Daaboul and Comcare
[2002] AATA 1208
•22 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1208
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1682
GENERAL ADMINISTRATIVE DIVISION ) N2001/573
Re Jeanette Daaboul
Applicant
And Comcare
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member Dr M E C Thorpe, Member
Date22 November 2002
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal ("the Tribunal") decides: 1. In relation to the reviewable decision dated 29 September 2000 (N2000/1682), the decision is set aside and in substitution therefor, the Tribunal decides that: (i) The Applicant suffers from an injury pursuant to section 4 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in the form of a chronic pain disorder referrable to carpal tunnel syndrome and is entitled to compensation pursuant to section 14 of the Act on and from 16 February 1999. (ii) The Respondent is liable to pay for Ms Daaboul's reasonable medical treatment costs pursuant to section 16 of the Act on and from 16 February 1999, including, if medically indicated, participation in a pain management control treatment program. (iii) The Applicant has ongoing incapacity as a result of her workplace injuries and is entitled to incapacity payments pursuant to section 19 of the Act on and from 16 February 1999. 2. In relation to matter N2001/573, the reviewable decision of 20 April 2001 is affirmed, such that Mrs Daaboul is not entitled to compensation for permanent impairment pursuant to section 24 of the Act, nor is she entitled to compensation for non-economic loss pursuant to section 27 of the Act. 3. The Respondent is liable to pay Mrs Daaboul's reasonable legal costs as agreed or taxed in relation to matter N2000/1682.
..............................................
Ms S M Bullock
Presiding Member
CATCHWORDS
WORKERS COMPENSATION – carpal tunnel syndrome - chronic pain disorder – liability for compensation and medical treatment – permanent impairment
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24, 27
AUTHORITIES
Comcare v Mooi (1996) 42 ALD 495
Re Budarick and Comcare [2000] AATA 673
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Re Polder and Comcare [2001] AATA 780
Re Bianchi and Comcare [2001] AATA 805
Re Lewis and Comcare [2002] AATA 197
Re Fiedler and Comcare [2001] AATA 518
Re Pavic and Comcare (1996) 45 ALD 409
Comcare v Fielder (2001) 115 FCR 328
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Re Toohey and Australian Postal Corporation (AAT 13360, 9 October 1998)
REASONS FOR DECISION
22 November 2002 Ms S M Bullock, Senior Member Dr M E C Thorpe, Member
This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mrs Jeanette Daaboul, of the reviewable decisions made on 29 September 2000 (T38, N2000/1682) and 20 April 2001 (T9, N2001/573). The reviewable decision on 29 September 2000 affirmed a determination made on 26 March 1999 (T29, N2000/1682) that no compensation was payable to Mrs Daaboul under any section of the Safety, Rehabilitation and Compensation Act 1988 on and from 16 February 1999. The reviewable decision of 20 April 2001, affirmed a determination made on 8 May 2000 (T4, N2001/573) that Mrs Daaboul was not eligible for any compensation under sections 24 or 27 of the Safety, Rehabilitation and Compensation Act 1988.
A hearing was held before the Tribunal in Sydney on 13 and 14 February 2002. Written submissions were provided by the Applicant and Respondent, with the final written submissions being received on 4 June 2002. The Applicant provided oral evidence to the Tribunal and was represented by Mr A Blank of Counsel. The Respondent was represented by Ms L Walker of Counsel. Also providing evidence to the Tribunal was Dr G Mahony, Orthopaedic Surgeon and Dr N W McGill, Rheumatologist. Evidence was provided by telephone by Dr V Maniam, Orthopaedic Surgeon and Dr M Guirgis, Orthopaedic Surgeon. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents" T1-T38, N2000/1682; T1-T9, N2001/573). The following exhibits were taken into evidence:
Exhibit No. Description Date
A1 Report of Dr N Kanawati, General Practitioner Undated
A2 Letter from Dr V Maniam, Orthopaedic Surgeon, to Milicevic Solicitors 15 May 2001
A3 Report of Dr V Maniam, Orthopaedic Surgeon 23 March 2001
A4 Report and Assessment under Comcare Guide by Dr G Mahony, Orthopaedic Surgeon 27 October 2000
A5 Comcare letter to the Applicant 29 September 1997
A6 Comcare letter to the Applicant 9 December 1997
A7 Comcare letter to the Applicant 29 October 1998
A8 Comcare letter to the Applicant 30 March 1999
A9 Initial Assessment Report from Balmain Rehabilitation and Physiotherapy Centre 11 November 1997
A10 Case Closure Report from Balmain Rehabilitation and Physiotherapy Centre 26 May 1997
A11 Worksite Visit Report from Balmain Rehabilitation and Physiotherapy Centre 11 March 1998
A12 Home Visit Report from Balmain Rehabilitation and Physiotherapy Centre 29 April 1998
A13 Progress Report from Balmain Rehabilitation and Physiotherapy Centre 12 December 1997
A14 Case Closure Report from Balmain Rehabilitation and Physiotherapy Centre 18 December 1997
A15 Progress Report from Balmain Rehabilitation and Physiotherapy Centre 20 April 1998
A16 List of duties prepared by the Applicant 17 September 1997
A17 Bundle of Documents: -Medical Certificate from Dr Maniam -NSW Workers Compensation Medical Certificate (3 pages) -Return to Work Form 23 November 1998 10 December 2001 15 February 2002
R1 Clinical Notes of Dr S George, General Practitioner Various
R2 Email to David Giri 16 March 1999
R3 Article by Dr P Lowthian, "Carpal tunnel syndrome: "a diagnostic dilemma"
LEGISLATION
A decision in this matter requires consideration of the provisions of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
Section 4 of the Act deals with interpretation and of specific relevance to this matter is the definition of "injury" contained within subsection 4(1) of the Act which states:
" "injury" means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."
Section 14 of the Act deals with compensation for injuries and as relevant states:
"Compensation for injuries
14. (1) 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.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment."Section 16 of the Act deals with compensation for medical and other expenses and as relevant states:
"Compensation in respect of medical expenses etc.
16. (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
(4) An amount of compensation payable by Comcare under subsection (1) is payable:
(a) to, or in accordance with the directions of, the employee;(b)if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost--to that other person; or
(c)if that cost has not been paid and the employee, or the legal personal representative of the employee, does not make a claim for the compensation--to the person to whom that cost is payable.
(5) Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person.
…"
Section 19 of the Act deals with compensation for injuries resulting in incapacity.
Section 24 of the Act deals with compensation for injuries resulting in permanent impairment and states:
"Compensation for injuries resulting in permanent impairment
24. (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.…"
Section 27 of the Act deals with compensation for non-economic loss and states as relevant:
"Compensation for non-economic loss
27. (1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:($15,000 x A) + ($15,000 x B)
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee."
ISSUES
There was some debate as to what the issues were in this matter but following a number of Directions Hearings it is determined that the issues in this matter are:
Whether or not Mrs Daaboul has a compensable injury pursuant to section 14 of the Act and what is the diagnosis of this condition;
Whether or not Mrs Daaboul is entitled to reasonable medical treatment costs pursuant to section 16 of the Act;
Whether or not Mrs Daaboul entitled to incapacity payments pursuant to section 19 of the Act;
Whether or not Mrs Daaboul is entitled to compensation for permanent impairment arising out of section 24 of the Act and for non-economic loss pursuant to section 27 of the Act.
EVIDENCE OF MRS JEANETTE DAABOUL
Mrs Daaboul told the Tribunal that she commenced work as an Administrative Officer with the Department of Immigration and Ethnic Affairs in 1984. Since that time she has remained with the Department and her current duties are set out in Exhibit A16.
Mrs Daaboul stated that she developed pain in her right hand in about 1991/1992. Initially, Mrs Daaboul's evidence was that she did not recall seeing a General Practitioner, Dr S George, about pain in her right hand. Dr George's clinical notes (Exhibit R1) contain an entry of 25 October 1991, which indicated problems with Mrs Daaboul's right hand, noting "C/O pain (R)arm, wrist and elbow. Pains Nocturnal. Tennis elbow (R)side. Diffuse features". This period was during a time when Mrs Daaboul was post-partum in the middle of a 12-month period of maternity leave with her first child whose date of birth was 16 May 1991. Mrs Daaboul's next child was born on 19 April 1993 and she was on maternity leave in March 1993 until March 1994. A further entry in Dr George's notes on 2 July 1993, when Mrs Daaboul was again on maternity leave, indicates she had consulted Dr George complaining of pain in her right arm. Dr George diagnosed carpal tunnel syndrome at that point but Mrs Daaboul did not recall Dr George making this diagnosis. Mrs Daaboul's third child was born in September 1995 and she was on maternity leave from August 1995 until August 1996. Her fourth child was born on 27 April 2000 and she was on maternity leave from March 2000 until May 2001, as she had extra leave granted. Mrs Daaboul agreed that she had told Dr N W McGill, Orthopaedic Surgeon, that she first experienced symptoms of right arm and wrist pain when on maternity leave. Mrs Daaboul told the Tribunal that when she had children, her arms would become sore holding a child while breastfeeding. Mrs Daaboul confirmed later in her evidence that this was when she first experienced problems with her right arm. She then went back to work.
