Bianchi and Comcare
[2001] AATA 805
•24 September 2001
DECISION AND REASONS FOR DECISION [2001] AATA 805
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/593
GENERAL ADMINISTRATIVE DIVISION )
Re TERESITA BIANCHI
Applicant
And COMCARE
Respondent
DECISION
Tribunal M J Sassella, Senior Member, Dr J D Campbell, Member
Date24 September 2001
PlaceSydney
Decision The Tribunal sets aside the decision under review and substitutes its decision that the Respondent has, since 15 September 1999, been liable to pay compensation to the Applicant in accordance with the Act. The Respondent is to pay the Applicant's costs in accordance with the Tribunal's General Practice Direction.
[Sgd] M J Sassella
Senior Member
CATCHWORDS
Workers' Compensation – overuse syndrome – wrist and shoulder injury – whether respondent liable for ongoing compensation payments – injury resulting in incapacity to work - regional pain syndrome
Safety, Rehabilitation and Compensation Act 1988, ss 4(1) "ailment", "approved Guide", "disease", "impairment", "injury", "permanent", 14(1), 19(1), (2), (3), 24(1), (2), (3), (4), (5), (6), (7), 27, 28.
Re Wood and Comcare [1999] AATA 263
Re Jeremic and Comcare (AAT 5975, 20 June 1990)
Re Labi and Comcare (AAT 13560, 21 December 1998)
REASONS FOR DECISION
24 September 2001 M J Sassella, Senior Member Dr J D Campbell, Member
HISTORY OF THE APPLICATION
The application for review in this matter arises from an injury which Ms Teresita Bianchi ("the Applicant") sustained on 7 April 1990 during the course of her employment as a catering assistant with Australian Airlines / Qantas. On 7 April 1990 she slipped and fell on a wet floor whilst washing up in the wash-up area of the kitchen, landing on her right hand. There is no dispute over whether this injury was sustained – liability was later accepted (T33, T51).
The Applicant lodged a claim for compensation with Comcare (the "Respondent") on 20 April 1990 in respect of the injury to her right wrist, which she incurred as a result of the fall (T5). Liability was later extended to include the condition of her right shoulder (T2).
The primary determination was made on 6 October 1999. This determination ceased liability in respect of the Applicant's claim for compensation related to "sub-acromial rotator cuff impingement of the right shoulder affecting the right wrist", with effect from 15 September 1999. The Respondent determined that the Applicant was not entitled to receive ongoing compensation on this claim under any section of the Safety, Rehabilitation and Compensation Act1988 ("the Act") (T139).
The Applicant requested a reconsideration of the Respondent's determination in two letters dated 15 September 1999 (T138) and 26 November 1999 (T142), and she attached Dr Sabag's report (T136) to this request.
In a decision dated 3 April 2000, an Independent Review Officer within Comcare affirmed the primary determination (T149). He concluded that any work-related component to her condition had resolved.
On 19 April 2000, the Applicant applied to the Administrative Appeals Tribunal ("the Tribunal") for review of the decision of 3 April 2000 on the basis that "the decision is against the weight of the medical evidence" (T1).
BACKGROUNDThe Applicant was born in Uruguay on 6 December 1945. She lived in Uruguay until she came to Australia in 1987. She was formerly employed with Australian Airlines/Qantas from 4 January 1988 as a kitchen hand/catering assistant and retired on the grounds of ill health on 20 February 1997 (T104, T105). She has not performed any other work since leaving Qantas. The Applicant lives with her husband and has two adult children who now live independently. She has not made any previous worker's compensation claims. The Applicant is right-handed.
MEDICAL EVIDENCE AND OTHER EVIDENCE/CHRONOLOGY
1990In a medical certificate dated 7 April 1990, the date of the injury, Dr Gock diagnosed the Applicant as suffering from bruising to the right wrist (T3).
Dr Sabag diagnosed the Applicant as suffering form a severe contusion of the right hand, in a medical certificate dated 12 April 1990 (T4). He also noted that specialist rehabilitation was required.
An accident report, detailing the accident, was filed with the Applicant's employer on 23 April 1990 (T8).
In a report dated 26 April 1990, Dr Sabag, general practitioner, found that the Applicant would be fit to resume suitable duties on 17 May 1990. He also noted that the Applicant required physiotherapy treatment (T9).
Dr Giblin, orthopaedic surgeon, reported on 6 July 1990 that the Applicant had responded well to a previous injection of steroid (T10). He stated that she continued to work until 25 June 1990, "at which time she started to complain of symptoms in the right arm of an overuse syndrome", such as swelling, persistent pain and discomfort. Dr Giblin stated that:
"clinically there was nothing to find on examination and she has a full range of movement. Her symptoms and negative findings are what we used to see a lot of with overuse syndrome."
The Applicant was overseas between 8 August and 29 August 1990 (Exhibit R2).
1991In a series of medical certificates (the first dated 8 January 1991 and the last dated 4 November 1991), Dr Sabag identified the nature of the Applicant's injury as "right radial distal arm and tendicity", the cause of injury as "work related" and the date of injury as "recovery from initial injury 7 April 1990". He stated that the Applicant was unfit for any duties, effectively, for the following periods in 1991:
8 January 1991 – 1 March 1991 (T11 – T13)
1 April 1991 – 1 June 1991 (T15, T16)
1 June 1991 – 2 Dec 1991 (T17, T21, T24, T28. T34)
Dr Sabag did, however, find the Applicant was fit for suitable duties from 1 March to 1 April 1991 (T14).
The Applicant was placed on a Rehabilitation Case Management Plan for the period 15 April 1991 – 22 July 1991 (T22). The plan stated that the injury would be treated "with physio etc then a gradual return to light duties first, then full pre-injury duties".
On 16 May 1991 Dr Chen, occupational physician with Vocational Health Services Pty Ltd, diagnosed reflex sympathetic dystrophy of the right hand (T18, p25). Dr Chen made the following findings:
the Applicant presented with constant pain in the right thumb radiating into the forearm and right shoulder region;
the symptoms she presented included a purple discolouration of the right thumb, mottled appearance of the right palm and extreme tenderness of the right thumb and metacarpal;
in addition to the Applicant's symptoms, slight atrophy of the skin overlying the involved area, mottled appearance of the palm and hypersensitivity of the involved area was detected;
an examination of the shoulder girdle revealed some spasm of the right trapezius muscle, which could be attributable to constrained postures in protecting the right hand form accidental knocking;
the Applicant would be fit for suitable selected duties on 20 May 1991, noting that such duties should not involve the use of the right arm. The doctor stated "if such duties are not available she should remain away from work until completion of treatment".
