Bunyan and Australian Postal Corporation
[2004] AATA 466
•12 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 466
ADMINISTRATIVE APPEALS TRIBUNAL )
)N2001/1272; N2002/452; N2002/453
GENERAL ADMINISTRATIVE DIVISION ) Re Veronica May BUNYAN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal P. J. Lindsay, Senior Member
Dr J.D. Campbell, MemberDate 12 May 2004
PlaceSydney
Decision · Proceeding N2001/1272: the reviewable decision made on 13 July 2001 disallowing Ms Bunyan’s claim for compensation relating to epicondylitis of the elbows is set aside. The respondent is liable under s.14 of the Safety, Rehabilitation and Compensation Act 1988 to pay compensation in respect of bilateral lateral epicondylitis.
· Proceeding N2002/452: the reviewable decision made on 12 February 2002 disallowing the claim for compensation for permanent impairment of the fingers, wrists, hands, arms and elbows is varied. Compensation under ss.24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 is payable in respect of permanent impairment of the wrists assessed at fifteen per cent, but not otherwise. There is no liability under ss.24 and 27 in respect of a permanent impairment of the elbows resulting from the applicant’s bilateral lateral epicondylitis.
· Proceeding N2002/453: the determination made on 26 October 2001 requiring Ms Bunyan to undertake a rehabilitation program is revoked.
The respondent is liable to pay the applicant's costs of the proceedings in accordance with the General Practice Direction of the tribunal.
(Sgd) Senior Member
CATCHWORDS
Compensation – pain in wrists – liability accepted for tenosynovitis of wrists – pain in elbows following medical treatment for accepted condition affecting wrists – bilateral lateral epicondylitis a compensable injury resulting from such medical treatment – assessment of permanent impairment of wrists – impairment of elbows not compensable – applicant had reasonable excuse for failing to attend rehabilitation program in respect of wrists condition.
Safety, Rehabilitation and Compensation Act 1988 ss.4(1), 4(3) 14,19,24,27, 28,37, 62
Australian Postal Corporation v Forgie (2003) 202 ALR 63
REASONS FOR DECISION
P.J. Lindsay, Senior Member
Dr J. Campbell, Member
1. Veronica Bunyan (the applicant) has made three applications to the Administrative Appeals Tribunal in respect to decisions by the respondent, the Australian Postal Corporation:
·Proceeding N2001/1272 concerns a reviewable decision made on 13 July 2001 denying Ms Bunyan’s claim for compensation relating to bilateral epicondylitis as a result of her tenosynovitis to both wrists sustained in 1996.
· Proceeding N2002/452 concerns a reviewable decision made on 12 February 2002 denying Ms Bunyan’s claim for compensation for permanent impairment of the fingers, wrists, hands, arms and elbows.
· Proceeding N2002/453 concerns a reviewable decision made on 10 December 2001 to affirm a determination made on 26 October 2001 requiring Ms Bunyan to undertake a rehabilitation program.
2. At the hearing, Mr D Shoebridge of counsel appeared for Ms Bunyan and Ms R Henderson of counsel appeared for Australia Post. Ms Bunyan gave evidence. Dr D Wheen and Dr J Riordan gave evidence on her behalf. The respondent called Dr D Bray and Dr N McGill. The tribunal had before it two sets of documents produced pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T documents), one relating to proceeding N2001/1272 (Ta), and a second relating to proceedings N2002/452 and N2002/453 (Tb).
background
3. Ms Bunyan was born on 4 April 1954 and commenced work with Australia Post in 1976, initially delivering telegrams and later performing work at the counter. Her duties changed in 1989 when she became a part-time postal delivery officer who also did mail sorting. Until about 1994, Ms Bunyan’s duties required her to ride a pushbike, for approximately one third of her 4½ hour shift. At times, however, when filling in for other postal delivery officers, she would work full time hours and would use a motor bike.
4. In around October 1996 Ms Bunyan developed pain in both hands. She lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act), the claim form noting (Ta11) that she had reported similar pain in March 1993. Her GP, Dr G Hittmann, diagnosed tenosynovitis and referred her to Dr J Riordan, consultant rheumatologist, in November 1996. She had some time off work and in December 1996 Australia Post accepted liability for “tenosynovitis both wrists” (Ta19). Payments were made in respect of that condition for various periods during the next five years.
5. Following advice from Dr N McGill, consultant rheumatologist, Australia Post approved payment for surgery proposed by Dr D Wheen, hand surgeon, to relieve bilateral ulno-carpal abutment. On 20 January 1998 Dr Wheen performed a left ulna shortening osteotomy and this procedure was followed on 30 July 1998 by a left forearm manipulation under anaesthetic and left wrist arthroscopy. Dr Wheen removed a plate from the left ulna and repeated manipulation under anaesthetic on 22 April 1999. On 13 August 1999 Dr Wheen performed a right ulna shortening osteotomy and on 7 September 2000 removed a plate from the right ulna.
6. Ms Bunyan experienced severe pain in her arms at work on 16 June 2000. Dr Riordan administered injections into both elbows. On 25 May 2001, Australia Post denied liability for bilateral epicondylitis. This determination was affirmed on reconsideration on 13 July 2001 and the applicant has applied to the tribunal for a review of that decision. Liability continued, however, for the tenosynovitis of both wrists.
7. An ultrasound on 5 September 2001 showed bilateral epicondylitis. A bone scan on 10 September 2001 confirmed mild right sided epicondylitis.
8. On 9 August 2001 Ms Bunyan was directed to commence a rehabilitation program involving participation in a pain management program (Ta130). This took place between 21 August 2001 and 12 October 2001. On 2 October 2001 she lodged a claim for permanent impairment of her left and right hands and fingers, wrists, elbows and arms (Tb9). The respondent replied on 20 November 2001 as follows (Tb20):
Current liability exists for bilateral tenosynovitis of the wrists only and I note that liability issues relating to all other upper limb conditions is now subject to an appeal to the Administrative Appeals Tribunal.
Considering the multi faceted nature of Ms Bunyan’s condition and specialist opinion describing her upper limb conditions as being inter-related I do not consider it appropriate to assess impairment relating to the wrists only in light of the current evidence.
To qualify for payment the impairment must be permanent and I note that your client continues in rehabilitative treatment programmes which may have a significant influence on both the nature and severity of any upper limb impairment from which Ms Bunyan suffers.
Therefore I have deferred making a decision on your client’s impairment until the matters of total liability and treatment have been completed.
9. Ms Bunyan disputed this decision and on 12 February 2002 the respondent reconsidered its decision of 20 November 2001 and found that she did not have permanent impairment of her fingers, wrists, hands, arms or elbows (Tb29). Ms Bunyan has applied to the tribunal for review of the decision made on 12 February 2002.
