Bonehill and Australian Postal Corporation
[2004] AATA 810
•4 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 810
ADMINISTRATIVE APPEALS TRIBUNAL ) Nos. N2002/1134 and
) N2003/1332
GENERAL ADMINISTRATIVE DIVISION )
Re
JAYNE BONEHILL
Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member M D Allen;
Dr P D Lynch, Member
Date4 August 2004
PlaceSydney
Decision The decisions under review are set aside and this matter remitted to the Respondent with the following directions, namely that:
(1) The Applicant:
(i) Continues to suffer a de Quervain’s tenosynovitis in her left wrist due to the nature and conditions of her employment;
(ii) Suffers a de Quervain’s tenosynovitis in her right wrist due to the nature and conditions of her employment;
(iii) Is capable of working four hours 30 minutes a day, five days a week and
(iv) Suffers a permanent incapacity in her left wrist from de Quervain’s tenosynovitis, such permanent incapacity amounting to 10 per cent as assessed under the Comcare Guide to the Assessment of Degree of Permanent Impairment.
(2) The Respondent is to pay the Applicant’s costs.
(Sgd) M D Allen
...........................................Presiding Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) Nos.N2002/1134 N2003/1332
)
GENERAL ADMINISTRATIVE DIVISION ) Re: JAYNE BONEHILL Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
CORRIGENDUM TO DECISION [2004] AATA 810
Tribunal Senior Member M D Allen;
Dr P Lynch, MemberDate 24 September 2004
Place Sydney
Decision Pursuant to section 43AA of the Administrative Appeals Tribunal
Act 1975, the decision of the Tribunal dated 4 August 2004 is
amended as follows:1.In subparagraph 1 (iii), by deleting the words and figures “four hours 30 minutes a day, five days a week” and inserting in lieu thereof the words and figures “28 hours per week”.
(Sgd) M D ALLEN
…………………………….
Presiding Member
CATCHWORDS
WORKERS’ COMPENSATION – application to have a bi-lateral de Quervain’s tenosynovitis attributed to repetitive actions at work – previous acceptance of de Quervain’s tenosynovitis in left wrist - can condition reoccur - pain in right wrist of indeterminate origin that Applicant’s evidence of signs of symptoms accepted - no need to put a label on the condition - permanent incapacity ten per cent left wrist, nil in right as condition intermittent
Safety Rehabilitation and Compensation Act 1988 - ss 14, 19 and 24
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
REASONS FOR DECISION
4 August 2004 Senior Member M D Allen
Dr P D Lynch, Member1. On 8 and 10 June 2004, two applications for review lodged on behalf of the Applicant came on for hearing before this Tribunal. The applications related to two reviewable decisions made pursuant to s 62 of the Safety Rehabilitation and Compensation Act 1988, namely:
(A) Matter number N2002/1134 seeking a review of a reviewable decision of 28 June 2002 that:
(i) Affirmed a determination of September 2001 rejecting the Applicant’s claim for compensation in respect of tenosynovitis of the right wrist;
(ii)Continued liability in respect of a left wrist condition;
(iii)Determined that the Applicant was partially incapacitated for work from 2 August 2001;
(iv)Determined that on and from 2 August 2001, the Applicant could work four hours 30 minutes a day, five days a week and that her compensation payments for loss of earnings were to be calculated on the basis she was able to earn suitable employment to the amount equivalent to 22 hours and 30 minutes multiplied by her base hourly rate plus penalty rates;
(v) Revoked a determination of 17 May 2002 denying a claim for permanent impairment in respect of “back and arms” and determined that the Applicant was not entitled to compensation in respect of any right wrist condition. The question of permanent impairment for the left wrist was remitted to a delegate of the Respondent for further consideration; and
(B)Matter number N2003/1332 seeking a review of a reviewable decision of 4 July 2003 which affirmed a prior determination that the Applicant did not suffer permanent impairment to her left wrist.
2. In these proceedings, the Applicant claimed that she was entitled to compensation for work caused incapacity in both wrists and that she suffered a permanent impairment of 28 per cent. She also claimed that she was unable to work four hours 30 minutes a day, five days a week.
