Callaghan and Telstra Corporation Limited

[2006] AATA 1079

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1079

ADMINISTRATIVE APPEALS TRIBUNAL        Nº W2005/317, W2006/184

GENERAL ADMINISTRATIVE DIVISION

Re:         ALISON CALLAGHAN

Applicant

And:TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Dr D. Weerasooriya, Member

Date:13 December 2006

Place:Perth

Decision:      The Tribunal affirms the decisions under review.

(sgd) G.D. Friedman

Senior Member

CATCHWORDS

COMPENSATION - pain to hands, wrists and shoulders - keyboard duties - whether an ailment

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14

Goudie v Department of Defence No. NG570 of 1992

Re Musumici and Department of Health (NT) (1990) 19 ALD 797

Re Woolley and Comcare [2006] AATA 1017

REASONS FOR DECISION

13 December 2006   G.D. Friedman, Senior Member

Dr D. Weerasooriya, Member

1.      Alison Callaghan was born on 24 November 1978.  She joined the respondent in October 2002 as a temporary employee working as a credit consultant and became a permanent officer on 16 January 2003.  On 21 May 2004 she submitted an incident report in which she reported intense pain in her hands, wrists and shoulders.  On 25 November 2004 she lodged a claim for compensation arising from the pain, which she claimed was caused by her duties that involved prolonged keyboard entry.  The respondent disagreed, and stated that any upper limb pain was unrelated to her employment.

ISSUE

2.      The issue before the Tribunal is whether Ms Callaghan was suffering from an injury, and if so, whether the injury was related to her employment with the respondent.

WHAT IS THE NATURE OF THE SYMPTOMS CLAIMED BY MS CALLAGHAN?

3.        Ms Callaghan told the Tribunal that her duties involved a substantial amount of keyboard work, and often she engaged in keyboard activities for more than 7 hours per day with few breaks.  She said that in December 2003/January 2004 she noticed a slight discomfort in her wrists and hands, and the symptoms seemed to increase in about April 2004 when smaller keyboards were installed.  Ms Callaghan stated that she was placed on light duties until June 2004, during which she performed no keyboard duties.

4.        Ms Callaghan said that changes were made to her working conditions following a workplace assessment and on 15 June 2004 she commenced a graduated return to work program.  She stated that the new keyboards contained fewer function keys and therefore required more keystrokes than the superseded keyboards.  She said that after using the new keyboard her pain was intense and her hands were sometimes cold.  She stated that she told her supervisor about the pain and undertook tests arranged by her general practitioner.  These were inconclusive, and she was placed on light duties and was taking anti-inflammatory medication to ease the pain.  She travelled overseas during annual leave between 25 June 2004 and 29 July 2004 and returned to normal duty on 2 August 2004.  Ms Callaghan said that most pain occurred at night, but in September 2004 the severe pain returned, and she was again placed on light duties until 25 November 2004, when her general practitioner determined that she was unfit for any work, and she has not returned since then.

5.        Ms Callaghan explained that she has attempted unsuccessfully to find employment.  She noted that her general practitioner has specified no keyboard, writing or repetitive work, so positions with Telstra shops were not appropriate.  She stated that in her daily life she tries to avoid any activity that might aggravate her condition, and that some days are relatively pain-free, although usually she feels pain at night.    

6.        Under cross-examination Ms Callaghan denied that she had told any doctor that her pain had commenced prior to 2003, and maintained that the pain commenced about the beginning of 2004.  Ms Callaghan said that between January and April 2004 her pain was intermittent, and agreed that her work diary entries for this period (Exhibit R7) contain reference to today was unwell with headache & stomach pains (16 April 2004) but no reference to intense wrist or hand pain until 24 May 2004, and there is no reference to pain in her monthly review at the end of April 2004 or in the adjusting workstation checklist completed on 15 April 2004, but she said that her hands were painful during this period.  She denied that she had fallen and injured her hands.  She agreed that she did not mention the pain to her then general practitioner (Dr Shingler) because she did not consider it necessarily to be work-related; it did not cause her much bother; and she could not afford to be treated for the condition.  She said that for this reason she was bulk-billed by Dr Shingler for the consultations.

