Caldwell and Comcare
[2007] AATA 1976
•21 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1976
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2006/171
GENERAL ADMINISTRATIVE DIVISION ) Re LLYRIS CALDWELL Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr P. Wilkins MBE, Member
Date21 November 2007
PlaceCanberra
Decision 1. The reviewable decision made by Comcare on 10 July 2006 which affirmed a determination that Ms Caldwell had no present entitlement to compensation under sections 16 and 131 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the previously accepted condition, is set aside.
2. In substitution for the decision set aside it is decided that during the period from and including 1 May 2006 until the date of this decision Ms Caldwell is entitled to compensation under sections 16 and 131 of the Safety, Rehabilitation and Compensation Act 1988 in respect of an injury being tenosynovitis of the right forearm and right wrist and regional pain syndrome in the right arm and right shoulder.
3. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Ms Caldwell.
….................................................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees – Tenosynovitis and regional pain syndrome – Comcare ceased liability claiming no longer work related – Whether ongoing injury is still work-related – Changing nature of injury – Comcare reconsideration set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 16, 19, 131
Canute v Comcare (2006) 226 CLR 535, (2006) 229 ALR 445
Abrahams v Comcare (2006) 93 ALD 147, [2006] FCA 1829
Commonwealth of Australia v Borg (1994) 20 AAR 299
REASONS FOR DECISION
J.W. Constance, Senior Member
Dr P. Wilkins MBE, Member
21 November 2007
INTRODUCTION
1. In 1983 Ms Caldwell suffered an injury to her right forearm and wrist which arose out of her employment by the Department of Administrative Services. For the following 22 years she was paid compensation in respect of the injury.
2. From 1 May 2006 Comcare ceased paying compensation on the basis that at that time Ms Caldwell did not suffer the effects of the compensable injury. Ms Caldwell has applied to have this decision reviewed.
3. For the reasons which follow we have decided that the decision under review should be set aside. In substitution it will be decided that Ms Caldwell is entitled to receive compensation in respect of the injury from 1 May 2006 until the date of this decision. The compensation payable shall be for medical expenses and incapacity.
4. Unless otherwise stated the findings of fact set out in these reasons are based on the evidence of Ms Caldwell. We are satisfied of the facts found on the balance of probabilities.
BACKGROUND FACTS
5. Ms Caldwell commenced employment by the Department in 1979 as a clerk. Her work involved a substantial amount of hand-writing and also the use of a visual display unit and a computer keyboard.
6. In about September 1983 Ms Caldwell experienced pain in the back and fingers of her right hand. This pain spread to her wrist and forearm. The pain was exacerbated by the type of work she was doing, particularly handwriting. In March 1984 she reported this problem to her supervisor.
7. In April 1984 Ms Caldwell made a claim for compensation. On the claim form she described the nature of the injury as tenosynovitis and described the occurrence of the injury as the development of an ache in her wrist over about 4-6 months. In May 1984 liability was accepted to compensate Ms Caldwell in respect of “tenosynovitis of the right forearm and wrist” sustained in the course of her employment.[1]
[1] T14.
8. From May until mid-September 1984 Ms Caldwell was off work as a result of the injury. She returned to work on light clerical duties from mid-September 1984 until March 1987. She had some time off work as a result of the injury in this period. In March 1987 Ms Caldwell was retired on medical grounds. Her condition was described as a regional pain syndrome. In May 1986 the Commonwealth Medical Officer reported that Ms Caldwell “had a long history of painful hands, wrists, forearms and upper arms ~ since sept. ‘83”.[2] Ms Caldwell has not been in paid employment since her retirement.
[2] Ex.A7
STATUTORY BACKGROUND
9. Subsection 14(1) of the Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Subsection 16(1) provides:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Division 3 provides for the payment of compensation to an injured worker who is incapacitated for work as a result of a compensable injury.
ISSUES FOR DETERMINATION
10.The following issues require determination.
1)How is the compensable injury suffered by Ms Caldwell properly described?
2)Has Ms Caldwell suffered the effects of the injury since 1 May 2006?
3)If so, is Comcare liable to pay compensation to Ms Caldwell:
i)in respect of medical treatment obtained by her in relation to the injury since 1 May 2006; and
ii)for periods of incapacity as a result of the injury since 1 May 2006?
DETERMINATION OF THE ISSUES
How is the compensable injury suffered by Ms Caldwell properly described?
