Dana Quirk and Total Marine Services Pty Ltd - [2013] AATA 185

[2013] AATA 185

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2012/0846

2012/0879

Re

Dana Quirk

APPLICANT

And

Total Marine Services Pty Ltd

RESPONDENT

DECISION

Tribunal
Deputy President S D Hotop
Dr J Chaney, Member

Date 28 March 2013

Place Perth
Application 2012/0846
The decision under review is set aside and, in substitution therefor, it is decided that, for the period from 28 February 2011 to date, and as at the present date, compensation is payable by the respondent to the applicant for the cost of medical treatment for the bilateral carpal tunnel injury sustained by the applicant on 30 November 2004, in accordance with s 28 of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“SRC Act”), and for incapacity for work as a result of that bilateral carpal tunnel injury, in accordance with s 31 of the SRC Act.
Application 2012/0879
The decision under review is set aside and, in substitution therefor, it is decided that, for the period from 28 February 2011 to date, and as at the present date, compensation is payable by the respondent to the applicant for the cost of medical treatment for the lower back injury sustained by the applicant on 11 February 2004, in accordance with s 28 of the SRC Act and for incapacity for work as a result of that lower back injury, in accordance with s 31 of the SRC Act.
Application may be made to the Tribunal in relation to the costs of these proceedings within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 92(1) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
...........[sgd].............................................................
S D Hotop, Deputy President
CATCHWORDS
COMPENSATION – seafarers – applicant suffered lower back injury and bilateral carpal tunnel injury in course of employment in 2004 – medical treatment – incapacity for work – applicant continues to require medical treatment for injuries and to be incapacitated for work as result of injuries – compensation continues to be payable to applicant for cost of medical treatment and for incapacity for work – decisions under review set aside
LEGISLATION
Seafarers Rehabilitation and Compensation Act 1992 (Cth), s 6, s 8, s 24, s 25, s 26, s 28 and s 31.