3. The Applicant gave evidence that she commenced employment with the Respondent in 1993. At that time, she had no problems with either of her wrists. Originally, she was employed in a mail room collecting and sorting mail. In 1995, she became pregnant and was absent from work for a period of six months. After a time when she worked as a postal delivery officer in or about April 1997, she became a night mail sorter working eight hours per night.
4. In August 1997, the Applicant experienced pain in her left wrist. She had a cortisone injection to the left wrist and two weeks absence from work. After returning to work she had no further problems until July 1999. At this time, “V” sorting frames had been introduced to the workplace.
5. She consulted her general practitioner, Dr Soh, who again administered a cortisone injection and she returned to work on restricted duties. A claim for compensation alleging tenosynovitis in the left wrist was submitted to the employer.
6. On 30 September 1999, the Applicant was examined by Dr McGill, Rheumatologist on behalf of the Respondent. Dr McGill diagnosed left de Quervain’s tenosynovitis and opined that her work activities had contributed in a significant fashion to the condition.
7. The Applicant was also examined by Dr Kannangara, Rheumatologist and Dr Donaldson, Orthopaedic Surgeon, both of whom diagnosed de Quervain’s tenosynovitis from over-use of the left hand.
8. Dr Donaldson performed a tendon sheath release on 22 October 1999. The Applicant returned to work but her symptoms continued to deteriorate. On 10 July 2000 and 5 February 2001, incident reports were submitted to the Respondent claiming increasing pain in the left wrist following the sorting of mail.
9. Further advice was sought from Dr Tonkin, Professor of Hand Surgery at University of Sydney. In a report to the Applicant’s general practitioner dated 25 January 2000, he records a history of:
“Regrettably, post operatively Ms Bonehill has had increased pain which now radiates into the index and middle fingers as well as proximately into the forearm. She describes a dead ache and swelling of golf ball proportions. This is interfering significantly with her work.”
He added:
“Further surgery may or may not improve her symptoms. However if signs and symptoms of superficial radial nerve irritation and tendon adhesions remain in a further two months, then exploration may be appropriate.”
10. By April 2001, Professor Tonkin had changed his opinion and did not regard the Applicant as suffering from de Quervain’s tenosynovitis and stated that surgical interference would not assist her. In reports to the Respondent, Dr Walker, Reconstructive Surgeon and Dr Gliksman, Occupational Physician both opined that the Applicant suffered from de Quervain’s tenosynovitis.
11. In his report of 10 April 2001, Dr Walker stated that the Applicant’s de Quervain’s tenosynovitis was due to her work as a mail sorter and in answer to the question:
“Is it likely that the effects of the employment on the wrist will ever cease?”
Answered:
“No. Not if she continues work. These symptoms may settle down with a change of occupation and one would expect this over a period of time.”
12.In his report of 27 April 2001, Dr Gliksman stated inter alia:
“Given the chronic and recurrent nature of the condition, it is not certain that Ms Bonehill will be able to return to her pre-injury duties.”
13. On 8 May 2001, Professor Tonkin performed a surgical release of the left wrist and thumb extensions. Liability for this procedure was accepted by the Respondent.
14. By report dated 5 June 2001, Professor Tonkin stated that the Applicant could return to full work activities over a two week period. He added however that:
“…there is no further surgical remedy for her problem if she is unable to cope with her work.”
15. The Applicant’s evidence is that she returned to work on a rehabilitation program and managed, but still had problems. Then on or about 10 August 2001, she began to experience pain in her right wrist.
16. The Applicant had further periods of absence from work because of pain in both wrists and finally returned to employment on 22 July 2003 on a graduated return doing sorting and restricted to four hours 30 minutes per night, five nights per week. Her sorting activities require that she sort mail in a “V” sorting frame which is a continuous motion which she finds very draining. She has had physiotherapy for her right wrist and one cortisone injection and eight to nine cortisone injections into her left wrist.
17. At present, if the Applicant has what she termed a “good day”, she can get through the day with one analgesic tablet but on a “bad day”, the left hand becomes swollen, numb and cold to touch. She cannot lift, it is if she “has no muscles” and she experiences pins and needles in the hands.
18. So far as her right wrist is concerned, she experiences a pain that shoots up her arm. She described this pain as a sharp stabbing one. But at other times, she has a dull nagging pain in the right arm that can last all day.
