Coutroumanis and Comcare

[2010] AATA 975

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 975

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1773

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		PAMELA COUTROUMANIS

Applicant

And COMCARE

Respondent

DECISION

Tribunal Miss E A Shanahan, Member

Date11 November 2010

PlaceMelbourne

Decision For reasons given orally at the hearing, the Tribunal affirms the decision under review.

(Sgd)  E.A. Shanahan

Member

workers compensation – accepted liabilities for right upper limb myofascial pain syndrome sustained 2002 -  two further episodes of injury 2007 and 2009 – new injury or aggravation of the accepted condition – applicant paid s 14 in compensation at 75 per cent of weekly earnings – claimed new injury attracting 100 per cent of weekly earnings – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 s 14, s 16, s 19

REASONS FOR DECISION

6 December 2010 Miss E A Shanahan, Member

1.      Ms Coutroumanis made a successful workers’ compensation claim for the condition of right upper limb myofascial pain syndrome in 2002. Ms Coutroumanis later made compensation claims for two further conditions: the first for chronic pain syndrome unspecified because of an injury on 8 November 2007; and the second for the aggravation of this syndrome by an injury on 6 April 2009.  Comcare denied liability for these two claims. Ms Coutroumanis sought an internal review of these decisions.  On 12 March 2010 Comcare confirmed its earlier decisions (the reviewable decision).  The reviewable decision was based on medical evidence that these two episodes were manifestations of the original 2002 injury and not new injuries.  Ms Coutroumanis maintained that these injuries were symptomatically different to those of her long-standing disorder and were in fact new injuries. 

2. The Tribunal was provided with the documentation pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). Comcare tendered the T‑documents (Exhibit R1) and Dr Vincent Gallichio‘s medical records relating to Ms Coutroumanis (Exhibit R2).  Ms Coutroumanis was self-represented and Mr John Wallace of counsel appeared on behalf of Comcare.

BACKGROUND TO THE APPLICATION

3.      In May 2002 Ms Coutroumanis injured her right upper limb while transporting large document boxes in the course of her work.  Later on the same day, she injured her right hand  when she caught it between a trolley and a lift rail.  She experienced pain in both upper limbs but it was more pronounced on the right. Initially, she was diagnosed with right rotator cuff syndrome.  Investigations revealed acromio-clavicular bursitis. A cervical spine MRI showed three disc bulges (without nerve compression) and facet joint degenerative changes.  The acromio-clavicular bursitis responded rapidly to an injection of the bursa with local anesthetic and steroids. However, diffuse muscle pain persisted in the right shoulder girdle.

4.      Ms Coutroumanis was off work for 14 months, undergoing further investigation, treatment (predominantly with physiotherapy) and a rehabilitation program.  Comcare accepted liability for her injury.   Ms Coutroumanis was eventually diagnosed with myofascial pain syndrome.  This condition is also referred to as nonspecific upper limb disorder and regional fibro-myalgia. Ms Coutroumanis became depressed secondary to her persistent symptoms and she was referred for psychological counselling.  She returned to work in May 2004 on graduated hours.  While her symptoms have persisted and varied in intensity, she has been able to work full time.

5.      On 8 November 2007 Ms Coutroumanis sat and completed a five hour written examination.  Her university studies had been approved by her employer Australian Securities and Investment Commission (ASIC).  Throughout the examination, her right upper arm was abducted at 45 degrees to her trunk because of constraints in her seating. .  She had been given medical advice to keep her upper arm parallel with her chest wall as much as possible, to decrease the symptoms of her myofascial syndrome.  This episode aggravated her pain and caused numbness of the right hand. 

6.      Immediately after the injury, Ms Coutroumanis was unable to study for her other examinations.  She was off work or on reduced hours from 9 November 2007 to 16 October 2008. .  Dr Gallichio, her general practitioner, provided a report to Victoria University and initiated further investigations.  A CT examination of the cervical spine showed no change from the CT scan performed in 2002.  Ms Coutroumanis was referred to Associate Professor Chambers, a neurologist. Professor Chambers raised the possibility of a right carpal tunnel syndrome. However, nerve conduction studies were normal. 

7.      An incident report regarding this event and a workers’ compensation claim were not lodged until 16 February 2009.  The workers’ compensation claim stated the condition was a chronic pain syndrome. 

8.      In October 2008 and August 2009 Ms Coutroumanis suffered bouts of pain in her right shoulder, which were diagnosed as acromio-clavicular bursitis. On both occasions, she was administered intra-articular local anesthetic and steroids.  The symptoms were completely alleviated in 2008 and there was a partial improvement in 2009.  

9.      On 24 June 2009 Ms Coutroumanis lodged a further claim for workers’ compensation for re-aggravation of the injury that is the subject of the claim number 807923/1 (a reference to the injury sustained on 8^th November 2007).  Ms Coutroumanis attributed the re-aggravation to excessive computer use, particularly of the mouse, and to operating electronic audio equipment between 6 April 2009 and 20 May 2009.  Dr Gallichio restricted her work to modified duties (she was to avoid the use of the computer mouse) from 28 May 2009 to 25 June 2009.  