REASONS FOR DECISION

Deputy President S D Hotop
Dr J Chaney, Member
28 March 2013
Introduction

Dana Quirk (“the applicant”), who is presently 37 years of age, suffered two injuries, namely, a lower back injury on 11 February 2004 (“the lower back injury”) and a bilateral carpal tunnel injury on 30 November 2004 (“the bilateral carpal tunnel injury”), in the course of her employment with Total Marine Services Pty Ltd (“the respondent”).
The applicant subsequently claimed compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“SRC Act”) in respect of each of the abovementioned injuries.
On 18 March 2004 the respondent accepted liability to pay compensation to the applicant for the cost of reasonable medical treatment, and for incapacity for work, in respect of the lower back injury, in accordance with s 28 and s 31 (respectively) of the SRC Act.
On 11 October 2007 the respondent accepted liability to pay compensation to the applicant for the cost of reasonable medical treatment, and for incapacity for work, in respect of the bilateral carpal tunnel injury, in accordance with s 28 and s 31 (respectively) of the SRC Act.
On 28 February 2011 a determination was made, on behalf of the respondent, under the SRC Act as follows:
“ In accordance with the provisions of the SRCA, we determine that under sections 28 and 31 of the SRCA, ongoing liability in respect of an accepted lower back injury which occurred on 11 February 2004 is declined.”
On the same date a further determination was made on behalf of the respondent under the SRC Act as follows:
“ In accordance with the provisions of the SRCA, we determine that under Sections 28 and 31 of the SRCA, ongoing liability in respect of an accepted bilateral carpal tunnel injury which occurred on 30 November 2004 is declined.”
Following a request by the applicant for a reconsideration of the abovementioned determination of 28 February 2011 in relation to the lower back injury, a “reviewable decision”, dated 28 December 2011, was made on behalf of the respondent as follows:
“ Under the provisions of the SRC Act, namely section 78(6), I revoke the determination dated 28 February 2011 in relation to incapacity payments, however, the decision to decline ongoing medical expenses is affirmed.”
Following a request by the applicant for a reconsideration of the abovementioned determination of 28 February 2011 in relation to the bilateral carpal tunnel injury, a “reviewable decision”, dated 28 December 2011, was made on behalf of the respondent as follows:
“ Under the provisions of the SRC Act, namely section 78(6), I Affirm the determination dated 28 February 2011.”
On 2 March 2012 the applicant lodged with the Tribunal an application for review of a decision described as follows:
“ 28/2/2011 [sic] – Decision to terminate medical expenses for lower back injury”
(Application 2012/0879)
and an application for review of a decision described as follows:
“ 28/2/2011 [sic] – Decision to decline incapacity payments and medical expenses in relation to bilateral carpal tunnel syndrome injury”
(Application 2012/0846).
The Evidence
The evidence before the Tribunal comprised :
·the “T Documents” (T1-T32, T34-T99, pp 1-84, 87-221) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibits A1–A21 tendered by the applicant;
·Exhibits R1–R3 tendered by the respondent; and
·the oral evidence of the applicant and of the following witnesses:
– Dr Philip Finch, Dr Herbert Yeo, Mr Jeff Ecker, Mr Michael Halliday and Mr Barrie Slinger (who were called by the applicant); and
– Dr Michael Bowles and Dr John Suthers (who were called by the respondent).
THE APPLICANT’S EVIDENCE
The applicant tendered in evidence her witness statement, dated 13 October 2012, as amended by her in her oral evidence. The contents of her statement, as amended, are as follows:
“…
Lower back injury
2.On 11 February 2004 I sustained a lower back injury whilst employed by the respondent on the vessel ‘Total Voyager’ when I slipped on some steps.
3. I lodged a claim for compensation on 12 March 2004.
4.I attended upon my general practitioner Dr Butcher. I sustained a fractured coccyx and a fracture and bruising of the end plate of the L4 vertebral body.
5.I was off work for approximately 4 months during which I had physiotherapy.
6.When I returned to work I was still having problems with spasms in the lumbar region and was having pain sitting and standing.
7.A fracture of the L4 vertebra was not diagnosed until an MRI of the lumbar spine in February 2005.
8.In the first quarter of 2005 I returned to work with the respondent based on harbour type work on a graduated return to work program.
9.I was subsequently referred to Dr Geoffrey Gee for pain management and had injections of both sacroiliac joints but without any functional improvement.
10.I had widespread back pain and bilateral leg pain through the latter part of 2005 aggravated by sitting, standing and walking.
11.I remained on rehabilitation with the Respondent and a graduated return to work program was organised through vocational rehabilitation providers throughout 2005 and 2006, but the graduated return to work program was closed in May 2006 until the rehabilitation provider was able to secure work for me at an environmental centre at Naragebup, which involved reception duties, office duties and feeding and helping to rehabilitate turtles. However I was severely limited by a 5-kilogram lifting restriction.
12.I also undertook a physical rehabilitation program and a trial of orthotics, as well as massage, a self-corrective exercise program and continuing medication including Tramadol, Mersyndol, Voltaren Gel and Paracetamol on a daily basis.
13.Since this problem started I have had persisting pain in the lower back, coccyx and sacrum occurs [sic] when sitting, when lying in bed. I sometimes have difficulty standing from sitting and on occasions when standing I have difficulty standing in a straight position. My sleep is usually interrupted twice a night with difficulty returning to sleep and difficulty initially going to sleep. I sit when bending as with dressing. I have limited walking tolerance. Lifting tolerance is still 3 kilograms. I have stabbing pains in the lower back and sacrum, to the left more than the right, with pain radiating along the posterior aspect of the thighs to the knees particularly when standing or sitting for long periods.
14.My back pain is aggravated by hanging out washing and sitting in a chair too long and I have to sit forward in a chair to relieve pressure. I can usually tolerate about 45 minutes sitting but have to change position. I have difficulty pushing a small travel case. Negotiating steps is painful. I have pain when I turn over in bed and I have pain when I drive long distances and when negotiating speed bumps. I have difficulty travelling by public transport on a bus or train. I also have pain at defecation and have avoided sexual intimacy. I also have pain in the feet if I stand for long periods.
15.I had physiotherapy supervised by a physiotherapist. I attended a psychologist, Ms Leonie Coxon, from 2007 for cognitive behaviour on pain management programs.
16.In my former employment at Naragebup Environmental Centre I was able to attain up to 5 days per week 5 hours per day, although the duties were not busy or onerous.
17.Until December 2008 I was unable to obtain employment because of problems with surgery for my wrists and difficulty finding a work hardening programme.
18.The vocational training people had a hard time trying to place me with a host where I could undertake a work hardening programme. Finally they managed to get me placed with Rockingham Senior High School (unpaid until term 4 2009) but this did not happen until December 2008. In December 2009 I obtained a position with Rockingham Senior High School as a School Officer for 27 hours per week, then a term full time and then reduced to part time continuing with 3 days per week.
19.Afterwards I applied for a number of positions and finally obtained a position in November 2010 with the Mandurah Council as a Secretary/Personal Assistant.
20.I have been advised by Orthopaedic Surgeon Mr Slinger to maintain a regular stretching and strengthening program with Pilates, home exercises or gymnasium attendance commencing with a supervised set of exercises and then medication as determined by Dr Yeo my general practitioner and possibly referral for psychological counselling or pain management.