19. During periods of cold weather, the Applicant’s fingers do not work and she cannot carry out fine movements such as doing up and undoing buttons or tying her son’s shoe laces. She has difficulty hanging out washing except for light items and has cut herself because while washing up, the numbness in the hands have not allowed her to realise that a cup or glass has broken. She is more clumsy than before the onset of her wrist condition. She frequently drops items and referred particularly to a visit to a McDonalds restaurant where she dropped a tray of “food”. At work, she copes by running her hands under hot water, whereas at home, she obtains relief from a wheat pack which she heats in the microwave. Currently, she is not having physiotherapy because she cannot afford it, but did find a TENS machine gave relief.
20. Cross-examined, the Applicant denied that she was exaggerating her degree of incapacity. She conceded that the number of hours currently undertaken by her suited her due to the needs of her son, although later in cross-examination, she stated she was not physically capable of working longer hours. She denied being able to carry out a number of domestic tasks including wringing out washing and putting other than light items such as school shirts on to the clothes line.
21. Exhibit R4 is a video film of the Applicant taken shortly before the hearing. In that film, she is shown as wringing out some items of clothing and putting them on a clothes line. In addition, she is shown walking and swinging her arms quite purposively by her sides.
22. Mr Skoric is the Applicant’s partner. We gained the impression that the decision to give evidence was a surprise to him. Having seen him give evidence and be cross-examined, we conclude that Mr Skoric was an honest witness who truthfully recounted the Applicant’s difficulties.
23. Dr Gliksman is an Occupational Physician who has examined the Applicant and prepared several reports for the Respondent. In considering the evidence of both Drs Gliksman and McGill, it must be kept in mind that both doctors saw the Applicant some 12 months ago and prior to her return to work.
24. Whilst Dr Gliksman did peruse the video film and stated in evidence that hanging out washing involved fine repetitive grip activities that would be painful with de
Quervain’s tenosynovitis, we take into account that a video film cannot show if the subject is in fact experiencing pain but continuing with an activity, or whether pain is experienced afterwards.
25. Dr Gliksman opined that a right wrist x-ray and ultrasound on 20 September 2001 ruled out the presence of de Quervain’s tenosynovitis on the right side. However, as at April 2001, his opinion was that the history and clinical examination were consistent with a diagnosis of recurrent left de Quervain’s tenosynovitis.
26. Cross-examined, Dr Gliksman stated that de Quervain’s tenosynovitis does wax and wane and return without clear provocation. He could not rule out the possibility that having returned to work that the Applicant’s de Quervain’s tenosynovitis has erupted again.
27. Questioned by the Tribunal, Dr Gliksman raised as a probability that the Applicant does have a regional pain syndrome, which may have been caused by recurrent de Quervain’s tenosynovitis. He stated in answer to the Tribunal that de Quervain’s tenosynovitis had recurred in the past and that it would be imprudent for the Applicant to go back to full time duties sorting mail.
28. A regional pain syndrome due to a Vitamin B deficiency either alone or in conjunction with the de Quervain’s tenosynovitis was raised during the course of Dr Gliksman’s evidence. Dr McGill on the other hand regarded the pathology report of 9 February 2004 as showing a normal result as far as B12 is concerned. On 23 January 2002, Dr Marnie reported:
“I have seen the full blood count on Mrs (sic) Bonehill and attached are copies of the reports on these procedures.
These have shown no significant abnormality and it is unlikely that there is any constitutional or immunological factor contributing to her symptoms and disability.”
We therefore find that the hypothesis that a B12 deficiency somehow caused or contributed to the Applicant’s condition has been disproved.
29. Document T20 in matter N2003/1332 is a report by Dr McGill, Rheumatologist, dated 28 April 2003. This is the last of a series of reports by Dr McGill furnished to the Respondent. In an earlier report dated 13 January 2003, Dr McGill commented that the x-ray and ultrasound of the right wrist performed in September 2001 were normal and that as at the time of his report, the Applicant had no significant problems in either wrist region.
30. Cross-examined, Dr McGill conceded that at the time he last examined the Applicant, she was not working and that the de Quervain’s tenosynovitis can recur.
31. In a report to the Respondent dated 18 January 2002, the Applicant’s treating surgeon, Professor Tonkin, stated:
“…
Therefore there was a precise pathology in two regions in this ladies left wrist. One would expect the surgery to overcome these problems. However, some people are simply not physically capable of certain repetitive activities without developing discomfort in spite of improvement following surgery.
