Cudmore and Comcare
[2005] AATA 1221
•12 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1221
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/190, A2004/192
GENERAL ADMINISTRATIVE DIVISION ) Re KIM CUDMORE Applicant
And
COMCARE
Respondent
DECISION
Tribunal JW Constance, Senior Member Date12 December 2005
PlaceCanberra
Decision The decision of Comcare made on 23 June 2004, that as at 27 April 2004 Ms Cudmore is not entitled to compensation for medical expenses and incapacity and is not entitled to compensation for permanent impairment, is affirmed. ..............................................
Senior Member
CATCHWORDS
COMPENSATION – injury to right wrist – permanent impairment – incapacity – causation – medical treatment – absence of medical diagnosis – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 s 16, 19, 24
Cassarotto v Australian Postal Commission (1989) 86 ALR 399
Comcare Australia v Amorebieta [1996] FCA 312
Hannaford v Telstra Corporation Limited [2005] FCA 1298
Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1 at 6
REASONS FOR DECISION
INTRODUCTION
1. In 1993 Ms Cudmore began to experience a “very mild aching” in her right wrist which she associated with her duties as a Counter Officer with the Department of Social Security. Subsequently, Comcare accepted liability for an injury being “a strain to the right wrist”.
2. Surprisingly, Ms Cudmore made few claims for compensation in respect of the injury, even though she says she worked part time in 1996, 1997 and 1998 partly as a result of incapacity caused by the injury. Her employment by the Department ended in 1998.
3. In 2003 Ms Cudmore claimed compensation for medical expenses and incapacity for work resulting from the injury. She also made a claim for compensation for permanent impairment resulting from the same injury. These claims were rejected by Comcare. For the reasons which follow I have decided that the decision of Comcare will be affirmed.
THE ISSUES
4. The issues for determination are:
A.Has the injury suffered by Ms Cudmore (being a strain to the right wrist) “resulted in” permanent impairment?
B.If so, what is the nature of that impairment?
C.If so, is the impairment permanent?
D.If so, what is the degree of the permanent impairment?
E.Has medical treatment been obtained by Ms Cudmore in relation to the injury?
F.Has Ms Cudmore been incapacitated for work as a result of the injury?
FACTS
5. Ms Cudmore joined the Australian Public Service in 1986. In 1993 her position as a Counter Officer involved dealing with members of the public and included writing and data entry duties. She is right-handed.
6. During a period of about 2 months around May and June 1993 Ms Cudmore felt “a very mild aching” in her right wrist when she was writing. In June 1993, whilst at work, Ms Cudmore bumped her right elbow on a table. She immediately felt a shooting pain from her elbow to her hand. Following this incident the pain in her wrist worsened to what she described as “a dull ache” which she experienced after activity, particularly activity which involved her wrist. The pain she experienced was no longer restricted to writing activity.
7. On 16 August 1993 Ms Cudmore consulted her general practitioner, Dr Lowe, as the pain in her wrist had worsened. Dr Lowe issued a certificate in which she stated that Ms Cudmore was suffering from overuse of her right wrist due to an increase in writing and keyboarding during the previous 1-2 months and that she was unfit for work for 1 month. [1]
[1] Ex. A8.
8. On 7 September 1993 Ms Cudmore made a claim for an injury she described as “a painful right wrist”.[2] Sometime that month Comcare accepted liability for a “strain to right wrist”.[3]
[2] Ex. A24, s.37 document T3.
[3] Ex. A7.
9. From 20 August 1994 until 31 July 1996 Ms Cudmore was on maternity leave. At the time she commenced leave the pain in her wrist had stabilized and remained relatively constant throughout her leave period. In a Workplace Assessment Report of 1 August 1996 Ms Cudmore is reported as describing the pain as a “dull ache constantly, sharp pain at times”. [4]
[4] Ex. A9.
10. From the time she went on maternity leave until 2003 Ms Cudmore did not seek medical treatment for the continuing pain in her wrist or that in her right elbow.
11. The pain she experiences now is “slightly less” than in 1994. She has numbness in the tips of her fingers from time to time and pain in the palmar aspect of her wrist. She rates this pain as “about 3 out of 10”. In March 2004 Ms Cudmore received an injection of cortisone into her wrist which substantially relieved the pain she suffered in her elbow but not that in her wrist.