Dr Chen also referred the Applicant to an anaesthetist, Daryl Salmon, for sympathetic nerve blocks.
On 31 May 1991, Dr Salmon, anaesthetist, reported that the Applicant had features that suggested sympathetically maintained pain as part of, or in addition to, a tenosynovitis (T19). The doctor was to perform a ganglion block and obtain comparative x-rays of the hands.
On 11 June 1991, x-rays and a CT scan of the right wrist were reported as showing no evidence of trauma (T20).
In a report dated 25 July 1991, Dr Salmon stated that he had reviewed the Applicant following the ganglion block (Exhibit A2). He found that there was very little subsequent change in her symptoms and that she was tender over the "abductor and extensor tendons".
The Applicant was assessed by a physiotherapist, Amelia Lucas, on 16 September 1991. In a report dated 23 September 1991 Ms Lucas stated that the Applicant had a number of central and peripheral dysfunctions consistent with her symptoms (of headaches and pain in the right side of the neck, right wrist and hand). She further said that these were unlikely to resolve spontaneously (T27).
A bone scan of the neck, right shoulder and right hand, reported on 9 October 1991 by Dr Farlow, showed no evidence of an active synovitis or bone tumour (T29).
On 29 October 1991 Dr Hargreaves diagnosed mild periarthritis of the right shoulder, together with some early degenerative changes in the joints of the right thumb, particularly the carpo-metacarpal joint. He said that it seemed she had resolving sympathetic dystrophy following her injury last April. However, he stated that these dystrophic responses are notoriously slow to resolve, especially when superimposed upon mild degenerative changes. Dr Hargreaves recommended continued therapy and that an injection of steroid would benefit the Applicant, should there be a localised flare up of pain (T30).
In a letter dated 30 October 1991, the Respondent informed the Applicant of the details of the replacement determinations, in relation to the accepted compensation claim for contusion to right wrist. Her entitlements were as follows:
Period Weekly comp rate Total amt for period
3 July '90 – 18 July '90 (not advised $1328.63
by employer)
8 Jan '91 – 1 March '91 $504.88 $3938.06
4 March '91 – 1 July '91 $522.70 $8990.44
The Respondent also stated that any medical expenses related to the condition would be paid by separate cheque (T33).
The Applicant began weekly physiotherapy treatment with a Ms Lucas on 7 November 1991, with treatment being directed to her right shoulder (T34).
It was further stated in a Rehabilitation Case Management Plan for the period 19 November 1991 – 19 March 1992 (T38), that the Applicant was keen to return to work, that her return would be monitored and that all upgrading would be done gradually with the approval of Dr Sabag.
In a certificate dated 29 Nov 1991, Dr Sabag found the Applicant fit for suitable duties from 2 Dec 1991 to 9 Dec 1991, as agreed with the occupational therapist (T35).
A return to work program was formulated for the Applicant on 11 December 1991, by Vocational Rehabilitation Services Pty Ltd. This program stated that she could return to work on selected duties for 2 hours per day, 3 days per week (T36, T37).
1992In medical certificates dated 18 and 28 February 1992 (T39, T40), Dr Sabag stated that the Applicant was fit for suitable duties for the period 24 February 1992 to 23 March 1992, as agreed with the occupational therapist.
On 3 March 1992, Dr Hargreaves reported that the Applicant was still experiencing some pain in her thumb joints, but that her major problem was an increasing pain in the right shoulder, which had not been as responsive to therapy as some of her other problems (T41). The doctor suggested possible treatment by Dr Sabag, with non-steroidal anti-inflammatory drugs, and possible referral to someone with an interest in shoulders.
The Applicant was reported unfit for any duties from 29 March to 4 May 1992, with an exacerbation of tendonitis, in a certificate from Dr Sabag dated 29 April 1992 (T44).
In a report dated 4 April 1992, Dr Sabag stated that the Applicant was improving with the current work regime. He strongly suggested that she continue to work three times a week, with one day off in between, three hours each day, and that he be contacted before any further alterations were made to her work schedule (T42).
The Applicant's physiotherapy treatment was suspended from 7 May 1992, subject to the Applicant seeing a shoulder specialist.
Dr Sabag reported that the Applicant was on restricted duties between 27 and 29 May 1992, and 10 and 12 June 1992 (T46, T47).
The Applicant was placed on a Rehabilitation Case Management Plan, in relation to the hand/wrist injury, for the following periods:
20 June 1992 – 12 September 1992 (T48)
18 June 1992 – 30 June 1992 (T55)
1 July 1992 – 6 October 1992 (T58)
On 1 July 1992, the Respondent, in a letter about the Applicant's accepted compensation claim for contusion to the right hand, informed of her entitlements in relation to the following periods off work caused by her condition:
Period Total amount of compensation for period
25 May 1992 – 29 May 1992 $398.93
1 June 1992 – 5 June 1992 $339.56
8 June 1992 – 12 June 1992 $401.82
15 June 1992 – 19 June 1992 $339.56
This letter also noted that any medical expenses related to the condition would be paid by separate cheque (T51).
Dr Sabag stated that the Applicant was unfit for duties on 3 July 1992 due to an acute exacerbation of her original injury (T52).
In a rehabilitation progress report from Vocational Health Services dated 17 July 1992, it was stated that the Applicant had reported an increase in pain in the pectoral region despite no change in duties. It was also stated that she would not attempt an upgrade in duties, and that she had ceased physiotherapy, pending the results of the shoulder specialist's report (T53).
In a report dated 21 July 1992, Dr Neil, Orthopaedic Surgeon, stated that he took a history from the Applicant on 20 July 1992, of an injury to the right shoulder sustained on 7 April 1990 (T54). Dr Neil stated that:
"...she told me she injured her right shoulder on 7 April 1990, when she slipped heavily onto the joint, striking her shoulder on a bench. She had severe pain in the shoulder with radiation into the base of the thumb, the lateral forearm and into the neck."
Dr Neil concluded that, clinically the Applicant had "refractory right sub-acromial impingement, associated with clinical osteoarthritis of her acromio-clavacular joint. Some of her pain may be referred from her cervical spine". He referred her for x-rays of her cervical spine and shoulders.
Dr Sabag reported the Applicant unfit for work for the following periods in 1992:
20 July 1992 – 24 July 1992 (T56)
28 September 1992 – 12 October 1992 (T60)
16 October 1992 – 16 January 1993 (T62, T63)
The Applicant was away from work from 8 August 1992 to 4 September 1992, travelling to Uruguay between 12 August and 2 September 1992 (T57).
