Crouch and Comcare
[2013] AATA 608
•29 August 2013
[2013] AATA 608
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0940
Re
Janet Crouch
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 29 August 2013 Place Sydney The decision under review is affirmed.
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Deputy President RP Handley
CATCHWORDS
WORKERS' COMPENSATION – Commonwealth Employees – whether applicant suffers from a disease in accordance with the Act – whether applicant's employment contributed to a significant degree to her condition – whether applicant's condition resulted in incapacity for work or impairment – no specific diagnosis found – employment did not contribute to a significant degree to applicant's condition – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 33(1AA)
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 14
CASES
Comcare v Sahu-Khan (2007) 156 FCR 536
Dwyer and Comcare [2013] AATA 564
Tippett v Australian Postal Commission (1998) 27 AAR 40SECONDARY MATERIALS
Nikloai Bogduk and Jayantilal Govind, 'Cervicogenic headache: an assessment of the evidence on clinical diagnosis, invasive tests and treatment, (October 2009) 8 The Lancet p 959
REASONS FOR DECISION
Ms Crouch has applied for the review of a decision made by Comcare refusing her claim for workers compensation for an injury while she was working at Centrelink’s Call Centre at Coffs Harbour.
BACKGROUND
Ms Crouch, who is now 61, commenced employment as a Customer Services Adviser at Centrelink’s Call Centre at Coffs Harbour in June 1999. Initially, she worked ‘full-time’, for 37½ hours over five days a week, but after about six months, reduced this to working four days a week, and, in 2008, to 25 hours over three days a week.
Ms Crouch states that in March 2009 she was experiencing pain in the base of her neck and mentioned this to her general practitioner, Dr Ian Scott, when she went to see him about an infection from which she was then suffering. On 13 August 2009, Ms Crouch experienced severe pain radiating from the back of her neck and was taken to hospital for treatment. Thereafter, she had various investigations and treatments with, she says, little benefit. On 7 July 2011, after being medically assessed for Centrelink, Ms Crouch accepted retirement from Centrelink on the ground of invalidity.
On 27 May 2011, Ms Crouch completed a claim for workers compensation stating that her claimed injury had been diagnosed as “[r]ight sided temporomandibular joint dysfunction & muscle contraction headache”, the date of injury being approximately 2.00 pm on 13 August 2009. She said that mid-morning on that day, she experienced the “onset of intense ‘facial’ pain down right side of face, neck and shoulder” which resulted in an ambulance being called and her being taken to Coffs Harbour Base Hospital. Ms Crouch said use of the “headset/computer appears to have triggered the ‘event’”, pain which she had previously experienced in March 2009.
On 11 August 2011, a delegate of Comcare refused Mr Crouch’s claim on the ground that she was not satisfied that the claimed condition was contributed to, to a significant degree, by her employment. Ms Crouch sought a reconsideration of this decision and, on 5 January 2012, another delegate of Comcare decided to affirm the decision on the same ground. On 3 March 2012, Ms Crouch applied to the Tribunal for a further review.
LEGISLATION AND ISSUES
The relevant legislation in respect of claims for workers’ compensations by Commonwealth employees is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Section 14 of the SRC Act provides that Comcare is liable to pay compensation under the Act for an injury suffered by an employee which results in incapacity for work. ‘Injury’ is defined in by s 5A to mean:
(1)(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
‘Disease’ is further defined in s 5B(1) to include an ‘ailment’ or ‘aggravation of such an ailment’ that has been “contributed to, to a significant degree, by the employee’s employment”. In s 4(1), ‘ailment’ is defined to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”; and the word ‘aggravation’ is defined as including “acceleration or recurrence”. Section 5B(2) permits “any predisposition of the employee to the ailment” and “any other matters affecting the employee’s health” to be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by the employee’s employment. Section 5B(3) states that “‘significant degree’ means a degree that is substantially more than material”.