10. On 26 October 2001 Australia Post made a determination under s.37(1) of the Act that Ms Bunyan was to commence a rehabilitation program. The program, in respect of her tenosynovitis of both wrists, was to start on 29 October 2001 and conclude on 9 November 2001 and initially required her to work two hours a day, two days a week, checking the registered mail book, checking held mail and checking re-directed mail. The determination was made after taking into account the reports of Dr McGill who assessed her as fit to participate in a graduated return to work program. Ms Bunyan was informed that if she was dissatisfied with the determination she could request a review under s.62 of the Act. On 30 October 2001 her solicitors informed Australia Post that Dr Hittmann considered that she was not fit to return to any form of employment and asked for a review of the determination. Australia Post’s response of 10 December 2001 (Tb22) was to reject the applicant’s reasons for failing to participate in the rehabilitation program and affirm the determination of 25 October 2001. Ms Bunyan has sought the tribunal’s review of the decision made on 10 December 2001. The respondent did not dispute the tribunal’s jurisdiction to review this reconsideration decision.
issues
11. The issues before the tribunal are whether:
(a) Ms Bunyan suffers from bilateral lateral epicondylitis, and if so whether the condition is an injury as defined in s.4(1) of the Act or by reason of s.4(3) of the Act as a result of treatment for the accepted condition of tenosynovitis in both wrists;
(b) she is entitled to compensation in accordance with ss. 14, 16, 19, 24 and 27 of the Act in respect of the bilateral lateral epicondylitis;
(c) she is entitled to compensation under ss. 24 and 27 in respect of permanent impairment of the wrists as a result of the accepted condition of tenosynovitis;
(d) she had a reasonable excuse for failing to comply with her rehabilitation program the subject of a determination made on 26 October 2001 pursuant to s.37(1) of the Act.
evidence
12. Ms Bunyan said that around 1993 she developed pain in her left wrist, in the middle of her palm and into her fingers. The pain came on while she was riding her pushbike to deliver mail. While riding the pushbike she would frequently hold letters with a few fingers on her right hand, and grip the handle bars with the other fingers and her left hand. On 15 March 1993 she filed an incident report regarding the pain in her left hand and wrist (Ta4). Although no compensation claim was lodged at this time, Ms Bunyan’s duties were changed. She was given a walking beat, taken off sorting but worked the same hours.
13. Ms Bunyan’s evidence was that during 1996 her duties included riding a motor bike to deliver mail. She first noticed symptoms in her right wrist in October 1996, while riding a motor bike at work. Pain in her left wrist would flare up occasionally. In November 1996 she lodged a claim for compensation in respect of painful hands and wrists. She said the pain was worse in her left hand. Dr Riordan found no evidence of carpal tunnel syndrome and her wrists had a good range of movement. By early December 1996 Dr Riordan thought her ready to undertake a graded return to work. Unfortunately, sorting large letters on 12 December 1996 caused a recurrence of the pain in both hands and wrists and she went off work again. Australia Post accepted liability for ‘tenosynovitis both wrists’ on 23 December 1996.
14. In January 1997 Ms Bunyan resumed work on clerical duties, and had no problems until February when she was required to sort large letters and the pain flared again. At the request of Australia Post, she was examined by Dr I Tague, occupational physician, who reported on 2 April 1997 (Ta25) that he could not come to any specific diagnosis. In his opinion, however, Ms Bunyan’s symptoms were predominantly ulnar and her condition appeared to be symmetrical and bilateral although there was a lack of physical findings. He advised that she was fit to return to work on restricted duties. He felt that she was in a chronic pain state and would require an intensive chronic pain management program but that she did not have any permanent restrictions. She returned to work in April 1997 on clerical duties but the pain flared when she was using a computer. As a consequence Dr Hittmann referred her to Dr Wheen. On 6 May 1997 Dr Wheen, tentatively diagnosed an atypical manifestation of carpal tunnel syndrome, possibly combined with ulno-carpal abutment on the left side (Ta31). He suggested further studies and the use of a night splint on the right side.
15. Bone scan and nerve conduction studies reviewed by Dr Wheen suggested ulno-lunate abutment. Ultrasound therapy and physiotherapy had not been successful. Brief pain relief from corticosteroid injections of both carpal tunnels administered in July 1997 convinced Dr Wheen that ulno-carpal abutment was the major underlying pathology. On 25 August 1997 Dr Wheen explained (Ta41) that ulno-carpal abutment “ … is caused by the end of the ulna bone jamming into both the triangular fibro-cartilage and lunate bone of the wrist. The underlying mechanism is usually repetitive ulnar deviation of the wrist, and worsened by forearm rotation.” Mail delivery while riding a motor bike or bicycle could cause the problem. Dr Wheen proposed ulna shortening osteotomy, initially on the left.
16. Australia Post arranged for Ms Bunyan to be assessed by Dr McGill who noted on 16 September 1997 (Ta44) that she complained of pain all the time in the thenar eminence, volar aspect of the wrist and volar surface of the forearm. She stated that occasionally she felt tingling in the fingertips of her right middle, ring and little, and left ring and little, fingers, but no numbness. Dr McGill felt that these symptoms were consistent with ulnar nerve irritation. Because of the widespread nature of Ms Bunyan’s symptoms, lack of any symptom on forced ulnar deviation of the wrist and lack of tenderness in the triangular fibrocartilage and region of the lunate bone, Dr McGill could not diagnose a physical condition to account for her bilateral and symmetrical symptoms. Following MRI, however, Dr McGill diagnosed ulnocarpal abutment, and that her work was a substantial cause or aggravating factor. Nevertheless Dr McGill remained concerned that Ms Bunyan’s diffuse symptoms could not be accounted for by ulnocarpal abutment. He agreed that the surgery proposed by Dr Wheen was reasonable (Ta47).
17. On 29 January 1998 Dr Wheen performed a left ulna shortening osteotomy. Ms Bunyan wore a plaster cast for about a fortnight after the surgery. The post-operative program was to include finger and thumb movement and gentle active pronation and supination. A report dated 19 February 1998 by Sydney Hand Therapy & Rehabilitation Centre to Ms K Wunsch, physiotherapist, noted problems with supination and active extension/flexion exercises of the wrist, and the fitting of an ulnar gutter splint. Massage and active extension/flexion wrist and finger exercises had commenced. On 28 April 1998 Dr Wheen reported that the applicant’s recovery was slow due to some stiffness in the wrist and there was little progress regarding supination. The hand therapists, whose treatment had included massage, bathing the arm in hot water, and use of a TENS machine, were to work with dynamic splintage for a further six weeks and then Dr Wheen would consider manipulation under anaesthetic (MUA). Dr Wheen noted that the applicant’s symptoms of ulnar nerve irritation had improved since the operation.
18. On 9 June 1998 Dr Wheen observed that there had been no further improvement in supination, it being limited to approximately ten degrees. Consequently, there was further surgery on 30 July 1998 for manipulation of the left wrist under anaesthesia and arthroscopy. In August 1998 Dr Wheen suggested Ms Bunyan have weekly treatment from the hand therapist (Ta62). Ms Bunyan’s evidence was that the physiotherapist provided her with elastic strapping (exhibit A3) which she had to wind around her hand and wrist, up to the elbow and then the upper arm. Ms Bunyan was advised to wear the strapping mainly at night. She said the strapping was meant to be pulled tightly, locking the arm into the elbow. She said she could feel it pulling and twisting her arm around. She began to experience sharp pain in her left elbow a week after starting to wear the elastic strapping. When she complained about the pain, Ms Bunyan was told to wear the strapping only during the day. The applicant thought that she used the strapping for a period of approximately two weeks.
19. On 11 September 1998 Dr Wheen reported that post-operative gains in manipulation had not been maintained and that Ms Bunyan had developed some ulnar nerve neuritis.
20. Ms Bunyan noticed the pain ease off when she stopped wearing the strapping. In a further effort to improve supination, Dr Wheen suggested that she use another apparatus. In evidence Dr Wheen thought that Ms Bunyan was wearing the device at some time during 1999. This forearm and wrist manipulation device (exhibit A4) required her to place her elbow in a bent position in an orthotic support and her wrist into a guard, and then she had to twist some rubber tubing that was attached to the device tightly around her arm, so as to push the arm into the desired position.She said that she wore the device for around two months, putting it on about three or four times a day and at night. She would periodically take it into the hand therapists to have the rubber tubing checked. At times she was able to wear it for approximately thirty minutes and could wear it while sleeping at night. But as it too caused her pain, mainly in the elbow, Dr Wheen advised her to stop using it.Although the elbow pain then eased, it did not go away. She said that she also continued to experience pain around the site of the inserted plate.