7.        Ms Callaghan agreed that in June 2004 the medication prescribed by her general practitioner appeared to be effective and she felt she was able to resume full-time light duties.  She said that she was aware that approval of her application for annual leave depended on an assessment that she was fit for full-time duty, but denied that her improvement was related in any way to this requirement.  She said that during her overseas trip she did not engage in strenuous physical activity, and stated that she had relatives doing everything for me and I basically did nothing with my hands the whole time we were away…and did not suffer much pain in her hands.  Ms Callaghan told the Tribunal that any reference in the medical records to a pregnancy was in relation to the possible consequences of various treatment options, and did not signify any plan to become pregnant at that time or in the immediate future.

8.        In relation to her activities since November 2004, Ms Callaghan said that she has not undertaken any paid or voluntary employment, exercise program or rehabilitation treatment such as physiotherapy.  She said that some of these measures and the recommended medication or pain management treatments were too expensive.  She said that she does not require psychiatric or psychological treatment, and reiterated that the respondent has the responsibility of finding work for her, and had failed to do so.  She agreed that she is not actively seeking employment or exploring other options such as further study or re-training, and stated that she does not enjoy sales work.  She said that employment options in areas of her previous experience (real estate and child care) are not feasible because of her physical limitations, as noted by her general practitioner.

9.        After viewing a surveillance videotape arranged by the respondent that showed her driving her car and using her hands to load shopping on 25 and 27 May 2006 and performing stretching and other movements with her hands and arms without apparent discomfort, Ms Callaghan said that these must have been good days when she was relatively pain-free, and that that even on these days she tried not to perform any tasks that might aggravate her pain.  She said that she limits her driving and only drives her own car (which is not equipped with power steering) when her partner is working, and on days when he is not working he normally drives her in his car.  When confronted with evidence that he was not working on 25 May 2006 she could not remember the circumstances, and suggested that he was not available to drive her.

10.      Ms Callaghan stated that she did not lodge a compensation claim at the time her pain first occurred because she had been advised by her supervisor to wait for a diagnosis.  She said that she completed an incident investigation report in May 2004 and lodged a claim for compensation on 25 November 2004.  She denied that she had been untruthful in her answers to questions by the respondent or various medical practitioners.

11.      Dr J. Hayes, consultant physician in rheumatology, stated in a report dated 30 March 2005 (Exhibit A3):

This lady clearly has an Overuse-type syndrome affecting both upper limbs.  Furthermore she demonstrates hyperalgesia and nerve tension signs involving both median nerves and clearly her pain is of Neuropathic origin.

Modern thinking involving “RSI” is that this is in fact a minor irritative neuropathy, which in this lady’s case involves both median nerves in the carpal tunnels.  As a result the nerves become sensitised and the pain spread proximally along the course of both median nerve[s], explaining the spread of pain into the forearms and arms.      

Dr Hayes recommended that Ms Callaghan be deployed away from keyboard work, and said that she did not need physiotherapy or other forms of treatment, apart from analgesics.

12.      In a further report dated 14 August 2006 (Exhibit A4) Dr Hayes said that Ms Callaghan’s symptoms were unchanged, and described the condition as bilateral Cervicobrachial Pain related to long periods of keyboard work.  He noted that her claim for compensation had been unsuccessful and referred to …a dearth of understanding of Neuropathic Pain within the medico-legal Consultant industry.    In oral evidence Dr Hayes described neuropathic pain and nerve sensitisation, in which the damaged nerves become painful.  He said that Ms Callaghan’s symptoms became progressively worse in April 2004, and he stressed the importance of Ms Callaghan not engaging in the type of keyboard work which caused the symptoms.   

13.      Under cross-examination Dr Hayes agreed that he has seen Ms Callaghan on two occasions.  He described his diagnosis as complex regional pain syndrome Type 1 (CRPS) due to neural sensitisation.  Dr Hayes stated that Ms Callaghan might not recover for several years, if at all.  He agreed that neuropathic pain cannot be identified through scientific tests such as x-rays or scans, and relies on clinical examination of the nerves.  He denied that such examination relied totally on a patient’s reaction to various tests including pinprick and median nerve tension tests.