In a report dated 22 September 1992, Dr Neil stated that a shoulder ultrasound showed significant active sub-acromial impingement with no rotator cuff tear (T59). He also stated "I felt, on this basis, that acromioplasty decompression of her rotator cuff would have a better chance of success than I had initially thought." The x-ray of her cervical spine showed minor C5/6 degeneration only. Dr Neil reported that it was clear that most of her symptoms were due to long-standing rotator cuff impingement of the right shoulder.
In a letter dated 11 October 1992, Dr Neil wrote to the Respondent stating that the Applicant had definite sub-acromial impingement of the right shoulder and has been refractory to treatment and does require decompressive surgery and, possibly, rotator cuff repair. He also stated:
"clearly, both the shoulder and wrist problems have developed through the same injury and I am writing to seek clarification of whether Comcare are accepting liability for her shoulder problem." (T61).
1993
The Applicant was placed on a Rehabilitation Case Management Plan for the period 8 February 1993 – 2 April 1993 (T64).
The Applicant's Rehabilitation Case Management Plan was finalised on 2 April 1993 (T79).
A functional assessment by Ms Lovarini, occupational therapist from Industrial Rehabilitation Service, was completed on 12 March 1993 (T70). Ms Lovarini assessed the Applicant's capabilities and found that the Applicant would be able to sustain a light repetitive task (not involving force) for short periods. She stated the Applicant's limitations as follows:
"- ongoing discomfort affecting the right upper limb most notably in the right shoulder, axilla and thumb area.
- reduced rotation and lateral flexion of the neck
- reduced range of movement in the right upper limb
- reduced grip strength of both upper limbs"
Ms Lovarini concluded:
"In regards to a return to work, should suitable duties be identified for Mrs Bianchi, Mrs Bianchi will require a graded return to work programme given her difficulties in returning to work in the past."
Sue Quinn, rehabilitation counsellor, made a vocational assessment of the Applicant on 24 March 1993 (T71). She noted that the Applicant seemed interested in remaining in employment. She stated:
"Mrs Bianchi did seem to exaggerate the nature of her condition. During the assessment, her physical limitations did not appear to be as restrictive as Mrs Bianchi seemed to consider.
"Consideration may be given to Mrs Bianchi returning to work on a graded programme of selected duties. Other than a graded return to work programme and on the job training, no further rehabilitation would be required."
Dr Sabag reported the Applicant unfit for work from 16 April 1993 to 16 May 1993, in a certificate dated 2 April 1992 (T73).
On 28 April 1993 Dr Neil reported that he felt that most of the Applicant's symptoms were due to long standing rotator cuff impingement of the shoulder which may have been aggravated by her injury to the right shoulder at work on 7 April 1990. Although the Applicant had significant features of functional overlay there was no doubt she had objective pathology that may account in part for her symptoms. He re-iterated that the Applicant did require surgery to the right shoulder and that "she has been placed on a public waiting list for this to be carried [sic], if liability is not accepted by her insurers" (T74).
On 6 July 1993 Dr Neil reported that the Applicant's shoulder symptoms remained unchanged and that he was not absolutely confident that she would be able to return to her pre-injury level of work even with successful surgery (T76).
On 24 August 1993 the Applicant underwent surgery. Dr Neil reported that she would require rehabilitation for a period of 8 weeks following the procedure (T77).
Dr Neil reported, on 28 October 1993, that two months following surgery her progress was satisfactory, with her pain settling and her regaining of almost full movement apart from internal rotation. However, he stated that she was not yet ready to return to work (T78).
1994In a report dated 19 January 1994, Dr Neil stated that five months after surgery the Applicant had objective limitation of internal rotation but quite good function in the right shoulder. Dr Neil found the Applicant fit to return to work on a part-time basis, and felt it appropriate that her work schedule be coordinated through a rehabilitation provider (T80).
On 18 July 1994 Dr Neil found that "clinically she has a full passive range of motion of the shoulder with pain at the extremes". He reported that the Applicant was still complaining of pains in the right shoulder following the surgery on 24 August 1993 and that she reported to him that:
"She feels she is unable to return to normal duties, even in a part time capacity because of difficulty in transport as she is unable to drive and also an inability to carry out the task that full duties would entail."
The doctor, however, felt it was reasonable for the Applicant to resume light duties in a restricted capacity and for her gradual return to work to be coordinated by a Rehabilitation Officer from Comcare (T81).
1995
In a series of medical certificates (with the first dated 28 February 1995 and the last dated 21 December 1995), Dr Sabag identified the nature of the Applicant's injury as "right shoulder and arm incapacity", the cause of injury as "work related" and the date of injury as "7 April 1990". He noted that the Applicant was unfit for any duties, effectively, for the period 26 February 1995 to 27 February 1996 (T83 – T90).
1996In a letter dated 31 January 1996, Dr Neil reported to the Respondent that the Applicant had not made a full recovery and appeared to have been left with a chronic pain syndrome (T91). He found her "incapable of performing her normal duties as a catering assistant" and that:
"She would certainly be unfit for work that involved any lifting or repetitive overhead use of arm. Mrs Bianchi is significantly incapacitated for her usual type of work. I would estimate that she has a 20% permanent loss of efficient use of the right arm above the elbow level."
The doctor stated her prognosis was guarded, and concluded:
"With regard to her preoperative diagnosis of her right subacromial impingement syndrome, it is most likely that, on initial presentation, her symptoms were in fact due to long-standing rotator cuff impingement of the right shoulder. It is certainly reasonable to suggest that the injuries she sustained on 7 April 1990 aggravated her underlying condition to the extent that she became significantly symptomatic."
On 4 March 1996 Dr Neil reported that the Applicant's right shoulder pain remained unchanged and that she had stopped work about a year ago because she was unfit for normal duties (T94). The doctor confirmed the findings in his previous report dated 31 January 1996, and also noted that she had not improved with the "cervical plexus block" under the care of Dr Salmon.
On 28 March 1996 Dr Dalton, specialist in rehabilitation medicine, diagnosed the Applicant with a chronic regional pain syndrome. He found that (T97, p124):
"She has mild degenerative arthritis affecting the carpometacarpal joint of the right thumb. The history suggests that she had probably sustained a soft tissue injury to her right wrist and thumb possibly aggravating the underlying arthritis at the time of the fall. There was no history to suggest that she sustained an acute or significant injury to the right shoulder but subsequently did develop diffuse shoulder and upper limb pain… In my opinion she doesn't have convincing evidence of subacromial pathology, impingement tendonitis or any underlying rotator cuff abnormality which would account for her symptoms or which could be attributed to the fall."