21. Australia Post sought the opinion of Dr McGill on the applicant’s progress. Dr McGill examined Ms Bunyan on 12 January 1999 and reported (Ta69) that she complained of persistent pain in the right hand with some pain in the left palm and wrist, though less than prior to surgery. Despite the full supination under manipulation that Dr Wheen had found, Ms Bunyan said she continued to experience restricted supination. She also noted left elbow pain subsequent to the manipulation. Dr McGill felt that her symptoms on the right side appeared out of proportion due to the lack of clinical signs of the right hand, wrist and upper limb. His report stated “There was an apparent marked discrepancy between her reported incapacity to use either hand and the normal use of her hands when undressing and dressing and the mild abnormalities on examination.” Dr McGill felt she was fit to return to clerical duties with a gradual increase in hours, and then to sorting and delivery work at a later date. He felt rehabilitation was the appropriate form of treatment and that no further surgery was necessary, aside from removal of the plate in the left wrist. Dr McGill reported that Ms Bunyan’s comments at interview indicated that she had no wish to return to any form of work, and at this stage she had not worked since 19 April 1997, he thought it likely that she would resist a rehabilitation program.
22. Following the removal of the plate from the left ulna on 22 April 1999, Ms Bunyan had reduced pain and nerve irritability. In his report dated 22 June 1999 (Ta75) Dr Wheen stated “Her left ulnar nerve remains irritable and I would suggest [the hand therapist] might try to reduce the elbow flexion to 45º within the splint at night if possible to reduce traction on the nerve.” There was improvement in supination to around 45 degrees. Dr Wheen recommended that she return to some light clerical or filing work. Ms Bunyan said that she still had physiotherapy mainly to rotate the arm, but this caused pain in the elbow. The elbow pain would flare up at other times as well and Ms Bunyan added that after removal of the plate, the physiotherapist tried to do more twisting and rotating of the arm, but this and the massaging caused her pain in the elbow.
23. Ms Bunyan returned to work doing clerical duties in July 1999, two hours a day, three days a week, which was gradually increased. When she used the computer she said it caused great pain in her right wrist and hand. She decided to have surgery on that arm. She said she was continuing to experience pain in her left wrist, hand and elbow, and numbness in the fingers of the left hand.
24. On 13 August 1999 Dr Wheen performed a right ulna shortening osteotomy. Ms Bunyan’s recovery was quicker than she experienced with the earlier operation. Although for two weeks she again wore a plaster cast from just below the elbow to the hand, and so allowing the arm to bend at the elbow, she did not use either the strapping or the forearm manipulation device after this operation. Rotation of the forearm was much better than she had experienced following surgery on the left wrist. She began physiotherapy once the plaster cast was removed and the treatment, including the massage and rotation of the arm to improve supination, was similar to that given following the operation on her left arm. She said that approximately six weeks after the surgery, she developed pain in the right elbow from rotation and twisting of the arm in physiotherapy. By 29 September 1999 the hand therapist informed the physiotherapist of Ms Bunyan’s progress, noting some pain and stiffness in the right wrist (Ta82). The hand therapist’s treatment had included massage, warm water soak, active range of movement exercises and resisted gripping in neutral, supination and pronation. It was suggested that Ms Bunyan could start “weaning out of the splint and wearing it when travelling and when out of the house”. Dr Wheen stated on 17 November 1999 that the applicant was improving nicely and she could gradually reduce her splintage, but there were symptoms of left-side ulnar nerve root irritation.
25. Dr Hittmann advised Australia Post in November 1999 that he did not feel the applicant was capable of returning to work for at least six months due to continuing problems with her left wrist (Ta86). In Dr Wheen’s letter to Dr Hittmann dated 1 February 2000 pre-operative right wrist pain had been markedly reduced and forearm rotation was full. Plate-related symptoms and mild tingling and numbness on the finger tips were recorded. As for the left side Dr Wheen noted Ms Bunyan “ … still does have some symptoms of lateral epicondylitis and/or ulnar nerve irritation behind the medial epicondyle, sufficient to now recommend re-doing the nerve conduction studies.” (Ta88)
26. The respondent sought Dr McGill’s opinion. Following examination on 3 February 2000 Dr McGill recorded (Ta90) her right upper limb symptoms had improved significantly following the right ulna shortening osteotomy. She had flare ups around the site of the plate in her right forearm. Her left upper limb symptoms in the elbow region were getting worse. He recorded that Ms Bunyan was troubled by some pain in the olecranon region and around the left lateral epicondyle, which she had experienced prior to a trial return to work in July 1999. Her next most troublesome symptom was pain in the left hand and over the ulnar, volar aspect of the left wrist. Dr McGill noted that Ms Bunyan did the washing and hanging out, and the ironing, though these activities would be spread out. Her husband helped with some cleaning but she did the vacuuming. She could not drive for more than 5 or 10 minutes. On examination there was slight tenderness of the left lateral epicondyle and variable tenderness over the left medial epicondyle. He concluded that the restriction of left forearm supination and her left ulnar nerve symptoms were probably the result of the treatment received for left ulnocarpal abutment. Dr McGill thought she was capable of resuming modified work duties, in particular light clerical duties, from which her duties could progressively increase. He felt she would eventually be able to return to a full range of mail sorting duties but not motorcycle delivery work. He thought the applicant was fit to drive her car or travel by public transport without time restriction. He expected further surgery to remove the plate from the right forearm. In Dr McGill’s opinion the major obstacle regarding her future employment was perception of her capacity and / or her enthusiasm for returning to work.
27. On 24 February 2000 Australia Post informed Ms Bunyan that, on the advice of Dr McGill, they were seeking suitably modified work duties in order for her to commence a return to work rehabilitation program (Ta92). On 17 March 2000 the respondent directed her to commence a rehabilitation program as determined by CRS Australia (Ta99). Ms Bunyan returned to work in March 2000 on a graduated basis, initially for two hours a day, performing clerical duties and counting mail. She said she experienced flares of elbow pain, numbness in the hands and tingling in the fingers.
28. Dr Hittmann referred her to Dr J O’Neill, consultant neurologist, who obtained a history of constant tingling in both palms and fingertips, and awaking one morning with numbness in the whole left arm. Nerve conduction studies were normal and Dr O’Neill concluded on 10 April 2000 (Ta102) that there was no neurophysiological evidence for bilateral carpal tunnel syndrome and no serious neurological condition that would result in permanent numbness. Dr O’Neill thought she should continue her gradual return to work. Her bilateral lateral epicondylitis was a problem and Dr Wheen injected both elbows on 2 May 2000.
29. While at work on 16 June 2000 she was asked to replace old registration labels on motor bikes. The task required her to undo a nut using both hands on a spanner. For approximately thirty minutes she replaced a few labels quite successfully and without trouble. She then put pressure on the spanner using both hands and was about to turn it to undo a nut but it slipped off the nut, she fell forward a little and experienced great pain up both arms. The pain went from the hands to the elbows. After informing a supervisor about what had happened to her, she was asked to do filing work but the pain of picking up paper was so intense that she had to stop. She consulted Dr Hittmann and Dr Riordan. Her evidence was that the pain in her elbows was very severe and she could not bend or straighten them, and she also had numbness in her hands. She was taking ten Panadeine Forte pain killers a day, whereas up to the time of this incident using the spanner she had been taking only two a day.
30. Dr Riordan, who had not seen the applicant since 1997, was given a history of a flare of her elbow pain and right sided neck pain while changing motor bike registration labels. Physiotherapy exacerbated the elbow pain but settled the neck. During the examination on 5 July 2000 Ms Bunyan was tender over both lateral epicondyles but without pain on resisted wrist extension, which Dr Riordan remarked was interesting. He prescribed a trial of painkillers but as they did not provide relief, Dr Riordan injected cortico-steroids.
31. On 7 September 2000 the plate and screws were removed from the applicant’s right ulna. Dr Wheen noted that this operation had been successful, however, she was still being troubled by bilateral lateral epicondylitis (Ta112). This continued to be a problem and on 21 December 2000 Dr Riordan raised the possibility of the applicant’s undergoing shock wave therapy for her pain if injections of steroids were unsuccessful. On 12 March 2001 Dr Riordan sought approval for shock wave therapy (Ta114).