In 1994, Mrs Daaboul's then General Practitioner, Dr N Kanawati, referred her to Dr V Maniam, Orthopaedic Surgeon. X-rays of her right hand and nerve conduction studies were performed and Mrs Daaboul was diagnosed as having a right carpal tunnel syndrome. At that time, she was complaining of numbness in the fingertips, pain in the hand which was unbearable in the morning, and swelling of the right hand. Mrs Daaboul stated that she had been back eight years at work before the symptoms of carpal tunnel syndrome had emerged. Since 1994, Mrs Daaboul has noticed that the pain can come on spontaneously when away from work or it can occur at work. The symptoms whether at work or away from work are the same.
Dr Maniam performed surgery to relieve the right carpal tunnel in June 1994. After surgery, Mrs Daaboul reported that the numbness went away but the pain persisted although it was less intense. When this pain occurs, Mrs Daaboul will stop what she is doing and undertake some stretches which have been provided to her by a physiotherapist and during the course of various rehabilitation and workplace assessments.
Mrs Daaboul stated that her current symptoms relate to her left and/or right hand which "gives out on her," by which she meant that she experiences chronic pain in her wrist and has to stop what she is doing. Physiotherapy had made the continuing pain after surgery better but when the physiotherapy ceased, the pain returned, although less painful than that prior to surgery. Mrs Daaboul has also reported pain in her right thumb and index finger, limiting her work and some home activities. Mrs Daaboul estimated that the numbness in fact returned to her right hand either two months or two years after the 1994 surgery (Transcript, p25, 13 February 2002).
Mrs Daaboul has also reported pain in her left hand with some numbness in the fingertips which she has attributed to her left hand compensating for her right hand. In 1998, surgery was suggested for her left hand but was not undertaken. Dr Maniam did not recommend the surgery at the time and also Mrs Daaboul was caring for her baby and it was therefore not convenient to have surgery.
Mrs Daaboul continued physiotherapy at the Punchbowl Rehabilitation Centre for approximately six months after the surgery. Furthermore, Mrs Daaboul underwent a Commonwealth Rehabilitation Service assessment in 1997 (Exhibit A9) and also attended the Balmain Rehabilitation and Physiotherapy Centre (Exhibits A10-15). There were two work plans discussed and in May 1998, Mrs Daaboul commenced the second plan (Exhibit A10) which involved her working on Monday and Wednesdays between 9.30am and 12.30pm on the counter or booth and working on the keyboard in these locations. Between 1pm and 3pm on those days, Mrs Daaboul would undertake phone or reception duties. On Tuesdays and Fridays between 9.30am and 12.30pm, Mrs Daaboul would undertake telephone inquiry duties and then from 1pm until 3pm work on counter. Overall, Mrs Daaboul estimated that she would undertake two hours each day on the keyboard. On Fridays between 9.30am and 2.30pm, Mrs Daaboul would work on reception and phone inquiries. Mrs Daaboul told the Tribunal that these work restrictions also coincided with her family commitments. Between 1989 and 1999, the days were in accordance with the rehabilitation plan two. In 1999, the days changed and Mrs Daaboul is now working five days per week, 9.30am until 2.30pm. These hours fit in with the children's school times. The second work plan was implemented on the advice of the rehabilitation adviser and had the intention of giving Mrs Daaboul a complete day's break from work. In 1989, Mrs Daaboul was working 20 hours per week which then increased in 1999 to 25 hours per week.
Mrs Daaboul stated that she copes with her duties at work and does not wish to let the team down. Mrs Daaboul believed that she did more work than she is supposed to. Mrs Daaboul told the Tribunal that she is advised to exercise every 15 or 20 minutes but in reality this occurs approximately every 30 minutes. Mrs Daaboul explained to the Tribunal that the pain at work comes from a variety of activities including handing out forms, keyboarding, using the phone and writing anything greater than five minutes. Mrs Daaboul told her supervisor about one month before the Hearing that the duties she had been given on that particular day were too much and needed to be modified. These duties at that time required more keyboarding activity than she is allowed to undertake. The duties were modified. Mrs Daaboul expressed her gratitude for the way in which her workplace attempts to ensure that her work does not aggravate the physical conditions of her hands.
Mrs Daaboul told the Tribunal that "whatever I do the pain is still there – numbness not so bad but still numbness in the morning." Furthermore, Mrs Daaboul noted that swelling is one of her main problems particularly in the morning and keyboarding aggravates her pain. Under cross-examination, Mrs Daaboul stated that her right thumb and index finger are uncoordinated and sometimes she has no control over them.
Mrs Daaboul told the Tribunal that she has had a rehabilitation adviser visit her at home and provide her with special aides such as grip handles to put on knives and a can opener with wide handles. Mrs Daaboul has also been given advice as to how to undertake various tasks. She has difficulties hanging out the clothes, opening jars, chopping and driving.
Mrs Daaboul continues to work on the program although longer hours. She has no specific treatment, takes no medication apart from "Panadol" for pain, and over the past six months would take approximately four tablets per week. Mrs Daaboul consults Dr Maniam, her treating Orthopaedic Surgeon, approximately every two or three months at which time he will examine her and also issue a medical certificate. Mrs Daaboul told the Tribunal that currently her left hand is becoming more painful because she uses her left hand more than the right.
MEDICAL EVIDENCE
DR M GUIRGIS, ORTHOPAEDIC SURGEONDr Guirgis originally examined Mrs Daaboul on 20 April 1993 and provided a report dated 20 April 1999 (T30, N2000/1682). Dr Guirgis provided evidence by telephone.
Dr Guirgis reported that Mrs Daaboul had started feeling twinges of pain in the region of her right thumb and hand in 1992. There is no reference in his report to Mrs Daaboul being on maternity leave at that time. Dr Guirgis' opinion was that the signs and diagnosis were consistent with repetitive work which caused chronic soft tissue injuries representing a cumulative traumatic stress disorder to the right arm, left wrist and neck which took the form of:
chronic right and left wrist flexor tenosynovitis with secondary carpal tunnel syndrome;
chronic right elbow external epicondylitis;
chronic right supraspinatus tendonitis;
chronic musculo-ligamentous sprain/strain of the cervical spine.
Dr Guirgis maintained that Mrs Daaboul's work and repetitive duties were responsible for the onset of her carpal tunnel syndrome. In oral evidence to the Tribunal, in relation to the issue of maternity leave, Dr Guirgis considered that the hormonal disturbance which occurs during pregnancy "would make her more vulnerable to highlight the underlying chronic problem" (Transcript, 13 February 2002). No other explanation was provided. In relation to the left carpal tunnel syndrome, Dr Guirgis stated that he would not operate unless they were both objective and clinical signs indicating this.
In relation to Dr Guirgis' reports of swelling in Mrs Daaboul's left and right forearm and wrist, he distinguished swelling from there being fat deposits in her arms and wrists. Dr Guirgis opined that fat deposition would not be localised to the front of the lower forearm and this is what he found with Mrs Daaboul. He found there was both swelling and tenderness. Dr Guirgis undertook the "two point discrimination test" in addition to his other examination and this provided symptoms of pain (Transcript, 13 February 2002). Dr Guirgis did not have the benefit of other tests such as X-rays and nerve conduction tests. Dr Guirgis was also not aware of Mrs Daaboul's increase in duties to 25 hours.
Dr Guirgis stated "I think Mrs Daaboul's problem now is a chronic pain problem and whatever is there will be there everlasting". (Transcript, 13 February 2002). Dr Guirgis noted that Mrs Daaboul might become better in dealing with the pain she experiences and that she also would benefit from hydrotherapy, physiotherapy and swimming.
In a further report of 20 April 1999 (T30, p54), Dr Guirgis estimated the following whole body impairment percentages according to the "Guide to the assessment of the degree of permanent impairment" ("the Comcare Guide"):
Cervical Spine (Table 9.6) five per cent
Right Upper Limb Function (Table 9.4) ten per cent
Left Upper Limb Function (Table 9.4) ten per cent
Combined Impairment: 24 per cent
Dr Guirgis noted that the basis of ten per cent for Table 9.4 signified Mrs Daaboul's difficulty with digital dexterity and was made on the basis that she cannot undertake repetitive or sustained movement. This assessment was made given the history and clinical examination findings made by Dr Guirgis.