In his prognosis, Dr Dalton stated that it was unlikely that the Applicant would be able to resume her pre-injury employment without restrictions, although some improvement in the short term could be possible. He concluded that:
"Mrs Bianchi does appear to have sustained a genuine work-related injury. Her rehabilitation course and recovery has been prolonged because of the development of a chronic regional pain syndrome."
Dr Sabag found the Applicant unfit for duties between 26 April 1996 and 26 June 1996, in a report dated 26 April 1996 (T98).
The Applicant travelled to Uruguay between 2 August 1996 and 26 August 1996 (T99).
1997On 20 February 1997 the Applicant was terminated from Australian Airlines/ Qantas on the grounds of ill health. In a letter from her employer dated 20 February 1997, it was stated (T104):
"As there is no suitable vacancy within Sydney Airport to which you could be transferred and carry out the full duties of such a position, I regret that under the circumstances I have to advise that your employment with Qantas Airways is terminated with effect from 20 February 1997."
However, the Tribunal notes that in a letter dated 26 August 1996 her impending termination was referred to as "medical retirement - ill health" (T101), and not as "termination".
In a letter dated 12 March 1997, the Respondent informed the Applicant that payment of compensation for her incapacity for work would continue, subject to the provision of medical evidence in support of her claim. At that time her certification would continue until 25 April 1997 (T106).
Dr Sabag stated that the Applicant was unfit for work between 27 April 1997 and 26 June 1997 due to the "right arm and right shoulder injury", in a certificate dated 28 April 1997 (T107).
In a letter dated 2 May 1997, in response to the receipt of a medical certificate (T107), the Respondent informed the Applicant that payment of compensation was approved until 27 June 1997 (T109).
In a series of medical certificates (with the first dated 24/6/97 and the last dated 17/12/98), Dr Sabag, with a diagnosis of "right arm and right shoulder injury", found the Applicant unfit for work for the following periods in 1997 – 1998:
27 June 1997 – 21 Dec 1997 (T109 – T111)
16 February 1998 – 16 December 1998 (T112 – T117)
1999
On 22 April 1999, an x-ray and ultrasound of the right shoulder was reported as showing minor degenerative changes and being consistent with minor bicipital tendonitis (T119).
Medical evidence relevant to review decisionGiven that, on the basis of the medical reports already discussed, liability for the wrist and shoulder injury was accepted, the issue of whether the payments in respect of this liability should continue, then remains. The reviewable decision was made considering the evidence of the following medical reports.
Dr McGill, rheumatologist, examined the Applicant, in accordance with the request of the Respondent, and provided a lengthy report, dated 5 July 1999 (T125). He gave a history of the complaint and stated that the Applicant:
"reported that she obtained no benefit from the shoulder surgery and that her symptoms then deteriorated. She further explained that she has continued to experience pain ever since the original injury without significant benefit from any of the interventions…She indicated that she is now worse and that she has less movement and more pain." (T125, p162).
Dr McGill stated that the label of regional pain syndrome was reasonable (T125). He noted that:
"The discrepancy between her shoulder movements during the formal assessment of shoulder function and those performed at other times, the discrepancy between her restricted shoulder movements on formal examination and the near normality of her recent shoulder ultrasound and x-ray, and the lack of any suggestion of reduced use of the right upper limb after a nine year period, all suggest that there is at least considerable embellishment of her symptoms or falsification and that the description she provided of her limitations was not accurate." (T125, p165).
Dr McGill did not think that the symptoms reported by the Applicant were related to her previous employment with Australian Airlines/Qantas and further stated "I think any physical component related to her employment has ceased" (T125, p166).
The Applicant travelled to Uruguay on 27 August 1999 for a month (T130), arriving back in Sydney on 28 September 1999 (Exhibit R2).
An x-ray of the Applicant's right shoulder, dated 26 August 1999, was reported as showing "no evidence of sub-acromial spur or other body encroachment. There is no radiographic suspicion of complication." (T132).
On 28 August 1999 Dr Neil reported that the Applicant complained of pain in the right shoulder and numbness over the whole aspect of the right arm (T133). He noted that "The wound has healed well. Importantly there is no appreciable wasting around the right rotator cuff or right arm". Dr Neil concluded that the Applicant had an entrenched chronic pain syndrome and that most of her physical signs had no organic basis. He suspected no treatment would afford symptomatic relief until her worker's compensation claim was settled (T133).
Dr Sabag reported on 14 September 1999 that he had seen the Applicant on 12 April 1990 complaining of pain in the shoulder and also the wrist and hand (T136). He concluded that she had suffered injury to her thumb, wrist, elbow and right shoulder as a consequence of the fall in 1990. He stated that:
"Her symptoms have been gradually improving because mainly in the later stage her decision to stop working and the resultant rest resulting from her decision.
"She now may have a 20% limitation of the function of that shoulder as a consequence of her injury and this is irreversible and there is no more treatment that can be provided to recover that damage. I don't think that there is any form of rehabilitation, physiotherapy or any other form of treatment, even surgery in my opinion will not be worth it to contemplate [sic]."
On 6 October 1999 a determination was issued ceasing liability on the Applicant's claim, with effect from 15 September 1999, upon consideration of the evidence in Dr McGill's and Dr Sabag's medical reports, with a preference given to Dr McGill's "specialist report" (T139).
The Applicant requested a reconsideration of the Respondent's determination dated 6 October 1999, in two letters dated 15 Sept 1999 (T138) and 26 Nov 1999 (T142).
On 7 March 2000 Dr Neil reported the following (Exhibit A4):
"a. The patient has a permanent incapacity of the right shoulder;
b. I cannot comment whether the patient's current injuries and disabilities are caused by the nature of this patient's conditions of employment. Her original pathology was straightforward subacromial impingement, which could be argued to be aggravated by repetitive over-heavy lifting. However, her current clinical situation is far removed from this. She has a chronic regional pain syndrome with very little evidence of true organic pathology at present.
c. Prognosis is extremely poor.
d. I do not believe that this patient will be able to re-enter her pre-injury occupation.
e. Surgery in this patient is absolutely contraindicated and would be fraught with even worse result than present."
On 7 March 2000, in a further report, Dr Neil stated the following (Exhibit A3 – privileged document?):
"1. I estimate Mrs Teresita Bianchi to have a 30% permanent loss of efficient use of the right arm at or above the elbow.