21.With the exception of some recent payments to my general practitioner, I have not had medical expenses met for my back injury since the determination of 28 February 2011 which has limited my capacity to obtain medical treatment, particularly because between 28 February 2011 and 28 December 2011 the respondent denied liability for payment of compensation and I did not commence to receive incapacity payments until 2012. I am still not in receipt of any payments for medical treatment for my back injury because of the determination of 28 December 2011 reaffirming that the respondent would not pay for medical treatment.
22.In relation to the suggestion that I have not required treatment in respect of my lower back injury I refer to the medical certificates from my general practitioner Dr Yeo from 1 January to 31 March 2011 which note I require further treatment in respect of my lower back injury and carpal tunnel syndrome and a further progress fitness medical certificate from Dr Yeo from 1 June 2011 to 31 July 2011 which notes that I continue to suffer from lower back injury, bilateral carpal tunnel syndrome and depression for which I require medication.
…
39.In 2008 I only worked 8 days in December for 4 hours per day. In 2009 I worked up to 9-10 weeks full time in the last school term at Rockingham Senior High School and then had 5-6 weeks off. In 2010 I worked full time for Term 1 and then casually at Rockingham Senior High School. At all times I was symptomatic in relation to my lower back and hands and informed my general practitioner.
40.I obtained full time employment in November 2010 with Mandurah Council and I managed this only with difficulty and large doses of medication. I am not managing full time in my current work.
…
44.My current symptoms in relation to my lower back cause me the following difficulties:
·Pain in the tailbone region when sitting and when changing positions;
·lower back pain upon waking and getting out of bed, also causing sleep disturbance;
·lower back pain carrying objects weighing more than 3kgs, which is sharp with heavy aching and stabbing pain in the left sacrum/buttocks area and sometimes in the right sacrum buttocks area extending down the backs of my legs;
·back pain aggravated by sitting for extended periods;
·back pain aggravated by hanging out washing;
·difficulty putting on shoes, socks and pants when I have significant back pain;
·back pain on using public transport;
·back pain when standing for extended periods, dancing, swimming in the ocean, bike riding, camping and driving long distances.
Carpal tunnel syndrome injury
45.In November 2004 I was working as an integrated rating on a vessel called ‘Total Endeavour’ for the respondent performing ongoing painting and chipping duties for extended periods using power tools. I first noticed ongoing symptoms in both wrists in November 2004.
46.I first reported the injury in 2007 after having attended upon my treating general practitioner Dr Herbert Yeo and having been referred to Dr Michael Halliday, Orthopaedic Surgeon in March 2007.
47.I made a claim for compensation in relation to bilateral carpal tunnel syndrome on 1 May 2007.
48.On 11 October 2007 the respondent accepted liability for wages and reasonable medical expenses in respect of my bilateral carpal tunnel injury.
49.On 28 February 2011 the respondent determined that under Sections 28 and 31 of the Seafarers Rehabilitation and Compensation Act 1982 [sic] (‘SRCA’), ongoing liability in respect of an accepted bilateral carpal tunnel injury which occurred on 30 November 2004 was declined.
50.On Thursday 10 March 2011 I requested an extension of time on both the determinations for my lower back injury and bilateral carpal tunnel syndrome dated 28 February 2011.
51.On 5 May 2011 the respondent agreed to give me an extension of time in which to lodge a request for reconsideration.
52.… Each time I saw my general practitioner I complained in respect of my hands. Medical certificates support that I was attending upon my general practitioner with ongoing problems with my hands and was regularly seeking management treatment including medication. I was doing home exercises for my hands and continue to do so, as well as using items provided from a hand therapy clinic. I have never been advised that my condition has resolved. I was also getting treatment in the form of acupuncture on nearly every occasion that I saw Dr Yeo for other treatment. Dr Halliday has never told me that my hands are completely healed but has said he could not offer any more treatment.
53.Whilst employed I only managed at Rockingham Senior High School because there were breaks of 2 weeks approximately every 10 weeks while I was working at the school. However, as the weeks passed during the school term my symptoms increased, getting to a stage where I had difficulty continuing. Whilst employed at Rockingham Senior High School I requested an ergonomic assessment because I was not coping with my hands using the phones, typing and writing and my back was also painful. An ergonomic chair and chair mat was purchased by Allianz. I also received an ergonomic keyboard that could be split in half and an ergonomic mouse which helped me to keep my forearms and wrists straight. I also acquired a headset to plug into the phone system and a document holder sits below a computer monitor in front of the keyboard.
54.I requested an ergonomic assessment from Allianz which was not provided.
55.I enclose a list of treatments I have received paid for by Allianz and unpaid to 2^nd October 2012.
56.In relation to my hands, I have the following current symptoms:
·Numbness and tingling in the hands and pain in the elbows during the day and night, causing difficulty with sleeping and waking me from sleep.
·sharp pain shooting through my fingertips when typing;
·burning, aching and tightness in the fingers, hands and forearms;
·burning sensation at the fingertips;
·pain in the elbows;
·feeling of rapid electric shocks through the hands and going into the upper body to the neck, head and chest; and
·feeling of tight biceps in both arms.
57.These symptoms are aggravated by activity such as brushing my teeth with an electric toothbrush, typing, driving (causing me to lose my grip on the steering wheel sometimes), shampooing and blow drying my hair, shaving, showering, using toilet paper, dressing (in particular, putting on a bra), washing my hands in cold water (especially in cold weather), showering with very hot water, food preparation, cleaning my house, gardening, hanging washing out on the line and watering the garden. I use gardeners to assist me with gardening when I can afford it and now wash my car with a carwash.
58.I have also been getting deliveries of pre-made/frozen meals and my mother also cooks meals for me on a reasonably regular basis and assists with shopping.
59.I have been approached by my employer to change jobs to one that requires less time using a computer.
60.In addition, I cannot be intimate with another person whilst using my hands without pain in the hands, forearms and biceps and have pain in my lower back and coccyx during intercourse.
61.My cleaner also irons my clothes for me, as this causes pain.
62.In addition, public transport adds to my lower back pain.” (Exhibit A1)
The applicant also tendered in evidence a list of medical and related expenses purportedly incurred by her in respect of the lower back injury and the bilateral carpal tunnel injury up until 11 February 2013 (Exhibit A2).
The applicant gave oral evidence, including an extensive cross-examination, but it is unnecessary to refer in detail to that evidence in these reasons.
The Evidence of the Medical Witnesses
Dr Herbert Yeo
Dr Yeo is the applicant’s treating general practitioner. He said that he first saw her in relation to her work-related lower back injury in April 2005. He confirmed that he had prepared various reports, at the request of the respondent’s insurer, regarding the applicant’s lower back injury and her subsequent work-related carpal tunnel syndrome. He also confirmed that he had referred the applicant to Leonie Coxon, Clinical Psychologist, in November 2006 because she was “not coping” with her lower back pain and was “getting more stressed” and that he prescribed an anti-depressant, Lexapro, for her on 14 June 2007. He added that the applicant has continued to suffer from, and receive treatment for, depression and that that depression is related to her work-related lower back and carpal tunnel injuries. Dr Yeo also confirmed that he had referred the applicant to Mr Michael Halliday in January 2007, and to Mr Jeff Ecker in July 2011, in relation to her bilateral carpal tunnel syndrome.