32. Ms Bunyan was again referred to Dr McGill. On examination on 9 May 2001 she reported pain in both elbows extending down to the wrists and the hands, as well as pain in both forearms where the plates had been. Ms Bunyan complained of numbness in both hands and pain in the neck. There was full range of elbow and shoulder movement although straightening the elbows caused her pain. After examination, Dr McGill reported only possible epicondylitis. Further, it was his opinion that even if she did have lateral epicondylitis, it was unlikely to be the primary cause of her symptoms. He felt there was a high likelihood of depression being responsible for her diffuse upper limb symptoms. He suggested a bone scan, X-ray and ultrasound examination of both elbows and stated that if the epicondylitis was present he would support the use of shock wave therapy. Dr McGill stated:
I cannot relate bilateral lateral epicondylitis to the physical effects of her previous wrist problems. One would not expect lateral epicondylitis to develop in the setting of her previous wrist problems and treatment. Lateral epicondylitis is often precipitated by repetitive physical activity. She has done very little physical activity at work in the period dating back prior to the onset of her elbow symptoms. On her report, she has been doing a little at home but even there has not been doing very much.
Dr McGill advised that he would be better placed to determine a return to work once the suggested investigations had been carried out (Ta116).
33. Australia Post informed Ms Bunyan on 25 May 2001 that, subject to periodic reviews, payments of compensation would continue in respect of her tenosynovitis of the wrists. On the basis of Dr McGill’s report, liability for epicondylitis was denied. Dr McGill was then asked for his opinion about her fitness for work, having regard only to her accepted tenosynovitis condition. He advised on 6 June 2001 (Ta119) that initially there should be a 5kgs limit on her lifting and sorting, and that she could perform deliveries using a trolley. Her hours should be progressively extended.
34. Ms Bunyan’s representatives sought an opinion from Dr Wheen, who by letter dated 13 June 2001, confirmed a diagnosis of ulno-carpal abutment in the left and right wrists upon which surgery had been undertaken. There was initial mild carpal tunnel syndrome that settled without surgery and was not present in recent nerve conduction studies, post operative left ulnar nerve neuritis, and lateral epicondylitis in the left and right elbows. He suggested surgery on the elbows was possible in the future. Following resolution of elbow symptoms he thought the applicant would be fit to perform clerical and light office duties. In Dr Wheen’s opinion “ … Mrs Bunyan’s employment was the substantial contributing factor to the problem of ulno-carpal abutment of both wrists. The underlying mechanism is usually repetitive ulnar deviation of the wrists and is worsened by forearm pronation.” (Ta120)
35. In a report of 20 July 2001, Dr Riordan noted that Ms Bunyan’s left lateral epicondylitis initially came on when she was receiving treatment for her left wrist which involved her strapping the left forearm to improve her supination of the wrist. He thought this precipitated the elbow pain and it was further exacerbated when they changed the method of trying to improve supination to the use of a lightweight cast. On the right side, the elbow pain initially came on about two months after the plate was inserted into her right wrist which Dr Riordan felt was likely to have precipitated the pain as she had to rely more on elbow movements while the wrist was recovering. Dr Riordan concluded:
It would therefore seem likely that Mrs Bunyan has developed elbow problems secondary to the treatment she was receiving for her wrist. As liability for the wrist problems have been accepted then logically, the elbows being secondary to the wrist problems, liability should also be accepted for these. (Ta126)
36. On 9 August 2001 an Australia Post rehabilitation case manager made a determination under s.37(1) of the Act in respect of Ms Bunyan’s wrist condition (Ta130). Ms Bunyan was directed to commence a rehabilitation program involving participation two days a week in a chronic pain management program, to take place between 21 August 2001 and 12 October 2001(Ta130). It was noted that, in accordance with s.36 of the Act, Ms Bunyan had been assessed as capable of undertaking a rehabilitation program. The determination was made having regard to Dr Hittmann’s issuing a referral to the pain management clinic. Ms Bunyan completed this rehabilitation program.
37. On 10 August 2001 there was a conference between the applicant, Dr Hittmann and Mr Steve Rougellis, a physiotherapist from CRS Australia, the rehabilitation provider, concerning a return to work program. In its first stage, the program required her to attend for two hours a day, two days a week doing clerical work. After six weeks, she would be required to attend three days a week for the same duration. Dr Hittmann approved Ms Bunyan’s participation in the return to work program (Ta131). Her participation in the program, to start on 20 August 2001, made due allowance for her also to attend the pain management course conducted at Port Kembla Hospital.
38. Ms Bunyan gave evidence that her tasks on 20 August 2001 required her to take elastic bands off bundles of mail, flick through the mail to check whether an item had to be stopped or returned to sender, and appropriate stickers put on the mail. After two hours, this activity caused severe pain extending from her elbows to her hands and wrists. She completed an incident report and then consulted Dr Hittmann who provided a medical certificate. She said that prior to going to work that day, her symptoms had been mild. It was noted by Dr Riordan on 3 September 2001 (Tb6) that despite commencing the pain management course, she continued to feel a great deal of pain in both lateral epicondylar regions. In addition Dr Riordan noted that the applicant’s return to work for one day stirred up quite a deal of pain and she had not returned to work.
39. On 5 September 2001 she had an x-ray and ultrasound of both elbows. The report from Southcoast X-ray indicated that the features observed were typical of bilateral lateral epicondylitis (Ta134). A bone scan 10 September 2001 confirmed that she was suffering from mild right-sided lateral epicondylitis (Ta135). The respondent sought Dr McGill's opinion regarding these tests. In his report of 27 September 2001 Dr McGill recorded that the ultrasound “reported small calcific flecks and bony irregularity at the anterior aspect of the common extensor tendon with heterogeneous tendon echotexture on the right and common extensor tendon heterogeneous texture on the left, consistent with bilateral lateral epicondylitis.” Dr McGill thought shock wave therapy was a reasonable suggestion if substantial symptoms at the lateral epicondyles persisted. However, he noted her quite widespread upper limb symptoms and observed that such treatment would be unlikely to alter symptoms other than at the lateral aspect of the elbows (Ta137). He recommended that Ms Bunyan continue a gradual return to work. Ms Bunyan said that she has not since had shock wave therapy nor any surgery on her elbows.
40. Ms Bunyan completed the pain management program at Port Kembla Hospital from 21 August 2001 to 12 October 2001 (Tb21). A report from Port Kembla Hospital noted that she demonstrated significant improvements in her present and worst pain levels and minor improvement on her least pain levels. Her anxiety, depression and stress levels were stable and within normal limits. It was considered that the program had achieved a very satisfactory outcome.
41. A report prepared by the rehabilitation provider, CRS Australia, on 25 October 2001 noted the applicant was still certified unfit for work by Dr Hittmann until 9 November 2001 and that Dr Hittmann was advising against a return to work because it would likely aggravate her condition. Despite this, on 26 October 2001 Australia Post made a determination under s.37(1) of the Act that Ms Bunyan should undertake a rehabilitation program from 29 October 2001 to 9 November 2001. The rehabilitation program comprised Ms Bunyan’s attending the Bellambi Delivery Centre for two hours a day, two days a week, to carry out clerical duties. The delegate stated that in making the determination, she had taken into account Dr McGill’s reports of 6 June 2001 and 27 September 2001, and that the suitability of the duties had previously been endorsed by Dr Hittmann at the meeting with CRS Australia on 10 August 2001.
42. On 2 October 2001 Ms Bunyan lodged a claim for permanent impairment of both her left and right fingers, wrists, hands, arms and elbows. Ms Bunyan’s solicitors informed Australia Post on 30 October 2001 (Tb19) that Dr Hittmann considered she was not fit to return to any form of employment. Australia Post’s response dated 10 December 2001 pointed out that Dr Hittmann had approved Ms Bunyan’s participation in the pain management course and the return to work program of 20 August 2001.