14.      Dr J. Edelman, rheumatologist, stated in a report dated 2 February 2005 (T3 in vol.3):

Today on examination there was no wasting or abnormal neurological function.  She was tender over both wrists and movement of the wrist produced pain but there was little else to find.

There is no evidence of an inflammatory joint disease.  This is quite consistent with an occupational pain syndrome related to her workplace.

In oral evidence Dr Edelman said that he saw Ms Callaghan on one occasion, and believed that medication for her pain was appropriate, as well as muscle strengthening for her upper limbs.  Under cross-examination Dr Edelman stated that occupational pain syndrome has evolved since the 1980s.  He agreed that this area of medical science was controversial, and that he had made the diagnosis based on the responses from Ms Callaghan and his experience over many years.  He also agreed that the new keyboard might not necessarily have been the cause of her condition, as factors such as the way she held her wrist could have been responsible.  Dr Edelman said that he does not perform median nerve function tests, and stated that they are not widely accepted.

15.Dr J. Salmon, specialist in pain management, told the Tribunal that pain specialists such as himself were usually the last resort for patients whose medical specialists have been unable to provide adequate diagnoses or treatment.  He said that CRPS was a disorder of the central nervous system that involved the sensitisation of nerves, and noted that significant advances have been made in the study of the role of the central nervous system and its interaction with psycho-social factors.

16.      Dr Salmon stated that he diagnosed CRPS in Ms Callaghan by using the four criteria devised by the International Association for the Study of Pain (IASP) (Exhibit A10):

1.        The presence of an irritating noxious event or cause of immobilisation.

2.        Continuing pain, allodynia [pain from another area], or hyperalgesia [increased sensitivity to pain stimulation] with which the pain is disproportionate to any inciting event.

3.        Evidence at some time of oedema [swelling], changes in skin blood flow or abnormal sudomotor activity in the region of the pain.

4.        The diagnosis is excluded by the existence of conditions that would otherwise account for the degree of pain and dysfunction.  

He said that criteria 2 to 4 must be satisfied before any diagnosis is possible, and that the pattern of symptoms varies between patients.  Dr Salmon explained that he relies on a history given by the patient, in addition to clinical examination, when making a diagnosis, and that in his experience patients generally give an accurate account of their symptoms.  He stated in a report dated 25 January 2006 (T12 in vol.3) that he examined Ms Callaghan on 16 January 2006.  He said that she told him her duties involved seven and a half hours of non-stop typing each day, and she reported intermittent upper limb pain that she noticed in early 2004.  This became worse after the introduction of the new keyboards in April 2004, although the symptoms decreased when she went on annual leave in mid-2004 and then increased markedly when she resumed full-time work, and she was forced to cease work in November 2004. 

17.      Dr Salmon emphasised the value of …a combined and integrated physical and psychological treatment approach directed towards self-management and adaption, and said that he had referred her to a clinical psychologist and physiotherapist.  Dr Salmon concluded:

Ms Callaghan has developed persistent neuropathic type pain in the arms and hands over the past two years, with significant and sustained aggravation following a period of intensive keyboarding at work in 2004.  Her symptomatology fulfils the IASP criteria for a diagnosis of complex regional pain syndrome type 1.  Interactive with her physical symptomatology she has developed some associated mood disturbance and her physical activity level has become low.

Further treatment options are outlined above and it is likely that her condition will significantly improve over time and if she receives appropriate treatment.  It is therefore difficult to predict likely permanent incapacity at this stage, however it would certainly be injudicious for her to attempt a return to her preinjury work at Telstra or any other work that involved intensive prolonged arm and hand movement.        