Dr Yeo’s most recent report, dated 21 January 2013, is addressed to the applicant’s solicitors and states as follows:
“ I refer to your letter dated 12 November 2012.
I reviewed Ms Quirk this afternoon.
1Miss Quirk’s symptoms have not changed. She is still troubled by the numbness and tingling in her hands and forearms (right is worse than left) which also feel ‘thick’. She has a deep constant ache in her arms, burning sensations in both wrists and she has the sensation of her biceps feeling ‘tense’ most of the time. Her symptoms interfere with her sleep and are aggravated by physical activities. She is unable to do the usual housework and has home help.
She still has her lower back pains (occasionally the pain would radiate down to her left 2^nd toe) from time to time especially after activities like sweeping the floor, cooking etc. She is still troubled by intermittent coccygeal pains and has occasional muscle spasms in her left buttock.
She is still depressed.
2She is just coping at work as her arms trouble her when she is too long operating the computer.
3She requires ongoing treatment/rehabilitation and for the nature, frequency and cost will depend on the respective consultants managing her problem: Pain management by Dr Philip Finch and Dr W K Leong, Back Injury by Barrie Slinger, Carpal tunnel syndrome by Mr Michael Halliday and Depression by Dr Raymond Wu.
4In view of the duration and the progression of her continuing symptoms, it is most unlikely that she will improve and will be left with some permanent disabilities arising from the injuries she sustained in the accident.
5I concur with Dr John Hayes opinions regarding Miss Quirks injuries and his prognosis of her incapacity/disability. My opinion as expressed above has not changed.” (Exhibit A9)
Mr Barrie Slinger
Mr Slinger, Orthopaedic Surgeon, confirmed that he had prepared four reports regarding the applicant and that their contents are true and correct.
Mr Slinger’s first report, dated 25 July 2006, is addressed to the respondent’s insurer and states as follows:
“I reviewed this lady on the 12 July 2006 at which time I was in receipt of your letter requesting an assessment and report in respect to injuries sustained in an accident at work on the 11 February 2004.
HISTORY:
The history I obtained was that whilst descending steps into an engine room, she slipped down a number of steps, landing on her bottom and tail-bone, following which she was aware of pain in her tail-bone and buttocks, after a few minutes she was able to continue her rounds, reported the incident, continued working for two days and then flew home, by which time the pain was severe.
PROGRESS:
Thereafter, she was concerned as to health for [sic] her brother, to whom she was providing emotional support, attended for medical advice, and radiological investigations were undertaken, which were said to show a fracture of the coccyx.
Treatment included physiotherapy, which was commenced some two months following the incident, attending for some six to eight weeks for hands on massage and mobilisation.
Further treatment was with an exercise programme with occupational fitness, commencing in March 2005, being provided with an exercise programme to continue in a gymnasium setting with pool exercises and swimming, three to six sessions a week, and the use of a treadmill at home. Those exercises were discontinued following aggravation of symptoms, relating to the left lower limb, which occurred some ten weeks ago. Those symptoms have improved after the past two weeks.
In December 2005 she commenced a Pilates exercise programme, attending for some six sessions, then was provided with a further 12 sessions, and more recently has commenced a further 24 sessions, attending twice a week, of which she has completed five.
In addition, treatment has been with massage, attending once a week with Ms Gay Riches, acupuncture performed by her family doctor, Dr Yeo, insoles provided by a podiatrist and continued medication with Tramal, Brufen and Mersyndol Forte. Psychological counselling was provided by Ms Adriana Farcut, whose report indicates that this provided better coping mechanisms and bilateral sacroiliac injections were performed by Dr Geoffrey Gee in October 2005, which were not associated with any significant lasting improvement.
PRESENT:
Pain persists in the low back, radiates principally to the left, occasionally to the right, with pain at times like electric shocks or spasms in the left buttock.
In the past eight weeks she has experienced pain in the left lower limb, radiating to the foot, associating with tingling and numbness in that foot, those symptoms, however, have now resolved, continuing with pain in the low back and buttock.
Tenderness is noted in the low back, commonly radiates to the area of the left low back in the morning when moving out of bed, at times when moving out of bed it is like an electric band across the back.
Pain is aggravated by bending, which is restricted, when standing she prefers to lean or obtain support, sitting tolerance is one hour, although that depends principally on the type of chair, lifting is painful and when walking, favours the right lower limb, which she feels is the reason she is now experiencing pain about the right foot.
In addition, she has noted some hesitancy with micturition.
EMPLOYMENT:
I confirmed that at the time of the accident she was working as an integrated rating with a swing of five weeks on and five weeks off.
Following the abovementioned incident she was away from work for some three and a half months, returned to work for a further three and a half months with normal duties, although as during this time the ship was commonly at anchor, physical activities she was usually required to undertake, were limited during that period.
During her last swing, she was involved in an incident at work, whilst pulling on a rope or hawser, being pulled violently forwards, with pain in the low back of a minor nature, however, towards the end of that swing, she had more severe pain, whilst moving out of bed. Following that further acute episode, she was flown home, was away from work for one month and then resumed a rehabilitation programme with a graduated return to work with light duties, predominantly land based, commencing two days a week, increasing those hours.
Those duties have continued over the past 12 months, at present she has achieved six to seven hours a day, five days a week, which included, initially, office duties and now includes moving on to boats moored at Garden Island, coiling ropes and some cleaning.
I confirmed that her initial employment was as a deck hand/cook, subsequently a six month course of study to achieve Certificate II in Navigation & Fitting, which enabled her to obtain employment as an integrated rating, in which she has been employed for the past four and a half year [sic].
In addition, she has continued studies and completed a Master Class in Marine Operations, an Engineering Ticket Marine engine driving, and has also completed other programmes and courses, including Tower Exercise course, Health and Safety at sea, Fire fighting and Sea Survival.
I also confirmed she has been away from work for the past eight weeks, because of symptoms in the left lower limb, which have now resolved, that she has attended with Star Injury Management for vocational training over two sessions, and it is proposed that she commence a work hardening programme, with what I assume to be a work trial.
ACTIVITIES:
At present she is living at home, does not involve herself with scrubbing floors, avoids lifting anything heavy in the kitchen, performs a little vacuuming and avoids carrying the heavy washing basket, moving the wheelie bin or gardening.
Previously she was planning to commence Karate classes, to walk the Bibbulmun Track, commenced learning golf, to none of which she has returned, nor has she been able to return to her interest in walking. The other interests she had prior to her injury included scuba diving, mountain biking, riding a motorcycle, camping and swimming on the beach, have all been ceased.
EXAMINATION:
To examination she was a pleasant lady with fair generalised muscle tone, who moved with discomfort on and off the couch.
In the lumbar spine there was slight tenderness in the lower segments, movements were performed slowly, with forward bending fingers reaching to the knees, lateral flexion extension limited to half the expected range with discomfort at those extremes, whilst rotation was unremarkable.
Straight leg raising was not limited, deep tendon reflexes were present and symmetrical and there was no sensory impairment or weakness in either lower limb.
RADIOLOGY:
CT [sic] Pelvis & CT Pelvis (March 2004): Showed appearances consistent with an undisplaced coccygeal fracture.
Lumbar Spine CT (April 2004): Showed no abnormality, other than a minor left posterolateral disc bulge at L3/4 and the coccyx, appearances consistent with a small coccygeal cleft, representing a marginal fracture.
Lumbar Spine MRI (February 2005): Confirmed a minor disc bulge at L4/5 with minor inferior endplate deformity with reactive bone change and oedema, consistent with minor fracture with bone bruising.
Sacrum and Coccyx (March 2005): No abnormality.
Lumbar Spine CT (April 2006): Confirmed a based shallow disc bulge at L3/4, broad based disc bulge at L4/5 more pronounced on the left and at L5/S1 mild bilateral facet joint narrowing.
Bone Scan (September 2005): Showed a mild arthropathy involving the sacroiliac joints, a mild osteitis pubis and no obvious abnormality at L4 or in the coccyx.
TO ANSWER YOUR QUESTIONS:
1.        History of injury as stated by the claimant.
The history of injury as stated is detailed.
2.        Please list all injuries the claimant currently suffers from?
The injuries sustained are those of a soft tissue nature to the lumbar spine, possibly associated with a minor fracture of the 4^th lumbar vertebrae and the coccyx, all of which fractures are now healed.
3.        Do you believe the appropriate investigations have been undertaken?
I confirm the appropriate investigations have been undertaken.
4.        Your findings on examination, including diagnosis.
The findings to examination are detailed and I have listed in the preceding the diagnosis.
5.        Did you find any inconsistencies on examination?
There were no inconsistencies on examination.
6.        Do you believe the injuries are consistent with the stated cause?
The injuries are consistent with the state [sic] cause.
7.Comments with regard to whether you consider any of the injuries are an aggravation of a pre-existing problem.
I am not aware of any pre-existing condition contributing to her present symptomatology.
8.        Do you believe treatment is required as a result of the work injury?
Treatment recommendations are to reassurance, as to the soft tissue component of her injuries which are responsible for her present situation, to sensibly avoid provocation, with general back care and education, emphasising there is no reason to suppose any one activity will produce any damage as such or adversely affect her long term future and the continuation of that activity should be governed by her perception of pain, if any, so produced.