The principal issue for the Tribunal to determine is whether Ms Crouch sustained an injury in accordance with s 5A. This requires consideration of:
(1)whether Ms Crouch suffers from a disease in accordance with s 5B(1);
(2)whether her condition was contributed to, to a significant degree, by her employment at the Centrelink Call Centre; and
(3)whether her condition has resulted in incapacity for work or impairment.
MEDICAL EVIDENCE
Dr Chris Walls
Dr Chris Walls, Occupational Physician, provided a report at the request of Comcare dated 1 August 2013 and gave evidence by conference telephone at the hearing. He had previously examined Ms Crouch for a fitness to work assessment on 12 August 2010 and prepared a report dated 16 August 2010 and also a supplementary report dated 28 January 2011. In the report dated 28 January 2011, Dr Walls said of Ms Crouch’s condition that “[t]he most sustainable diagnosis is of a right sided temporomandibular joint (TMJ) dysfunction.” He said that in his opinion, Ms Crouch was totally and permanently incapacitated for work because of her condition and said he would support a full invalidity retirement for her.
In his report dated 1 August 2013, there having been further investigations of Ms Crouch’s condition since his last report, Dr Walls stated:
The diagnosis is unclear and at this time, in my opinion, Ms Crouch is best described as suffering from a chronic pain syndrome affecting the right side of the face, the right occipital area and right cervical region.
The chronic pain syndrome has arisen from unknown causes.
Dr Walls said he did not accept that Ms Crouch’s work in a call centre environment gave rise to this condition. In his opinion, it is not a work-related condition.
In oral evidence at the hearing, Dr Walls said he recognises the existence of occupational overuse syndrome and has written a couple of short papers on this. It is an area in which he is interested. This syndrome usually arises where a person has prolonged periods of activity without sufficient recovery time, commonly involving the upper limbs – forearms and hands. The resulting pain can migrate to the shoulders and neck. Treatment for this condition is basic pain relief in conjunction with increased physical fitness and adjustment of posture. Dr Walls acknowledged that no treatment is particularly successful.
Dr Walls said the sudden onset of severe pain is not what one expects with musculo-skeletal conditions such as occupational overuse syndrome. Such conditions generally develop gradually and when the activity in question stops, the person slowly recovers. Similarly, if work aggravates such a condition, one would expect to see an improvement in symptoms when the person stops work. Dr Walls said Ms Crouch’s condition is unusual and he reiterated his opinion that it was not caused by her work. He described her work as a “coincidence in the onset” of the condition which could occur independently of the work environment. Dr Walls said he has treated people who have worked in call centres and has never seen symptoms like those experienced by Ms Crouch.
Dr Walls said he accepts that Ms Crouch has real and significant pain which she wants to be rid of. However, hers is a very complex condition and very difficult to diagnose. While Ms Crouch says her condition has improved as a result of receiving treatment from the physiotherapist, Rob Hoy, Dr Walls still considered her to be significantly impaired by the pain and said she would be unable to return to work.
Dr Walls said the only clear diagnosis in Ms Crouch’s case is chronic pain, and what causes this pain is unclear. He was asked about cervicogenic headache pain, raised by Mr Hoy in his report dated 13 August 2013. Dr Walls said ‘cervicogenic headache’ is a descriptive term and a possible cause of some symptoms. But he would not be satisfied with such a diagnosis because of the results of other investigations of Ms Crouch’s cervical spine (MRI, CT scans etc), because of her good range of motion and the persistence of her symptoms. These factors suggest that it is unlikely that the cause of her pain is her cervical spine.
Dr Frank Maloney
Ms Crouch was also assessed at the request of Comcare by Dr Frank Maloney, Oral and Maxillofacial Surgeon, who provided a report dated 12 September 2012, together with supplementary reports dated 11 October 2012. In his first report, Dr Maloney stated:
Whilst this patient may prove to have some unusual neuromuscular condition, or some unusual form of migrainous neuralgia, which is worse when she looks at a computer screen for any length of time, and which is exacerbated by the watching of certain TV programs, and has led to her being unable to read more than a few pages of a book held in her hands, I can find absolutely no relationship between her symptoms and her previous employment. If she cannot work at a computer screen or use a headset or read pages of a book, in my opinion that is not a “condition” brought on by her employment with Centrelink. … I am strongly of the opinion that she does not have any form of Jaw Joint (Temporamandibular Joint, TMJ) dysfunction for which Centrelink can be held responsible. …
I believe that Janet Crouch has not suffered any work-related injuries and as such has no permanent impairment.