18.      Under cross-examination Dr Salmon agreed that on 16 January 2006 Ms Callaghan completed a pre-examination questionnaire, in which she estimated her level of pain at 8 on a scale of 0 to 10 (where 0 is no pain and 10 is pain as bad as it could be) in answer to the question: How would you rate the pain that you have had during the past week?  She rated the usual level of her pain in the previous week as 9 on a scale of 1 to 10 where 10 is the worst pain imaginable.  He said that her medication consisting of intermittent paracetamol (that he referred to in his report) would be unusual in a patient with such a high self-assessed level of pain, but he said that chronic pain is not necessarily the same as acute pain, and some patients prefer not to take medication at all.  

19.      Dr Salmon disagreed that neuropathic pain (or pain sensitisation) is merely a theory at present, but conceded that a number of studies that have been carried out have not yet been clinically utilised.  He agreed that a noxious event (criterion 1) might include an event that would otherwise have mild consequences, such as a fall.  He emphasised that neuropathic pain generally does not disappear, although the intensity may fluctuate.      

20.      Dr B. Dare, occupational physician, stated in a report dated 3 February 2005 (T61 in vol.2) that Ms Callaghan had reported ongoing pain in her wrists, hands and arms, and that there had been no improvement since she ceased work.  He was unable to make a specific diagnosis with regard to her symptoms, and stated:

I do not consider that Ms Callaghan is suffering from a work-related injury or medical condition.  I do not consider that her symptoms or disability could be caused by her work as a credit management consultant.  She suffers ongoing chronic pain in her hands, wrists and arms of no apparent cause.

In a further report dated 13 February 2006  (T13 in vol.3) Dr Dare said that he re-examined Ms Callaghan, who reported little change in her symptoms and persistent pain in her upper limbs.  He found no abnormality apart from global weakness in all muscle groups in her upper limbs and some reduced range of movements in her shoulders, but no evidence of swelling in any of her joints and normal colour and temperature of both upper limbs.  Dr Dare concluded:

Ms Callaghan has been labelled as having Occupational Overuse Syndrome or “RSI” with these diagnoses basically being names or labels given to her subjective symptoms of ongoing pain.  I do not consider these diagnoses are valid and I do not believe there is a mechanism by which her keyboarding duties have resulted in any specific injury to her upper limbs. 

21.      In oral evidence Dr Dare said that any repetitive activity can cause pain, but that if the activity ceases there should not be any ongoing injury.  He said he could find nothing in the type of work Ms Callaghan performed that would explain ongoing physical injuries.  Under cross-examination he said that even if the diagnosis by Dr Hayes was accepted, this would not be a work-related condition, because the type of work would not lead to these symptoms.

22.      Dr N. McGill, consultant rheumatologist, stated in a report dated 1 April 2006 (T16 in vol.3) that he had not examined Ms Callaghan but had been provided with relevant reports and documentation.  He ruled out rheumatoid arthritis or any other inflammatory joint disorder, and concluded:

Although repetitive physical activities can produce organic musculoskeletal disorders such as tendonitis, the symptoms she experienced from [the] outset were widespread and thus not in keeping with any physical disorder that could have occurred as a result of keying duties or her other work duties.  I do not believe that her keying and other work duties could have resulted in central sensitisation or any other mechanism of chronic pain production.

Noting that she has not been working for twelve months and that she reports no improvement in her symptoms over that period, I believe that her symptoms are entirely unrelated to her work.  

He said that if the symptoms were related to her work activities, he would have expected them to have resolved within a few weeks at most of her ceasing work. 

23.      In oral evidence Dr McGill said that complex regional pain syndrome exists and that CRPS criteria include swelling, muscle wasting, hair loss, sweating, nail changes, coldness and abnormal scans.  He stated that a patient’s history alone is insufficient for a diagnosis, so that signs and symptoms are needed.  Dr McGill said that CRPS is a theory rather than a fact, and can arise in a number of circumstances including ordinary repetitive activities.  He said that the four criteria listed by the IASP have a role in providing a loose screening mechanism but are non-specific and are insufficient for diagnoses to be made.  Dr McGill explained that the Guides to the Evaluation of Permanent Impairment which is published by the American Medical Association (the AMA Guides) with contributions by a range of experts, is a more comprehensive and pre-eminent publication that is used in Australia by Comcare and takes into consideration an objective range of matters including factors that are within and outside a patient’s control.  Dr McGill said that pain specialists play a useful role in an integrated approach to pain management and research that also includes general practitioners and rheumatologists.   