12. Partly because of the condition of her wrist and partly because of the need to care for her young child Ms Cudmore was unable to return to full-time work after her time on maternity leave. By 1988 she had increased her hours of work to a maximum of 6 hours per day, 5 days per week On 27 March 1998 Ms Cudmore was retired from the Public Service.
13. At present the pain in Ms Cudmore’s wrist makes it difficult for her to open jars and to use a knife to prepare food. For the past 10 years she has used special aids for opening jars and a specially designed knife for food preparation. She also used scissors with specially designed handles until they broke. She has not replaced the scissors. The pain also restricts the amount of machine sewing she can undertake and the period for which she can write to about 15 minutes at a time. She can use a keyboard but if she does so for a day she will suffer increased pain in her wrist the following day.
14. Although she did not describe the problems when she gave her evidence, Ms Cudmore told Dr McGrath in June this year that carrying, lifting and pulling and pushing with her right hand aggravates her wrist. She also said that after about 5 minutes of typing her wrist symptoms arise.[5] I accept that Ms Cudmore does suffer from these symptoms. Having observed her give evidence and taking into account the evidence of a number of the doctors who have examined her, I do not believe that she is prone to exaggerate her symptoms.
[5] Ex. A22.
Medical evidence
15. Dr McGrath, Musculoskeletal & Occupational Physician, examined Ms Cudmore on 20 June 2005 and 15 August 2005 on referral from her general practitioner, Dr Yeung. In his report of 19 August 2005 [6] Dr McGrath stated:
“My examination indicates that she has loss of normal wrist movement and in particular loss of functional extension. Activities which put the wrist under load give a delayed pain response, often noticed by the following day. This is characteristic of a low grade inflammation following strain to a part beyond its mechanical limits.
……………………
Based upon my medical examination the diagnosis is wrist joint instability leading to some secondary development of median nerve impairment in the carpal tunnel. From the history given the problem most likely arose as a consequence of prolonged and possibly forceful writing action.” [7]
[6] Ex. A22.
[7] Ex. A22.
16. In giving evidence Dr McGrath confirmed his opinion in his report. He does not believe that the bump to the elbow has any ongoing effect. He said that Ms Cudmore would experience difficulty in grasping and holding at all times and that her ability in this regard would decrease as the pain in her wrist increased.
17. When asked as to possible treatment for Ms Cudmore, Dr McGrath said that there was not much that can be done. He recommended the use of a splint when Ms Cudmore was unable to control aggravating activities. This was a means of reducing symptoms rather than a cure or a form of permanent relief.
18. In 2003 Dr Endrey-Walder, Surgeon, assessed Ms Cudmore for the purpose of these proceedings and gave evidence. In his opinion the ongoing pain which Ms Cudmore is suffering is caused by chronic capsular strain or tendonitis, he cannot be sure which. He does not believe that the injury to the elbow continues to be significant.
19. Dr Endrey-Walder is of the view that an arthroscopy of the wrist may assist in determining whether there is further treatment which could alleviate Ms Cudmore’s condition.
20. Comcare called 2 specialists, Dr Mellick, Neurologist and Dr Stevenson, Consultant Physician.
21. Dr Mellick examined Ms Cudmore on 9 December 2004 for the purposes of giving a medico-legal report. He was very firm in his opinion that:
“[t]here is no existing evidence of an organically determined disorder and I find no impairment of function of the right hand, right elbow or right upper limb. Any impairment which had been present should be regarded to have resolved……Ms Cudmore does not exhibit features indicating a psychiatric disorder to be present contributing to the symptoms……My findings are consistent ‘with the history of injury, and concordant with the applicant’s presentation’”.[8]
In evidence Dr Mellick confirmed that in his opinion Ms Cudmore did not suffer from any of the following:
·a neurological disorder;
·a soft tissue disorder;
·a joint disorder; or
·a psychiatric disorder.
[8] Ex. R9, report of 17 January 2005.
Nevertheless, Dr Mellick accepted that at the time he examined Ms Cudmore she suffered from all of the symptoms she had described to him and which he set out in his report. These symptoms were consistent with those described by Ms Cudmore when she gave evidence.