In particular, a regular stretching and strengthening programme, which she could undertake under her own direction, including Pilates, preferably with a gymnasium programme, and local measures such as heat, massage and mobilisation along with medication, are best reserved for times of symptomatic exacerbation and need not be maintained on a regular basis, as those measures are unlikely to change or affect her long-term prognosis.
9.        Comments with regard to capacity for work.
I confirm that she is fit to return to work of a light nature with a lifting tolerance of some 10-15 kilograms, avoiding any repetitive bending or moving into confined spaces.
10.Do you believe she will eventually be able to return to her pre-injury duties?
I consider it most unlikely this lady will return to her pre-accident employment.
It is now over two years since her injury and she has failed to show any significant improvement, despite quite adequate treatment, advice and counselling.
…” (T21)
Mr Slinger’s second report, dated 14 August 2007, is addressed to the respondent’s insurer and states as follows:
“ I reviewed the above on the 13 August 2007, at which time I was in receipt of your letter requesting an assessment and report in respect to what I understood to be injuries sustained in an accident at work on the 11 February 2004, for which I have reviewed her previously on the 12 July 2006, at which time I prepared a report addressed to Ms Jennifer Still of Allianz Australia Limited, dated 25 July 2006.
HISTORY:
Since last review symptoms have continued, although she is of the opinion that she is more flexible than previous.
PRESENT:
Pain persists in the low back, radiates to either side, including the buttocks, principally to the left, occasionally to the right. Those spasms, however, are less severe than previous and described as ‘mild’ or ‘light’, occurring particularly when she is sitting.
In addition, she experiences pain in the low back, radiating to either side as a spasm when moving out of bed in the morning, commonly occurring if she has been particularly active the previous day.
Lifting is an aggravation, which she avoids, and in her present employment she has a lifting tolerance of two kilograms. Standing tolerance is said to be one hour, although variable, when she then has to sit, as for instance, when shopping accompanying her mother and pushing a trolley, she has to rest before she can continue, albeit with discomfort, and when negotiating up stairs, she experiences ‘crunching’ in the low back.
Sitting tolerance, similarly, is said to be one hour, sometimes more, sometimes less, as when sitting in the cinema, she will have to move and change position, needing to stand on at least two occasions, although she is able to drive some 30 kilometres to her place of employment, at times having to stop to move and stretch during that journey. The most comfortable chair she has is the one at work.
In the past few weeks she has experienced numbness with pins and needles about the left foot, possibly relating to her position when sitting in a chair, cramping discomfort about the calves and feet, together with discomfort in the proximal thighs, including the buttocks.
Sitting is painful both in the low back, as well as in the area of the coccyx, for which she has been provided with a cut-out cushion, whilst stiffness in the low back, as a whole, is notably worse in the early mornings.
In addition, she continues with constipation, hesitation with micturition and does have to wear an incontinence pad for urinary staining or leakage.
On reading my previous report, she stated that she was somewhat overcome by the fact that, in my opinion, she was unlikely to return to seagoing duties, since which time she has had difficulty in reconciling herself to the fact that she will have to change her career direction.
This proposed change in employment has made her mentally stressed and she has been referred to clinical psychologist, Ms Leonie Coxon, for pain management and counselling, attending every three weeks.
TREATMENT:
Since last review she has continued with massage from a masseuse, attending once a week directed to the lower back and lower limbs, performing hydrotherapy under her own direction, having been provided with a programme of stretches and exercises in the pool, and limiting her swimming to some two laps.
Walking for exercise is performed twice a week for some 15 – 30 minutes.
Present medication includes Prexige, which has recently been ceased, Lexapro, Mersyndol and Tramal.
ACTIVITIES:
At home she is living with her mother, who was recently away for some two months, during which period of time, because of the increase in domestic activities, her pain increased.
In respect to activities she performs, she does use the broom, does some wiping down of surfaces, a little vacuuming, puts the clothes into the washing machine, uses a clothes dryer and avoids any heavy lifting, particularly the gardening, moving the wheelie bin or carrying out the washing basket.
Prior to the injury of 2004, she was active with canoeing, kayaking, hot air ballooning, scuba diving, mountain bike riding, motorcycle riding, camping and swimming at the beach, to non [sic] of which has she returned.
EMPLOYMENT:
Since last review, it was considered inappropriate that she should continue in her work with Total Marine/Total Harbour, as detailed in my last report.
Subsequently she was referred to Star Injury Management, with Mr John Alessandrini, having concluded, I understand, vocational assessment, although I have not received any reports, and she has received work placement at Noragevup [sic] Rockingham Regional Environmental Centre, as from September.
That Centre I understand is for educational purposes to the general public, her duties are reception, which she shares with another worker, essentially with customer service, and she also does some light duties with feeding the turtles, measuring the turtles and cutting and preparing food to feed to other fish, rarely using a computer.
Present hours of work are three hours a day, three days a week, previously 19 hours of work reduced some six weeks ago, because of symptoms about the hands.
INTERCURRENT PROBLEMS:
Towards the end of this consultation, I was made aware by Ms Quirk, that she has made a worker’s compensation claim in respect to symptoms about the hands. I am not in receipt of the report from her treating orthopaedic surgeon, nor the EMG Nerve Conduction Studies, which I understand were said to show bilateral carpal tunnel, for which surgery was proposed, yet to be arranged, as Ms Quirk stated she has no time for that procedure, because she has no available holidays and is not eligible for sick leave.
EXAMINATION:
To examination she was a pleasant, cheerful individual, presenting in an appropriate fashion, somewhat overweight, stating that since September she has increased her weight from 85 kilograms to 105 kilograms.
In the lumbar spine there was diffuse tenderness in the mid line and to either side, extending to the area of the sacrum and said to be to the area of the coccyx. Movements were restricted with discomfort at all extremes, forward bending fingers reaching the knees, extension lateral flexion to half the expected range, whilst rotation lacked a few degrees.
Straight leg raising was limited to 70° because of pain in the low back, slump test was negative, deep tendon reflexes were present and symmetrical, there was no sensory impairment or weakness in either lower limb and gait was normal.
TO ANSWER YOUR QUESTIONS:
1.      History of injury as stated by the claimant.
The history of injury is detailed in my previous report, described as an accident at work on the 11 February 2004, when, whilst descending steps into an engine room she slipped down a number of steps, landing on her bottom and tailbone.
2.      Please list all injuries the claimant currently suffers from?
The injury sustained in that incident was that of a soft tissue nature to the lumbar spine.
I understand she has made a worker’s compensation claim for symptoms about the hands, in respect to which I have received a single report, that of Dr Yeo.
In the event that she requires assessment as to this claim, then I would be pleased to review her for further assessment, and I would appreciate copies of all relevant reports and information, including the reports from Mr Halliday, as well as the EMG Nerve Conduction Studies.
3.      Do you believe the appropriate investigations have been undertaken?
Appropriate investigations have been undertaken.
4.      Your findings of examination, including diagnosis.
The findings to examination are detailed and the diagnosis is that of a soft tissue injury to the lumbar spine.
5.      Did you find any inconsistencies on examination?
There were no inconsistencies to examination.
6.      Do you believe the injuries are consistent with the state [sic] cause?
I have no reason to doubt that the injuries are consistent with the stated cause, although I have to state that the lack of progress with most adequate treatment is most unusual, and I cannot satisfactorily explain the severity of the symptomatology and the restrictions this places upon her activities, with such a relatively simple direct injury to the lumbar spine.
7.Comments with regard to whether you consider any of the injuries are an aggravation of a pre-existing condition.
I am not aware of any pre-existing condition, which is contributing to her present symptoms.
8.Do you believe treatment is required as a result of the work injury?
Treatment recommendations really should be to general principles of self care, in respect to the understanding that whilst the initiation of symptoms was occasioned by the injury of 2004, the severity of her symptomatology is a reflection of either undue physical activity placed upon the lumbar spine, or alternatively, inadequate supports.
The corollary of that concept is to sensibly avoid provocation, emphasising there is no reason to suppose any one activity will produce any damage as such, or adversely affect her long-term future and the ability to continue that activity should be governed by her perception of the pain, if any, so produced.
In particular, to continue with a regular stretching and strengthening programme, to weight reduction with local measures such as heat, massage and mobilisation reserved for times of symptomatic exacerbation.
Surgery, in respect to the lumbar spine, has no part to play in her management.
9.Comments with regard to capacity for work? Do you feel she has the capacity for light duties and if so, what restrictions should be imposed?
This lady is fit to work of a light nature, avoiding heavy lifting, repetitive bending, ideally in a position where she would be able to sit or stand at discretion, with a lifting tolerance of some five to ten kilograms, which would include, general office duties, receptionist, customer service, retail sales or similar.
10.Do you believe she will eventually be able to return to her pre-injury duties?
I consider that she is permanently unfit to return to her pre-injury duties.
11.Were you able to identify any psycho-social factors which may be impacting on return to work and recovery?
There is an element of depressive symptomatology, or as she described it ‘mental stress’, in her presentation, which is not surprising considering her failure to return to her chosen career, for which she is attending with Ms Leonie Coxon, and I would defer to her family doctor, Dr Herbert Yeo, as to whether a psychiatric assessment was requisite.
…” (T 35)