24.      Dr McGill said that the median nerve tension test carried out by Dr Hayes is not a standard neurological assessment.  He concluded that there is no reason to blame any one factor (such as keyboard duties) without evidence to support that view.  He emphasised that there is no evidence that Ms Callaghan’s pain was an activity-related disorder, and stressed the need to consider a range of factors before making a diagnosis.

25.      Under cross-examination Dr McGill agreed that ideally he would examine a patient before making findings, but said that on this occasion there was a degree of uniformity about the lack of objective signs exhibited by Ms Callaghan. He said that this supported his conclusion that the symptoms reported by Ms Callaghan could not be given a diagnostic label without objective corroborative supporting material.

26.       In a written statement dated 11 August 2006 (Exhibit R17) Ms N. McManus, Telstra Credit Team Manager, said that she has been Ms Callaghan’s manager since December 2002.  She described Ms Callaghan’s duties and stated that keyboard activities occupied more than 4.5 hours per day, although this did not represent continuous typing.  She said that in January 2004 Ms Callaghan completed an Adjusting Your Workstation Checklist and a similar exercise following the installation of the new keyboards on 15 April 2004.  She said there was no evidence of intensive keyboarding activities by Ms Callaghan during the period January to May 2004.

27.      Ms McManus stated that Ms Callaghan approached her on 21 May 2004 complaining of intense pain in her hands, wrists and shoulders, and was placed on alternative duties.  After an ergonomic assessment there was agreement that Ms Callaghan was to resume duty with a reduced target and concentrating on administrative tasks.  Ms McManus stated that following annual leave Ms Callaghan undertook a graduated returned to work on 2 August 2004 until 27 October 2004, when Ms Callaghan advised that her specialist had diagnosed a type of repetitive strain injury.  At a case conference on 4 November 2004 Ms Callaghan’s general practitioner advised that she should avoid keyboard activities, so alternative duties were provided.  Ms McManus said that on 25 November 2004 Ms Callaghan lodged a claim for compensation and since then has been certified by her general practitioner to be completely unfit for work.

28.       In oral evidence Ms McManus stated that when the new keyboards were installed in April 2004 she was aware that Ms Callaghan preferred the old keyboards, but Ms Callaghan did not report any upper limb pain arising from using the new equipment.  Ms McManus told the Tribunal that Ms Callaghan first reported pain in her hands on 13 May 2004, but did not claim that the pain was work-related.  She said that at a meeting on 28 October 2004 Ms Callaghan told her that a specialist had diagnosed a repetitive strain injury, and this was the first indication that Ms Callaghan might be suffering from a work-related condition.  She said that, for this reason, she advised Ms Callaghan to lodge a claim for compensation.  Ms McManus said that she was involved in efforts to find suitable employment within Telstra, including a position at a Telstra shop, but Ms Callaghan had been unhappy with the proposal because she did not enjoy face-to-face contact with customers.

29.      Under cross-examination Ms McManus agreed that Ms Callaghan was a dedicated and committed employee who had received favourable performance reviews and had displayed excellent customer relations skills.  She seemed happy in the workplace.  Ms McManus said that all positions in the credit management area of Telstra involved keyboard duties, and that the positions in Telstra shops could not be modified to accommodate Ms Callaghan’s limitations.

30.      Dr M. Sivapalan, general practitioner, told the Tribunal that she examined Ms Callaghan on 20 April 2004, although Ms Callaghan was not a regular patient.  In her notes of the visit (Exhibit R14) she recorded flu-like symptoms and that Ms Callaghan had slept in an awkward position.  Dr Sivapalan also observed redness in the base of Ms Callaghan’s thumb had a bruised thumb.  There was no other mention of pain in Ms Callaghan’s upper limbs.