DR G MAHONY, ORTHOPAEDIC SURGEONDr Mahony provided a report dated 27 October 2000 (Exhibit A4). Dr Mahony's history was that in about 1992, whilst Mrs Daaboul was at work, she noticed numbness in the right hand, mostly at night and in the morning with pain radiating from the right hand to the right elbow. In about 1993, he had recorded that Mrs Daaboul noted added pain radiating to the right shoulder and neck. Dr Mahony had copies of the electro-conduction studies and also Dr McGill's reports and that of Dr Maniam, Orthopaedic Surgeon. He stated that the EMC test result supported his findings. At the time of his reporting, Dr Mahony listed Mrs Daaboul's present complaints as:
1. Pain in the back of her neck which radiates to the back of the right shoulder and to the right hand;
2. Pain in the outer aspect of the right elbow;
3. Pain in the right forearm, wrist and hand;
4. Feeling of pins and needles in her right hand as well as a heavy feeling. Dr Mahony noted that numbness has improved since the surgery;
5. A numb and heavy feeling in the left hand;
6. Low back pain present for four months, which does not radiate.Dr Mahony opined that Mrs Daaboul has developed symptoms referable to a cervical strain with nerve root irritation affecting the upper limb, a capsulitis of the right shoulder, right lateral epicondylitis, a generalised strain of the right upper lateral forearm muscle group, a right De Quervain's tendovaginitis as well as bilateral carpal tunnel syndrome. Dr Mahony concluded that these conditions are consistent with the nature of her work producing such lesions.
In a further report of 27 October 2000, Dr Mahony assessed Mrs Daaboul as having the following impairments:
Table 9.4 - ten per cent whole person impairment right arm
Table 9.4 - ten per cent whole person impairment left arm
Table 9.6 - five per cent whole person impairment neck
Table 9.6 - five per cent whole person impairment back
Table 14.1 - 27 per cent whole person impairment
In relation to the assessment under Table 9.4 for the right and the left arms, Dr Mahony noted that this assessment of ten per cent was low, but fair. Dr Mahony told the Tribunal that the Table did not give him scope to deal properly with the true level of Mrs Daaboul's impairment. Dr Mahony did not test for digital dexterity and said this was "too time consuming" (Transcript, 14 February 2002).
Dr Mahony was critical of the Comcare Guide and in particular noted his difficulty with interpreting the category in ten per cent impairment of "difficulty with digital dexterity".
Concerning Mrs Daaboul's pregnancies and the impact on her carpal tunnel syndrome, Dr Mahony opined that carpal tunnel syndrome can occur when a woman is pregnant but usually improves spontaneously. He refused to link the likelihood that the physical strain of child bearing and raising could either participate or continue to aggravate a constitutionally based condition. Dr Mahony was provided with the scenario of Mrs Daaboul working for eight years before having children without symptoms, and then experiencing symptoms while she was half way through a period of a maternity leave and then returning to work and having no symptoms again until such time she was on maternity leave with a subsequent child. With that history, Dr Mahony opined that it could be that Mrs Daaboul was not aware of her symptoms prior to being on maternity leave. Dr Mahony explained that a person often will have symptoms and put it down to something else or that it will go away, and the person does not really focus his/her attention on the matter. Therefore, on Mrs Daaboul's history, in order to prove whether or not she had symptoms referable to carpal tunnel syndrome, would require that she be asked specific questions relating to that condition. When presented by the Respondent with the scenario that the best evidence available is that there was a complaint during the six-months of a period of maternity leave and then no symptoms once returning to work, Dr Mahony maintained his view that it was more probable than not that Mrs Daaboul's symptoms were related to work activity. The pregnancy could have triggered the carpal tunnel syndrome in an already vulnerable nerve without there being symptoms, Dr Mahony stated. Even though Mrs Daaboul was reporting no symptoms, once back at work at that time, you could not tell, Dr Mahony stated, whether in fact there were really symptoms there unless Mrs Daaboul was examined and asked about specifics symptoms. Dr Mahony reiterated that he did not find it at all striking that Mrs Daaboul's complaints arose in the first three occasions of her experiencing them out of the context of the work environment and not just by a week or two, but by a month. Dr Mahony supported his opinion by postulating in retrospect that there was vulnerability of the nerve and the pregnancy just tipped off the problem (Transcript, 14 February 2002).
Dr Mahony concluded that Mrs Daaboul probably had vulnerability as a result of carrying out her work activities for which she was physically not trained to do in terms of using her hands. Then, as a result of her pregnancy, it triggered the development of carpal tunnel syndrome. Furthermore, Dr Mahony noted that unless there is fair degree of vulnerability, the affects of the carpal tunnel usually cease after pregnancy. Dr Mahony furthermore opined that Mrs Daaboul's condition is not likely to improve.
Dr Mahony was unable to nominate any research study linking carpal tunnel syndrome with clerical duties, himself stating in evidence that carpal tunnel syndrome is "commonly work related, I don't care what the journals say" (Transcript, 14 February 2002, p11). Dr Mahony further opined that carpal tunnel syndrome can occur spontaneously if you are a woman who is "fair, fat, fertile and forty" (Transcript 14 February 2002, p4). Dr Mahony further stated that Mrs Daaboul does not fit any of these categories. She was approximately 25 years old when the symptoms first occurred. Dr Mahony stated that a traumatic cause for carpal tunnel syndrome must be examined in Mrs Daaboul's case.
DR V MANIAM, ORTHOPAEDIC SURGEONDr Maniam is Mrs Daaboul's treating specialist. Dr Maniam provided evidence to the Tribunal by telephone. A number of Dr Maniam's reports and certificates dating back to 2 June 1994 through to 15 May 2001 were available (see N2000/1682: T6; T9; T10; T11; T12; T13; T14; T16; T17; T18; T19; T23; T24; T25 and T28, Exhibit A2 and Exhibit A3).
Dr Maniam considers Mrs Daaboul to have bilateral carpal tunnel syndrome and reported that she has had a decompression operation for the right wrist. Dr Maniam stated that his opinion did not differ that much from Dr McGill and that currently she suffers from minimal symptoms.
In his report of 23 March 2001, Dr Maniam outlined Mrs Daaboul's duties at that time and described the various activities that precipitated symptoms. The report lists six activities to adjust or avoid on rehabilitation advice. Dr Maniam considered that as result of her work conditions, Mrs Daaboul developed pain in the wrists and hands. Dr Maniam's history was that Mrs Daaboul first presented in 1994 having suffered symptoms for approximately 12 months. Dr Maniam did not have a history of two occurrences of painful right wrist in 1991 and 1993 suffered on maternity leave. Dr Maniam noted that Mrs Daaboul did not complain of recurring symptoms very much following surgery and that he considered that because of her now borderline symptoms with no worsening on the left, that there should not be any further decompression surgery, especially on the left side. Dr Maniam did not agree with Dr McGill, when Dr McGill dismissed Mrs Daaboul's symptoms as being of no clinical significance. Dr Maniam did find clinical symptoms and considered that in all fairness, keyboarding and clerical work will or possibly could give rise to the symptoms of which Mrs Daaboul complained. The most resent consultation with Mrs Daaboul in December 2001 did not consist of a clinical examination, however Mrs Daaboul complained of heaviness and numbness in her hands. These symptoms, Dr Maniam related to carpal tunnel syndrome.
In his report of 23 March 2001 (Exhibit A3), Dr Maniam noted that Mrs Daaboul's prognosis is that there would be some residual pain remaining. The diagnosis apart from what has been offered seems also to relate to fibromyalgia and chronic myofascial pain syndrome.
Dr Maniam's assessment made on 15 May 2001 (Exhibit A2) of permanent impairment, is ten per cent left and right upper limbs amounting to 19 per cent of whole person impairment. Under cross-examination, Dr Maniam agreed he made no attempt to assess digital dexterity, noting only that in relation to his assessment of difficulty with digital dexterity, most of Mrs Daaboul's problems were due to keyboard activities.
When asked to comment about his colleague's suggestion that Mrs Daaboul has a chronic pain disorder or syndrome, Dr Maniam noted "It is certainly worthwhile sending Mrs Daaboul to a pain clinic assessment" (Transcript, 14 February 2002).
