. Having reached this conclusion it is necessary to consider whether Dr Barton has ceased to be totally incapacitated from engaging in suitable employment. For the reasons already stated we prefer the evidence of Dr Champion and Dr Eaton to that of Dr Smith and Dr Boyapati. On the basis of the evidence of Dr Eaton it may be that if appropriate steps had been taken to assist Dr Barton to re-enter the work force, suitable employment, at least on a part-time basis, may have been found. It appears no such steps have been taken. On the evidence before us we are not satisfied that there has been any change in the circumstances of Dr Barton being incapable of undertaking any form of suitable employment. With proper assistance, Dr Barton may be capable in the future of undertaking some suitable employment. This is not a decision for us to make.
80. In Dr Barton’s case, after many years of payment on the basis of total incapacity for work, Comcare decided to cease all payments for incapacity, medical expenses and household and attendant care services. [56] In our view, it would make for more efficient administration and would be of great assistance to us in reaching our decision, for Comcare to have investigated and implemented appropriate procedures to endeavour to assist Dr Barton to return to the work force on a graduated basis rather than simply stopping compensation so abruptly after so many years.
Are we persuaded that since 7 March 2005 there has been no medical treatment that it was reasonable for Dr Barton to obtain in relation to her compensable injury?
Are we persuaded that since 7 March 2005 there have been no household and/or attendant care services which Dr Barton reasonably requires as a result of her compensable injury?
[56] T332 and T339.
81. For the reasons already stated we are not satisfied that prior to, or since, 7 March 2005 there has been any change in the circumstances entitling Dr Barton to compensation in respect of her injury.
Should the description of the compensable injury be amended to include “a chronic pain syndrome (however described)”?
82. In the light of our decision as to the injury suffered by Dr Barton it is appropriate that the description of the injury be amended accordingly.
DECISION
Application A 2005/120
83. The reviewable decision of Comcare made 9 May 2005 is set aside and in substitution it is decided that since 7 March 2005 Dr Barton has continued to be entitled to compensation under sections 16,19 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) as a result of an injury suffered by her on 2 November 2007.
Application A 2006/265
84. The reviewable decision of Comcare made 25 October 2006 is set aside and in substitution it is decided that the injury in respect of which Comcare is liable to compensate is aggravation of rotator cuff syndrome and resulting chronic pain syndrome affecting the shoulders and upper limbs.
Costs: Applications A 2005/120 and A 2006/265
85. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Dr Barton.
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M.D. Miller AO, Member
Signed: .....................................................................................
Geoff Foley, Associate
Date/s of Hearing 30 April 2007, 1 & 2 May 2007 and 16 & 17 August 2007
Date of Decision 1 November 2007
Counsel for the Applicant Alan Anforth
Solicitor for the Applicant Capital Lawyers
Counsel for the Respondent Lorraine Walker
Solicitor for the Respondent Dibbs Abbott Stillman
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