CHAND and TELSTRA CORPORATION LIMITED
[2011] AATA 501
•22 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 501
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2926
GENERAL ADMINISTRATIVE DIVISION ) Re MOOL CHAND Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member and
Dr R G Maynard, Brigadier (Rtd), MemberDate22 July 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd].....................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Acceptance of liability under the Safety, Rehabilitation and Compensation Act 1988 (the Act) for medical treatment and compensation for left wrist flexor carpal ulnaris tendonitis and soft tissue strain to right forearm – Determination that accepted condition had resolved with no continuing entitlement to compensation under the Act – Further claim for compensation – No continuing entitlement to compensation under the Act for incapacity or impairment – Decision under review affirmed
Administrative Appeals Tribunal Act 1975 (Cth) s 42A
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 16 19
REASONS FOR DECISION
22 July 2011 Mr R G Kenny, Senior Member and
Dr R G Maynard, Brigadier (Rtd), MemberBACKGROUND
1. On 28 September 2006, the Telstra Corporation Ltd (“Telstra”)[1], accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), for rehabilitation and compensation in respect of “left wrist flexor carpal ulnaris tendonitis and soft tissue strain to right forearm”. On 8 December 2006, Telstra determined that Mr Chand was capable of undertaking an identified return to work program. On 20 December 2006, Telstra determined that Mr Chand had an ability to earn, in suitable employment, the amount earned for the proposed hours of work set out in the work program. On 23 January 2007, Telstra determined that, as at 17 January 2007, Mr Chand was not incapacitated for work and that there was no present liability to pay him compensation under s 19 of the Act. The determinations of 20 December 2006 and 23 January 2007 were affirmed in reviewable decisions by Telstra on 25 January 2007 and 31 December 2007, respectively.[2]
[1] All material decisions and determinations under the Act were made by Allianz Australia Insurance Limited, acting for and on behalf of Telstra.
[2] Mr Chand’s applications to the Administrative Appeals Tribunal (“the Tribunal”) for review of those reviewable decisions were withdrawn by him and were formally dismissed by the Tribunal under s 42A(1B) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) on 6 April 2009 and 16 April 2009, respectively.
2. By reconsideration of own motion (“ROM”) on 8 August 2008, Telstra revoked its decisions of 20 December 2006 and 23 January 2007. Telstra also determined that the identified work program was not suitable to Mr Chand and that he was incapacitated for work from 18 December 2007. Further, Telstra determined that, from 26 May 2008, the accepted condition had resolved and that Mr Chand had no present entitlement to compensation under the Act. On 24 August 2009, Mr Chand purported to lodge an application for review of the ROM decision. On 5 October 2009, the Tribunal refused to grant an extension of time for that application to be heard but noted that Mr Chand could make a further claim for compensation.
3. By letter, dated 10 February 2010, Mr Chand advised Telstra that he continued to suffer incapacity due to the upper limb condition. On 26 March 2010, Telstra determined that it was not liable to pay compensation and, in a reviewable decision dated 18 May 2010, varied the decision and decided that, while liability for the “left wrist flexor carpal ulnaris tendonitis and soft tissue strain to right forearm” had previously been accepted under s 14 of the Act, there was no present entitlement under s 16 or s 19 of the Act
ISSUES AND LEGISLATION
4. The issue for the Tribunal is whether Telstra is liable, under s 16 and or s 19 of the Act, to pay compensation to Mr Chand for incapacity from left wrist flexor carpal ulnaris tendonitis and soft tissue strain to right forearm.
SUBMISSIONS
5. Mr Chand submitted that the pain imposed upon him by the injuries for which Telstra accepted liability in 2006 had not abated. He described continuing physical limitations in almost all activities associated with the use of his upper limbs despite his use of medication to alleviate pain related to such activities. He submitted that the impact of his upper limb conditions has imposed severe social limitations on him and he felt, in particular, the restrictions that he experiences from being unable to use a keyboard or mobile phone for communication purposes. He considered that it was significant that Centrelink had accepted him as being disabled for social security purposes.
6. Mr Chand was critical of Telstra’s reliance on a neurologist in making its determination on the basis that the relevant specialty was that of an orthopaedic surgeon or a rheumatologist. In support of his continuing incapacity, he referred to a range of medical and other reports, particularly those obtained during the earlier phases of his condition. He also submitted that MRI and ultrasound test results supported his claim of continuing incapacity.