In his later report dated 11 October 2012, Dr Maloney said that having seen correspondence from Dr Scott Davis, Prosthodontist, Dr Kate Amos, Dentist, and Dr Russell Vickers, Oral and Maxillofacial Surgeon, his opinion remained the same: that Ms Crouch has not suffered any work-related injuries. (Dr Vickers provided a report to Dr Kate Amos, dated 20 May 2010, diagnosing “temporomandibular disorder (TMD), group one, myofascial pain” and suggested dental treatment as a result of missing teeth and treatment from an osteopath. Dr Scott Davis, Prosthodontist, in a report dated 27 February 2012, proposed the replacement of the missing tooth 46 in accordance with the findings of Dr Vickers, which “may provide some relief”.)
Mr Rob Hoy
Mr Rob Hoy, Physiotherapist, has been treating Ms Crouch since February 2013 and has seen her on eight occasions. He provided a report for Ms Crouch dated 4 March 2013, a report at the request of Comcare’s solicitors dated 15 April 2013, and a further report dated 13 August 2013 referring to a number of research papers he has located dealing with similar problems to those experienced by Ms Crouch. Mr Hoy also gave evidence in person at the hearing. He has 24 years’ experience as a physiotherapist, dealing primarily with musculo-skeletal injuries, and said he has seen at least 6,000 patients over that time, many of whom have neck and back problems. Amongst those patients have been call centre operators with neck and headache problems.
In his report dated 4 March 2013, Mr Hoy noted, referring to Ms Crouch’s condition, a history of “(R) cervical spine, head and trapezius pain since March 2009”. He said “[p]ain is aggravated by concentrating on the screen, disseminating information and keyboard operation of a computer for more than 10 to 15 minutes”. He stated:
I believe Ms Crouch was and is suffering from an overuse syndrome of her (R) upper limb in conjunction with her (R) cervical spine restriction, which to a significant degree has been caused by and is a direct result of the work she was undertaking at the Centrelink Call Centre.
In his report dated 15 April 2013, Mr Hoy stated:
It is common for call centre operators to experience cervical spine, lumbar spine and upper limb overuse syndrome/dysfunctions.
These occur over a period of time due to prolonged postures and repetitive activities and are usually complex in nature, involve numerous structures of the body, can be very painful and take significant time to manage or settle symptoms. Most of those affected have to manage their symptoms for the duration of their working life.
It is my opinion and experience that Mrs Crouch’s symptoms were directly related to her work and are common in this form of employment.
Mr Hoy diagnosed “Overuse syndrome of the (R) upper limb in conjunction with hypo mobility of the (R) upper cervical spine.” He said the circumstances contributing to Ms Crouch’s condition were “Working as a Centrelink Call Centre Operator for prolonged periods in static postures with a headset in answering phones and using a computer”.
Mr Hoy also provided a further report dated 13 August 2013 referencing a number of research papers on cervicogenic headache (CGH), the referral of pain from the cervical spine to the head, which he said can explain Ms Crouch’s initial and ongoing symptoms and the varied opinions from the specialists by whom she has been assessed. One of the papers referred to is that of Nikloai Bogduk and Jayantilal Govind, ‘Cervicogenic headache: an assessment of the evidence on clinical diagnosis, invasive tests and treatment’, (October 2009) 8 The Lancet p 959. At p 959, Bogduk and Govind state: “The mechanism underlying the pain involves convergence between cervical and trigeminal afferents in the trigeminocervical nucleus …” Mr Hoy said “This can result in pain referral to the head, base of skulls [sic], ear, eye and front of the face”. Mr Hoy said “[t]he research papers describe the most effective form of management for CGH involves manual therapy and exercises from conservative management.”