The Evidence
11. In the notice of injury given to the Department by Ms Caldwell on 3 April 1984 she described the injury as “a recurrent wrist injury” and advised that the ache in her wrist developed over a period of 4-6 months.[3] The description of the injury in the claim form was “tenosynovitis”.
[3] T7.
12. In a report of 16 April 1984 (which was copied to the employer) Dr Kitchin, Orthopaedic Surgeon, referred to Ms Caldwell’s symptoms as “work-related and related to repetition strain motion.” [4]
[4] Ex.A3 T9.
13. In late 1985 Ms Caldwell’s general practitioner, Dr Smethills, referred her to Dr Knox, Consultant Psychiatrist, in relation to the continuing pain in her right arm and gradually deepening depression, mainly a result of her injury. [5] In the opinion of Dr Knox it was likely “that some underlying personality traits in this girl have led to increased subliminal body tension which may have played a part in the onset of symptoms. …… it is important to prevent any secondary deterioration in the mental attitude of people troubled by RSI." [6] A copy of this report was provided to the Commissioner for Employees Compensation, Comcare’s predecessor.
[5] Ex. A5 T47.
[6] Ex.A4 T43.
14. In May 1986 Mr Caldwell was examined by the Commonwealth Medical Officer. The Officer reported that:
“This lady has had a long history of painful hands, wrists, forearms and upper arms -- since September 1983. She did have 6/12 S/L in May 1983-early ’84 during which time the symptoms improved, but since returning to work, she has had recurrences of severe symptoms even on part-time hours and limited duties. She has required short absences in the last 18/12 but symptoms have never really improved, and indeed in last 2/12 they have deteriorated now involving L arm much more than before." [7]
[7] Ex.A7T59.
15. In September 1986 Dr Brook, Rheumatologist, examined Ms Caldwell at the request of the Commonwealth Medical Officer. In the opinion of Dr Brook, Ms Caldwell exhibited a clinical picture of regional pain syndrome, the cause of which was unknown but which had been established for a long period of time. We note that Dr Brook reports that Ms Caldwell told him that she first noticed pain in her right hand in June 1982, but it is clear that she related the onset of the pain to a time when she was performing the work we have referred to earlier in these reasons.
16. In November 1995 Dr Smethills reported:
“This patient continues to suffer from chronic cervico-brachialgia (originally R.S.I.). The original injury contributes to her present condition to a material degree." [8]
[8] Ex.A14 T101.
17. Ms Caldwell was examined by Dr Corry, Consultant Physician, in June 1995, on referral by Dr Smethills. In his report of 17 July 1995 Dr Corry concluded:
“Ms Caldwell has a very long history of chronic pain in the neck and shoulder region and both forearms, involving the wrist and hands. The history of onset of the lesion is certainly quite consistent with the diagnosis of extensor tenosynovitis (or RSI). …… she has now been off work for nine years and has complaints chronic persisting symptoms with limited function over this period. A diagnosis of regional pain syndrome or chronic cervico-brachialgia is reasonable and has largely replaced the diagnosis of RSI made in the past. The cause of this lesion is of course disputed...... When chronicity develops as in this case, the prognosis is poor with recovery rates of less than 10% in three years. There is no evidence whatsoever to support that this chronicity is caused by psychological, rather than, physical abnormalities."[9]
[9] Ex.A12 T93.
In the opinion of Dr Corry Ms Caldwell’s ongoing condition was related to injuries sustained in her employment by the Department.[10]
[10] Ex.A13 T95.
18. Ms Caldwell was assessed by Dr Browne, Physician, in January 2007. The assessment was at the request of Ms Caldwell’s solicitors for the purposes of these proceedings. He diagnosed Ms Caldwell as suffering an occupational overuse syndrome and was of the opinion that her symptoms and impaired functioning at the time related “solely to the nature and conditions of her former work.” [11] When he gave evidence Dr Browne expressed the view that Ms Caldwell suffers a chronic regional pain disorder in relation to the over-use syndrome brought about by a “long time frame of susceptibility to aggravation which is not fully reversed.” [12]When asked as to the cause of this susceptibility Dr Brown replied:
“I think that, you know, the work related factors which triggered the condition ceased when work discontinued. The ongoing chronic regional pain disorder in relation to the over-use syndrome, I think there’s a long time frame of susceptibility to aggravation which is not fully reversed. And that’s the process which is in question, as to whether she has ongoing chronic pain in relation to that past work activity.”[13]
[11] ExA16.