RESPONDENT’S CASE
7. Mr Clark, for the respondent, submitted that the preponderance of medical evidence obtained since Mr Chand made his claim in March 2010 was to the effect that he no longer suffers any incapacity from the left wrist or right forearm conditions. He submitted that reliance should be placed on this more recent material rather than that which related to the period when Telstra accepted that he was incapacitated and provided him with relevant assistance under the Act. In particular, Mr Clark referred to the medical reports of orthopaedic surgeon Dr Cutbush and neurologist Dr John Cameron as confirming an absence of Mr Chand’s continuing incapacity.
MEDICAL EVIDENCE
Ultrasound and MRI results
8. In his report in relation to an MRI performed on 26 May 2008, Dr Michael Crouch concluded:
All of the tendon compartments in the left wrist region appear normal with no evidence of tendonopathy or synoval inflammatory change. There is no evidence of joint effusion. No abnormal marrow signal is identified to suggest bone bruising/marrow oedema. The triangular fibrocartilege complex appears normal. The visualised intrinsic ligaments of the carpus appear normal. No significant degenerative changes are identified. There is no evidence of an intraarticular loose body.
9. Ultrasound reports in evidence in relation to Mr Chand’s left wrist were dated 23 March 2006, 15 April 2010 and 22 January 2008. Those for the right forearm were dated 22 April 2010 and 22 January 2008. Relevant extracts read:
left wrist
23 March 2006: In relation to the area of clinical concern overlying the ulnar area of tenderness, there is thickening of the flexor carpi ulnaris tendon. This is suspicious of tendinopathy. When comparison is made with the left side there is suggestion of some peritenderness thickening here also.
15 April 2010: There is no evidence of a focal abnormality in the area of clinical concern. There is normal appearance of the flexi carpi ulnaris tendon with no evidence of tendinopathy. The remaining flexor tendons have a normal appearance.
22 January 2008: No sonographic abnormality was identified involving the plexor and extensive tendons of either wrist. In particular, there are no findings to indicate tenosynovitis or tear. No ganglion cysts were identified.
right forearm
22 April 2010: There is evidence of a small amount of fluid in the tendon sheath of the extensor pollicus longus tendon and mild fusiform thickening of the tendon. This is the site of the patient’s maximum tenderness. The remaining tendons have a normal appearance. There is a normal appearance of the muscles in the forearm...The appearances are suggestive of mild tenosynovitis of the extensor pollicus longus tendon on the right.
22 January 2008: The musculature and soft tissues of the right forearm have a normal sonographic appearance.
10. Ultrasounds were undertaken of Mr Chand’s right elbow and forearm and both wrists by Dr J Salanitri on 22 January 2008. In his report, Dr Salanitri concluded that no sonographic abnormality was identified to account for Mr Chand’s symptoms. Mr Chand said that he had recently seen Dr Salanitri again and was referred by him for a further MRI test. Mr Chand said that this was done because Dr Salanitri had noted abnormalities on the MRI taken on 26 May 2008 and which had not been detected in the MRI report of Dr Crouch. A further MRI test had not been completed by the time of the hearing.
11. Dr Patrick Bergin completed a report on 5 May 2011 in which he commented upon ultrasound tests taken in April 2010 as well as the MRI performed on 26 May 2008. He noted that, in relation to the left wrist, there was a signal abnormality which was most likely related to failed fat suppression but concluded that there was no abnormality in the region concerned with the ulnar aspect of the wrist. With the right arm, he described the possibility of intersection syndrome within the distal aspect of the forearm.
Orthopaedic reports
12. Dr Peter Steadman saw Mr Chand on 22 September 2006 and completed reports on that date and on 30 November 2006. He wrote that Mr Chand suffered from tendonitis in the left wrist and he noted reactive symptoms in his right arm.
13. Dr Anthony Houston completed reports on 22 August 2006, 16 March 2007 and 1 May 2007. In his early reports, he described pain and tenderness in Mr Chand’s arms but, in his final report, Dr Houston noted that there were insufficient clinical findings to count as active Mr Chand’s left wrist tendonitis. He could not offer a specific clinical diagnosis for Mr Chand’s right arm.
14. Dr Mark Byrne saw Mr Chand on 27 June 2007 and completed a report on that date. He wrote that Mr Chand probably had tendonitis in the left wrist but considered that there was no diagnosable medical condition in the right arm although he conceded that there may have been a soft tissue injury to the right forearm musculature.