Mr Slinger’s third report, dated 23 November 2011 is addressed to the applicant’s solicitors and states as follows:
“ Thank you for referring Ms Quirk, whom I reviewed on the 27^th September 2011, at which time I was in receipt of your letter requesting a further assessment and report in respect to injuries which were said to have occurred at work in 2004.
I have reviewed this lady previously and provided reports addressed to Allianz Australia Limited dated 25^th July 2006 and 14^th August 2007, of which I assume you have a copy.
At the time of this review I was in receipt of copies of reports, which I have read, from colleagues including, Mr Michael Halliday, Dr John Suthers, Dr Joel Silbert, Mr Jeff Ecker, Dr Michael Bowles, Dr Herbert Yeo, Ms Leonie Coxon, Mr Ian Dowley (hand therapist), Mr Glenn Pesich (physiotherapist) and Star Injury Management.
PROGRESS:
Since last review pain has persisted in the low back, sacrum and coccyx.
Pain in the low back, coccyx and sacrum occur when sitting, also when lying in bed, she has difficulty standing from sitting and on occasions when standing she has difficulty standing in a straight position. Sleep is commonly interrupted, usually twice a night, at times she can return to sleep and she also has difficulty initiating sleep.
Pain on a score when 0 is zero pain and 10 is the most severe pain imaginable, her score is 5 – 10, instancing that on travelling to this consultation by train, she reached a score of 7–8.
When bending, as with dressing, she prefers to sit, walking tolerance is a few hours, which she did for a diabetes walk, but had to sit for frequent periods, and she was unable to detail how long she was able to stand and walk when shopping.
Lifting tolerance is said to be 3kgs, even lifting her mother’s cat is an aggravation, and holding objects close to the body does not improve matters.
Pain is sharp and heavy in the low back and sacrum, stabbing, electric in nature, with spasms which affect the left more than the right. Pain on occasions radiates along the posterior aspect of the thighs to the knees, particularly when standing or sitting for long periods. Hanging out the washing is a further aggravation, pressure from a chair also produces pain and she commonly has to sit forward in a chair to relieve pressure, both in the low back and coccyx.
Sitting tolerance is variable, sometimes pain will occur within 15-30 minutes, usually she can tolerate 45 minutes, but has to fidget and change position. Lifting a small travel case at work containing a projector, which she does regularly, recently produced severe spasms of pain, which lasted for weeks, then she had difficulty standing straight.
Negotiating steps is painful, pain occurs when turning over in bed, driving long distances from Rockingham to Mt Lawley is an aggravation, with difficulty negotiating speed bumps, she has difficulty standing after sitting for long periods, at times there is tenderness in the low back and sacrum, and she experiences muscle tightness in the back. On occasions she cannot stand straight and the spine is flexed to the front and to the side.
Chair comfort is variable, finding that if she has to arch back in a chair that is an aggravation, even sitting on a cushioned chair is a problem, and travelling by public transport on a bus or train is commonly associated with what she described as ‘shocking pain’.
Pain also occurs at defecation and sexual intimacy has been avoided. Pain also occurs about the feet if standing for long periods.
TREATMENT:
Since last review her treatment has been confined to two courses of Pilates exercises, supervised by her physiotherapist, Mr Glenn Pesich, she has also attended with Ms Leonie Coxon in 2007 for cognitive behavioural and pain management programme, which she completed in 2007, and has also attended, on one occasion in 2011, indicating that she wishes to continue, in particular, with respect to pain management strategies.
Medication is confined to Mersyndol, which she does not require every day, together with Gabapentin, previously Lyrica, and Cymbalta, previously Lexapro.
CARPAL TUNNEL SYNDROME:
Symptoms about the wrists and hands commenced in 2004, which she relates to the nature of her work at that time, which involved painting, chipping, grinding and the use of a needle gun. Those symptoms have progressed, such that she was referred to Mr Michael Halliday, EMG Nerve Conduction Studies were performed and bilateral carpal tunnel syndrome was diagnosed.
Surgery was performed with decompression at the left wrist on the 22^nd January 2008, and at the right wrist on the 29^th April 2008, following which she attended Mr Dowley for a prolonged programme of hand therapy.
In view of continuing symptoms she was reviewed by Mr Jeff Ecker, who undertook electrophysiological studies, which were normal, flexion and extension x-rays of the cervical spine and MRI scan revealed no evidence of pathology, whilst bilateral median nerve ultrasounds confirmed post surgical changes in both carpal tunnels, but no cause for median nerve symptoms.
PRESENT:
At present she has tingling and numbness across the palms and wrists of both hands, burning discomfort along the area of the thumb, and that burning extends along the ulnar border of the finger, palm of the hand and proximally along the forearm. These symptoms are more pronounced on the right than the left, and on occasions she has a thick full feeling in the forearms, again more prominent on the right. Burning pain on the ulnar border of the forearm extends proximally, again more so on the right, and at the biceps tendon she has a tight feeling as if the tendon is permanently flexed.
In general, the hands feel tired or lethargic, pain is frequent and constant through the hands and wrists, with tingling in the fingers, and even clothes touching the forearms produces burning discomfort.
I understand that she has been referred to a neurological colleague, Dr Leong, who has undertaken further investigations.
ACTIVITIES:
At home she is living by herself, generally she buys convenience meals, manages her laundry, but uses a dryer, and does very little of the way of housework, which is left. Vacuuming and sweeping is undertaken in small amounts and she employs or has others to do the gardening.
Attending the cinema is difficult, because of pain, and she cannot resume her previous interests with cycling, camping or travelling, as in carrying a suitcase.
SOCIAL:
I confirmed she does not smoke and drinks occasional alcohol.
EMPLOYMENT:
At the time of last review she had commenced employment at Naragebup Environmental Centre, arranged through her rehabilitation provider, Star Injury Management, undertaking reception, customer service and feeding turtles. The hours were varied, but she did attain a maximum of five days a week, five to six hours a day, although she stated that her duties were not terribly busy or onerous.
In 2008 she did not attend any employment, because of intercurrent problems with surgery about the wrists, and in 2009 she obtained a position with Rockingham Senior High School as a school officer, 27 hours a week and then a term full-time, then reduced to part-time as no further work was available, continuing essentially with three days a week.
Thereafter, she applied for a number of different positions and finally obtained a position in November 2010 with the Mandurah Council as a secretary/personal assistant, where she has to do minimal typing, simply relating to emails, and no data entry, despite which she feels that symptoms about the hands are increasing, and she continues with her symptomatology in the lumbosacrococcygeal spine.
EXAMINATION:
Ms Quirk weighed 118kgs and was 169cms tall.
To examination she was a cheerful lady, who described her symptoms with the assistance of her own written notes.
At the hands the well healed surgical scars were noted, with no adverse feature, there was weakness of the intrinsic muscles of the hand, grade IV, grip strength was not significantly reduced and was symmetrical. There was no sensory impairment, Tinel’s sign was positive at both wrists and palmar flexion reproduced tingling in the fingers.
In the thoracolumbar spine there was diffuse tenderness throughout the lumbar spine, extending into the sacrum and to either side of the mid line, with movements, forward bending fingers reaching to the knees, extension to a quarter, the remainder of movements to half the expected range, with pain at all extremes.
Straight leg raising produced pain in the buttock, with negative sciatic stretch test, deep tendon reflexes were present and symmetrical, and there was no weakness in either lower limb. Standing on heels and toes was accomplished without a problem and axial compression was negative.
RADIOLOGY:
No further radiology had been undertaken of the lumbar spine and the EMG Nerve Conduction Studies are detailed in the preceding, as recorded in the reports from colleagues.
TO ANSWER YOUR QUESTIONS:
1.        The history obtained.
The history I obtained is detailed.
2.        The dates of consultations/treatment.
The date of consultation was the 27^th September 2011 and the treatment received since last review is described.
3.        Your findings on examination and diagnosis.
The findings to examination are described and the diagnosis is that of soft tissue injury to the lumbar spine, as well as bilateral carpal tunnel syndrome.
4.        Her current complaints/symptoms.
The current complaints and symptoms are described.
5.The treatment administered, if any.
The treatment received to date is described.
6.What restrictions, if any, you would place on the type of work our client is capable of performing and the number of hours she is capable of working.
Your client is working at present in the capacity of a secretary/personal assistant, which she is continuing full-time, and that position I feel she is capable of continuing.
Your client is not fit to return to her pre-accident employment as an integrated rating, her work now in the future should be sedentary, with clerical, administrative, customer service, receptionist, general office duties or similar.
7.Whether in your opinion any incapacity for work can be attributed to the injuries sustained by our client in the accident.
The restrictions placed upon your client’s type of employment have occurred as a direct result of the injury to her lumbar spine, to a lesser extent to the bilateral carpal tunnel syndrome.
8.        The likely duration of any period of incapacity for work.
Those recommended restrictions are permanent.
…
10.Whether our client is likely to require any medical treatment in the future.
(a)     The nature of the treatment
(b)     The likely frequency and duration of the treatment; and
(c)   The present day cost of the treatment.
In respect to treatment, your client should continue with general principles of care, in terms of sensibly avoiding provocation, sensibly that is, avoiding those activities which she knows by her own experience are likely to aggravate or initiate symptoms.
In addition, to a regular stretching and strengthening programme, either with Pilates, home exercises or gymnasium attendance, commencing with a supervised set of exercises, then continuing under her own direction.
Medication as determined by Dr Herbert Yeo, whose advice would be particularly helpful in determining whether she needs any further referral for psychological counselling or pain management.
11.Is there currently a requirement for any care or domestic assistance and if so at which level.
Your client is managing her domestic responsibilities at present, without assistance, with the exception of what I understand to be heavy gardening, and it would be reasonable to consider domestic assistance, one to two hours a week, to undertake the heavier tasks such as cleaning the bathrooms, shower and toilet.
12In the future as a result of the injuries will there be a requirement for care or domestic assistance and if so at what level.
It is likely that requirement will continue in the future.
13.As a result of the injuries sustained what likely equipment/aids will be required now and/or in the future.
No aids or equipment are required.
14.Is physiotherapy warranted in the treatment of injuries sustained and if so what are the specific benefits to be obtained from that mode of therapy in the context of this case.
Physiotherapy is best reserved for times of symptomatic exacerbation.
15.Our client also has a worker’s compensation claim for carpal tunnel   syndrome and since her last examination by you, she underwent surgery.