Regarding the right wrist, there is no reason this lady cannot develop similar signs and symptoms as a consequence of the same pathology which affected her left wrist and thumb.
…”
Professor Tonkin concluded his report by stating:
“If she says she has pain, then we must accept that she has pain.”
32. Dr Marnie, in a report dated 22 September 2003, stated that he had examined the Applicant on 17 September 2003 and that she suffered de Quervain’s tenosynovitis bilaterally caused by the nature and conditions of her employment, namely mail sorting. He regarded her as permanently unfit for these duties. In a later report dated 30 September 2003, he ascertained her degree of incapacity on the Comcare tables as 10 per cent in each upper limb.
33. Dr Robin Chase, Occupational Physician in a report to the Respondent dated 7 April 2004, stated after examining the Applicant that the symptoms of the de Quervain’s
tenosynovitis in left wrist had not gone away completely and that there were intermittent symptoms in the right wrist. Currently, the Applicant was fit for work with the following restrictions, namely lift up to 12 kilograms and alternative tasks every hour within her current 28 hours of work per week. He further stated that the Applicant is permanently unfit to return to unrestricted duties and concluded his report by stating that he had no doubt that the Applicant had symptoms in the left wrist of which she complained.
34. Consultant Rheumatologist, Dr Needs, in a report to the Applicant’s general practitioner dated 4 September 2003 stated inter alia that:
“Jayne’s current symptoms are those of constant right radial aspect wrist pain with difficulty sleeping and grasping objects.”
He added:
“The examination of the right wrist reveals no restriction in range of movement of the wrists. There was no swelling noted. There was slight volar prominence of the trapezium with discomfort to palpation over the tendons of flexor policis longus as well as extensor policis longus and extensor brevis tendons but not in a pattern typical of De Quervain’s tenosynovitis. There was no indication of neurological impairment.”
35. Associate Professor Champion of St Vincents Clinic examined the Applicant on 26 March 2003. After taking an extensive history and noting the imaging investigations of 2 September 1997 and 13 September 2001, he opined that the Applicant had bi-lateral disorders due to repetitive work performed in her employment and that incapacity was 10 per cent in each upper limb as per the Comcare tables. In a later report dated 28 March 2003, Dr Champion stated that the Applicant could sustain normal duties for 22 and a half hours per week.
36. Having regard to the consistency of the history the Applicant has given to various medical examiners and having observed her give evidence, we accept the Applicant’s evidence to a degree. The video film of her activities, particularly the wringing of the washing and the manner in which she walked with arms dependent and swinging is not indicative of ongoing pain of major severity. However, her evidence of difficulty with domestic tasks such as unlocking doors, cutting up vegetables and with buttons was corroborated by her partner and we accept that she has symptomatology in both upper limbs.
37. As stated above, Drs Glicksman and McGill both examined the Applicant before her return to work. Dr McGill in his report of 16 November 2001, stated:
“I think it is reasonable to accept that her work duties played some role in her left wrist symptoms when she was working.”
In evidence, he conceded that although he would not expect it, it is possible that a de Quervain’s tenosynovitis could reoccur in her left wrist.
38. Dr Gliksman also stated that de Quervain’s tenosynovitis could reoccur. Both Drs Gliksman and McGill stated that, we accept, that electronic studies exclude carpal tunnel syndrome.
39. As we accept the Applicant’s evidence generally, there must be an explanation for the pain which we state occurs in both her wrists. It is not disputed that she had de Quervain’s tenosynovitis in her left wrist and the Respondent’s own experts admit to the possibility of this reoccurring.
40. Dr Marnie has diagnosed a de Quervain’s tenosynovitis in both wrists and Dr Chase in his report to the Respondent has no doubt that the Applicant suffers from the symptoms in her left wrist of which she complains. We find therefore that she does have a continuing de Quervain’s tenosynovitis in her left wrist.
41. As to the Applicant’s right wrist, the objective evidence, namely the x-ray and ultrasound of September 2001 were normal and thus negative a diagnosis of de Quervain’s tenosynovitis at that time. This was however before her return to work. Not withstanding the investigations of September 2001, we find no reason to disbelieve the Applicant’s evidence that she does indeed have pain and restrictions.