15. Dr Malcolm Wallace saw Mr Chand on 22 December 2009 and completed a report on 7 January 2010. He also gave oral evidence. He wrote that Mr Chand continues to suffer from left ulnar wrist pain with the use of his wrist and continued right lateral elbow pain which is worse when the forearm is pronated. His examination revealed some tenderness around the flexor carpi ulnaris tendon on the left though he had a full range of motion. He described reduced grip strength but considered that not to be a reliable measurement. For the right elbow, Dr Wallace noted tenderness at the right lateral epicondyle but a full range of movement and a positive result for a middle finger stretch test. He observed no sign of a chronic regional pain syndrome. In preparing his report, Dr Wallace referred to the reports of several medical practitioners but was not provided by Mr Chand with any MRI results or any ultrasound results post 23 March 2006. In his evidence, he agreed that he was reliant on the history provided to him by Mr Chand as well as Mr Chand’s subjective reactions to the examination he conducted in his consultation with him.
16. Dr Kenneth Cutbush saw Mr Chand on 16 December 2010 and provided reports bearing that date and 30 May 2011. He also gave oral evidence. Mr Chand was critical of the examination conducted by Dr Cutbush. In particular, he said that Dr Cutbush did not conduct a physical investigation of his upper limbs but merely observed him from the other side of a wide table. Dr Cutbush denied the suggestion by Mr Chand that he had not conducted a physical examination of his upper limbs. On the contrary, he examined each limb and was unable to pulpate any lumps which were reported by Mr Chand.
17. In completing his reports, Dr Cutbush did not have access to the images taken in an MRI test on 26 May 2008 of Mr Chand’s left wrist. Rather, he read the report of that test completed by Dr Michael Crouch. During the hearing, Dr Cutbush was provided with the images. This was because of Mr Chand’s assertion, based on the apparent opinion of Dr Salanatri, that they revealed information not noted by Dr Crouch. Having analysed the images, Dr Cutbush confirmed that he agreed with the opinion expressed by Dr Crouch in his report.
18. Dr Cutbush noted that there was no particular point of tenderness in either of Mr Chand’s arms although he noted a mild tenderness over the muscle mass of the common extensor origin. He referred to x-rays taken on 18 July 2006 which reported no bony or joint abnormality. He also noted the ultrasounds of the left wrist taken on 23 March 2006 and 16 July 2010. He conceded that the first ultrasound suggested thickening of the flexor carpl ulnaris tendon and that the second demonstrated symptoms consistent with tenosynovotis of the flexor carpl ulnaris tendon. However, his opinion was that the ultrasound results were not confirmed in the MRI test and his belief was that the MRI test is substantially more reliable than an ultrasound test. His opinion was that the MRI result was consistent with his clinical findings upon his examination of Mr Chand. His conclusion was that there was no particular diagnosis to explain Mr Chand’s symptoms.
19. In his second report, Dr Cutbush referred to the report of physiotherapist Mr Martin Coote and the reference to chronic pain syndrome. Dr Cutbush was unfamiliar with any such diagnosis. However, Dr Cutbush referred to chronic regional pain syndrome type 1 and type 2 and said that Mr Chand did not satisfy the criteria for those conditions. Dr Cutbush noted that a report from social worker Ms Corle Liebenberg was concerned with Mr Chand’s mental health. Dr Cutbush was unable to gain assistance from Job Capacity Assessment Reports provided by Mr Chand because they gave no basis for the testing carried out by the assessors. In his second report and in his evidence, Dr Cutbush confirmed that he was unable to provide a likely diagnosis for Mr Chand’s described symptoms.
Rheumatological report
20. Dr Sumant Kevat completed a report on 20 March 2008. He described a thickening of the ulnar border of Mr Chand’s left wrist with localised tenderness as well as mild muscular tenderness of the right upper forearm. He wrote that Mr Chand appeared to suffer from chronic tenosynovitis of the extensor carpi ulnaris which he considered may not resolve even with the cessation of employment.
Neurological report
21. In addition to giving oral evidence, Dr John Cameron completed reports on 15 January 2008, 2 June 2008 and 10 October 2010. He first saw Mr Chand on 11 January 2008. In his first report, Dr Cameron wrote that Mr Chand may have suffered a mild tendonitis in his left wrist in the past and non specific forearm discomfort. He could not identify any neurological cause for the discomfort of which Mr Chand complained. In his second report, Dr Cameron referred to the MRI study of 23 May 2008 of the left wrist and was unable to identify any specific problem. Dr Cameron saw Mr Chand again on 8 October 2010. In his final report, Dr Cameron noted that Mr Chand complained of discomfort in the mid-radial border on the right side and the medial aspect of the left wrist. Dr Cameron was unable to identify any evidence of any neurological impairment in Mr Chand’s hands or upper limbs although he noted that ulrasound studies apparently reported changes compatible with tenosynivitis at the left wrist involving the FCU tendon and mild tenosynivitis affecting the EPL tendon on the right.