[12] Transcript 13.8.07 at p-10.
[13] Transcript 13.8.07 at p-10.
19. Comcare has argued that the condition for which Ms Caldwell is entitled to compensation (assuming that she continues to have any such entitlement) is the previously accepted condition of “tenosynovitis of the right wrist.” It is argued further that the Tribunal does not have jurisdiction to consider the question of any secondary psychological injury.
20. Dr McGill, Consultant Rheumatologist, assessed Ms Caldwell on behalf of Comcare in October 2006 In his opinion:
· Ms Caldwell did not suffer tenosynovitis;
· if there was any contribution by her employment to her right forearm and wrist pain, the pain would have ceased within a couple of weeks of her ceasing her duties;
· Ms Caldwell does not have any significant underlying physical disorder and her symptoms cannot be explained on the basis of degenerative disc disease;
· her physical capacity is normal, on physical grounds she is fit for her previous duties;
· there is no indication for treatment along physical lines;
· Ms Caldwell’s psychological makeup, reflecting past psychological influences, contributed substantially to her presentation of widespread pain.[14]
[14] Ex.R1.
21. Dr Stevenson, Psychologist, assessed Ms Caldwell in March 1995, on behalf of Comcare. At that time he reported that he could not detect any abnormality in the upper limbs, there was no evidence of tenosynovitis, swelling in the right forearm, muscle wasting or arthritis and that Ms Caldwell had a full range of movement in the shoulders, elbows and wrists. In his opinion at that time there was no clinical evidence of tenosynovitis and that Ms Caldwell suffered from a condition categorised as a Regional Pain Syndrome. He described this condition as one of “pain, usually determined by psychological factors rather than work practices and not reflecting any underlying tissue injury.” [15] When he gave evidence Dr Stevens expressed the view that a diagnosis of occupational overuse syndrome had no scientific validity and that he supported the view the repetitive strain injury epidemic in Australia was a “mass hysterical phenomenon”.
[15] Ex. R3, T90.
22. Comcare argues that the view of Dr Brooks in 1986, that Ms Caldwell suffered a regional pain syndrome “the cause of which is unknown” [16] is consistent with the opinions of Dr McGill and Dr Stevenson.
[16] Ex. A6.
23. Of course, the opinions of medical experts are of no assistance to us if they are not based on facts which we are satisfied exist. We accept the evidence of Ms Caldwell that at least since mid-1983 she has suffered pain in her right wrist and forearm and that she has suffered this pain to varying degrees ever since. We are satisfied that treatment (which includes medication) received by Ms Caldwell has alleviated the pain to some extent. We are satisfied also that there are many activities which Ms Caldwell can perform but that she is restricted in the manner in which she can perform these activities by reason of the pain she suffers. These activities include driving, housework and gardening.
Reasoning
24. In relation to the concept of “injury” in the Act, the High Court said in Canute v Comcare (2006) 229 ALR 445 at paragraph 10:
“the definition of ‘injury’ is expressed in terms of the resultant effect of the incident or ailment upon the employee’s body.”
25. We are satisfied that the compensable injury suffered by Ms Caldwell is properly described as tenosynovitis of the right forearm and right wrist and regional pain syndrome in the right arm and right shoulder. This was the resultant effect upon her body.
26. Although Ms Caldwell ceased work in March 1984 and did not return until 12 September 1984 she continued to suffer pain during this period. By September 1986 Dr Brook diagnosed Ms Caldwell as suffering a regional pain syndrome of unknown cause. Over the years which followed the various medical practitioners to whose opinions we have referred, found Ms Caldwell to be suffering from a condition variously described as chronic cervico-brachialgia, regional pain syndrome, chronic regional pain disorder and widespread pain. None of the practitioners suggested that Ms Caldwell did not continue to suffer pain in her right arm and shoulder. Opinions differ as to the cause of the pain, an issue with which we shall deal later.