22. On 18 February 2004 Dr Stevenson, Consultant Physician, assessed Ms Cudmore at the request of Comcare. He reported that “she seemed a quite straightforward historian” and that there did not appear to be voluntary exaggeration in her description of her symptoms.[9]. In summarizing his views Dr Stevenson reported that:
“There is no specific medical diagnosis at this stage. The background history is one of non-specific arm pain. It is possible but uncertain that an established medical diagnosis may yet be reached. Non-specific arm pain is frequently determined by psychosocial rather than pathological factors. In Ms Cudmore’s case the situation really is unclear……There would appear to be a significant likelihood of intra-articular pathology constitutional in origin. This is likely to be pre-existing rather than injury.”
[9] Ex. R10, report of 26 February 2004.
23. Dr Stevenson gave evidence. He said that he had considered the possibility of Ms Cudmore having suffered ligamentous joint damage and that he could not dismiss this. However he could not see any mechanism whereby ordinary use of the wrist in clerical activity would give rise to such pathology. In his opinion, a non-specific soft tissue strain would have resolved when Ms Cudmore “stopped over-doing it”. He explained that the non-specific arm pain to which he had referred in his report could be caused by psycho-social factors and that as further investigations by other practitioners had indicated that local pathology was unlikely, non-specific arm pain was the likely diagnosis. Nerve conduction studies of the wrist in 1993 and 2004[10] and an x-ray in 2003[11] all indicated that there was no abnormality.
[10] Ex. R11.
[11] Ex. R12.
24. Other medical practitioners have examined Ms Cudmore over the years and have been unable to give a definite diagnosis.
25. Dr Lowe, General Practitioner, first saw Ms Cudmore after she bumped her elbow. Her certificate of 16 August 1993 [12] described an “overuse of r wrist injury” but did not describe the pathology of this injury.
[12] Ex. A8.
26. After he examined Ms Cudmore on 18 October 1993 Dr Danta, Neurologist, reported that “I think the story is most consistent with the muscle over-use syndrome. I do not think that she has a primary neurological disorder.”.[13]
[13] Ex. A11.
27. Dr Danta referred Ms Cudmore to Dr Speldewinde, Consultant in Rehabilitation, Pain and Musculoskeletal Medicine, in 2003. Whilst Dr Speldewinde noted that Ms Cudmore “presents with chronic intermittent right wrist strain” he did not make a diagnosis of an injury to the wrist.[14]
[14] Ex. A20.
28. Dr Roberts examined Ms Cudmore on 11 December 2003 and 18 March 2004 on referral from her general practitioner, Dr Yeung. Dr Roberts is an orthopaedic surgeon with particular experience in hand surgery. He recommended the cortisone injection which Ms Cudmore received in 2003 and expressed the view in his report of 15 September 2004 that if this improved the symptoms then it was possible that Ms Cudmore suffered from carpal tunnel syndrome.[15] Otherwise he was unable to offer a diagnosis. Ms Cudmore gave evidence that following the cortisone injection the condition of her elbow improved but not the condition of her wrist.
[15] Ex. A21.
29. Dr Chia, Orthopaedic Registrar, saw Ms Cudmore with Dr Roberts in December 2003. In his report of 11 December 2003[16] Dr Chia did not give a diagnosis. Dr Ihshiesh, Orthopaedic Registrar, also saw Ms Cudmore with Dr Roberts in March 2004. He reported that “…we cannot find any abnormalities in the wrist…….[i]t is not clear what the cause of her symptoms is but it does not seem to be anything that requires any surgical intervention at present.”.[17]
[16] Ex. A18.
[17] Ex. A19.
STATUTORY BACKGROUND
30. Subsection 24(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides that compensation is payable where an injury to an employee “results in” a permanent impairment.
31. Subsection 16(1) provides for compensation for the cost of medical treatment obtained “in relation to” the injury. Section 19 provides for compensation for loss of earnings where an employee is incapacitated for work “as a result of” an injury.
REASONING
A. Has the injury suffered by Ms Cudmore resulted in permanent impairment?
32. The Tribunal does not have jurisdiction in this application to review the decision that Ms Cudmore suffered a strain of her right wrist in 1993; the question to be decided is whether this injury has now resulted in permanent impairment: Hannaford v Telstra Corporation Limited [2005] FCA 1298. The balance of persuasion on this issue lies with Ms Cudmore (Cassaratto v Australian Postal Commission (1989) 86 ALR 399) and I must be satisfied on the balance of probabilities.
33. Ms Cudmore has claimed that she has suffered the following loss of function of her wrist:
· restriction in movement;
· difficulty in turning the wrist over;
· inability to fully extend the wrist;
· partial loss of grip strength; and
· pain after recurrent use.