DR N W MCGILL, RHEUMATOLOGISTDr McGill examined Mrs Daaboul on 23 June 1994 (T8, N2000/1682), on 4 December 1998 (T26, N2000/1682) and 13 March 2001 (T7, N2001/573). Dr McGill's summary on 13 March 2001, indicates that his examination did not reveal any suggestion of a residual physical problem and that both gross and fine motor functions were normal in the upper limbs. Dr McGill reported that Mrs Daaboul does not currently have any disorder related to her employment either by way of aggravation or cause. Dr McGill considered surgery to have cured the right carpal tunnel syndrome and that while work duties may have aggravated her carpal tunnel syndrome this would have been temporary and that her work duties have been modified to accommodate her problems. Dr McGill noted that the cause of carpal tunnel syndrome is constitutional and involves a small carpal tunnel.
Concerning the left wrist, Dr McGill noted that Mrs Daaboul reported that she sometimes feels pain in her left hand and upper thumb, wrist, and elbow. There is some numbness of the tips of the fingers in the left hand involving only the dorsal surface and he considered that there was an indication that the left fingers are involved in some sensory disturbance. The symptoms are not those of carpal tunnel syndrome, Dr McGill opined, and would be most unlikely to be improved by carpal tunnel decompression. The median nerve as involved in carpal tunnel syndrome, supplies the volar surface of the hand and fingers, the thumb and the index and middle fingers often splitting the ring finger whereas Mrs Daaboul was reporting that her sensory disturbance was on the dorsal surface from the joints to the fingertips. This is not the distribution that people with carpal tunnel syndrome report. Furthermore, Mrs Daaboul reported that all of her fingers were involved and not the ones that one would expect to be involved in carpal tunnel syndrome. It was likely that Mrs Daaboul would have abnormal electrical studies in her left hand, while Dr McGill had agreed in evidence that there was bilateral carpal tunnel syndrome, he stated that at that stage, her left hand carpal tunnel syndromes were very mild. Dr McGill noted the pain in the absence of numbness and paraesthesia is almost never due to carpal tunnel syndrome (Transcript, 14 February 2002).
Dr McGill had undertaken a scientific literature search and ascertained two journal articles which could not identify a link between keyboard work and carpal tunnel syndrome: "Occupation as a Risk as a Factor for Impaired Sensory Conduction of the Median Nerve at the Carpal Tunnel Syndrome": Nathan, Meadows and Doyle, Journal of Hand Surgery 1988 Vol 13, 167-170; "Risk Factors for Carpal Tunnel Syndrome in a General Population", Occupational Environmental Medicine 1997 54, 734-740. Dr McGill noted that neither of these articles supported any association between keyboard work and carpal tunnel syndrome. This is in contrast to Dr Mahony's opinion who stated that carpal tunnel syndrome is commonly work related, whatever the journals might say.
Dr McGill agreed he had stated that he considered that Mrs Daaboul had work as a significant factor in the aggravation of carpal tunnel syndrome, but that that had now ceased. It was clear to Dr McGill that Mrs Daaboul's carpal tunnel symptoms were cured by surgery and then she subsequently reported a range of other symptoms which were not explicable on an organic basis (Transcript, 14 February 2002). Dr McGill further stated that he did not accept that Mrs Daaboul's description of her symptoms after surgery was the same as her description of symptoms prior to the surgery. Dr McGill believed Mrs Daaboul quite clearly states that the symptoms, which are reliable in terms of carpal tunnel syndrome, were cured by surgery. Thus, Dr McGill considered that complaints made on the recent assessment did not have an organic basis. On testing, Dr McGill found Mrs Daaboul's digital dexterity to be normal. The method of testing involved writing certain things such as names and addresses of family members for approximately five minutes and having to button and unbutton her blouse. The results of this test indicated Mrs Daaboul had no difficulty with such activities (Transcript, 14 February 2002). Under the Comcare Guide and using Tables 9.1, 9.4 and 9.6, Dr McGill found no impairment. Dr McGill considered that Table 9.4 was more relevant to Mrs Daaboul but he could did not find any difficulty with digital dexterity. (T7, N2001/573).
Both Dr Maniam and Dr McGill reported no tenderness. Dr McGill concluded that the cause of Mrs Daaboul's carpal tunnel syndrome was constitutional and that pregnancy and pregnancy-related activities and work, caused a temporary exacerbation. Dr McGill concluded if one has a constitutionally small carpal tunnel, then this person will typically present in Mrs Daaboul's age group and often with fluctuations in the condition. Frequently, the condition becomes worse although not always. There can be spontaneous flare ups, which are sometimes related to physical activities, and which settle down but the cause overridingly is constitutional. Dr McGill accepted Mrs Daaboul's experience of pain but does not accept that her current symptoms are the same that she had prior to surgery.
SUBMISSIONSIn written submissions dated 15 February 2002, the Applicant submitted that:
(a) The surgery to Mrs Daaboul's right wrist did not eliminate her pain;
(b) Mrs Daaboul has pain in her left arm;
(c)The pain, if not caused by her work duties, was and continues to be exacerbated by them;
(d)The pain is pervasive in that it prevents Mrs Daaboul from not only performing her work but also performing basic household chores such as ironing and cooking.
Mr Blank noted in relation to Dr Maniam's opinion on 23 March 2001 (Exhibit A3) and affirmed in a letter of 15 May 2001 (Exhibit A2), that Mrs Daaboul's symptoms appear to be quiescent when at rest and are aggravated by her work place. The impairment is 19 per cent whole person impairment (Exhibit A3).
Mr Blank noted that Dr Mahony concluded that Mrs Daaboul has a numb feeling in her left hand which is consistent with the nature of her work producing lesions. The whole person impairment of the right and left arm is considered to be ten per cent under Table 9.4 of the Comcare Guide. Referring to Dr Guirgis' opinion, he concludes that there is impairment of ten per cent for both the right and left upper limbs. Dr Kanawati, General Practitioner, noted of Mrs Daaboul that she has a permanent impairment of the right upper limb of 25 per cent and of the left upper limb 20 per cent.
Mr Blank further noted Dr McGill's opinion on 13 March 2001 (T7, N2001/573) that Mrs Daaboul had difficulty platting and brushing her hair, cooking, cleaning and that this caused pain in her right hand. He noted that there is sometimes pain in the left hand around the thumb and wrist up to the elbow with no detectible loss of dexterity. On 23 June 1994, Dr McGill had noted that there was electrophysiological evidence of right carpal tunnel syndrome and that she also reported a history of nocturnal left hand numbness suggestive of a mild carpal tunnel syndrome. Therefore, at that point, Dr Blank submitted that Dr McGill had opined that Mrs Daaboul's keyboard activities could well have aggravated her carpal tunnel syndrome and that her duties could be considered as a significant factor in the aggravation of that carpal tunnel syndrome.
Considering the issue of pregnancy in carpal tunnel syndrome, Mr Blank submitted that both Dr Guirgis and Dr Mahony had agreed that while in some cases there was a causal relationship between pregnancy and carpal tunnel syndrome, this is due to an hormonal imbalance and is temporary in nature. The symptoms usually cease after pregnancy. Dr Mahony had noted that Mrs Daaboul did not fit with the usual profile of the typical case which he described as being female, fair, fat, forty and fertile.
Mr Blank submitted that the medical evidence provided by Dr Maniam should be preferred as he is the treating orthopaedic surgeon. His opinion is supported by the opinion of Dr Guirgis and Dr Mahony. Furthermore, Mr Blank contended that carpal tunnel syndrome is an orthopaedic problem. Dr Maniam, Dr Mahony and Dr Guirgis are orthopaedic surgeons, whilst Dr McGill is a rheumatologist. Mr Blank submitted that Dr McGill tried to explain Mrs Daaboul's continuing symptoms as different to those which she had previously complained of when she had carpal tunnel syndrome. Mr Blank submitted that this explanation is contrary to his own recording of what Mrs Daaboul had said. There was no issue taken with Mrs Daaboul's credit, Mr Blank noted.
In relation to the assessment of permanent impairment, Dr McGill's testing of digital dexterity was not long enough nor comprehensive enough to verify the Applicant's account of her impairment. In Dr McGill's report of 13 March 2001, Mr Blank noted that he tested for digital dexterity by asking Mrs Daaboul to unbutton and button her blouse and by having her write the names of family members and her address. In cross-examination, Dr McGill conceded that he could not record what type of blouse Mrs Daaboul was wearing and further conceded that the writing exercise did not take ten minutes. Furthermore, Dr McGill had conceded that performance in the clinical setting is not always indicative of performance generally, and Dr Mahony made that same point.
Mr Blank noted that Dr Mahony in cross-examination expressed dissatisfaction with the wording of Table 9.4 of the Comcare Guide, in particular the words "digital dexterity". Mr Blank submitted the Tribunal should not apply too literal a meaning to the term "digital dexterity", but should rather look at the nature of the activities which Mrs Daaboul stated she could not perform or has difficulty performing. Mrs Daaboul's own evidence should be accepted on the issue of impairment, Mr Blank contended.