At the hearing, Mr Hoy said his impression is that Ms Crouch is suffering from right upper cervical spine dysfunction. He said it is adopting a static or sustained posture for a period of time which causes her problems. His treatment, adopting a combined exercise based and mobilisation approach, has involved educating Ms Crouch about her condition, putting in place a treatment regime and giving her exercises to undertake. He said the result has been a clinically evident improvement in her condition – he expects a slow and steady progression as is common with such conditions over the longer term. He said Ms Crouch has an improved tolerance for activity that aggravates her pain such as reading or using a computer, but the activity still causes pain – now after about 30 minutes rather than after 15 minutes as was the case previously.
Dr Ian Scott
Dr Ian Scott has been Ms Crouch’s general practitioner in Coffs Harbour for more than 20 years. He has provided medical certificates certifying her being unfit for work at various times. In a letter to Comcare dated 22 June 2011, Dr Scott said that in a consultation on 10 March 2009, Ms Crouch “mentioned she had split second shooting pain in her head always on the right from the neck to the left eye and right cheek”. Dr Scott referred to subsequent consultations and investigations and specialist consultations none of which had resulted in a diagnosis and, thus, he could not be sure of the cause of Ms Crouch’s condition or the relationship to Ms Crouch’s work.
Dr Scott gave evidence by conference telephone at the hearing. He said he still remains unsure of the correct diagnosis: any diagnosis of Ms Crouch’s condition would be by reference to the history of her condition and the lack of any objective findings. He said he had no doubt that employment was a factor in her pain, noting that the onset happened at work, and that her pain is genuine and distressing for her. Dr Scott acknowledged that any relationship between Ms Crouch’s condition and her work is “speculative” and that facial pain is not commonly associated with work.
Dr Scott was referred to his clinical notes about Ms Crouch, which were provided to the Tribunal. None of these notes refer to her condition being linked to her employment. Dr Scott agreed that his note dated 17 August 2009, which refers to “recent R sided headache, severe, skin tender and blurred vision” makes no reference to her work being a problem. He said, at that time, he thought Ms Crouch might be suffering from trigeminal neuralgia. Dr Scott was referred to other clinical notes covering the period 2002 to 2009, some of which refer to Ms Crouch suffering from “headache”. A note dated 15 May 2003 refers to Ms Crouch suffering from “L sided headache, into L face”, although this was in conjunction with her suffering a fever. A note dated 16 April 2002, refers to Ms Crouch suffering from “2/52 headache, R>L, no nausea, sl [slightly] blurred vision”.
Dr John Bradfield
The Tribunal Documents contain reports from other specialists who have assessed Ms Crouch, including Dr John Bradfield, Neuro-Physician, who treated Ms Crouch from late 2009. In a report dated 2 December 2009, Dr Bradfield said he “could find no sign of organic neurological pathology”. He thought her description of pain did not fit “into the category of trigeminal neuralgia” and said he considered her symptoms to be “a legacy of the muscle spasm in the cervical region as well as a degree of temporomandibular joint dysfunction on the right”. In a report to Comcare dated 16 June 2011, Dr Bradfield states Ms Crouch:
… has a persisting problem for pain [sic] behind her right eye and over the right side of the scalp, behind the right ear and down the right cervical paravertebral region triggered by looking at a computer, reading et cetera.
MS CROUCH’S CASE
Ms Crouch said that prior to working at the Centrelink Call Centre, she had always worked in retail and hospitality, involving mostly standing and not much computer work. She was very pleased, having passed a medical examination, to get her job with Centrelink but she found that with sitting all day, her muscles tightened up. Because she has always looked after her health and tried to keep fit, in about 2004, she began having remedial massage once every six or eight weeks. Ms Crouch could not recall having suffered facial pain before 2009. She was referred to Dr Scott’s clinical notes which she accepted as being accurate. These notes refer to her suffering headaches at various times but she said this would have been the ordinary headaches that people commonly suffer, for example, at the time of an infection. With regard to the fact that none of these clinical notes make reference to a relationship with her employment, Ms Crouch said she liked her work and would not have complained about it. She is not a person who complains or blames others for her problems: she takes responsibility for her health.