For the purpose only of determining the issue under consideration, I assume that an impairment of the wrist is established.
34. The Federal Court considered the question of causation under section 24 of the Act in Comcare Australia v Amorebieta [1996] FCA 312. Jenkinson J. said:
“……in workers’ compensation legislation the expression of causal relationship by the words "results from" imports the concept of causation as it is known to the law, without seeking to modify it, and the conclusion that "[t]he legal concept of causation when applied in the field of personal injury takes the person injured as it finds him, with all his pre-dispositions and susceptibilities, whatever they may be". The same is to be said of the words "results in" in s24(1) and "resulting from" in s24(5), in my opinion……The inclusion of the phrase in s.24(5) is explicable as a means of making clear that only impairment which results from harm suffered in compensable circumstances is to be the subject of determination.”[18]
[18] Paragraphs 7 and 9.
35. The determination of causation “is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience.” Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1 at 6.
36. I am not satisfied on the balance of probabilities that the wrist strain suffered by Ms Cudmore in 1993 has resulted in the impairment she now describes and which I have assumed has been established at this point. My reasons for reaching this conclusion are based on the fact that Ms Cudmore suffered a subsequent injury to her elbow which affected her wrist and on the state of the medical evidence as to her present condition. This evidence leaves me not being satisfied that the causal link between the injury and the impairment has been established.
37. In June 1993 Ms Cudmore injured her right elbow and subsequently suffered “strong pain” in her wrist and “stabbing” pain in her elbow. She described the pain from her elbow to her hand at this time as being “8 ½ to 9” on a scale of 1-10. The pain in her elbow continued until she received an injection in her wrist in 2004. The symptoms of the accepted injury prior to the elbow injury were described by Ms Cudmore as “very mild aching” whilst writing. This symptom existed for about 3 months before the elbow injury. The injury to the elbow and the pain associated with it are intervening factors which raise doubt as to whether the symptoms now suffered by Ms Cudmore are a result of the accepted injury.
38. Dr Endrey-Walder, Dr Mellick and Dr Stevenson were unable to provide a diagnosis of the condition from which Ms Cudmore now suffers. Dr Danta, Dr Speldewinde, Dr Roberts, Dr Chia and Dr Ihshiesh examined Ms Cudmore at various times and were unable to make a definite diagnosis. Whilst it is not necessary to have a confirmed diagnosis for a finding of a compensable injury to be made, the fact that so many practitioners have been unable to determine the cause of Ms Cudmore’s symptoms makes it more difficult to conclude that the symptoms are a result of the accepted injury.
39. Dr McGrath has given a definite diagnosis of wrist joint instability leading to secondary development of median nerve impairment in the carpal tunnel. However both neurologists, Dr Mellick and Dr Danta, disagreed and in view of their specialist qualifications I prefer their opinions. Dr Mellick provided clear reasons why carpal tunnel injury was not a correct diagnosis and I accept his evidence in this regard.
B. What is the nature of that impairment?
C. Is the impairment permanent?
D. What is the degree of the permanent impairment?
40. As I am not satisfied that the accepted injury has resulted in whatever impairment Ms Cudmore may now suffer from it is not necessary to determine the remaining issues B, C and D.
E. Has medical treatment been obtained by Ms Cudmore in relation to the injury?
F. Has Ms Cudmore been incapacitated for work as a result of the injury?
41. For the same reasons that I am not satisfied that the accepted injury resulted in permanent impairment, I am not satisfied that any medical treatment obtained by Ms Cudmore was obtained in relation to the injury nor am I satisfied that Ms Cudmore has been incapacitated for work as a result of the injury. Again, I make it clear that my decision is based on a lack of evidence as to causation and not on a rejection of Ms Cudmore’s evidence as to the symptoms which she suffers.
DECISION
42. The decision of Comcare made on 23 June 2004, that as at 27 April 2004 Ms Cudmore is not entitled to compensation for medical expenses and incapacity and is not entitled to compensation for permanent impairment, is affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member
Signed: .....................................................................................
AssociateDate of Hearing 7-9 November 2005
Date of Decision 12 December 2005
Counsel for the Applicant David Richards
Solicitor for the Applicant Dean Prail
Slater & Gordon
Counsel for the Respondent Lorraine Walker
Solicitor for the Respondent Geoff Wilson
Dibbs Abbott Stillman
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