43. Ms Bunyan was off work from 20 August 2001 until 6 January 2003 when she returned on light duties, two hours a day, three days a week. Her hours were progressively increased and she now works five days a week, usually 4½ hours a day. Ms Bunyan’s duties have been extended to delivery work on a flat run using a trolley that takes 2½ hours and she also does sorting which takes another 2-2½ hours. Her evidence is that the work causes her pain in the elbows and wrists, with some improvement in the wrists over night. She has constant numbness in the hands and a “pinging” feeling in the finger tips. To cope with the pain, Ms Bunyan takes up to six Panadeine Forte on a working day and two to four on the weekend. The pain in her elbows and arms is with her all the time; she described it as a dull pain. Prior to doing the pain management course, she would drink six stubbies of beer a day in addition to taking the pain killers.
44. Ms Bunyan lives in a three bedroom, two storey house with her husband. She has adjusted her approach to domestic tasks, and tries to break up tasks into little jobs, such as making a number of trips from the washing line to the house with the dry clothes. She attaches a brush to her foot which she pushes along when cleaning the floors. She does most of the house cleaning. Getting dressed is difficult because bending her arms can be painful. She holds a driver’s licence but the vibration experienced while driving causes pain in the elbows, so she keeps her driving to a minimum. Shopping is difficult because of the vibrations from the trolley and lifting items off shelves leads to pain in her elbows. She said that she does very little by way of outdoor activities. In cross-examination Ms Bunyan said that she is able to care for herself, including washing and getting dressed, can cut her own meals and use a fork, and is able to pick up a cup and drink from it. Sometimes a heavy item might slip out of her hands. A surveillance video shot on 19 October 2002 was accepted in evidence (exhibit R2). In answer to Mr Shoebridge, the applicant explained that, to reduce pain, she was filmed carrying partially full bags of shopping by holding them closely to her chest.
45. In February 2002 the applicant’s solicitors referred her to Dr I J Isaacs, hand surgeon and reconstructive microsurgeon. The history of the spanner incident in June 2000 included pain radiating proximally to the right side of the neck and shoulder, as well as cramping of the right arm. Dr Isaacs noted in his report of 8 May 2002 (exhibit A1) that Ms Bunyan complained of constant pain in the lateral aspect of both elbows radiating posterior to the medial side of the elbow; pain on the dorsal and ulnar surfaces of both wrists; pain on movement of the elbows and wrists at the extremes of the range; loss of supination in the left forearm; constant numbness in the ulnar side of both hands; loss of strength in both hands, and disturbed sleep as a result. She had not noticed any recent swelling or colour changes in either hand.
46. After examination and review of the investigations, Dr Isaacs concluded that Ms Bunyan had developed symptomatic bilateral ulnar abutment syndrome during the performance of her work duties. He stated:
Following the ulnar osteotomy surgery, it would appear that the ulnar abutment has been improved substantially at least on the basis of the bone scans now being negative as late as the investigation performed on 10th September 2001. There is evidence now of ulnar nerve irritation in the left upper extremity localised to the elbow on clinical grounds. The radiological appearance at the elbow shows some evidence of early degenerative changes in the lateral epicondylar region. There is no clear evidence of median nerve compression distally in either upper extremity despite the positive nerve conduction studies.
…
It Is unlikely that Mrs Bunyan will ever settle to a point where she will be able to return to unrestricted work duties.
…
On the balance of evidence this woman’s employment with Australia Post would appear to have been a substantial contributing factor to the development of her bilateral upper extremity condition. The development of her lateral epicondylitis condition is secondary to the strain placed on her extremities following the development of the ulnar abutment syndrome. This would appear to have been exacerbated in part by her continuing to do repetitive work tasks.
47. In a report dated 19 May 2003 (exhibit A6) Dr Isaacs provided his comments about the surveillance video (exhibit R2). In summary he said that the video footage did not change his opinion of her condition and disabilities. Dr Isaacs made particular comment about the activities filmed on 24 October 2002 which he noted “ … was the first time the woman was seen carrying two shopping bags that looked reasonably full. As she carried these up her sloping path I noted that she was using both hands to carry these shopping bags in front of her so that her elbows were held flexed. I thought this was an unusual way to carry shopping as most people would carry the bags separately with their elbows by their sides. It struck me that perhaps she was doing it the way she did to avoid strain on her elbows with the joints fully extended.” Dr Isaacs’ supplementary report of 23 May 2003 (exhibit A6) contained his assessment of permanent impairment under table 9.4 ‘Limb Function – Upper Limb’, being a ten per cent impairment of each upper extremity, which amounts to a 19 per cent whole person impairment under the combined values chart in table 14.1.
48. At Australia Post’s request, Dr D Bray, orthopaedic surgeon, examined Ms Bunyan on 8 October 2002. In his report of 10 October 2002 (exhibit R1), Dr Bray noted that when Ms Bunyan was off work in late 1996 her wrist pain did not settle. Dr Bray said that although symptoms in the left wrist were emphasised, from an early stage she had some right sided symptoms. In relation to the spanner incident, Dr Bray received a history of a general relapse of symptoms as well as an aching neck, for which he said there was no evidence of any significant damage there or the upper limbs. Her symptoms on presentation included tingling in an ulnar nerve distribution. Dr Bray found some signs of tennis elbow in both elbows, with pain on full extension of the elbows and pain on active extension of the wrist against a resisting force. He noted that she had slight restrictions on the extremes of forearm pronation on both sides, perhaps more markedly on the left, but had full range of movement in the wrists. He noted she complained of ongoing wrist pain, numbness in the hands, aching in her elbows and aching in her neck.
49. The investigations of the elbow condition were noted as follows:
The nuclear bone scan study showed changes that would be consistent with a mild right sided epicondylitis which means that they show some increased uptake of dye or increased blood flow on the lateral aspects of the elbow. This study also showed some osteoarthritic changes in the small joints of the hand, which could be expected in a lady of her age.
Ultrasounds of her elbows on the 5.9.01 were reported upon as showing bilateral epicondylitis. X-rays were reported upon as normal.
50. The worsening of symptoms in the right wrist after the surgery of her left wrist was typical in Dr Bray’s view because “ … in this type of case that once the left hand side had been treated the right hand side would appear to become worse, although it should be noted that she was not at work at this time, so it cannot be thought that the worsening of the right side had anything to do with her work.” He observed that it was almost ten years since the onset of Ms Bunyan’s problems and there had not been any work-place injury in her history or objective evidence of a disease process that has developed as a consequence of her work. He suggested that she had used her problems to manipulate the workplace environment.
51. Dr Bray concluded:
Mostly her aches and pains have moved around, not been associated with any overt sign of any specific disease process caused by her work and have failed to respond to various treatments.
I think that this failure is likely to continue in the future. It is simply that the problem is some stress associated with her workplace and that she does not manage some of her work activities.
Orthopaedic treatment under these circumstances is not likely to help. It has been my experience that this applies particularly to the problem of what is called lateral epicondylitis, or tennis elbow. Further this condition if left untreated does not lead to any permanent disability and sometimes, with treatment, can lead to some permanent problems.
…
More recently she has developed neck symptoms and this is just another indication of the need to avoid active treatment and, therefore, to avoid chasing aches and pains around her body.
It may well be that if one accepts that she had some degree of abutment on the medial aspect of her wrist, that she had a temporary aggravation of symptoms in association with this with her work.
…
I think the prognosis depends entirely upon her perception of her abilities in regards to these matters.