Ms Crouch said that in March 2009, she went to see Dr Scott about an infection and mentioned that she was also experiencing pain in the head. She described the pain as “a knotting pain in the base of the neck” which was bothering her and had responded to massage. Dr Scott prescribed rest and Panadol, and said they would monitor her condition. Ms Crouch noted that her Centrelink work was changing all the time – becoming more intense and requiring greater computer skills. Mid-morning on Thursday 13 August 2009, she started to experience pain in the side of the head which gradually intensified. She had had a coaching session with her Team Leader and then returned to her work station. She felt that her headset was causing problems and took two more Panadol. The pain continued to become more severe, radiating from the back of her neck around her face and shoulder. Her Team Leader was worried Ms Crouch might be having a stroke and, after consulting the Centrelink Occupational Health and Safety Helpline, called an ambulance at about 2.00 pm. Ms Crouch said she was taken to the hospital where she had x-rays, scans etc . They were satisfied she was not having a stroke. The doctor thought she was suffering from trigeminal neuralgia and sent her home to rest with Panadol Forte, telling her to see Dr Scott in three days’ time. She was discharged at about 10.30 pm that night.
Ms Crouch said Dr Scott tried her on various pain medications but none of these helped and all had terrible side effects. She tried to go back to work but was sent home. Ms Crouch said she had various x-rays, scans etc and saw various specialists. She had physiotherapy and remedial massage, followed exercises she was given, had acupuncture, attended a muscular clinic, saw a naturopath, and faithfully did everything recommended. Ms Crouch said her condition improved by her not working, but while the severity and tenderness settled, the pain did not go away, and none of the treatment helped in terms of lasting relief.
Ms Crouch said Centrelink sent her to see Dr Walls. She explained to him that she wanted to go back to work. He recommended that she take another 12 weeks off and so she took Long Service Leave at half pay, had a complete rest and did not use the computer at all during that time. After 12 weeks, she tried a return to work with alternate duties and, while this involved some training work which she enjoyed, the work involved a lot of reading, and still involved the use of the phone and the computer, and her condition was no different. Ms Crouch said she was then sent to see Dr M Couch, Occupational Physician, who recommended invalidity retirement. She felt she had no choice – Centrelink had no alternative work to offer her – so she accepted invalidity retirement.
Ms Crouch said that being conscious of her health, she has continued to exercise, walking every day and following an exercise regime. Then Mr Hoy was recommended to her and she went to see him in February 2013. She explained the treatment she had previously had. He identified what he thought was the problem and put a treatment plan in place, with an exercise regime, and she has been seeing him regularly since. Ms Crouch said his treatment has made “a really big difference” and her health is now reasonably good. She continues to have a continuous dull pain at the back of her neck, from a point under her skull radiating out, but the flexibility of her neck and her movement has improved. She said she can now do computer work and read for about half an hour and then, after a long break, can work at the computer or read for about another 15 minutes. This is still very limiting and she could not, for example, type her Statement of Facts, Issues and Contentions for the purpose of these proceedings.
Ms Crouch said she finds the limitation on her ability to read very frustrating and she has tried big print books, a Kindle and talking books to overcome this. Talking books with a speaker are “OK”, but otherwise she can only read for about 20 minutes at a time before needing a break. After a break, she can read for about another 20 minutes. She rarely watches television because it tends to aggravate the pain. Overall, Ms Crouch said has found her situation very emotionally draining and it affects everything, including her family life. She intends to continue treatment with Mr Hoy because the treatment is working and her condition is gradually getting better.
Ms Crouch said she believes her condition was caused by her posture at work and by the use of one sided headset. Previously, she had had no problem with reading or using a computer. Her view is that there was a long term build up and finally, in August 2009, her body could not take anymore. She only lodged a claim for compensation because she was encouraged to do so. She has always been motivated to return to work and has tried to do the right thing. She has seen a raft of different specialists, including at the request of Comcare, has been subjected to many tests, and has tried a range of different medications, all with “awful side effects” and to no avail.