Our client still experiences pain. In view of this, would you please advise us if it is possible for a person
(a)To have successful carpal tunnel release surgeries (normal post surgery nerve condition studies) and still experience symptoms after the operations to release the median nerve on both hands.
(b)Who has been working in a manual job having worked on vibrating and other industry related tools/equipment on a daily basis for up to 5 weeks at a time over numerous years to still experience ‘real’ symptoms after the performed surgeries?
(c)To return to the job mentioned in (b) above who experiences symptoms and pain after using a hairdryer/electric toothbrush?
(d)Are the symptoms our client is experiencing be due to her original diagnosis of work related/Seafarer IR) Bi-Lateral Carpal Tunnel Syndrome or any other cause? [sic]
(e)To exacerbate the symptoms referred to above by her current work as a Secretary/PA (using a computer and mouse all day)?
(a)   It is possible to have continuing symptoms after successful carpal tunnel release, but unusual of such severity and incapacity, as in this instance.
(b)   I would answer, as in the preceding, it is unusual to have persistent symptoms of such severity, having had successful carpal tunnel syndrome release, despite the employment you described. In this instance, there is no evidence of persistent neurological dysfunction.
(c)   It is unusual to obtain symptoms after using a hairdryer/electric toothbrush after successful carpal tunnel syndrome release.
(d)   I believe her present symptoms do not relate to bilateral carpal tunnel syndrome, I am uncertain as to the cause, however, the investigations that Dr Leon [sic] has undertaken may well help.
(e)   The use of a computer mouse all day, may well aggravate symptoms about the hands and wrists, but as I have stated, I do not believe this lady has any features at the present time of carpal tunnel syndrome, and indeed, it was my understanding that she has to do very little in the way of the use of a computer, she is not involved with data entry, but simply typing as with emails.
16.      In addition please advise:
(a)     Any work/tasks our client should avoid or be limited in doing?
(b)     The weight limit our client is able to carry?
(c)     What should she do when her symptoms are severe?
(d)Any medication you would approve our client to take to help relieve her (post surgery) current symptoms.
I believe your client would be best advised to avoid any heavy lifting beyond 10kgs, to avoid power tools or other equipment of a vibrating nature, and ideally working in a position which would allow her to sit or stand at discretion. In addition, to avoid repetitively negotiating steps or stairs and to continue as she is doing, when symptoms are severe, with rest away from activity, heat, stretching and medication.
17.The prognosis and whether our client remains vulnerable to aggravation, exacerbation or relapse of her condition and the likelihood of any permanent disability arising due to the injuries sustained in the accident.
I believe your client’s condition is unlikely to change in respect to the lumbar spine and to continue as it is at present, and I have detailed in the preceding, what I consider to be the permanent disability.
…” (T95)
Mr Slinger’s most recent report, dated 8 January 2013, is addressed to the applicant’s solicitors and states as follows:
“ Thank you for referring this lady, whom I reviewed on the 2^nd January 2013, at which time I was in receipt of your letter requesting a brief report, in respect to the accidents at work of the 11^th February 2004 and on the 30^th November 2004.
…
At the time of this review I was in receipt of copies of reports, which I have read, from colleagues, Dr Philip Finch, Dr John Suthers, Dr Wai K Leong and Dr John Hayes.
PROGRESS:
Since last review symptoms in the hand have increased, which she relates to the fact that she has a new manager, or supervisor, that her workload has increased, primarily as a result of the increased amount or volume of typing, including data entry, in which she has been required to undertake. These symptoms have increased, despite the fact she now has the facility of a left hand mouse.
Tingling and numbness persist across the palms and wrist of both hands, with burning discomfort along the area of the thumb, and that burning sensation extends along the ulnar border of the fingers, palm of the hand and proximally along the forearm.
In addition, she experiences a different sensation about the tips of the fingers, and at times the forearms feel swollen, tight and full, including the fingers, the fingers of the right hand more so than the left, as if they are ‘sausages’.
Burning discomfort occurs about the medial aspect of the elbows, the right more so than the left, the hands feel tired and fatigued at times, and even clothes touching the forearm or hands produce discomfort or paraesthesia.
Pain in the low back continues, similar to previous, she experiences burning discomfort on the right more so than the left, varying on a scale of 0 which is zero pain and 10 which is maximum pain, her score is commonly 6 to 7 most days.
Pain is particularly severe in the area of the coccyx, sharp, heavy, stabbing and electric in nature, with spasms, which occur on the left more so than the right, and pain radiates to the posterior aspect of the thighs to the knees, when standing or sitting for a long period. Sitting tolerance is said to be 45 minutes, when she has to fidget and change position, and pressure from a chair produces pain if she has to sit leaning backwards, extending or arching the back, preferring to sit forwards in a chair to relieve pressure, both in the low back and the coccyx.
Numbness and tingling occur about the second toe on the left, hanging out the washing is an aggravation, as is lifting, which may produce spasms, and negotiating steps is also difficult. Pain also occurs when turning over in bed, driving long distances, as from her place of residence in Rockingham to her mother’s residence in Mount Lawley, or to central Perth, and in so doing she has difficulty negotiating speed bumps.
Bending is an aggravation, preferring to sit to dress, and travelling by public transport on a bus or train is associated with discomfort, as is sitting on a cushioned chair. Pain on defecation is less than previous, sexual intimacy has been avoided, having difficulty finding suitable positions, and pain also occurs about the feet if standing for long periods, in relation to the leg and toes. Walking tolerance is said to be 45 minutes and sleep is interrupted, but has been assisted by the use of Valdoxane.
ACTIVITIES:
At home she is living by herself, she has domestic assistance four hours a week to undertake the heavier domestic tasks of floors, bathroom and toilet, including the ironing and gardening, she is able to tidy about the house, drive her car and when doing so, prefers to ‘use her legs’.
In general, she buys convenience or pre-prepared meals, undertakes the laundry using a dryer, undertakes very little in the way of vacuuming or cleaning and employs a gardener, as even gripping a hose in the garden produces shaking of the hands.
Attending the cinema is difficult because of the pain so produced, and she has not resumed her previous interests with cycling, camping or travelling, because of difficulty carrying her suitcase.
SOCIAL:
I confirmed she does not smoke and drinks occasional alcohol.
TREATMENT:
Ms Quirk has been attending psychiatric colleague, Mr Raymond Wu, on three or four occasions, whose recommendation was to restart the Lyrica and commence Dexamphetamine, her intention being to attend for further reviews.
Present medication includes Gabapentin, 800mgs tds, Lyrica 75mgs bd, Cymbalta 60mgs daily, Valdoxene 25mgs nocte, Mersyndol or Mersyndol 0 – 8 tablets a day, Dexamphetamine 6 x 5mg tablets day.
EMPLOYMENT:
Since last review she has continued as a secretary/personal assistant, employed at the Mandurah Council and, as mentioned in the preceding, she has found that her increased workload in respect to typing and data entry, has increased her symptoms, particularly about the hands.
EXAMINATION:
To examination she was a pleasant lady who provided a clear history, being 169cms tall and weighing 114kgs.
In the cervical spine there was no tenderness and movements were entirely full and painless.
At the shoulders there was no wasting, no tenderness and movements were full and painless.
At the elbows tenderness was present on the medial aspect, even when placed against the side of the trunk, however, movement was entirely full and painless.
In the remainder of the upper limbs, grip strength was diminished bilateral, power 4, there was no sensory impairment, and deep tendon reflexes were diminished, but symmetrical. Tenderness at the wrist was present to palpation, the right more so than the left, with positive carpal tunnel provocation, but a negative Tinel sign.
In the thoracolumbar spine there was diffuse tenderness, which did not include the coccyx, no asymmetry and no muscle spasm, with movements, forward bending fingers reaching to the knees, extension a quarter, lateral flexion a half and rotation to two thirds of the expected range, with discomfort at those extremes.
Straight leg raising was not limited, deep tendon reflexes were present and symmetrical and there was no sensory impairment or weakness in either lower limb and gait was normal.
RADIOLOGY:
MRI Left Forearm (February 2012): No abnormality.
MRI Right Forearm (February 2012): Showed some minor cystic change involving the capitate bone.
MRI Lumbar Spine (February 2012): Confirms disc degeneration and desiccation at L4/5 with vertebral endplate irregularity of the adjacent L4 endplate with sub endplate oedema. There was no evidence of nerve root compression, there was, however, mild to moderate facet joint degeneration at L4/5 and mild L5/S1 facet arthropathy.
TO ANSWER YOUR QUESTIONS:
1.Our client’s current symptoms and whether there has been any change (Improvement/deterioration) since you last examined her.
Your client’s current symptoms are detailed and her condition is similar to previous, with the exception of symptoms in the upper limbs, and in particular, the hands, which have increased as a result of increased workload.
2.Her current capacity for work.
At present she is continuing in full time employment, as I have described.
3.Whether she requires ongoing treatment/rehabilitation and if so, the nature, frequency and cost of same.
At present she has been attending with psychiatric colleague, Dr Raymond Wu, whom she intends to visit again in the future, she continues with her general practitioner, Dr Herbert Yeo, and has review with Dr Finch later this month, with consideration as to the implantation of a dorsal column stimulator.
In addition, she intends to attend for further review with Mr Michael Halliday, in respect to symptoms in the upper limb, but has not attended for any therapy as such, but does return for massage.
In addition, she continues with her present medication, and I believe she would benefit, both physically and mentally, from an exercise programme to regular stretching and strengthening in a gymnasium with a heated pool, continuing with exercises at home, and/or, Pilates.
4.The prognosis and whether our client remains vulnerable to aggravation, exacerbation or relapse of her condition and the likelihood of any permanent disability arising due to the injuries sustained in the accident.
The prognosis of your client’s condition is that her present symptoms have been present since 2004 and are likely to continue, I cannot explain the continuing symptomatology in the upper limbs, that is, I do not have a firm diagnosis, and it is most unusual for such symptoms to continue with what has been adequate carpal tunnel decompression, although in view of those continuing symptoms, I would recommend EMG Nerve Conduction Studies would be an investigation to exclude any neurological condition.
It appears your client has had increased symptoms in the upper limbs, because of her increased workload, but I would not have thought her condition would affect her ability to continue in that full time employment with that increased workload.
In the lumbosacrococcygeal spine symptoms have continued and I consider those are permanent and providing her with the restriction upon her activities as described.
…” (Exhibit A19)
20.It is unnecessary to refer in detail to Mr Slinger’s oral evidence in these reasons.
Mr Michael Halliday