Mr Blank noted that Mrs Daaboul was not cross-examined on credit and her evidence of her impairment, as corroborated by the physiotherapy reports (Exhibit A9-Exhibit A15), and in the medical reports, is that she has difficulty with a range of domestic functions including: ironing; chopping; pealing vegetables; opening cans; stirring food; hanging clothes on the line; driving; brushing hair and turning the key in the door. She also has difficulty with prolonged work duties such as keyboarding, handing out forms, use of telephone, staples and resetting machines.
Mr Blank submitted that in order for Mrs Daaboul to succeed in relation to her claim for permanent impairment and non-economic loss, the Tribunal need only be satisfied that she is suffering an injury within the definition of the Act, resulting in the whole person impairment of ten per cent or more. Injury, by definition, includes an aggravation of a physical or mental injury (other than disease) suffered by an employee whether or not that injury arose out of, or in the course of, the employees' employment, being an aggravation that arose out of or in the course of that employment.
Whilst Mr Blank submitted that Mrs Daaboul's primary case is that she suffered carpal tunnel syndrome as a result of her work duties and, as a result, she has suffered a whole person impairment of ten per cent in both hands, it is sufficient, Mr Blank contended, to establish that her work duties aggravated her injury to the extent of creating impairment over the threshold, even if that injury is not carpal tunnel syndrome. Accordingly, if Dr McGill's conclusion that Mrs Daaboul is no longer suffering from carpal tunnel syndrome is correct, the issue is then whether Mrs Daaboul suffers from some other work-related injury causing impairment above the threshold. In other words, if the Tribunal is satisfied that Mrs Daaboul's impairment is above the threshold, then the question is whether that impairment arises from the work related injury. In making this assessment, the Tribunal does not necessarily have to find that the injury is carpal tunnel syndrome although it is submitted on the medical evidence that this is the correct diagnosis.
In relation to the issue of medical expenses pursuant to section 16 of the Act, Mr Blank provided a schedule of expenses together with notices of past benefits dated 31 October 2001 and 31 August 2000 including a transaction list from treating Orthopaedic Surgeon, Dr Maniam. Medical treatment was also provided in relation to bilateral carpal tunnel syndrome by Dr Larbalestier; Dr Mackenzie; Dr Whitlocke; Dr Mansberg; Dr Fain; and Dr Yiannikas.
In relation to section 19 of the Act and incapacity payments, Mr Blank submitted that Mrs Daaboul has tendered work cover medical certificates (Exhibit A17) indicating that she had missed work as a result of her injury. Mrs Daaboul and the medical evidence showed that there has been no real improvement in her condition. Accordingly, Mr Blank submitted that the evidence shows that Mrs Daaboul is incapacitated and will continue to miss work from time to time as a result of her injury. Although the Respondent points to the fact that Mrs Daaboul works 25 hours per week and that she chose to do so for family reasons, Mr Blank submitted that Mrs Daaboul is incapacitated as a result of her injuries, she is not capable of working longer than 25 hours.
In final written submissions of 4 June 2002, referring to the payment of medical expenses pursuant to section 16 of the Act, Mr Blank provided further advice concerning a Table of Medical Expenses.
In written submissions dated 14 March 2002, Ms Walker submitted that Mrs Daaboul's evidence, although without guile was vague and unreliable and was not conducive to making a finding of ongoing liability. In this regard, Mrs Daaboul was unable to recall early instances of carpal tunnel syndrome as referred to in Dr George's clinical notes. Furthermore, Mrs Daaboul could not recall if the numbness of the right hand had returned two months or two years after surgery. Mrs Daaboul's recollections as to why her left hand was not operated on were also incorrect, Ms Walker submitted, noting that it was because she was breastfeeding a baby. This is contrary to Dr Maniam's records and subsequent evidence to the effect that surgery to the left carpal tunnel was simply not warranted.
Ms Walker submitted that only Dr Maniam and Dr McGill have assessed Mrs Daaboul pre and post surgery. Dr McGill had confirmed that prior to surgery the symptom complex reported was consistent with carpal tunnel syndrome. His later assessment of Mrs Daaboul did not confirm a similar symptom complex and indeed, he opined that the carpal tunnel syndrome symptom matrix had gone. Although Mrs Daaboul indicated that her work had been modified to meet her physical limitations, the clear evidence was that she was prepared to override rehabilitation advice where it conflicted with her personal convenience with a mid-week "rest day" being abandoned for convenience.
In relation to Dr Guirgis' opinion, Ms Walker submitted that he provided an extensive range of diagnosed conditions which was so broad and unsubstantiated as to be unreliable. In oral evidence, Dr Guirgis conceded that hormonal disturbance would make Mrs Daaboul more vulnerable "to highlight the underlying chronic problem". Dr Guirgis' assessment of permanent impairment was based purely on the Applicant's history.
Referring to Dr Mahony's evidence, Ms Walker noted that Dr Mahony opined that carpal tunnel syndrome can occur when a woman is pregnant but usually improves spontaneously. He refused to concede the likelihood that the physical strain of child rearing could either precipitate or continue to aggravate a constitutionally based condition. Dr Mahony also opined that carpal tunnel syndrome can occur spontaneously but not unless you are "female, fair, fat, fertile and forty". As to the latter basis, he stated that Mrs Daaboul did not fit any of these categories but she clearly fitted at least three of them, Ms Walker submitted, with no pejorative connotations attached, that is that she was female, fertile and fat.
Ms Walker noted Dr Mahony's confidence in his own abilities above and beyond that of other diagnosticians but cautioned the Tribunal about this. Ms Walker noted that any concession by Dr Mahony would have been surprising. Dr Mahony agreed that his was a diagnosis of exclusion which, in the Respondent's submission, is not a sound basis for a medico-legal opinion as opposed to "a working diagnosis" approach. Ms Walker furthermore submitted that Dr Mahony did not have the full history upon which to form a view as to causation, namely the context in which the symptoms first arose whilst Mrs Daaboul was on maternity leave in 1991. Dr Mahony expressed the view that people may have symptoms and just hope that they go away until they focus upon them. Dr Mahony further considered that symptoms could possibly relate to home as opposed to work activities in forming his view. The only significance for Dr Mahony of symptoms arising on two or three occasions whilst Mrs Daaboul was on maternity leave was that, "there was some vulnerability of the nerve and the pregnancy just tipped it off" (Transcript, 14 February 2002). Dr Mahony dismissed the possibility that the fact that Mrs Daaboul was a breastfeeding mother was likely to be the cause of the onset of her symptoms as unusual but not impossible.
Dr Mahony was unable to nominate any study linking carpal tunnel syndrome with clerical duties and stated that it was commonly work-related and he did not care what the journals said, Ms Walker noted. Thus on the one hand, Dr Mahony relied at best on an epidemiological assessment that carpal tunnel occurs commonly in females who are fat, fair, fertile and forty or at worst, on an unsubstantiated formulaic approach to explain the carpal tunnel syndrome phenomena which rejects the significance of scientific assessment, Ms Walker submitted.
Dr Mahony reached a ten per cent permanent impairment assessment for each limb and in doing so incorporated all problems complained of by the Applicant. It is clear, Ms Walker submitted, that Dr Mahony adopted his own approach to the assessment of permanent impairment, not one mediated by the Comcare Guide. For example, Ms Walker noted that Dr Mahony noted that Mrs Daaboul has had an operation and she could not receive a nil rating because of that. This did not take into account, Ms Walker contended, what rating would occur if the operation was successful. Dr Mahony's proposition is not only inconsistent with the Comcare Guide, but offends common sense, Ms Walker contended.
Ms Walker contended that in relation to Dr Maniam's evidence, he did not have the full history of earlier symptoms either. He was not aware of the fact that the carpal tunnel syndrome which led to the accepted claim for compensation arose during Mrs Daaboul's maternity leave. Dr Maniam did note that Mrs Daaboul is now in suitable duties and he sees her episodically noting that she has a borderline presentation with no worsening of her left-hand symptoms. He noted that Mrs Daaboul is prescribed no medication and that further surgery is unlikely.
Dr Maniam's assessment of Mrs Daaboul's permanent impairment of ten per cent for the left and right upper limbs is based only on the history provided by her. This is in the face of minimal symptoms yet amounts to 19 per cent combined whole person impairment. This assessment was reached in the absence of testing as to digital dexterity.