Ms Crouch expressed her frustration that the doctors who have assessed her have been unable to identify the condition from which she is suffering, yet are adamant that it is not related to work. Despite this, Mr Hoy has been able to identify her condition and has developed a treatment plan for her that is working.
COMCARE’S SUBMISSIONS
Mr Woulfe, for Comcare, emphasised that at issue is Comcare’s liability under s 14 of the SRC Act. Comcare submits that Ms Crouch’s injury is not related to work for the purpose of the definition of ‘disease’ in s 5B of the SRC Act. This definition requires that the disease must have been contributed to, to a significant degree, by the employee’s employment, in this case, by the Commonwealth. ‘Significant degree’ is defined in s 5B(3) as meaning “a degree that is substantially more than material”. Mr Woulfe referred to the Federal Court decision in Comcare v Sahu-Khan (2007) 156 FCR 536 (Sahu-Khan), at 542-543, where Finn J noted the Shorter Oxford English Dictionary meaning of ‘materially’: “4. In a material degree; substantially, considerably”, and said that:
… "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation"); …
Mr Woulfe also submitted that there was no ‘aggravation’ of an ailment contributed to, to a significant degree, by Ms Crouch’s employment. For there to be an ‘aggravation’ the disease must have been made worse by the employee’s activities at work: Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537, at 593; Tippett v Australian Postal Commission (1998) 27 AAR 40, at 44; and see also Dwyer and Comcare [2013] AATA 564.
With regard to the evidence, Mr Woulfe submitted that Dr Walls is appropriately qualified and experienced to provide an opinion on both diagnosis and causation, noting that he has a particular interest in occupational overuse syndrome. Dr Walls’ evidence supports a finding that the definition of ‘disease’ is not satisfied with the result that Ms Crouch’s claim cannot succeed. It is also Dr Maloney’s evidence that her condition is unrelated to her employment. In relation to Dr Scott, Mr Woulfe noted that his opinion is no higher than that there is a possibility that Ms Crouch’s posture at work was a factor. However, Dr Scott’s clinical notes make no reference to there being a work connection and, moreover, indicate that Ms Crouch had previously suffered from headaches, including on 16 April 2002, a right sided headache that had lasted two weeks and had caused slightly blurred vision, symptoms similar to those described on 13 August 2009.
With reference to s 5B(2) of the SRC Act and the matters that may be taken into account in determining whether the ‘significant degree’ test is met, Mr Woulfe submitted that the evidence suggests either a pre-existing condition or a condition of gradual onset to which her employment made no contribution. He noted that Ms Crouch had reduced her hours worked over the course of her employment and, from March 2008, was working 25 hours over three days a week. He submitted that the evidence does not indicate that Ms Crouch was confined to particular duties all day, but does indicate a pre-disposition to the ailment and that she suffered symptoms in situations unrelated to her employment, for example while reading a book on holiday.
DISCUSSION
It should be noted that Ms Crouch was self-represented in these proceedings and went to significant lengths to ensure that she complied with all requirements, both in terms of attending medical appointments, filing documents and completing the usual processes in the lead up to the hearing. This is an environment with which she is unfamiliar yet she acquitted herself well and I am satisfied that she had a proper opportunity to put her case. Equally, it should also be noted that Mr Woulfe, in representing the Respondent, used his best endeavours to assist the Tribunal pursuant to the decision-maker’s obligation under s 33(1AA) of the Administrative Appeals Tribunal Act 1975.
I acknowledge Ms Crouch’s frustration that, on the one hand, the doctors who have provided evidence have been unable to give a definitive diagnosis for her condition while, on the other hand, they have said her condition is not related to her work.
As stated above, the first issue for the Tribunal is whether Ms Crouch suffers from a ‘disease’ in accordance with the definition in s 5B(1) of the SRC Act. This can be an ailment suffered by an employee or the aggravation of an ailment but, the disease must have been contributed to, to a significant degree, by the person’s employment. A ‘significant degree’ means “substantially more than material” (s 5B(3)) in a context where ‘material’ in itself means something of substance (see above Sahu-Khan).