31.      In September 2004 (T31 in vol.1) Dr C.Singam, Rheumatology Department, Sir Charles Gairdner Hospital, recorded a two-year history of pain in her hands and wrists, and in 2005 Dr Hayes recorded that symptoms developed in early 2003.  On 15 June 2004 (T26 in vol.1) Ms L. Potts of Konekt, rehabilitation consultants, recorded that the pain commenced approximately twelve months ago (June 2003).  In a questionnaire dated 16 January 2006 completed for Dr Salmon (Exhibit R20) Ms Callaghan rated the usual level of her pain in the previous week as 9 on a scale of 1 to 10 where 10 is the worst pain imaginable. 

HAS MS CALLAGHAN SUFFERED AN INJURY?

32. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides that :

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.

Injury is defined in s 4(1) of the Act as including a disease, which in turn is defined as

(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.

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

33.      In considering whether Ms Callaghan has an ailment the Tribunal notes that in Re Musumici and Department of Health (NT) (1990) 19 ALD 797 Deputy President Todd cited the Macquarie Dictionary definition of ailment (A morbid affection of the body or mind) and disorder (A derangement of physical or mental health or functions) and the Shorter Oxford Dictionary definition of ailment (The fact of ailing; disorder) and disorder (An ailment, disease. (Usually weaker than “disease” and not implying structural change)).  He said that proven pain may in some circumstances fall within the statutory definition of disease even when a precise diagnosis is not possible. 

34.      In Re Woolley and Comcare [2006] AATA 1017 the Tribunal found that the applicant suffered from a chronic pain syndrome in her upper limb in addition to diagnosed conditions affecting her right shoulder, and that this constituted an ailment under the Act. In Goudie v Department of Defence No. NG570 of 1992 the question of neuropathic pain was considered.  Burchett J stated at paragraph 7:

…

In my opinion, on a fair reading of the reasons, the course the Tribunal adopted was to make plain its inability to accept the applicant's own evidence, unless the weight of the medical evidence suggested it should be accepted.  That meant that the applicant's case could not succeed on the basis which appealed to the Tribunal in Re Musumeci and Department of Health (NT) (1990) 19 ALD 797, as to which see Australian Postal Corporation v. Lucas (1991) 33 FCR 101 at 108.  But when the Tribunal then turned to the medical evidence, it found that, far from providing a ground for accepting what it already regarded as a dubious case, the preponderance of that evidence was against the applicant.  I can see no error of law in the Tribunal's approaching the task of decision in this way.  Indeed, it seems eminently practical and appropriate.

35.      In the absence of objective medical evidence the Tribunal is required to make an assessment of the credibility of Ms Callaghan, as her presentation to medical practitioners about the pain she said she has suffered forms the basis of the conclusions reached by medical witnesses.

36.       The Tribunal finds that Ms Callaghan was consistent in stating that she suffered pain, but gave differing accounts of the onset of her pain, beginning with late 2003/early 2004 (although she was unable to be precise).  However there is no report of any complaint of upper limb pain in medical records made at that time.  She said that the pain was basically stable until about March/April 2004, and attributed the increased pain to the installation of the new keyboards, yet that did not occur until 15 April 2004.  The Tribunal notes the two-year history of pain time frame recorded by Dr Singam, early 2003 recorded by Dr Hayes and approximately twelve months ago recorded by Ms Potts in June 2004.  The Tribunal does not accept her explanation that the various practitioners must have recorded her history incorrectly, and that she has no clear memory of the onset of the pain, being such a significant event.   

37.      Ms Callaghan’s description of the intense pain that she said occurred a few days after the installation of the new keyboards included dramatic language such as excruciating and like someone’s trying to break the bone, but Dr Sivapalan’s notes of 20 April 2004 refer to flu-like symptoms but make no mention of upper limb pain or to work-related problems.  The Tribunal has some doubts about the accuracy of her answers contained in the questionnaire for Dr Salmon, particularly her assessment of the level of her pain in the previous week as 9 on a scale of 1 to 10.  Such a level of pain would probably require emergency treatment.  This, together with an unexplained period of five days before seeking medical attention, casts serious doubt on Ms Callaghan’s claims regarding her level of pain.  Similarly the Tribunal takes into account that her work diary referred to headache & stomach pains but not to intense wrist or hand pain until 24 May 2004, and there is no reference to pain in her monthly review at the end of April 2004 or in the adjusting workstation checklist, and she did not tell her supervisor of any such pain until 21 May 2004.