Turning to Dr McGill, Ms Walker submitted that Dr McGill had noted that a rheumatologist is a more appropriate diagnostician than an orthopaedic surgeon in relation to this condition of carpal tunnel syndrome. Dr McGill was of the view that Mrs Daaboul's earlier condition was constitutional, although he had accepted that it could be temporarily aggravated by her work duties. Since the operation, the duties have been modified to accommodate the complaints. Dr McGill had considered the significance of Dr George's clinical notes of 25 October 1991 and that these were the same symptoms later complained of and diagnosed by Dr Maniam and himself as carpal tunnel syndrome. Dr McGill undertook a scientific literature research, Ms Walker noted, and ascertained two journal articles which could not identify a link between keyboard work and carpal tunnel syndrome. In the absence of contradictory literature, Ms Walker submitted that this must be of significant persuasive value. Dr McGill had also opined that Mrs Daaboul's osteoarthritis of the right thumb was not work-related. Dr McGill noted that the care of a young baby involves a great deal of physical work with the hands and stated that it is not unusual to have an exacerbation of carpal tunnel syndrome at that time.
Dr McGill had concluded that pain in the absence of numbness and paraesthesia is almost never due to carpal tunnel syndrome. Additionally, he noted that the sensory disturbance was not consistent with carpal tunnel syndrome. While Dr McGill had accepted Mrs Daaboul's evidence that her symptoms of pain remained unchanged, he did not accept that her symptoms actually were the same as prior to the surgery. Prior to surgery, he was satisfied there were signs and symptoms of carpal tunnel syndrome but post surgery the compliance did not have an organic basis. Dr McGill was the only doctor who in fact tested for digital dexterity and found that it was normal. This test result along with Mrs Daaboul's work activities suggests that her dexterity, as perhaps opposed to her endurance, is not significantly impaired.
Ms Walker contended that Mrs Daaboul has previously suffered carpal tunnel syndrome worse in the right than in the left wrist and this is generally agreed by all doctors. Furthermore, the condition had been accepted as compensable for a time-limited period although the condition originally emerged in non-compensable circumstances. Dr McGill postulated that the cause of Mrs Daaboul's condition, in the circumstances of pregnancy and post-partum, was not an unusual scenario, given the physical activity of caring for a baby. The Applicant's doctors were, in Ms Walker's submission, unable to explain a mechanism of the injury, rather they simply assert it. This is contrary to the scientific knowledge to which only Dr McGill had adverted. Ms Walker submitted that the Applicant's doctors' determined refusal to accept that factors other than employment could have been a genesis of the original condition was dogmatic, arbitrary, unsupported, and, in her submission, unreliable.
Ms Walker asserted that prior to the surgery, the condition was temporarily aggravated by the Applicant's administrative duties with the Commonwealth. Ms Walker noted while Mrs Daaboul, Dr Guirgis and Dr Mahony postulate a permanent contribution to Mrs Daaboul's current condition, Dr Maniam noted in his report of 22 May 1998, that Mrs Daaboul's symptoms would remain in abeyance if she maintained proper techniques. While Dr McGill recognised that administrative duties have the potential to temporarily aggravate carpal tunnel syndrome, in Mrs Daaboul's circumstances there was no continuing evidence or convincing subjective evidence of a condition aggravated by duties which had been and continued to be modified to suit Mrs Daaboul. Ms Walker contended that Mrs Daaboul's increased part-time work hours from 20 to 25 hours are as a result of her choice for family reasons. Furthermore, Mrs Daaboul conceded that if she finds work difficult to manage because of her ongoing problems, her duties are readily altered by her supervisor.
Ms Walker contended that the left wrist has never been sufficiently troublesome to cause incapacity, a need for medical treatment or permanent impairment. In so contending, Ms Walker noted that the crux of Dr Maniam's evidence on this point was that Mrs Daaboul's carpal tunnel syndrome had not worsened, nor would he operate.
Ms Walker contended that carpal tunnel syndrome of the right wrist significantly resolved following surgery. This contention is made in light of the clinical notes, changed symptoms, return to chosen working hours and lack of further treatment. Mrs Daaboul's right wrist does not give rise to incapacity or a need for a medical treatment or permanent impairment, Ms Walker submitted. Dr Maniam's own assessment of ten per cent for permanent impairment from Table 9.4 of the Comcare Guide is not borne out by his evidence, nor by any objective testing. There is an insufficient basis, Ms Walker contended, to award a person compensation amounting to a combined impairment of 19 per cent. Even if the Tribunal found that there is a compensable condition that has lead to an impairment, Ms Walker submitted this is not permanent in the sense envisaged by Table 9.4 of the Comcare Guide as "all reasonable rehabilitative treatment" has not been undertaken. The allegedly debilitating aspect is pain, yet there is no medication being provided for it, nor has there been a reference to a pain management clinic although Dr Maniam under cross-examination said it would be a good idea and Dr Guirgis said that physiotherapy and hydrotherapy would assist.
Ms Walker submitted that any ongoing symptoms experienced in Mrs Daaboul's wrists and elsewhere have not been adequately identified or explained such that they amount to a diagnosable medical condition as discussed in Comcare v Mooi (1996) 42 ALD 495 nor has it been established that any ongoing symptoms either arise in compensable circumstances or give rise to an entitlement to compensation.
It was noted by Ms Walker that complaints of pain are relied upon by the Applicant to establish a continuing compensable condition. Clearly there are ongoing complaints of pain but the continuity is unclear with the nature of symptoms and their location having changed. The symptoms no longer reflect carpal tunnel syndrome distribution, Ms Walker submitted. Furthermore, the vagueness of symptoms does not allow a proper diagnosis or conclusion that they are the result of work activity. Ms Walker submitted that the conflicting evidence and diagnoses from Doctors Mahony, Guirgis and McGill do not allow a conclusion as to an identifiable compensable condition to be reached. In any event, Ms Walker contended, the evidence of Dr McGill is that pain alone is rarely evidence of carpal tunnel syndrome. Again this background in the context of symptoms continuing to occur spontaneously outside of work activities, cannot be said, Ms Walker contended, to flow from the earlier carpal tunnel syndrome.
In conclusion, Ms Walker submitted that Mrs Daaboul has failed to establish on the balance of probabilities that she suffers from a compensable condition affecting her wrists which results in a permanent impairment pursuant to sections 24 and 27 of the Act and any Table of the Comcare Guide.
In the Respondent's final written submissions of 21 May 2001, in relation to medical treatment expenses, Ms Walker submitted that Mrs Daaboul's evidence was that she regularly stretches as taught by her physiotherapist and for the last six months she has taken up to four Panadol tablets per month. Ms Walker submitted that there is no evidence that this drug is of therapeutic benefit to Mrs Daaboul, either subjectively or objectively. The medico-legal opinions attested generally to the benefit of physiotherapy, hydrotherapy, and possibly pain management. Ms Walker submitted that it is not clear from the evidence if these proposals relate to Mrs Daaboul's claim for her wrist condition or broader problems identified by them. In any event, the treating orthopaedic surgeon, Dr Maniam, noted that he sees Mrs Daaboul sporadically. He identified no need for medication, no specific reason for the visits and noted that the surgery was unlikely. Any medical expenses sought by Mrs Daaboul must be properly specified and furthermore, Ms Walker submitted, it is the Tribunal's role to determine on the evidence the basis for the need for medical treatment. Ms Walker submitted that on all the evidence, no basis had been established which could be persuasive to the Tribunal.
In relation to the issue of incapacity, Ms Walker submitted that Mrs Daaboul is not incapacitated for employment in accordance with the definition of incapacity contained within subsection 4(9) of the Act. Mrs Daaboul gave very little evidence on this issue other than to point to the fact that she needs to rotate her work duties to minimise pain. She testified that her employer was most cooperative in this respect. In relation to the recommendations of the rehabilitation provider, Ms Walker noted that Mrs Daaboul has shown herself prepared to modify her work hours to suit her personal circumstances ahead of her rehabilitation adviser's recommendations. The work hours are in place because of her family commitments. Mrs Daaboul operates under a voluntary part-time hours contract, not a reduced hours rehabilitation or return to work program. Ms Walker submitted that there was no other cogent evidence to support an incapacity to work at all or at the same level. The closest was Dr Maniam who confirmed that the Applicant's presentation was borderline with minimal symptoms.
In conclusion, Ms Walker submitted that the opinion of Dr McGill ought to be preferred as to the Applicant's current condition. Indeed, Dr Maniam, although considering Dr McGill's view as a little "severe", did agree that the history taken was correct and in accordance with his experience of Mrs Daaboul. Ms Walker concluded that Mrs Daaboul's case does not support a current entitlement to incapacity payments nor for medical treatment expenses.
FINDINGSTo reach the correct and preferable decision, the Tribunal has taken into account the oral evidence provided by Mrs Daaboul and the oral and documentary medical evidence in addition to the application of the legislation and relevant case law.