52. Dr Bray assessed the applicant as possibly having a ten per cent whole person impairment in accordance with table 9.4 of the Guide. He felt that only a maximum of five per cent whole person impairment could be related to her work.
consideration and findings
53. Mr Shoebridge referred to s.4(3) of the Act and submitted that as a result of medical treatment of Ms Bunyan’s ulnar abutment syndrome of the wrists, she has developed bilateral lateral epicondylitis. It was submitted that the incident with the spanner on 16 June 2000 aggravated the elbow condition. Further, it was submitted that there was permanent impairment of the wrists, relying on Dr Wheen’s evidence that the applicant has a ten per cent permanent impairment of the left wrist and a five per cent permanent impairment of the right wrist, assessed under the Guide’s table 9.1 ‘Upper Extremity’. Finally Mr Shoebridge submitted that, as the bilateral lateral epicondylitis was evident on x-rays and ultrasound, permanent impairment of that condition should be assessed at five per cent in each elbow, again under table 9.1.
54. For the respondent, Ms Henderson submitted that the oral evidence of Dr Wheen and the clinical notes of Dr Hittmann rebut any suggestion of a temporal connection between the ulna shortening osteotomy and the onset of lateral epicondylitis. Ms Henderson submitted that the applicant had given a false history to Dr Riordan regarding the temporal association between the onset of symptoms and treatment. Mr Shoebridge submitted that it was a gross injustice to make this submission since this assertion had not been put to Ms Bunyan. In respect of assessment of permanent impairment of the upper limb pursuant to table 9.4 of the Guide, Ms Henderson submitted that the video evidence demonstrated that Ms Bunyan did not have difficulty with digital dexterity or with grasping and holding. Both Dr McGill and Dr Bray found that her bilateral wrist movements were full, and she had a full range of elbow and shoulder movements, although straightening the elbows causes pain. The respondent relied also on Dr Bray’s opinion that Ms Bunyan has no changes that would allow assessment under table 9.1.
Bilateral lateral epicondylitis a compensable injury?
55. The following definitions in s.4(1) are relevant:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
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; …
56. Subsection 4(3) of the Act reads as follows:
(3) For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.
At this point we note that s.4(1) defines ‘medical treatment’ to mean
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or …
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or …
The term ‘therapeutic treatment’ is defined as follows:
therapeutic treatment includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
Overall, we found Ms Bunyan a reliable witness and we are satisfied that she tried to recollect events to the best of her ability. In making the following findings, we are mindful that the respondent remains liable to pay compensation in respect of the accepted condition of tenosynovitis both wrists, which might more accurately be described as bilateral ulno-carpal abutment. Ms Bunyan suffers also from bilateral lateral epicondylitis, a condition that has been diagnosed by Dr Wheen, Dr Riordan and Dr McGill. We find that the applicant’s lateral epicondylitis is an ailment being a disorder or defect of the body.
57. Dr McGill maintained that repetitive physical activity frequently precipitates lateral epicondylitis. It is apparent from the evidence that onset of the applicant’s complaints of elbow pain has not been associated with such work. From 1996, she had been required to ride a motor bike to deliver the mail. This involved strenuous use of her forearms and wrists when applying the handbrake and throttle. She also had to use her hands and wrists when doing the pre-delivery sorting of mail. But since October 1996 she has not had to ride the motorbike. There was a flare of wrist pain in December 1996 while the applicant was doing a walking run and sorting. We find that prior to the onset of pain in the left elbow, that came on when she was wearing the elastic strapping after the MUA in July 1998, Ms Bunyan had not performed repetitive work duties involving the wrists since 19 April 1997. Ms Bunyan’s next period of work was in July 1999 when she did light work using a computer. By the time of her complaint of right elbow pain in approximately October 1999 and around the site of the right ulnar plate, that Dr McGill recorded as commencing from around January 2000, she had not returned to work. On the basis of this evidence concerning Ms Bunyan’s work history, we find that repetitive physical activity at work has not contributed to her bilateral elbow pain, diagnosed as lateral epicondylitis. We are satisfied, however, that the spanner incident did lead to an aggravation of her elbow symptoms.
58. Following the left ulna shortening osteotomy on 29 January 1998, Ms Bunyan said she was restricted to making only short trips in her car, had great difficulty with household tasks and relied on her mother and later her daughter for help with the shopping and especially with lifting. Similarly, in the period following her right ulna shortening osteotomy on 28 August 1999, she said she had to spread out or divide up her household work into smaller tasks and relied on her mother and sister for help when shopping and was still not able to drive for more than 5-10 minutes. Accepting Ms Bunyan as a witness of truth, we are reasonably satisfied that she did not engage in repetitive physical activities at home in the periods subsequent to surgery.
59. Accordingly we find that Ms Bunyan did not experience the onset of pain in the elbow region as a consequence of repetitive physical activities, whether at work or in the home. In Dr McGill’s opinion, Ms Bunyan has a constitutional predisposition to develop lateral epicondylitis. Dr Wheen considers that the lateral epicondylitis is unlikely to be related to either the ulna shortening osteotomy or the treatment processes that followed those procedures.
60. Reliance is placed by the applicant in Dr Riordan’s evidence to explain the onset of her elbow pain. In Dr Riordan’s opinion the lateral epicondylitis was precipitated by strains placed on her elbows by reason of the surgery to the wrists, the insertion of the plates, the splinting and her attempts to do the post-operative physiotherapy and day to day activities. He explained that attempting these activities transfers strain to the elbows. Dr Riordan informed the tribunal that he sees a large number of patients with lateral epicondylitis. He made clear that lateral epicondylitis is related to repetitive extension of the wrist and forearm and involves use of the extensor tendons from the fingers that insert into the elbows. Dr Riordan disagreed with Ms Henderson’s suggestion that, as he was not treating the applicant at the time of onset of her elbow symptomatology, his opinion was a hypothetical explanation.
61. In Dr Riordan’s view, the alteration of biomechanics in the upper limb associated with the wrist surgery and the post-operative splinting of both elbows, precipitated the elbow pain. Under cross-examination Dr Riordan acknowledged that it was only in the case of the left arm, that additional strain was placed on the elbow by the use of the elastic strapping and the forearm manipulation device. However, it was his opinion that it was the altered biomechanics rather than the wearing of particular devices that was the most likely cause of Ms Bunyan’s bilateral lateral epicondylitis. Altered use of the upper limb could put strain on the lateral epicondyle in his opinion. Moreover, the temporal relationship between the onset of symptoms, and the surgery, the post-operative physiotherapy and hand therapy, made a connection likely.
62. By reference to the clinical notes of Dr Wheen and Dr Hittmann, the respondent disputes Ms Bunyan’s evidence that she experienced pain in the left elbow when she started to wear the elastic strapping on her arm at some point after the MUA in July 1998. Dr Wheen stated that he first recorded symptoms of left side lateral epicondylitis in February 2000 and right side epicondylitis in May 2000. We are satisfied, however, that Ms Bunyan did experience symptoms affecting her left elbow at least by 11 September 1998, given Dr Wheen’s letter of that date to Dr Hittmann referring to ulnar nerve neuritis and a positive Tinel’s sign at the elbow. There is also the history given to Dr McGill on 12 January 1999, that the applicant noted left elbow pain subsequent to the MUA.
63. There is in our view a broad temporal correlation between the surgery, specifically the MUA on the left wrist and subsequent physiotherapy, and the onset of left elbow pain that was ultimately diagnosed as bilateral lateral epicondylitis. Ms K Wunsch provided a progress report regarding physiotherapy on 12 June 1998 (Ta59) that stated that the ongoing treatment was intended to increase the applicant’s supination through use of a dynamic splint. Dr Wheen’s report of operation dated 3 July 1998 (Ta62) regarding the MUA referred to the post operative program of treatment by Ms Karen Wunsch which was to maintain supination and suggested using a static splint in maximum supination at night. On 11 August 1998 Dr Wheen advised Dr Hittmann that supination was still not at a level achieved under anaesthetic and splintage would have to continue. Dr Hittmann’s clinical note on 14 August 1998 (exhibit A5) recorded “pain ++ over ulnar nerve area”. Dr Hittmann’s clinical note for 21 August 1998 recorded persisting ulnar nerve neuritis for which Epilim was prescribed. However, Dr McGill in cross-examination had a different interpretation of the symptomatology. He thought that the strapping compressed or irritated the ulnar nerve and thus the medial side of the epicondyle, but there was no involvement of the lateral epicondyle, which is on the other side of the elbow.