27. In Ms Caldwell’s situation it would be wrong to limit the description of her compensable injury to tenosynovitis. She gave notice of “a recurrent wrist injury” although she did describe the nature of her injury as tenosynovitis in her claim form. It is apparent on the medical evidence before Comcare over many years that the diagnosis of the condition had changed from a simple case of tenosynovitis to a condition of tenosynovitis and a regional pain syndrome, a condition which had become chronic. Having received this evidence Comcare proceeded to compensate Ms Caldwell for her injury until 2005. We are satisfied that the diagnosis of the condition suffered by her has changed rather than the nature of the injury itself. The nature of the injury is not restricted to the description placed upon it by Comcare at the time initial liability was accepted. To accede to Comcare’s argument in this regard would be to take too restrictive a view of legislation intended to be beneficial to the injured worker.
28. Our decision is in accordance with the decision of the Federal Court Abrahams v Comcare [2006] FCA 1829 in which the Court said:
“In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both a beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, different levels of medical advice and different levels of legal advice (indeed in most cases they would not have any) will be giving the notice.”
The Court went on to say that the powers of the Tribunal “ extend to enabling a consideration of the claim better explaining, or better justifying, a claim in respect of an injury in respect of which notice had been fairly given." [17]
Has Ms Caldwell suffered the effects of the injury since 1 May 2006?
[17] Para.18.
The Evidence
29. Ms Caldwell gave evidence that both prior to and since the above date she has suffered pain in her right arm and shoulder and that this pain varies with intensity depending on the activity she undertakes. She said that she takes pain relief and anti-inflammatory medication prescribed by her general practitioner. Her evidence was corroborated by Dr Browne’s opinion that when he examined Ms Caldwell in January 2007 Ms Caldwell was suffering ongoing pain related solely to the conditions of her former work.
30. Ms Caldwell was assessed by Dr McGill after 1 May 2006. Dr McGill did not agree that Ms Caldwell’s employment contributed to her arm pain, as if it had the pain would have ceased within a couple of weeks of her ceasing duties,
31. We accept the evidence of Ms Caldwell as to her suffering ongoing pain. Having observed her give evidence we are satisfied that she was an honest witness. We also take into account that her evidence was supported by the opinion of Dr Browne and that her complaints of pain have been noted by the practitioners who examined her since 1984. Whilst opinions have varied as to the cause of the pain, none of the practitioners has suggested that Ms Caldwell’s complaints were not genuine.
32. Having decided that Ms Caldwell has continued to suffer the pain she describes since 1 May 2006 it is necessary to decide whether that pain is suffered as a result of her compensable injury. In this regard we prefer the evidence of Dr Browne to that of Dr McGill and Dr Stevenson.
33. Dr Browne was of the view that Ms Caldwell’s symptoms in January 2007 related solely to the nature and conditions of her former work. We also take into account that this view is supported by the reports of Dr Kitchin (1984), Dr Knox (1985), Dr Smethills (1995) and Dr Corry (1995). Although these reports precede the period under consideration they indicate that over a period of approximately ten years a number of medical practitioners regarded Ms Caldwell’s symptoms as having arisen from her employment.
34. Although both Dr McGill and Dr Stevenson expressed the opinion that any physical injury suffered by Ms Caldwell in 1983 would have resolved long ago neither offered an explanation for her continued experiencing of pain in her shoulder and arm. Nor does either practitioner offer an explanation as to why Ms Caldwell first experienced the pain at a time she was doing a lot of writing and keyboarding, and why it has continued in varying degrees of intensity since that time.
35. In assessing all of the evidence we need to be persuaded that there has been some change in circumstances to justify the cessation of the payments of compensation which were being made: Commonwealth of Australia v Borg (1994) 20 AAR 299 at 307. In view of the conflicting views, putting aside our preference for the opinion of Dr Browne, we are not persuaded that there has been a change in circumstance disentitling Ms Caldwell to ongoing compensation after 1 May 2006.
Is Comcare liable to pay compensation to Ms Caldwell
i)in respect of medical treatment obtained by her in relation to the injury since 1 May 2006; and
ii)for periods of incapacity since 1 May 2006?
Medical treatment
36. We do not have evidence as to particular expenses claimed in the relevant period. For the reasons already stated Comcare is liable to pay compensation to Ms Caldwell for the cost of all medical treatment obtained since 1 May 2006 and which it was reasonable for her to obtain in relation to the injury of tenosynovitis of the right forearm and wrist and a regional pain syndrome in the right shoulder and right arm.