2. I am unable to make any association between this patient's current clinical situation, the basis of which is largely non-organic, and any work-related injury 7.4.1990."
On 3 April 2000, an Independent Review Officer in Comcare affirmed the determination dated 6 October 1999 (T149). The reports by Dr Neil dated 7 March 2000 were not included in this decision.
On 19 April 2000 the Applicant lodged an application for review with the Tribunal in relation to the decision on 3 April 2000 (T1).
Further evidence – following the reviewable decisionOn 22 August 2000 Dr Canaris, Forensic Psychiatrist, diagnosed an adjustment disorder with depressed mood (Exhibit A6). He stated:
"[The Applicant's] behaviour throughout our entire encounter showed evidence of chronic pain and discomfort in the affected shoulder. I discerned from her history and from her demeanour evidence of a significant reactive depression or to use the nomenclature of DSM-IV, an Adjustment Disorder with Depressive Mood… Certainly there was no evidence of psychiatric illness which in my view would account for her physical symptoms."
On 23 October 2000, Dr Neil assessed "a 10% whole person [permanent] impairment as a consequence of her injuries", under Table 9.4 of the Approved Guide (Exhibit A5). However, in an earlier report dated 7 March 2000, Dr Neil reported that the Applicant's condition was non-organic and not related to her employment (see Exhibit A3).
IssuesGiven that it had already been found that the Applicant had suffered an "injury", within the meaning of the Act, the issues now are whether:
(a) the Applicant continues to suffer from the injury arising during the course of her employment (beyond 15 September 1999) and thus whether the Respondent is still liable to make weekly compensation payments (s 19 of the Act) in respect of that injury (beyond 15 September 1999);
(b) whether the Applicant suffered permanent impairment as a result of the injury and whether this is greater than 10% as required under s 24 of the Act;
(c) whether the Respondent is liable to make payments under ss 24 and 27 of the Act.
In summary, the medical evidence most relevant to the above issues, is in the following medical reports:
Those considered in the reviewable decision (T149):
1.Dr McGill 5 July 1999 (T125)
2.X-ray report 26 Aug 1999 (T132)
3.Dr Neil 28 Aug 1999 (T133)
4.Dr Sabag 14 Sept 1999 (T136)
Those following the reviewable decision:
5.Dr Neil 7 March 2000 (Exhibits A3 and A4)
6.Dr Canaris 22 Aug 2000 (Exhibit A6)
7.Dr Neil 23 Oct 2000 (Exhibit A5)
The Applicant is claiming incapacity payments under s 19 of the Act and a lump sum payment under ss 24 and 27 of the SRC Act, for permanent injury.
Relevant legislationRelevant provisions from the Act are: ss 4(1) "ailment", "approved Guide", "disease", "impairment", "injury", "permanent", 14(1), 19(1), (2), (3), 24(1), (2), (3), (4), (5), (6), (7), 27, 28.
"Section 4 Interpretation
4. (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);
approved Guide means:
(a) the document, prepared by Comcare in accordance with section 28 under the title "Guide to the Assessment of the Degree of Permanent Impairment", that has been approved by the Minister and is for the time being in force; and
(b) if an instrument varying the document has been approved by the Minister-that document as so varied;
…
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;
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;
…
permanent means likely to continue indefinitely;
…""Section 14 Compensation for injuries
14. (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.
…""Section 19 Compensation for injuries resulting in incapacity
19. (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 (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula:
NWE - AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to earn in suitable employment.
(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:
(a) where the employee is not employed during that week-of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment;
(b) where the employee is employed for 25% or less of his or her normal weekly hours during that week-of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings;
(c) where the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week-of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 85% of his or her normal weekly earnings;
(d) where the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week-of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 90% of his or her normal weekly earnings;
(e) where the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week-of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 95% of his or her normal weekly earnings; and
(f) where the employee is employed for 100% of his or her normal weekly hours during that week-of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 100% of his or her normal weekly earnings.
…""Section 24 Compensation for injuries resulting in permanent impairment
24. (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
…""Section 27 Compensation for non-economic loss
27. (1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
($15,000 x A) + ($15,000 x B)
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee."Section 28 Approved Guide
28. (1) Comcare may, from time to time, prepare a written document, to be called the "Guide to the Assessment of the Degree of Permanent Impairment", setting out:
(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.
(2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
(3) A document prepared by Comcare under subsection (1), and an instrument under subsection (2), have no force or effect unless and until approved by the Minister.
(4) Where Comcare, a licensed authority, a licensed corporation or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensed authority, the licensed corporation or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide.
(5) The percentage of permanent impairment or non-economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1) (c) may be 0%.
(6) In preparing criteria for the purposes of paragraphs (1) (a) and (b), or in varying those criteria, Comcare shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non-economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed.
(7) When a document prepared by Comcare in accordance with subsection (1), or an instrument under subsection (2), has been approved by the Minister, Comcare shall cause copies of the document or instrument, as the case may be, to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives those copies.
(8) Comcare shall make copies of the "Guide to the Assessment of the Degree of Permanent Impairment" that has been approved by the Minister, and of any variation of that Guide that has been so approved, available upon application by a person and payment of the prescribed fee (if any).
(9) Sections 48 (other than paragraphs (1) (a) and (b) and subsection (2)), 49 and 50 of the Acts Interpretation Act 1901 apply in relation to a document, being the approved Guide or an instrument varying or revoking that Guide that has been approved by the Minister, as if, in those sections, references to regulations were references to such a document and references to a regulation were references to a provision of such a document.
(10) For the purpose of the application of the provisions of the Acts Interpretation Act 1901 in accordance with subsection (9), a document referred to in that subsection shall be taken to have been made on the date on which it was approved by the Minister under this section."
Hearing and appearances
The Tribunal convened a hearing in Sydney on 17 May 2001. Mr B S Robison of counsel appeared for the Applicant. Ms C Adamson of counsel appeared for the Respondent.
The Tribunal had before it the following documentary evidence:
Exhibit TD1 – Section 37 Statement and associated documents, 11 May 2000.
Exhibit A1 – Clinical notes from Dr D M Salmon, anaesthesia and pain specialist, Bigge Street Private Hospital.
Exhibit A2 – Report by Dr Salmon, 25 July 1991.
Exhibit A3 – Single page report by Dr M J Neil, orthopaedic surgeon, 7 March 2000.
Exhibit A4 – Letter dated 6 October 1999 from Eugene Lepore & Associates to Dr Neil and three page report by Dr Neil dated 7 March 2000.