42. The most recent report is that of Dr Chase and in that report, he notes that the Applicant is complaining of “intermittent symptoms in the right wrist”. This does not, to our mind, distract from the Applicant’s evidence but is consistent with our finding that there is some exaggeration in her presentation.
43. In order to vest liability in the Respondent, it is not necessary to put a diagnosis to the Applicant’s right wrist conditions. Dr Champion refers to a variety of symptoms and conditions, but as pointed out by the full court of the Federal Court in Commonwealth Banking Corporation v Percival 20 FCR 176 at 179:
“It was submitted … that the disease of which s 29 speaks is constituted by its own underlying pathological condition and not by the symptoms thereof. This was a brave submission made without reference to any medical evidence suggesting that symptoms of a disease do not form part of a disease and also without reference to the definition to the ‘disease’ in s 5 (1) of the Act which provides: ‘ ‘a disease’ includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development; …”.
No doubt, for many medical purposes, it is useful and often necessary to distinguish between the underlying pathology of a disease and mere symptoms of the disease. For some legal purposes, for example s 104 (2) of the Act, the distinction is also pertinent: … But that is not to say that the symptoms of a disease are not a part of the disease. It is indeed fundamental to compensation law that a symptom of an injury or disease is a part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity.”
44. Percival supra concerned the Compensation (Commonwealth GovernmentEmployees) Act 1971, however the Safety Rehabilitation and Compensation Act 1988 definition of disease is in similar terms to that of the 1971 Act quoted above.
45. We are therefore satisfied that the Applicant not only has de Quervain’s tenosynovitis in her left wrist but also experiences, as a result of her work activities, intermittent pain in her right wrist that amount to a disease in terms of the Safety Rehabilitation and Compensation Act 1988.
46. Professor Tonkin opined that the diagnosis for the Applicant’s left wrist was de Quervains tenosynovitis and similar signs and symptoms could occur in the right wrist. Dr Marnie diagnosed de Quervains tenosynovitis in the right wrist. We are satisfied therefore that de Quervains tenosynovitis in the right wrist is a correct working diagnosis.
47. We find that the incapacity of the Applicant’s left wrist described as chronic and recurrent by Dr Gliksman has now reached the stage where it can be said to be permanent. As per Table 9.4 of the Comcare tables, the Applicant can use the left limb for self care and grasping and holding but has difficulties with digital dexterity, thus the degree of impairment is 10 per cent. This assessment conforms to the assessments
made by Drs Champion and Marnie.
48. As to the right wrist, at present, the pain is intermittent. On this basis, as at present, we are not prepared to say that it is permanent as a change of occupation or work duties may resolve or reduce further the signs and symptoms experienced by the Applicant.
49. As to employment, it seems clear on the evidence before us that the Applicant is, in reality, not in a position to cope with any increase of hours of work. We are satisfied that whereas the Applicant is coping at present, any increase in hours of work would exacerbate the signs and symptoms of injury in both wrists.
50. The decisions of 28 June 2002 and 4 July 2003 are set aside and this matter is remitted to the Respondent with the direction that the Applicant:
(i) Continues to suffer a de Quervain’s tenosynovitis in her left wrist due to the nature and conditions of her employment;
(ii)Suffers a de Quervain’s tenosynovitis in her right wrist due to the nature and conditions of her employment;
(iii)Is capable of working four hours 30 minutes a day, five days a week and
(iv) Suffers a permanent incapacity in her left wrist from de Quervain’s tenosynovitis, such permanent incapacity amounting to 10 per cent as assessed under the Comcare Guide to the Assessment of Degree of Permanent Impairment.
(v) As no argument was put to us regarding costs nor any request was made to delay the consideration of any award of costs, then there is no reason as to why costs should not follow the event and we therefore order that the Respondent is to pay the Applicant’s costs.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen;
Dr P D Lynch, Member
Signed: (K. Wong) .....................................................................................
AssociateDate/s of Hearing 8 and 10 June 2004
Date of Decision 4 August 2004
Counsel for the Applicant Ms Beilby
Solicitor for the Applicant Beilby Poulden Costello
Counsel for the Respondent Mr G T Johnson
Solicitor for the Respondent Forners Solicitors
0
1
0