64. Reporting of symptoms occurred again on 11 September 1998 when Dr Hittmann noted ulnar nerve entrapment at the elbow and for nerve conduction tests to be repeated. On 7 September 1998 Ms Wunsch advised Australia Post (Ta65) that physiotherapy to increase the range of supination, decrease ulnar symptoms and modification to splintage would have to continue for 7-12 weeks. Ms Bunyan said the elastic strapping and the forearm manipulation device caused her pain in the elbow, as did the ongoing physiotherapy to improve supination. This history is consistent with that given to Dr McGill who reported on 12 January 1999 that “ … she has to wear a splint on her left forearm and she stated that she’d been asked to wear it up to 8 hours per day. She could not estimate how often she wears the splint.” Despite the MUA, supination of the left arm was still very limited in March 1999, Dr Wheen reporting (Ta67) in addition that Tinel’s sign was persistently positive at the elbow. We do not accept the respondent’s submission that the applicant’s elbow symptoms developed long after the ulna shortening surgery and the MUA.
65. We also find that there is a correlation in time between the right ulna shortening osteotomy and the onset of complaints about elbow pain, as well as around the plate. Her right forearm was subject to swelling six weeks after the operation and the hand therapist was providing an active range of movement exercises and she was still having splinting in November 1999. On 3 February 2000 Dr McGill reported pain flare ups in the right forearm and swellings around the plate area every 2-3 weeks and also waking with pain in that area. Dr Hittmann’s note on 18 February 2000 referred to proposed nerve conduction studies for both arms and persistent ulnar neuritis possibly at the medial epicondyle. By May 2000 Dr Wheen had diagnosed lateral epicondylitis in the right elbow.
66. We prefer Dr Riordan’s analysis since it advances an explanation for the onset of the applicant’s bilateral elbow symptomatology. We are satisfied on the balance of probabilities that:
·the left and right ulna shortening osteotomy were surgical treatments performed by a legally qualified medical practitioner;
·the treatment in the form of massage, forearm rotation and splinting provided by Ms Wunsch physiotherapist and Ms Prosser hand therapist, subsequent to each ulna shortening, was treatment given for the purpose of alleviating the applicant’s bilateral ulno-carpal abutment injury and thus ‘therapeutic treatment’ as defined;
·the treatment, in the form of massage, forearm rotation and splinting of the left forearm provided by the hand therapist and the physiotherapist subsequent to MUA were forms of therapeutic treatment.
·the therapeutic treatment referred to in the points above were given at the direction of a legally qualified medical practitioner, Dr Wheen.
Accordingly we find that by reason of s.4(3) of the Act, Ms Bunyan’s bilateral lateral epicondylitis is an injury as defined in the Act.
Claim for compensation under ss.24 and 27
67. We move on to consider the applicant’s claim for compensation in respect of permanent impairment. Ms Bunyan suffers from two compensable injuries: ulno-carpal abutment of the wrists and bilateral lateral epicondylitis. To be eligible for compensation for permanent impairment, we must be satisfied that there is an impairment, which s.4(1) defines to mean “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.” Dr Wheen’s evidence was that, although the surgery was successful to a degree, there had been permanent changes in the wrist joints in both the head of the ulnar and the lunate, which would never return to normal. He added that he considered those changes could be described as lesions. Thus we find there has been damage to the wrists that constitutes a permanent impairment of the wrists.
68. Both Dr McGill and Dr Bray opined that Ms Bunyan has a full range of movement of her wrists, and their evidence is relevant to our assessment of the degree of permanent impairment of the wrists. However Dr Bray’s report, which was consonant with his oral evidence, was that the applicant did not suffer changes to her wrists as a result of a work related injury. We are not assisted by Dr Bray’s assessment of permanent impairment because we consider it to be based on a false premise, given the connection between Ms Bunyan’s duties and her ulno-carpal abutment found by Dr Wheen, Dr McGill and Dr Riordan, and of course the ongoing liability accepted by Comcare for compensation for that injury. By contrast, on 13 June 2001 Dr Wheen assessed a fifteen per cent whole person impairment as a consequence of the combined conditions in the right and left arms, such assessment made pursuant to table 9.4 ‘Limb Function - Upper Limb’ in the Guide to the Assessment of the Degree of Permanent Impairment (the Guide) issued by Comcare under s.28 of the Act.
69. When giving evidence at the hearing, Dr Wheen said that his report wrongly referred to an assessment under the Guide’s table 9.4. Dr Wheen explained that he reached his assessment of fifteen per cent under table 9.1 ‘Upper extremity’. Relevantly, table 9.1 states:
% Description of Level of Impairment
0 X-ray changes but no loss of function of shoulder, elbow or wrist
5 ANY ONE of the following:
· X-ray changes with minimal loss of function of shoulder, elbow or wrist
· Ankylosis of any joint of fingers 4 and/or 5
10 ANY ONE of the following:
· loss of less than half normal range of movement of shoulder or elbow
· loss of half normal range of movement of wrist
· ankylosis of any joints of fingers 2 and/or 3
...
70. Dr Wheen attributed a ten per cent impairment to the left wrist due to radiological change in the ulnar head and the lunate, combined with the loss of supination he had found on assessment in October 2000. At that stage Ms Bunyan had only 50 degrees of supination, compared to the normal which is about 80 degrees. For the right wrist, Dr Wheen attributed a five per cent impairment, noting post-operative scarring together with degenerative changes have resulted in “minimal loss of function”, and that while the surgery was successful, the wrist is never normal again. Dr Isaacs’ findings that there was pain and fatigue on sustained wrist flexion, painful crepitus on ulnar deviation of the right wrist suggesting persistent abutment and only 40 degrees of supination of the left forearm support Dr Wheen’s assessment. In addition we consider that Dr McGill’s observation on 9 May 2001 that resisted dorsi flexion and resisted palmar flexion of the wrists caused wrist discomfort supports our finding that, by reference to table 9.1, Ms Bunyan suffers from a five per cent permanent impairment of the right wrist and a ten per cent permanent impairment of the left wrist. Table 9.1 states that the impairment levels provide for impairment to one joint only. Where two joints are affected, as is the case here, the ‘Combined Values Chart’ in table 14.1 must be taken into account. Table 14.1 gives what the Guide describes as the total effect of the impairments, which in this case is 15 per cent.
71. Dr Wheen’s evidence regarding permanent impairment resulting from the bilateral lateral epicondylitis was that when he last saw Ms Bunyan in October 2000, he thought the elbow condition would resolve. His report of 31 October 2000, however, noted that she would benefit from consideration of tennis elbow release. Although she still had complaints about her elbow in 2003, Dr Wheen thought it premature that the malfunction of her elbows was permanent since she had not had the ultrasound shockwave treatment and he noted lateral epicondylitis was usually amenable to surgery. Dr McGill’s evidence was that he thought shock wave treatment was reasonable. Dr Bray observed that untreated lateral epicondylitis did not usually lead to permanent disability. On the basis of this evidence, we are not satisfied that any impairment resulting from the bilateral lateral epicondylitis is permanent. Further we are satisfied that the applicant has not yet undertaken ‘all reasonable rehabilitative treatment for the impairment’: s.24(2)(c). Accordingly, we find there is no entitlement to compensation under s.24 of the Act.