Exhibit A5 – Letter dated 24 July 2000 from Eugene Lepore & Associates to Dr Neil and report by Dr Neil dated 23 October 2000.
Exhibit A6 - Letter dated 24 July 2000 from Eugene Lepore & Associates to Dr C A Canaris, psychiatrist, and report by Dr Canaris dated 22 August 2000.
Exhibit A7 – Applicant's statement of facts and contentions, 23 June 2000.
Exhibit R1 – Extract from clinical notes provided by Dr Neil.
Exhibit R2 – Applicant's arrivals in, and departures from, Australia, 1987-1999, Department of Immigration and Multicultural Affairs, 19 April 2001.
Exhibit R3 – Clinical notes provided by Dr Sabag.
Exhibit R4 – Respondent's statement of facts and contentions, 13 March 2001.
Findings on material questions of fact with reference to the evidence and other material in support of the findings
The Applicant is seeking the following outcomes:
Incapacity payments (Exhibit A7). Success in this endeavour requires the restoration of liability for compensation under s 14 of the Act.
Compensation for permanent impairment, presumably in respect of right arm, shoulder and wrist (Exhibit A7). The Tribunal notes that the available papers relating to this application disclose no claim in respect of permanent impairment, no primary decision and no reviewable decision on permanent impairment. The Tribunal therefore has no jurisdiction to make any decision on that matter. However, the Tribunal notes that permanent impairment is the subject of a separate application to the Tribunal, N2001/384, which was not ready for hearing when the current application was heard on 17 May 2001. The issue of permanent impairment will not, therefore, be discussed in these reasons.
The issues raised in respect of the desired outcomes are:
Issue 1 – Has the Applicant suffered an injury that has resulted in incapacity for work (s 14(1) of the Act)? If the answer is yes then liability for compensation arises under s 14 of the Act.
Issue 2 – The answer to issue 1 depends on whether the Applicant has suffered an injury. This depends on whether the Applicant has had a disease, or an injury (other than a disease) being a physical or mental injury, or an aggravation of a physical or mental injury, arising out of, or in the course of, the Applicant's employment (s 4(1), definition of "injury", the Act).
The Tribunal will proceed to make findings in relation to these issues.
Issue 1 – Has the Applicant suffered an injury that has resulted in incapacity for work (s 14(1) of the Act)? If the answer is yes then liability for compensation arises under s 14 of the Act.Based on the answer attaching to issue 2 the Tribunal finds that the Applicant has suffered an injury that has resulted in incapacity for work. The Respondent is liable, as of 15 September 1999, to pay compensation under s 14 of the Act in respect of that injury.
Issue 2 – The answer to issue 1 depends on whether the Applicant has suffered an injury. This depends on whether the Applicant has had a disease, or an injury (other than a disease) being a physical or mental injury, or an aggravation of a physical or mental injury, arising out of, or in the course of, the Applicant's employment (s 4(1), definition of "injury", the Act).The Applicant would appear clearly to have suffered an injury. At T33 the Respondent on 30 October 1991 accepted liability for a contusion to the right wrist in the work fall occurring on 7 April 1990.
It appears that the Applicant also claimed in respect of "sub acromial rotator cuff impingement of the right shoulder affecting right wrist" following the development of shoulder symptoms (T66) but the claim form does not appear in the T documents. The date of that claim is unclear but reports of right shoulder pain begin filtering in in the T documents from 3 March 1992 (T41). Dr Neil on 21 July 1992 saw the shoulder injury as stemming from the 7 April 1990 incident (T54). Dr Neil wrote on 11 October 1992 (T61) that the Applicant had injured her shoulder in the fall when she struck her shoulder on a bench as she fell. Dr Neil later wrote (T73, 2 April 1993) that most of the Applicant's symptoms were due to long standing rotator cuff impingement of the shoulder which may have been aggravated by her injury to the right shoulder at work on 7 April 1990.
It seems from T139 (6 October 1999) that the Respondent may never have accepted liability for the shoulder condition. The T documents show that the matter was investigated but the primary decision apparently rejects the Applicant's claim for the shoulder. However, the reviewable decision (T149, 3 April 2000) says that "[l]iability [for the right wrist] was later extended to include the condition of [the Applicant's] right shoulder". The Section 37 Statement (T2 at page 5) states that Comcare accepted liability for the shoulder. From T74-T77 it appears that Comcare assumed liability for payment for the Applicant's shoulder surgery on 24 August 1993.
On balance then it seems that the Respondent has accepted liability in respect of the Applicant's shoulder, for a period at any rate. It thus is beyond contention that the Applicant has been taken by the Respondent, up to 15 September 1999, to suffer from a contusion of the right wrist and/or sub acromial rotator cuff impingement of the right shoulder affecting right wrist. Effectively the matters for consideration are whether the Applicant continued to suffer from compensable injury on and after 15 September 1999 and, if so, what injury.
The medical evidence has been adequately laid out earlier in these reasons. From that evidence the following emerges.
Dr McGill (T125) confidently suggested that the Applicant did not merit compensation on the basis that there were discrepancies in her conscious presentation as compared to her presentation when not being examined. He relied also on the near normality of the Applicant's x-rays and ultrasound, both done on 22 April 1999. The right shoulder x-rays were described as "normal for a 53 year old lady with minor spurring at the tip of the acromion and no other abnormality". There was an equivocal observation of reduction in the subacromial space. The ultrasound showed no signs of "impingement or bunching" but was said to show a slight alteration in the echotexture of the proximal biceps tendon, being otherwise normal. He picked up from T74, Dr Neil's report of 28 April 1993, that a shoulder ultrasound on 29 July 1992 demonstrated active right subacromial impingement associated with abnormal right coricoacromial ligament and an asymptomatic tear at the posterior distal aspect of the left supraspinatus tendon. He noted also that there was no evidence of any reduced use of the right upper limb after a nine year period of disability.
Dr McGill considered a diagnosis of regional pain syndrome as reasonable. He thought that there was at least considerable embellishment of her symptoms, or falsification. In his view she did not accurately describe her physical limitations. In his view any physical component related to the Applicant's employment had ceased.
A fresh x-ray of the Applicant's right shoulder in August 1999 (T132) was said to show no evidence of subacromial spur or any other body encroachment.
Dr Neil, who had operated on the Applicant's shoulder in 1993, wrote on 28 August 1999 (T133) that the healing of the surgical wound, and the absence of wasting around the right rotator cuff and right arm, meant that the Applicant has entrenched chronic pain syndrome with most physical symptoms having no organic basis. He suspected that no treatment would afford symptomatic relief until the Applicant's workers' compensation claim was settled.