22. Dr Cameron was referred to a report dated 5 May 2011 from Dr Patrick Bergin who commented upon ultrasound tests taken in April 2010 as well as the MRI performed on 26 May 2008. In his evidence, Dr Cameron said that MRI results are substantially more reliable for analysing soft tissue structures than ultrasound results. He said that he placed much greater reliance on MRI results. His opinion was that the MRI revealed no basis for the source of pain in Mr Chand’s left wrist or right forearm. Specifically, he described the intersection syndrome noted by Dr Bergin as a reference to Mr Chand’s right wrist rather that his right forearm or left wrist.
23. Dr Cameron acknowledged that tenosynovitis was more in the domain of orthopaedic or rheumatological medicine but expressed the opinion that, if such condition was related to workplace activities, it would improve significantly if that workplace activity ceased. He also stressed that his evidence was given in relation to any neurological basis for the cause of Mr Chand’s pain.
Other reports
24. Mr Chand provided a report from physiotherapist Martin Coote and from specialist mental health social worker Corle Liebenberg. Mr Coote saw Mr Chand on 21 April 2011 and, in his report of that date, described palpable enlargement of distal portion of the flexor carpi ulnaris tendon and tenderness over the extensor muscle group of the right forearm. His opinion was that Mr Chand’s symptoms were unchanged from when he saw him in 2006/7. Ms Liebenberg’s opinion was that Mr Chand presented to her with symptoms of depression.
25. Job Capacity Assessment Reports, dated 14 January 2010 and 11 April 2011, were also provided by Mr Chand. These were completed as part of a claim process by Mr Chand for income support payments under Commonwealth social security law. Each of these described limited employment capacity related to Mr Chand’s upper limbs. Neither report was completed by a medical practitioner.
CONSIDERATION
26. We have noted but do not accept Mr Chand’s criticism of Telstra’s reliance on neurologist Dr Cameron. His evidence was specific to neurological aspects of Mr Chand’s claim and recognised the need for further analysis by orthopaedic and/or rheumatological specialists. We have also noted Mr Chand’s Job Capacity Assessment Reports and that his conditions have been recognised by Centrelink. However, we are satisfied that the nature of an assessment under social security law is not the same as under the Act and, in any event, we recognise the comment by Dr Cutbush that he was unable to gain assistance from the Job Capacity Assessment Reports because they gave no basis for the testing carried out by the assessors.
27. Opinion in support of Mr Chand’s claim is provided in reports of orthopaedic surgeons Dr Steadman, Dr Houston and Dr Byrne and rheumatologist Dr Kevat. However, they relate to the period when Telstra recognised Mr Chand’s incapacity and provided compensation to him in accordance with the Act. Dr Wallace was supportive of continuing incapacity in Mr Chand’s upper limbs. However, in his evidence, Dr Wallace conceded that he was not provided with MRI or ultrasound reports and that he was reliant on Mr Chand’s subjective responses to the measures he undertook in the physical examination. Dr Cutbush and Dr Cameron and Dr Houston did not experience that limitation. Each was able to access such reports and, in particular, this included MRI results which Dr Cutbush and Dr Cameron both considered to be more reliable than ultrasound test results. We accept their evidence of the relative merits of the two forms of testing.
28. On the basis of his physical examination of Mr Chand and MRI results, Dr Cutbush was unable to provide a diagnosis for Mr Chand’s described symptoms. We accept that his evidence reflects the present state of Mr Chand’s left wrist and right forearm conditions and we also accept Dr Cutbush’s conclusions concerning the Job Capacity Assessment Reports and the evidence of Mr Coote and Ms Liebenberg. Dr Cutbush’s opinion is confirmed by that of Dr Cameron who concluded that Mr Chand’s MRI results revealed no basis for the source of pain in his left wrist or right forearm. We also note that, in his final report, Dr Houston found insufficient clinical signs of active left wrist tendonitis and could not offer a specific clinical diagnosis for Mr Chand’s right arm complaint.
29. On all of the evidence before us, we are reasonably satisfied that, while liability for the “left wrist flexor carpal ulnaris tendonitis and soft tissue strain to right forearm” had previously been accepted under s 14 of the Act, there is no present entitlement under s 16 or s 19 of the Act.
DECISION
30. The Tribunal affirms the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member
Signed: ...........................[Sgd]........................................
Research AssociateDate/s of Hearing 23 and 24 June 2011
Date of Decision 22 July 2011
Applicant was self-represented
Counsel for the Respondent Mr Charles Clark
Solicitor for the Respondent Ms Suzy Dole, Sparke Helmore Lawyers
0
0
0