Evidence in relation to incapacity since 1 May 2006
37. The information as to Ms Caldwell’s capacity for work after such a long absence from the workforce is limited. In cross-examination Ms Caldwell agreed that she could probably do non-repetitive work provided it did not involve prolonged sitting or standing. After she moved to Grafton in 2000 she tried to undertake some work with Lifeline sorting and packing bags of clothes. She was unable to continue this work because she found it too painful.
38. Dr McGill is of the opinion that Ms Caldwell has normal physical capacity and that “on physical grounds she is fit for her previous full normal duties without restriction.” [18]
[18] Ex.R1.
39. The only attempt to rehabilitate Ms Caldwell with a view to her returning to employment was in early 1994, over twelve years before Comcare ceased making payments which included payments calculated on the basis she was totally incapacitated for work. Ms Caldwell did not find the program useful and the attempt was unsuccessful.
40. Dr Maynard of the Australian Government Health Service examined Ms Caldwell on behalf of Comcare in 1994 for the purpose of determining whether she was suitable to participate in the program referred to. This was before the program took place. He was of the opinion that Ms Caldwell could physically undertake the program but that Ms Caldwell’s motivation to do so was poor and that her prognosis was “clouded by the fear of exacerbating the condition to its former levels.” [19]
[19] Ex.A10, T67.
41. In 1995 Dr Stevenson reported:
“On physical grounds I am certain Ms Caldwell could, if motivated, undertake a rehabilitation program. The factors preventing her rehabilitation and return to work are psychological not physical and perhaps could be more fully explored by a psychiatric report.” [20]
[20] Ex.R3, T90.
42. In his report of 6 March 2007[21], following his examination of Ms Caldwell in January 2007, Dr Browne expressed the opinion that her condition had improved since ceasing work and had stabilised. He was of the opinion also that Ms Caldwell was permanently unfit for her pre-injury duties but that she “would be suitable for light non-repetitive tasks and possibly could be retrained for such work.” (Emphasis added).
[21] Ex.A16.
Reasoning
43. Having considered the evidence referred to we are not persuaded that at any time since 1 May 2006 Ms Caldwell has ceased to be totally incapacitated for work. We prefer the evidence of Dr Browne to that of Dr McGill as Dr McGill limits his opinion to fitness to return to work “on physical grounds”. He does not give consideration to the effect of other possible consequences of the injury or to the effect of such a long period of compensation and absence from the workforce. He does not appear to have considered the need for rehabilitation prior to Ms Caldwell being fit to return to some form of employment. Although Dr Stevens assessed Ms Caldwell as suitable to undertake a rehabilitation program in 1996 it appears nothing was done to further explore this possibility.
44. Our decision that Ms Caldwell remains totally incapacitated for work does not mean that she may not have some capacity for work at some future time, particularly if an appropriate rehabilitation program was implemented. We note in this regard that the Safety, Rehabilitation and Compensation Act 1988 provides for the suspension of compensation payments to an employee who fails to undertake a rehabilitation program without reasonable excuse.[22]
[22] S.37(7).
45. The Tribunal has previously commented upon Comcare’s failure to attempt rehabilitation of an injured worker before ceasing incapacity payments, particularly in the case of an employee to whom it has made such payments over many years. This reluctance to attempt rehabilitation in these circumstances is difficult to understand in the light of its legislative function:
“to minimise the duration and severity of injuries to its employees and employees of exempt authorities by arranging quickly for the rehabilitation of those employees ……” [23]
[23] S69(b), Safety, Rehabilitation and Compensation Act 1988
DECISION
46. The reviewable decision made by Comcare on 10 July 2006 which affirmed a determination that Ms Caldwell had no present entitlement to compensation under sections 16 and 131 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the previously accepted condition, is set aside.
47. In substitution for the decision set aside it is decided that during the period from and including 1 May 2006 until the date of this decision Ms Caldwell is entitled to compensation under sections 16 and 131 of the Safety, Rehabilitation and Compensation Act 1988 in respect of an injury being tenosynovitis of the right forearm and right wrist and regional pain syndrome in the right arm and right shoulder.
48. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Ms Caldwell.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr P. Wilkins MBE, Member.
Signed: .....................................................................................
Geoff Foley, Associate
Date/s of Hearing 13, 22 August 2007
Date of Decision 21 November 2007
Counsel for the Applicant Wayne Sharwood
Solicitor for the Applicant Pamela Coward & Associates
Counsel for the Respondent Ben Dube
Solicitor for the Respondent Sparke Helmore
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