On 7 March 2000 (Exhibit A4) Dr Neil reaffirmed his diagnosis. He was dubious as to any connection between the Applicant's symptoms and her work.
On 22 August 2000 Dr Canaris (Exhibit A6) diagnosed an adjustment disorder with depressive mood under DSM-IV. His report was reasonably favourable. He wrote:
"The reality is that patients who suffer pain and limitations are often capable of performing at least for short periods or with some discomfort certain actions which they say they normally cannot do. This can sometimes lead to apparent inconsistencies between histories obtained and performance at examinations. Furthermore, it may lead to inconsistencies even within the context of the one examination where at times there may be significant variation in range and freedom of movement.
"Some of these difficulties arise in part because disorders of chronic pain do not necessarily arise purely because of continuing pathology at the original injury site. It is increasingly believed that many so-called chronic pain syndromes in fact involve disorders of nociception which translated from medispeak are simply disorders of the way pain signals are triggered, processed and perceived by the Central Nervous System. Not all orthopaedic surgeons or for that matter rheumatologists are completely au fait with the subtleties associated with these presentations....
"In the meantime, your client from her behaviour throughout the interview impresses me as a fundamentally normal woman of Latin temperament and bearing who contends with chronic pain and this behaviour throughout our entire encounter showed evidence of chronic pain and discomfort in the affected shoulder. I discerned from her history and from her demeanour evidence of a significant reactive depression or to use the nomenclature of DSM-IV, an Adjustment Disorder with Depressed Mood. However, her mood remained distinctly reactive. Certainly there was no evidence of psychiatric illness which in my view would account for her physical symptoms. I do not believe she suffers from a so-called somatoform disorder (the DSM-IV term for hysteria). Rather, I think, her emotional response to her situation whilst of clinical depths (and hence warranting a diagnostic label) has very much the stamp of normality.
"... There may be benefit from referral to a pain clinic...
"Unless major psychiatric disorder such as Major Depression should supervene, this woman's psychological prognosis will be largely determined by physical factors."
The DSM-IV is the American Psychiatric Association publication Diagnostic and Statistical Manual of Mental Disorders (4th edition, 1994). Adjustment disorder with depressed mood is described in DSM-IV at page 623 as follows:
"The essential feature of an Adjustment Disorder is the development of clinically significant emotional or behavioural symptoms in response to an identifiable psychosocial stressor or stressors. The symptoms must develop within 3 months after the onset of the stressor(s) … . The clinical significance of the reaction is indicated either by marked distress that is in excess of what would be expected given the nature of the stressor, or by significant impairment in social or occupational (academic) functioning … By definition, an Adjustment Disorder must resolve within 6 months of the termination of the stressor (or its consequences) … . However, the symptoms may persist for a prolonged period (i.e., longer than 6 months) if they occur in response to a chronic stressor (e.g., a chronic, disabling general medical condition) or to a stressor that has enduring consequences (e.g., the financial and emotional difficulties resulting from a divorce).
"Adjustment Disorders are coded according to the subtype that best characterizes the predominant symptoms:
309.0 With Depressed Mood. This subtype should be used when the predominant manifestations are symptoms such as depressed mood, tearfulness, or feelings of hopelessness."
Dr Sabag wrote on 14 September 1999 that the Applicant's injury had improved and stabilised so that the Applicant now may have a 20% limitation of function in her right shoulder which cannot be further treated.
In her evidence to the Tribunal the Applicant provided the following information:
When she slipped on 7 April 1990 she fell onto a wet concrete floor, falling on her right shoulder and arm and injuring her right arm, hand and wrist. At the time there was no strong pain in the right shoulder.
She had the shoulder operation on 21 August 1993. Leading to that date she had developed problem pains in the line from her neck to her right shoulder and she had developed right-side headaches. These problems had their onset from four to six months after the fall in 1990.
After the operation the shoulder and upper arm pain remained and worsened. A different type of pain also developed in the arm pit and collar bone.
From mid-1999 the Applicant has improved a little. She has been able to relax and rest at home and apply heat to her shoulder. She feels she has been managing her pain better. Her right wrist and hand have been a bit better in the past two years. However, she has difficulty doing such things as adjusting her bra strap and doing up rear buttons on her clothing. She has limited abduction. The Applicant provided some demonstrations for the Tribunal. She was actually able to lift her right arm above her head. She was able to lift her right arm about 100 degrees to the side and a little more to the front. She reported pain from her head to her right wrist. She is impeded in attempting window cleaning, vacuuming and lifting from high shelves.
The Applicant denied any involvement in motor vehicle accidents.
The Respondent's representative cross-examined the Applicant and the following matters emerged:
The Applicant has travelled by air to South America four times since her fall in 1990. The Applicant travelled to South America in August 1990. She was asked how she carried her luggage. She replied that she carried only a small bag and consigned the remained with Falcon Express.
The Applicant saw someone at St Vincent's Hospital on the day of the fall. She complained only of right wrist bruising and pain.
The Applicant saw Dr Sabag five days after the fall, on 12 April 1990. The Applicant contested this. She insisted that she saw Dr Sabag on 8 April 1990 when she was sent for x-rays to be taken. In any case, Mr Robison, for the Applicant, referred to Dr Sabag's report (T136) in which he records that the Applicant mentioned her shoulder, arm wrist and hand when she saw him on 12 April 1990.
The Applicant's statutory declaration at T6 mentioned a slip and fall onto the "right hand" with no reference to a fall on her right arm or shoulder. The Applicant said in response that this had been completed for her by someone else. The Applicant is not fluent in English. She insisted that she fell on her arm. Counsel for the Respondent recorded that there is no contemporaneous reference to a fall on the arm.
As at 6 July 1990 Dr Giblin (T10) found a full range of movement on examination. He recorded the injury as to the Applicant's right thumb.
The first report of pain to the Applicant's shoulder was in Dr Chen's report dated 16 May 1991 (T18). The chronology recorded by Dr Chen was that the Applicant injured her hand in April 1990, was off work for nine weeks, resumed her previous duties and shortly after noticed pain in her right forearm and right shoulder girdle.
The Applicant said that Dr Neil's history in T54 (21 July 1992) (paragraph 38 of these reasons) was completely wrong. She had not struck a bench when she fell, despite Dr Neil's history. The Applicant could not tell the Respondent's counsel whether her right shoulder actually hit the ground.
The Applicant said that by August 1992 her main physical problem was in her shoulder.