As Ms Crouch has pointed out, the difficulty in her case is the lack of a definitive diagnosis. I note Dr Walls’ description of her condition as that of “a chronic pain syndrome affecting the right side of the face, the right occipital area and right cervical region” which he said “has arisen from unknown causes” (report dated 1 August 2013). Both Dr Walls and Dr Maloney have rejected what was formerly thought to be the appropriate diagnosis of temporomandibular joint dysfunction. Both Dr Walls and Dr Scott were both clearly of the opinion that her condition is genuine, as am I having heard their evidence and that of Ms Crouch. On that basis, I reject the suggestion made by Dr Maloney that Ms Crouch “should undertake a thorough Psychiatric evaluation”.
With regard to Mr Hoy’s suggestion that Ms Crouch may be suffering from cervicogenic headache, this was put to both Dr Scott and Dr Walls at the hearing. Dr Scott noted that this is a description and not a diagnosis and said his opinion – that there is no clear diagnosis for Ms Crouch’s condition – is unaltered. He noted that the radiological evidence, including MRI and CT scans, shows “nothing untoward”. Dr Walls also rejected cervicogenic headache as an accurate description because of the MRI of Ms Crouch’s cervical spine which showed no significant pathology, and because of her good range of motion and the persistence of her symptoms. Dr Walls said, for these reasons, it is unlikely that the cause of Ms Crouch’s problems is her cervical spine.
Dr Walls was also referred to Ms Crouch’s evidence that her condition is slowly improving with the treatment provided by Mr Hoy. While Dr Walls accepted that there has been some improvement in her condition as a result of this treatment, he said Ms Crouch is still significantly impaired by the chronic pain she experiences.
For the purpose of these proceedings, I am satisfied that the evidence is not sufficient to ground a specific diagnosis. I accept Dr Walls’ evidence that the best description that can be attributed to Ms Crouch’s condition is chronic pain of uncertain origin.
Having so concluded, the Tribunal must then consider whether Ms Crouch’s ‘disease’ has been contributed to, to a significant degree, by her employment. The balance of the medical evidence indicates that the answer to this question must be ‘no’. While the evidence of Dr Scott, Dr Walls and Dr Michael Couch, Occupational Physician (report dated 11 April 2011), clearly indicates that Ms Crouch is incapacitated for work as a result of her condition, Dr Walls’ opinion supports other medical evidence (for example, that of Dr Maloney) that her condition is unrelated to her employment with Centrelink. I note at the hearing, Dr Scott expressed the opinion that employment was a factor in Ms Crouch’s pain, but he acknowledged that any relationship between her condition and her work is entirely speculative and that facial pain is not commonly associated with work. He also acknowledged that he had made no reference to any relationship between Ms Crouch’s condition and her employment in his clinical notes.
Mr Hoy expressed the opinion that Ms Crouch’s condition is caused by and is the direct result of her work. While I accept that he has many years’ experience of treating patients with musculo-skeletal injuries, including call centre operators, occupational overuse syndrome is a particular interest of Dr Walls, who also said he has treated people who have worked in call centres and he has never seen symptoms like those experienced by Ms Crouch. In this situation, while acknowledging the expertise of Mr Hoy in his field, the Tribunal prefers the medical evidence of Dr Walls, which for the most part accords with the other medical evidence.
In conclusion, I am not satisfied that Ms Crouch’s satisfies the definition of disease in s 5B(1) of the SRC Act. Consequently, it is not an ‘injury’ in accordance with the definition in s 5A and there can, therefore, be no liability on the part of Comcare to pay compensation to Ms Crouch pursuant to s 14 of the SRC Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley. ........[Sgd]................................................................
Associate
Dated 29 August 2013
Date of hearing 20 August 2013 Date final submissions received 20 August 2013 Counsel for the Respondent P Woulfe Solicitors for the Respondent K Sykes, Comcare
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