Determination of a rehabilitation program: s.37
72. The final issue concerns the determination made pursuant to s.37(1) of the Act in respect of Ms Bunyan’s bilateral wrist injuries. Relevantly, s.37 provides:
Provision of rehabilitation programs
(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
…
(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
73. A rehabilitation delegate at Australia Post made the determination on 26 October 2001 that Ms Bunyan was to commence a rehabilitation program on 29 October 2001 and concluding on 9 November 2001. The rehabilitation program required Ms Bunyan to perform certain clerical duties, for two hours a day, on two days a week. In making the determination, Australia Post stated that it had taken into account Dr McGill’s reports of 6 June 2001 and 27 September 2001 that assessed the applicant as fit to participate in a graduated return to work program. There was also a reference to the meeting on 10 August 2001 between CRS Australia, Dr HIttmann and Ms Bunyan to discuss her return to work and suitable duties. Ms Bunyan and Dr Hittmann gave their agreement to the return to work program, the duties and hours of which were the same as required by the rehabilitation program referred to in the determination made on 26 October 2001.
74. When Ms Bunyan did not attend the first day of the rehabilitation program, Australia Post wrote to her on 29 October 2001 asking her to provide written reasons for not undertaking the requirements of the rehabilitation program. Her solicitors responded on 30 October 2001 that she thought she was not medically fit to return to any type of employment. Additionally, they stated that Dr Hittmann considered Ms Bunyan was not fit to return to any form of employment. The solicitors asked that the determination be formally reviewed.
75. By letter dated 10 December 2001 (Tb22) Australia Post advised that the return to work program agreed in August 2001 was the substance of the rehabilitation program determination that issued on 26 October 2001. Australia Post referred to Ms Bunyan’s participation in the pain management program and the resulting improvement in managing her pain, as reported by the pain management clinic at Port Kembla Hospital. Australia Post concluded that, based on the very limited hours of work required, the applicant’s wrist condition did not prevent her from returning to work and participating in the rehabilitation program. The delegate’s decision of 26 October 2001 was considered to be correct. Accordingly, Ms Bunyan was required to commence work at the Bellambi Delivery Centre and she was informed that her rights to compensation may be suspended under s.37(7) if she failed to comply with her rehabilitation program and return to work. On 15 January 2002 Australia Post wrote to Ms Bunyan stating that, as it had been six months since Dr McGill found that she was fit for her full thirty hour week including average additional hours, Australia Post was deeming her able to work thirty hours per week from 15 January 2002. Ms Bunyan was informed that she could seek a reconsideration of that decision but it appears she has not done so. On 16 January 2002 Australia Post again wrote to Ms Bunyan regarding her failure to participate in the rehabilitation program. She was informed
Following consultation with the Compensation Section, it has been decided not to suspend your rights for compensation at this stage, but the Compensation Delegate will make a determination regarding your capacity to work and advise you of the outcome in the near future.
Dr Hittmann continued to provide medical certificates that Ms Bunyan was unfit to return to work. On 15 February 2002 Australia Post closed her rehabilitation case as she was not participating in a return to work program.
76. We are satisfied that a request was made under s.62 of the Act for reconsideration of the determination made on 26 October 2001 requiring Ms Bunyan’s participation in the rehabilitation program. In the tribunal’s review of the reconsideration decision of 10 December 2001, which is a reviewable decision, the tribunal is required to assess, first, whether Ms Bunyan has refused or failed to comply with her rehabilitation program and, secondly, whether she had a reasonable excuse for failing to do so (Australian Postal Corporation v Forgie (2003) 202 ALR 63).
77. We find that Ms Bunyan did not attend the Bellambi Delivery Centre between 29 October 2001 and 9 November 2001, being the duration of the rehabilitation program. This perhaps is not surprising given that on 20 August 2001, she had attempted to carry out certain duties as part of a return to work program that was later to become the basis of the rehabilitation program. Her evidence was that she attended the discussion about the return to work program held with CRS Australia and Dr Hittmann, and decided that she would give it a go. But after completing the first day of the return to work program on 20 August 2001 she again consulted Dr Hittmann. The doctor’s notes stated “RTW today as per duties on CRS RTW programme → recurrence of wrist and hands – mainly distal ulna → pain both hands – finished the two hours as per schedule asked to fill out p400 form incident report form but unable to do so due to wrist and hand pain . continue (with) pain management course NOTE: patient had to use both hands to accept certificate”. Due to her bilateral wrist and hand pain, Dr Hittmann certified the applicant not fit to return to those duties, initially to 24 August 2001.
78. Through the following weeks, Dr Hittmann continued to provide medical certificates. Dr Hittmann noted that Dr Riordan had seen the applicant on 15 October 2001. Since there had not been any change in her wrist condition, Dr Hittmann issued a medical certificate covering the applicant to 9 November 2001. That is, at the time of the commencement of the rehabilitation program, Ms Bunyan was certified unfit for the duration of that program. Dr Hittmann’s note on 29 October 2001 recorded that he concurred with Ms Bunyan’s reluctance to go back to work and face an exacerbation of her symptoms. In a lengthy note, Dr Hittmann recorded
Was to return to work today under CRS supervision – has not done so – on entering surgery, Mrs Bunyan yet again had to use two hands, wedged to her body, to turn the door hand to close the door … Mrs Bunyan is unfit for work – her wrists are still causing problems, and her ulna nerve neuritis is now being treated with Neurontin (Dr Poulos – PKDH Pain Management Clinic).
On reviewing the applicant on 9 November 2001, Dr Hittmann observed no change in her wrist pain and if anything, it was worse. It is also relevant in our view, that on 23 August 2001 Ms Bunyan had been seen by Dr C Poulos, a specialist in rehabilitation medicine, who sought Australia Post’s permission to trial her on Neurontin for her chronic wrist and hand pain (Tb4). Dr Poulos reviewed the applicant on 17 December 2001 and reported that the trial with Neurontin had been a success, given that it enabled her to reduce her dose of Panadeine Forte.
79. We are satisfied that Ms Bunyan was experiencing significant levels of wrist and hand pain, despite her successful participation in the pain management course, which the pain management clinic found had improved her capacity to manage pain (Tb21). Her GP was well aware of the duties required by the rehabilitation program, and was equally aware of her inability to complete the same duties some weeks earlier as part of the return to work program. There is ample evidence, her consultation with Dr Riordan and the notes of Dr Hittmann, that satisfies us that she had a reasonable excuse for failing to participate in the rehabilitation program. That Dr Riordan later wrote to the applicant’s solicitors on 3 December 2001 (exhibit A2) stating that a graduated return to work was appropriate, does not alter our finding that throughout the period of the rehabilitation program ending 9 November 2001, Ms Bunyan had a reasonable excuse for failing to participate. Accordingly, the determination dated 26 October 2001 should be revoked.
decision
80. In relation to the matters before us we decide as follows:
·The reviewable decision made on 13 July 2001 disallowing Ms Bunyan’s claim for compensation relating to epicondylitis of the elbows is set aside. The respondent is liable to pay compensation in respect of bilateral lateral epicondylitis.
· The reviewable decision made on 12 February 2002 disallowing the claim for compensation for permanent impairment of the fingers, wrists, hands, arms and elbows is varied. Compensation under ss.24 and 27 is payable in respect of a permanent impairment of the wrists assessed at fifteen per cent on a whole person basis, but not otherwise. There is no liability under ss.24 and 27 in respect of a permanent impairment of the elbows resulting from the applicant’s bilateral lateral epicondylitis.
· The determination made on 26 October 2001 requiring Ms Bunyan to undertake a rehabilitation program is revoked.
81. The respondent is liable to pay the applicant's costs of the proceedings in accordance with the General Practice Direction of the tribunal.
I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member, and Dr J. Campbell, Member:
Signed: E.Pope
AssociateDates of Hearing 8, 26 May and 14 August 2003
Date of Decision 12 May 2004
Counsel for the applicant D ShoebridgeCounsel for the respondent R Henderson
0
2
0