Dr Neil recorded in T81 (18 July 1994) that the Applicant, a year after the shoulder operation, had "a full passive range of motion of the shoulder with pain at the extremes". The Applicant did not accept this. She emphasised that she bore pain in doing this exercise for Dr Neil.
The Applicant went only once to the pain clinic after a referral by Dr Neil. She said that she telephoned to follow up on that visit but no one answered the telephone. The inference was not that her pain level was too low for her to warrant the intervention of a pain clinic.
Based on Dr McGill's report (T125) it was put to the Applicant that she enjoys cooking. She explained that she prepares meals two or three times a week and that her husband cooks sometimes. They also have take-away food. She denied that in her daily life she uses her right limb normally. She said that she has special equipment for chopping, cutting and so on. She uses her right arm as much as her pain levels allow.
Ms Adamson, for the Respondent, expressed the Respondent's case contrary to the Applicant at its highest. She made the following points:
Ms Adamson referred the Tribunal to Dr Neil's report following the shoulder operation (T77). He wrote that "There was a significant osteophyte on the anterior inferior aspect of the lateral clavicle." She suggested that an osteophyte in that location may relate to a trauma at an earlier stage. The Tribunal has concluded in relation to the osteophyte that there are only hypotheses surrounding it. It probably has no connection with the original injury.
Ms Adamson tracked the Applicant's expressed symptomatology. The first reference (T3, 7 April 1990) was to a bruised right wrist. Next there is Dr Sabag's clinical note (Exhibit R3) for 12 April 1990 which refers to "AM contusion no fracture on x-ray". Then there is "PM bicep right shoulder tendon bones dorsal MC". Ms Adamson submitted that this clinical entry had been "doctored". The layout and penmanship does suggest, to the Tribunal, that the shoulder reference was included at a different time. T4 (12 April 1990) is Dr Sabag's medical certificate which refers only to "severe contusion dorsum of right hand". Dr Sabag's later clinical notes (Exhibit R3) make no reference to the shoulder until 10 January 1992. She referred again to Dr Giblin's report (T10), Dr Chen's report (T18) (where the shoulder is mentioned in May 1991) and Dr Hargreaves (T30, 29 October 1991) (where the shoulder is mentioned). She found it curious that Drs Chen and Hargreaves were told about the shoulder when Dr Sabag, who spoke Spanish (as does the Applicant) was not.
Ms Adamson relied on Dr McGill's report (T125). She observed that the history he obtained (that the Applicant slipped and fell with her right arm behind her back and uncertain as to whether her right shoulder touched the floor) differed from earlier histories, even if it was consistent with her evidence to the Tribunal. In his examination he had found no muscle wasting and no evidence of reduced use of the right arm. He and Dr Neil agree that there is no organic cause for the Applicant's symptoms.
Ms Adamson submitted that Dr Canaris's diagnosis of Adjustment Disorder can be relevant only if there is a physical cause of the Applicant's problems. There is, however, no organic pathology.
Mr Robison called the Tribunal's attention to the Applicant's problems of communication. These may explain some or all of any discrepancies in histories.
The Tribunal finds that the Applicant subjectively experiences shoulder pain. In the Applicant's favour, in the Tribunal's view are that the pattern of pain she describes appears credible orthopaedically, and her reporting of associated headaches is also consistent with the expected pain pattern resulting from an injury of the type she describes. The Tribunal does not accept that the Applicant has engaged knowingly in any embellishment or exaggeration of symptoms. The Tribunal found the Applicant an apparently honest witness who has been understood to give different histories at different times to different doctors. The Tribunal finds that this can be explained, as Mr Robison suggested, by language difficulties. The Tribunal notes that the histories recorded by physiotherapist, Amelia Lucas (T27, 23 September 1991) and Dr Hargreaves (T30, 29 October 1991) describe the Applicant's fall in April 1990 in the same way as she described it to the Tribunal. In the Tribunal's view there is no reason to believe that these are inaccurate. It is conceivable that these professionals were, unusually, able to comprehend fully the symptomatology as experienced by the Applicant. The Applicant was operated on for her shoulder. She appears to have pain still in her shoulder despite reports suggesting that the operation was a success. It seems to the Tribunal that the operation was not a success. The Applicant's recovery was not as she expected and was told it should be. This seems to be the stressor that brought on the adjustment disorder diagnosed by Dr Canaris.
The Tribunal notes the comments by Drs Neil and McGill about the Applicant's chronic pain. It also notes Dr Canaris's subscription to the controversial theory of central sensitisation nociception. While the Tribunal has been reluctant to accept this theory (Re Wood and Comcare [1999] AATA 263) it has accepted that an injury under the Act can be taken to exist where an applicant experiences subjective pain. Deputy President Todd wrote in Re Jeremic and Comcare (AAT 5975, 20 June 1990):
"... The condition nevertheless remains something of a mystery, but when all is said and done I believe the evidence of the applicant and accept the other evidence called on her behalf as to the existence of pain, there is very little assistance that can be gained from medical evidence which if accepted at its full stretch involves the conclusion, although it seems never to be fully acknowledged by such doctors that this is so, that a claimant is in truth what they would call a 'malingerer', a word which I take to mean someone who is contriving symptoms that do not exist. Once I accept, on the evidence and from my own observations of an applicant, that the pain is real, evidence based on the proposition that a condition does not exist because it cannot be medically diagnosed is in my opinion of limited value."
The Tribunal therefore finds that the Applicant was on 15 September 1999 continuing to suffer from a disease that was contributed to in a material way by her employment with the Commonwealth. The Tribunal finds that the shoulder injury arose out of and in the course of the Applicant's work for Australian Airlines when she fell in April 1990.
ConclusionThe Tribunal has found that the Respondent is liable to pay compensation to the Applicant. This means that she may qualify for incapacity payments under s 19 of the Act if she can satisfy the requirements of s 19. The same is true of possible compensation payments for reasonable medical treatment associated with the injury. Now that liability under s 14 has been reinstated, the Applicant may also qualify for compensation for permanent impairment, the subject-matter of Tribunal application N2001/384.
DecisionThe Tribunal sets aside the decision under review and substitutes its decision that the Respondent has, since 15 September 1999, been liable to pay compensation to the Applicant in accordance with the Act. The Respondent is to pay the Applicant's costs in accordance with the Tribunal's General Practice Direction.
I certify that the 114 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr J D Campbell, Member.
Signed: .....................................................................................
AssociateDate of Hearing 17 May 2001
Date of Decision 24 September 2001
Counsel for the Applicant Mr B RobisonCounsel for the Respondent Ms C Adamson
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