10.     Comcare denied liability for the chronic pain syndrome, based on medical evidence that these two episodes were manifestations of the myofascial syndrome sustained in 2002.  The primary determinations were affirmed on 12 March 2010 (the reviewable decision).  Ms Coutroumanis withdrew an earlier AAT application (2010/1914) because both claims had been considered in this reviewable decision.

11.     In her evidence, Ms Coutroumanis aptly described the symptoms of myofascial syndrome as chameleon-like.  She felt these symptoms masked those of her 2007 and 2009 injuries, which she discerned to have been due to a different pathological process. 

12.     The Tribunal asked her if she had acted on the advice of Dr K Muirden to obtain psychological counselling for pain management and to resume investigative fieldwork, which would lessen her exposure to the office environment that she found stressful.  Ms Coutroumanis said she had resumed field-work with improvement in her symptoms. However, she had not sought psychological counselling, having received this as part of her rehabilitation following the 2002 injury. 

DOCUMENTARY EVIDENCE

13.     Dr Gallichio’s clinical notes are detailed. He has obviously provided a great deal of counselling and support to Ms Coutroumanis, as well as attending to numerous unrelated medical conditions.  He has expressed concern that Ms Coutroumanis was becoming over medicalised. He also documented workplace stresses and perceived harassment.  Ms Coutroumanis attended Dr Gallichio every one to two weeks early in her illness. In the past 12 months she has presented on only six occasions. Most of the consultations related primarily to issues with her managers at work. 

14.     In his correspondence with Comcare, Dr Gallichio described the events of 2007 and 2009 as flare ups of Ms Coutroumanis’ underlying myofascial syndrome. 

15.     Dr K Muirden assessed Ms Coutroumanis at the request of Comcare.  He confirmed the diagnosis, which he considered was best described as a nonspecific upper limb disorder This disorder is characterised by a widespread musculoskeletal pain with tender points and the absence of evidence of underlying inflammatory or degenerative pathology.  He stated that the absence of significant underlying pathology is essential to the diagnosis.  In his opinion, her current condition was a continuation of the initial injury of 2002.  He agreed with the current treatment regime but also recommended counselling from a clinical psychologist to acquire pain coping skills, and the use of simple analgesics.  Dr Muirden supported Ms Coutroumanis’ desire to return to fieldwork. 

16.     Dr S De Graaff, Ms Coutroumanis’ rehabilitation physician, has maintained his original diagnosis of fulminant myofascial syndrome throughout the period he has been treating her. He has advised continuing physiotherapy and pain trigger point injections with local anesthetic and steroids, as required. 

LEGISLATION

17.     The Safety, Rehabilitation and Compensation Act 1988 (SRC Act) provides for compensation for injuries(s 14) and for compensation of such amounts as Comcare determines is appropriate for medical treatment (s 16). Section 19 provides the maximum weekly compensation rate Comcare is liable to pay to the employee during the period in which the employee is incapacitated.  Section 19 (3) prescribes the method for the calculation  of weekly compensation as adjusted, after the payment of compensation for 45 weeks at the employee’s normal weekly hours. 

SUBMISSIONS

18.      Ms Coutroumanis maintains that the injuries of November 2007 and April 2009 were new injuries, unrelated to her 2002 injury for which Comcare has accepted liability under s 14, s 16 and s 19 of the SRC Act. As such, she should be paid weekly compensation at the rate of 100 per cent of her normal weekly earnings in relation to her time off work following these injuries. 

19.     Mr Wallace representing Comcare submitted that the injuries in question were not new injuries. He said that the medical evidence supported Comcare’s contention that they were exacerbations of the original injury of 2002, namely myofascial syndrome involving the right shoulder girdle, for which Comcare had accepted liability. Therefore, Ms Coutroumanis should be paid at 75 per cent of her normal weekly earnings for the periods of incapacity. 

TRIBUNAL’S DELIBERATIONS

20.     The question whether Ms Coutroumanis sustained new injuries in the course of her work in 2007 and 2009 fall to be determined on the basis of the medical evidence.  The opinions of the treating doctors, Dr Gallichio and Dr De Graaff, and the independent expert opinion of Dr Muirden are unanimous. They all ascribed Ms Coutroumanis’ increased pain and other symptoms resulting from the incidents in 2007 and 2009 to exacerbations of the underlying myofascial syndrome resulting from the 2002 injury.  Thus, the payment of compensation in terms of weekly earnings resulting from these two aggravations should be calculated in accordance with s 19(3) of the SRC Act. 

21.     The Tribunal affirms the decision under review.

I certify that the twenty one [21] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E A Shanahan, Member

Signed:         Grace Carney, Administrative Assistant

Date of Hearing  11 November 2010
Date of Oral Decision                11 November 2010
Date of Written Reasons          6 December 2010
Solicitor for the Applicant          Self Represented 
Counsel for the Respondent     Mr J Wallace 
Solicitor for the Respondent     Ms N Kelidis, Thomsons Lawyers