38.      In respect of the new keyboards, the Tribunal accepts Ms Callaghan’s evidence that she preferred the old keyboards, but does not accept that that the new ones were vastly different from the old ones or required significant changes in use, especially as other Telstra staff appeared to have no difficulty in adjusting to the new function keys.

39.      The Tribunal takes into account that Ms Callaghan felt well enough to undertake an overseas trip in June/July 2004 for a period of five weeks.  Her evidence about essentially doing no physical activity during the trip lacks credibility in view of the intense pain she claimed to have been suffering shortly before the trip, and the requirements of lifting, walking, carrying objects and other physical actions involved in travelling for extended periods and over long distances.

40.      The Tribunal finds the surveillance video to be significant, as it shows Ms Callaghan performing tasks (such as opening the doors, stretching her body to reverse and lifting shopping bags over the seat) that are totally inconsistent with her evidence of being extremely careful in not undertaking any actions that might aggravate her pain, and of driving as little as possible.  The Tribunal does not accept as credible her explanation that the two occasions were good days, and it is unlikely that she has no memory of the reason for driving her car (which has no power steering) on these days, when on her own evidence 9 times out of 10 her partner drives her in his car when he is not working.  On one of these days he was not rostered to work.

41.      In respect of her overall claims about the intensity and frequency of her pain, Ms Callaghan has provided no corroborating evidence from family, friends or independent persons who would be able to attest to her difficulties in managing everyday household and other tasks, or who could confirm any physical signs of wrist, hand or arm pain such as discolouring or swelling.  Her evidence to the Tribunal and to medical practitioners that her work involved keying duties for more than 7 hours per day was clearly untrue, taking into account rest breaks, telephone calls, meetings, administrative tasks etc. 

42.      For the above reasons the Tribunal finds that Ms Callaghan was not a credible witness.  Accordingly, this casts doubt on the credibility of the medical evidence from Dr Salmon, Dr Hayes and Dr Edelman, all of whom base their conclusions supporting a diagnosis of CRPS on symptoms described by her. 

43.      In any event the Tribunal prefers the evidence from Dr McGill and Dr Dare who found no evidence of a physical disorder, and no material was presented to the Tribunal to suggest a mental disorder.  Although he did not examine Ms Callaghan, Dr McGill is an experienced and highly qualified consultant rheumatologist who gave evidence that was clear, reasoned and precise, and who accepted the role of pain specialists in the overall management of patients.  The Tribunal accepts his evidence that the AMA Guides, being a widely-accepted publication that is based on contributions by a range of experts and includes subjective and objective criteria, is the most appropriate framework for making a diagnosis.

44.      Dr Salmon made sweeping statements about the pre-eminent role of pain specialists, and the Tribunal does not accept his evidence that the IASP criteria are to be preferred, as they are broad and are based on subjective criteria.  Dr Edelman referred to a syndrome rather than a diagnosed condition.

45.      In view of its findings that Ms Callaghan is not a credible witness and that the medical evidence does not support a diagnosis of a physical disorder, and as no evidence suggested a mental disorder, the Tribunal finds that Ms Callaghan does not suffer from an ailment under the Act, so she does not meet the definition of disease, and cannot satisfy the definition of injury as required in s 14(1) of the Act.

DECISION

46.The Tribunal affirms the decisions under review.

I certify that the forty-six [46] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

…[Sgd C Rowe]……

Dates of hearing:  11, 12 and 13 September 2006, 4 and 5 December 2006

Date of decision:  13 December 2006

Counsel for applicant:                  Ms R. Cosentino
Solicitor for applicant:                  Gibson & Gibson
Counsel for respondent:              Ms P. Giles
Solicitor for respondent:              Sparke Helmore