The Tribunal must establish whether or not Mrs Daaboul suffers from a compensable injury, attempting to determine the correct diagnosis and then, if there is a compensable injury, a determination must be made pursuant to sections 16, 19, 24 and 27 of the Act to find whether or not Mrs Daaboul is entitled to receive compensation for incapacity, the payment of reasonable medical treatment costs and whether or not there is permanent impairment and compensation payable for non- economic loss.
Considering the medical evidence, the Tribunal concurred with the Respondent's submissions that Dr Guirgis' extensive range of diagnosed conditions was so broad and unsubstantiated as to be unreliable. The Tribunal did however note that Dr Guirgis considered Mrs Daaboul's condition to now be a chronic pain syndrome (Transcript, 13 February 2002).
Dr Mahony offered a long list of diagnoses based on the symptoms provided by Mrs Daaboul. In this regard, he noted (Exhibit A4) that:
"Mrs Daaboul has developed symptoms referable to a cervical strain with nerve root irritation affecting the upper limb, a capsulitis of the right shoulder, right lateral epicondylitis, a generalised strain of the right upper lateral forearm muscle group, a right De Quervain's tendovaginitis as well as bilateral carpal tunnel syndrome."
Dr Mahony considered the degree of arm symptoms actually came from the neck and thought that it was unlikely that there was any scope for improvement of Mrs Daaboul's condition.
Dr Maniam performed surgery for the right carpal tunnel and has continued to treat Mrs Daaboul. Dr Maniam stated that his opinions do not differ greatly from that of Dr McGill's. Dr Maniam considered the prognosis for Mrs Daaboul's problems is that some residual pain will remain and that the pain also relates to fibromyalgia and chronic myofascial pain disorder. Dr Maniam agreed Mrs Daaboul could benefit by attending a pain assessment clinic.
Dr McGill noted that pain in the absence of numbness and paraesthesia is almost never due to carpal tunnel syndrome. Additionally, he noted that the reported sensory disturbance was not consistent with carpal tunnel syndrome (Transcript, 14 February 2002). Dr McGill distinguished between the pain prior to surgery and the current pain and considered that Mrs Daaboul's current complaints do not have an organic base. Dr McGill accepted that Mrs Daaboul did have a carpal tunnel syndrome, temporarily aggravated by her work, but that was cured by surgery. In particular, Dr McGill emphasised that Mrs Daaboul reported a range of symptoms which were not explicable on an organic basis.
Considering all the medical evidence and opinion, the Tribunal is faced with a difficult diagnostic issue. The Tribunal does not in any way doubt Mrs Daaboul's credibility, nor the expression of her symptoms of pain. The Respondent noted that while Mrs Daaboul may have been at times unreliable in the provision of a history, there was no attack on her credit and it was considered that she was without guile. The Tribunal has had the benefit of not only the documentary evidence, but of Mrs Daaboul's presentation at the hearing and considers her to be a witness of truth, accepting her reporting of her symptoms.
Mrs Daaboul reports pain in the left and right wrists with the left now being worse. There is some numbness. The symptoms however are not, in the Tribunal's view, convincing as reflecting true carpal tunnel syndrome, particularly when faced with the clinical presentation, objective testing and Mrs Daaboul's own evidence. The Tribunal has considered Comcare v Mooi (supra) in which it was determined by Drummond J that even though a condition might not be identified with the label of a medical condition, it may still be compensable under section 14 of the Act, if it is determined that the worker is in a condition that is outside the realm of normal function and behaviour. The Tribunal finds that this is the case for Mrs Daaboul.
The Tribunal must ask itself if it is possible to identify the condition from which Mrs Daaboul suffers. Dr Guirgis and Dr Maniam consider that Mrs Daaboul has a chronic pain syndrome or disorder and Dr McGill cannot explain her symptoms on an organic basis. In particular, Dr McGill distinguishes between the pain prior to the surgery and following surgery for the right carpal tunnel syndrome. The Tribunal refers to the Diagnostic and Statistical Manual of Mental Disorders-Fourth Edition ("DSM-IV") under the section "Somatoform Disorders" in which the diagnostic criteria for pain disorder are dealt with at page 461. The diagnostic criteria for pain disorder are:
"A.Pain in one or more anatomical sites is the predominant focus of clinical presentation and is of sufficient severity to warrant clinical attention.
B.The pain causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
C.Psychological factors are judged to have an important role in the onset, severity, exacerbation, or maintenance of the pain.
D.The symptom or deficit is not intentionally produced or feigned (as in Factitious Disorder or Malingering).
E.The pain is not better accounted for by a Mood, Anxiety, or Psychotic Disorder and does not meet the criteria for Dyspareunia."
In Mrs Daaboul's circumstances, she has pain at the anatomical site of her left and right wrists and forearms and it is the predominant focus of her clinical presentation. This has warranted the clinical attention principally from her treating orthopaedic surgeon, Dr Maniam. While the pain may be less in the right than it was prior to her decompression operation, in the left, the Tribunal accepts that the pain is worsening. Even though Dr Maniam reported the pain as borderline and the treatment conservative or minimal, it is still present and she is still being treated. At work, Mrs Daaboul is on light duties. She has provided continuing medical certificates signed by Dr Maniam to the effect that she is to work 25 hours per week on suitable duties which he specifies. Her work plan is virtually the same as it was when devised by the Balmain Physiotherapy and Rehabilitation Centre. It is important to note that while Mrs Daaboul has adjusted her work situation in some circumstances to suit her family commitments, she continues to be medically certified as being able only to do suitable duties at the rate of 25 hours per week as certified by Dr Maniam. Furthermore, in her domestic situation, the Tribunal accepts Mrs Daaboul's evidence that she requires assistance at home from her husband and family and has difficulty in undertaking domestic chores such as cleaning, hanging out the clothes, brushing her hair and driving. She has continued to receive assistance by the aids provided to her when she had an home assessment in 1997. There are non-organic factors such as found by Dr McGill in relation to the onset of the pain and the symptoms are not consistent with any of the conditions noted in the DSM-IV diagnostic criteria. That is, the pain is not accounted for by mood, anxiety or psychiatric condition. Furthermore, the pain condition is chronic beyond six months duration. Hence, the Tribunal finds that on the medical opinion and applying the diagnostic criteria in DSM–IV, Mrs Daaboul suffers from chronic pain syndrome or disorder.
The issue for the Tribunal is then to consider whether or not Mrs Daaboul's chronic pain disorder is compensable. The Tribunal notes the decision in Re Budarick and Comcare [2000] AATA 673 in which chronic pain disorder was found to arise out of Mr Budarick's soft tissue injury to his back. The Tribunal has also gained guidance from Re Polder and Comcare [2001] AATA 780. In that case, the Tribunal found that the Applicant's work history contributed, at least to an extent, to the Applicant's condition. This flowed from the Respondent's acceptance of liability in the early stages and from dependable medical evidence. The Tribunal in that case found some of the evidence suggesting a connection between the Applicant's pregnancy and certain of her symptoms however, the effect of the pregnancy should, on the medical evidence have abated. While there was an influence in Re Polder and Comcare (supra) of other factors such as pregnancy and marital discord, the Tribunal was unable to exclude all reference to an influence by Ms Polder's previous employment as a contributing cause to her problems. Ms Polder's pain disorder was associated with both psychological factors and the general medical condition and qualified as a disease under subsection 4(1) of the Act. Such a disease is an injury also under subsection 4(1) of the Act, if it was contributed to in a material degree by the employee's employment with the Commonwealth. This Tribunal notes that in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316:
"The causal connection [between the disease and employment] must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small".
The Tribunal considers that in Mrs Daaboul's circumstances, liability was initially accepted for her carpal tunnel syndrome of the left and right wrists. Following surgery, symptoms abated in the right wrist but have worsened in the left. The symptoms are no longer truly reflective of carpal tunnel syndrome, but the Tribunal accepts that there is genuine pain experienced by Mrs Daaboul which causes her difficulty at work. That there have been other contributions to the carpal tunnel syndrome initially because of her pregnancy is not disputed. There was however a contribution accepted by Comcare and by this Tribunal, to the effect that there was a contribution to the carpal tunnel syndrome by her employment. This was also supported by Dr McGill. The current situation with Mrs Daaboul's symptoms is that pain is still being experienced. The Tribunal finds that there is no reasonable explanation for this pain other than the pain constitutes a pain disorder. On the medical evidence, this pain disorder is referable to and a consequence and sequel of Mrs Daaboul's carpal tunnel syndrome. There is thus a material contribution to her chronic pain disorder via Mrs Daaboul's carpal tunnel syndrome. This is all in the context of the carpal tunnel syndrome being, as the medical opinion indicates, a constitutional problem. The Tribunal notes the decision in Tippett v Australian Postal Corporation (1998) 27 AAR 40 in which Finkelstein J noted:
" What Beattie [Commonwealth v Beattie (1981) 53 FLR 191] also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which compensable is payable. This proposition was confirmed by the Full Court in Commonwealth Banking Corp v Percival (1988) 20 FCR 176; 9 AAR 206 where it was said that while for many medical purposes it may be necessary to draw a distinction between the underlying injury and the symptoms of it that is not so for compensation law where it is fundamental that the symptom of an injury is a part of that injury.
Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee's employment then the employee will have suffered a compensable injury: Commonwealth Banking Corp v Percival at 179-180; 209-210. The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the cause of an employees' employment: Canberra Abattoir Pty Ltd v Asioty (unreported Fed Ct, FC, 26 April 1988) a proposition which was not disturbed on appeal at Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533."
Also of guidance in Mrs Daaboul's matter is Re Fiedler and Comcare [2001] AATA 518 in which the Tribunal found that Mr Fiedler had chronic pain in both his hands referable to a previously accepted bilateral carpal tunnel syndrome for which the Respondent had ceased liability. That Tribunal discussed the issue of the original injury in the context of a latter diagnosis of chronic pain disorder of recent origin.
The Tribunal distinguishes Mrs Daaboul's circumstances to those discussed in Re Lewis and Comcare [2002] AATA 197. In that case, the Tribunal was not able to be shown a demonstrable nexus between the condition engendering pain and the Applicant's employment. The Tribunal in this matter finds that Mrs Daaboul suffers from chronic pain disorder in her wrists, more in the left than in the right. Such pain is often poorly understood by medical science, but on the Tribunal's understanding of all the evidence finds that Mrs Daaboul's pain is a sequel or referable to the bilateral carpal tunnel syndrome for which the Respondent had previously accepted liability for a limited period. The Tribunal finds that while there are other contributions to the carpal tunnel syndrome by the consequences of her pregnancies, there has been a material contribution by Mrs Daaboul's work which also impacts upon her chronic pain disorder. Hence, the Tribunal determines that Mrs Daaboul suffers from a disease in the form of chronic pain disorder pursuant to section 4 of the Act and that the chronic pain disorder is therefore compensable under the provision of section 14 of the Act. Mrs Daaboul's treating doctors, Dr Maniam and Dr Guirgis, have opined that she would benefit from pain management treatment and also further rehabilitation in the form of physiotherapy and hydrotherapy. The Tribunal finds therefore that the respondent is liable to pay Mrs Daaboul reasonable medical treatment expenses pursuant to section 16 of the Act as properly referred to and justified by the Applicant.
In relation to section 19 of the Act, the Respondent had submitted that there is no incapacity being experienced by Mrs Daaboul. The Tribunal notes the medical certification which has been continued to be supplied by Dr Maniam. Dr Maniam has certified that Mrs Daaboul can undertake suitable duties which he has specified includes only keyboarding for two hours per day and that she should only work five hours per day five days per week totalling 25 hours. While there has been a submission by the Respondent that Mrs Daaboul works to suit her family commitments, while this may be the case, there is also medical evidence from Mrs Daaboul's treating specialist that she should only work 25 hours per week and undertake certain suitable duties. Mrs Daaboul has, from time to time, had to take time off work because of her painful condition. To the Tribunal's mind and given the medical evidence, this is indicative of incapacity.
Turning to the issue of whether or not Mrs Daaboul suffers from permanent impairment pursuant to section 24 of the Act, the Tribunal is of the view that Mrs Daaboul's chronic pain disorder is not stabilised or treated. Pursuant to subsection 24(2) of the Act, for the purposes of determining whether an impairment is permanent, Comcare, and the Tribunal standing in the shoes of Comcare, must have regard to duration of the impairment, the likelihood of improvement, whether or not the employee has undertaken all reasonable rehabilitative treatment for impairment and any other relevant matters. The Tribunal is of the opinion that Mrs Daaboul's condition still requires rehabilitative treatment in the form recommended by Dr Maniam and Dr Guirgis of pain management treatment in addition to physiotherapy and/or hydrotherapy. The Tribunal notes Mrs Daaboul's evidence that her condition improved with physiotherapy, after the operation. Furthermore, referring to the Comcare Guide, for a condition to be considered to be permanent, it must be treated and stabilised. The Tribunal does not consider that this has occurred. While some doctors expressed the view that Mrs Daaboul's condition may not change, this has yet to be tested and an assessment for permanent impairment is, in the Tribunal's view, premature.
Even if this were not the case, on an application of Table 9.4 of the Comcare Guide, the Tribunal is unable to find sufficient evidence to substantiate the minimal requirement of ten per cent to qualify for permanent impairment. The Comcare Guide is quite specific. In the absence of any formal testing of hand function as required by the Guide, the Tribunal is unable to rely on assessments based on history alone or in Dr Mahony's case, his own approach. The Tribunal is satisfied with Dr McGill's assessment of zero per cent for both left and right wrist according to any Table of the Comcare Guide given Mrs Daaboul's evidence of digital dexterity including selfcare activities.
Dr McGill was the only doctor to also assess Mrs Daaboul using the American Medical Guide ("the AMA Guide"). Using this Guide he again assessed at 0 per cent. In fairness Dr Mahony referred to the AMA Guide (Transcript, 14 February 2002) stating "I'm the only one who knows there happens to be an AMA 5 which criticises the AMA 4 as being inadequate". He was not able to make an assessment using the AMA Guide. The Tribunal notes that in relation to the assessment of pain, there have been a number of Tribunal decisions in which is has been decided that in the absence of the ability of the Comcare Guide to provide the mechanism for the assessment of pain, recourse has been made to the AMA Guide: see Re Pavic and Comcare (1996) 45 ALD 409. Without the benefit of pain management and on assessment of the result of such treatment, the Tribunal has not had recourse to the assessment of pain under the AMA Guide.
The Tribunal notes the Full Federal Court decision in Comcare v Fiedler (2001) 115 FCR 328 and the difficulty of the previous Tribunal in that matter applying Table 9.4 of the Comcare Guide. This Tribunal notes the Tribunal decision in Re Fiedler and Comcare (supra) in which the Tribunal took the term "digital dexterity" to mean "ease of use of the fingers and hand without undue restriction", a definition which arose out of Re Toohey and Australian Postal Corporation (AAT 13360, 9 October 1998). That decision is distinguished from Mrs Daaboul's circumstances because in the Tribunal's view, pursuant to section 24 of the Act, in determining whether an impairment is permanent, the Tribunal must have regard the likelihood of improvement and pursuant to subsection 24(1)(c) of the Act, Mrs Daaboul has not at this time undertaken all reasonable rehabilitation treatments. Accordingly, the Tribunal finds that there is no permanent impairment pursuant to section 24 of the Act and no economic loss component pursuant to section 27 of the Act. Whether or not there is an improvement after treatment or Mrs Daaboul is left with the permanent impairment, will need to be determined in the future.
In all of the circumstances and for the reasons set out above, the Tribunal decides, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 that:
(a) In relation to the reviewable decision dated 29 September 2000 (N2000/1682), the decision is set aside and in substitution therefor, the Tribunal decides that:
(i) The Applicant suffers from an injury pursuant to section 4 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in the form of a chronic pain disorder referrable to carpal tunnel syndrome and is entitled to compensation pursuant to section 14 of the Act on and from 16 February 1999.
(ii) The Respondent is liable to pay for Mrs Daaboul's reasonable medical treatment costs pursuant to section 16 of the Act on and from 16 February 1999, including, if medically indicated, participation in a pain management control treatment program.
(iii) The Applicant has ongoing incapacity as a result of her workplace injuries and is entitled to incapacity payments pursuant to section 19 of the Act on and from 16 February 1999.(b) In relation to matter N2001/573, the reviewable decision of 20 April 2001 is affirmed, such that Mrs Daaboul is not entitled to permanent impairment pursuant to section 24 of the Act, nor is she entitled to compensation for non-economic loss pursuant to section 27 of the Act.
(c)The Respondent is liable to pay Mrs Daaboul's reasonable legal costs as agreed or taxed in relation to matter N2000/1682.
I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr MEC Thorpe, Member.
Signed: .....................................................................................
Associate
Dates of Hearing: 13 & 14 February 2002
Final written submissions received: 4 June 2002
Counsel for the Applicant: Mr A Blank
Solicitor for the Applicant: Ms B Milicevic, Milicevic Solicitors
Counsel for the Respondent: Ms L Walker
Solicitor for the Respondent: Mr T Postma, Phillips Fox
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