Mr Halliday confirmed that he is an orthopaedic surgeon and that his specialty is upper limb surgery. He said that he has seen the applicant on numerous occasions since February 2007 in relation to her bilateral carpal tunnel syndrome and has prepared numerous reports on her progress. He confirmed that the contents of all of those reports are true and correct.
Mr Halliday’s report of 26 September 2011 to the applicant’s solicitors, which summarises his reviews and treatment of the applicant in the period from February 2007 to April 2011, is as follows:
“ Thank you for your letter dated the 6 September 2011 regarding the above patient.
The following is a medico-legal report on Ms Dana Quirk.
Ms Quirk was initially seen in the rooms in February 2007 and at that time she gave a history of being a thirty-one year old right handed lady that was working as a Merchant Sea Person. In November 2004 Ms Quirk developed pins and needles in the right and left hands and she associated the onset of her symptoms with increased demands at work including use of air tools and painting. Since 2004 she had had ongoing symptoms of numbness in the hands and as mentioned these symptoms did get worse with the use of vibrating tools.
The patient had an EMG study performed on 3 March 2007 by Dr Wally Knezevic, Neurologist. The conclusion from the EMG study was that the patient had a diagnosis of bilateral carpal tunnel syndrome being mild on the left and moderate on the right.
Ms Quirk was reviewed in the rooms on the 7 March 2007 and the EMG results were discussed with her. The patient was noted to have ceased using vibrating tools and she wanted to wait and see how matters progressed following not using vibrating tools.
The patient was reviewed again in the rooms on the 30 May 2007 and was noted to have ongoing symptoms of bilateral carpal tunnel and was seen on the 3 December 2007 and was booked to undergo an open left carpal tunnel release. This was performed at the Murdoch Surgicentre on the 22 January 2008.
Ms Quirk was followed up in the rooms on the 30 January 2008 and the 4 February 2008. Her sutures were removed on the 4 February 2008 and she was noted to be making satisfactory progress.
Ms Quirk was reviewed again on the 27 February 2008 and was approximately five weeks post surgery and was making progress and was referred for hand therapy.
The patient was seen again on the 9 April 2008 and was reasonably happy with her left hand and was therefore booked to undergo an open right carpal tunnel release and this was performed once again at the Murdoch Surgicentre on the 29 April 2008. Ms Quirk was followed up post-operatively and when she was seen on the 11 June 2008 her right hand and wrist were settling though she was still having some pain and discomfort and was referred for hand therapy for her right wrist and hand.
Ms Quirk was seen in the rooms on the 23 July 2008 and was making satisfactory progress and it was felt that she would be able to commence a graduated return to work programme in the near future.
The patient was reviewed again on the 26 November 2008. Ms Quirk had been driving a car that had a lot of vibration going through the steering wheel and she had noted that this had caused some recurrent carpal tunnel symptoms that ceased when she stopped driving the car. Once again, it was recommended that Ms Quirk avoid using any vibrating tools in the short and long term.
The patient was reviewed again in the rooms on the 21 May 2009, just over twelve months since she had had open release of the right and left carpal tunnels. Ms Quirk was noted to be having some intermittent symptoms of carpal tunnel syndrome, though it was felt at that stage she did not require any further treatment.
Ms Quirk was reviewed again in the rooms on the 24 September 2009 and there had been some recent increase in the numbness in the right and left hands. Arrangements were made for her to have repeat EMG studies and also ultrasounds of the wrists. The EMG studies were performed once again by Dr Wally Knezevic on the 26 September 2009 and these were reported as a normal study and there was no EMG evidence of residual median neuropathies with either upper limb. Ultrasound performed on the 29 September 2009 was reported as showing some flat median nerves within the carpal tunnel and there was some evidence of post surgical scarring though nil else of significance.
The patient was most recently seen in the rooms on the 14 April 2011 and she was noted to have some ongoing symptoms of carpal tunnel syndrome and these tended to be worse when she was doing computer work using a mouse. At that stage no further treatment was planned.
The following is in reply to your specific questions:
…
6.I have recommended that the patient does not use any form of vibrating tools in the short and long term as it is likely that this will aggravate her symptoms in her right and left hands. It also appears that with repetitive use this does seem to bring on some numbness in the right and left hands. Ms Quirk will have some limitation in the work force with regard to work that involves repetitive use of the right and left hands.
It would be my recommendation that the patient be seen by an Occupational Physician with regard to work possibilities in the future.
7.As mentioned in (6) above, the patient does have incapacity for work as repetitive use of her right and left hands does bring on recurrent numbness in the right and left hands. I have also recommended that she does not use vibrating tools.
As mentioned, it would be worth the patient being seen by an Occupational Physician.
8. It is likely that the duration of her period of incapacity will be in the long term.
…” (T90)
Mr Halliday provided to the applicant’s solicitors a further report, dated 23 January 2013, as follows:
“ Thank you for your letter dated the 12 November 2012 regarding the above patient.
Ms Quirk was reviewed in the rooms on the 23 January 2013 and the following is in reply to your specific questions:
1.The patient has some ongoing numbness and pins and needles in the fingers of the right and left hands associated with some burning over the volar surface of the wrists and some symptoms radiating proximally and distally in both arms.
The symptoms in the right and left hands tended to be made worse when she was doing repetitive activities, such as using a keyboard and also when she was driving. Ms Quirk also found that the symptoms were worse when she was doing self-grooming or doing activities around the house. The patient felt that the symptoms possibly were worse since her last review in April 2011.
2.Ms Quirk is currently working as a Secretary/Personal Assistant on a full-time basis that does include using a keyboard and a mouse. Though, as mentioned in (1) above she does find that using the keyboard does tend to aggravate the symptoms in her hands and also using a mouse. Due to aggravation of the symptoms she needs to have regular breaks.
3.From an orthopaedic point of view with regard to the patient’s hands, in my opinion she does not require any further surgical intervention.
4.In my opinion, the patient does remain vulnerable to vibrating tools and repetitive use with regard to her right and left hands. As such, this will leave her with a permanent disability.
…” (Exhibit A16)
In his oral evidence Mr Halliday confirmed that his diagnosis of the applicant’s upper limbs condition was carpal tunnel syndrome. As regards Dr Finch’s diagnosis of “vibrating tools syndrome” (see paragraphs 29–33 below), he said that the correct name of that condition is “hand/arm vibration syndrome”. He added that carpal tunnel syndrome and hand/arm vibration syndrome are not mutually exclusive diagnoses and that, having regard to the applicant’s history relating to the use of vibrating tools, he might well have diagnosed hand/arm vibration syndrome in her case.
As regards future medical treatment for the applicant’s upper limbs condition, Mr Halliday said that he did not think that splinting would be required or that hand therapy would be beneficial; nor did he think that further surgery would be required. He added, however, that ongoing pain management by Dr Finch for hand/arm vibration syndrome may be beneficial to her.
Mr Jeff Ecker
Mr Ecker, Hand, Wrist, Elbow Surgeon, confirmed that he had provided a report, dated 2 August 2011, regarding the applicant to Dr Yeo and that its contents are true and correct. That report states as follows:
“ Thank you for referring Dana for an opinion regarding her ongoing right hand symptoms. Dana had bilateral open carpal tunnel releases performed by Mr Mike Halliday approximately 2 years ago. What I understood Dana to say in the initial consultation was that this had little impact on her symptoms but in the last consultation she said this did result in improvement of her symptoms. She has been left with residual right and left hand upper limb symptoms. When I initially saw her, these were initially in the median nerve distribution. There are no features of ulnar nerve dysfunction. Her symptoms did not fit into a recognised syndrome complex, nor was her examination diagnostic. I referred her to Dr Peter Silbert for electrophysiological studies which were normal. She had flexion/extension x-rays performed on her neck, and an MRI scan performed on her neck, which reveals no pathology in the cervical canal or spinal cord. She had bilateral median nerve ultrasounds to check that there was no damage to the median nerve or an incomplete release. The study revealed post-surgical changes in both carpal tunnels but no sonographic causes for median nerve symptoms in either the right or the left sides (Dr Bill Breidahl).
The cause of Dana’s ongoing upper extremity symptoms has not been clearly defined. There are features of C6-type pain, and also on this last assessment possible ulnar nerve symptoms.
At this stage, this is something that will not be addressed surgically. It is only when the symptoms crystallise and can be clearly and confidently defined does surgery have a possible role.
Dana is still experiencing significant problems with her hand, and this disability is reflected in her DASH analysis which scores 76%. Her power profiles and sensory charts are physiological which indicates there is no obvious elaborated component to her symptoms. Put simply, as she is reliably describing her symptoms and signs, the difficulty is that we have been unable to diagnose a cause for her symptoms and disability.
I would recommend referral to a neurologist. I usually refer people to Dr Peter Silbert for an opinion for this type of problem. Alternatively, I have advised Dana that it would be best to see you because you may have a neurologist that you routinely refer to, and the most important thing is that you are comfortable and confident with the opinion you have received from the neurologist to help Dana manage her problem.” (Exhibit A10)
It is unnecessary to refer in detail to Mr Ecker’s oral evidence in these reasons.
Dr Philip Finch
Dr Finch, a specialist in pain medicine, confirmed that he had prepared four reports regarding the applicant and that the contents of each of those reports are true and correct.
Dr Finch’s first report, dated 24 January 2012, is addressed to Dr Wai K Leong, Consultant Neurologist, and states as follows:
“ Thank you for referring Dana Quirk. Dana gives a history of developing bilateral upper limb neuropathic pain after heavy use of vibrating tools during her work as a seafarer in 2004. In the same year she also fell down some stairs and injured her low back. She developed low back and left lower limb pain which has persisted to date. Her upper limb symptoms have many of the hallmarks of a Vibrating (Tools) Syndrome following the prolonged use of vibrating tools in preparation work when painting ship hulls. She does not report blanching or other symptoms of Raynaud’s phenomena. Her low back pain, which is a separate issue, is associated with paraesthesia in the left foot. There is radiation to the left lower limb including the thigh, calf and foot in most probably the L5 distribution.
Dana was treated with bilateral carpel tunnel release by Michael Halliday with some improvement in the paraesthesia.
She describes burning pain radiating mainly from the cubital fossa distally into the hand. She describes aching in the biceps region bilaterally. There is electric paraesthesia radiating as far as the hand and involving the thumbs, index fingers and little fingers of both hands.
Currently, Dana is on a mix of drugs including Gabapentin 2400mg per day, Cymbalta 120mg per day and Tramadol 260mg per day.
I looked at a number of radiological studies dating back to 2004. These included sacrum and coccyx studies dated 7 April 2011 which possibly show a small fracture of the coccyx. A CT of the spine in the lumbar region dated 27 April 2004 appeared fairly normal. A CT of the lumbar spine dated 12 April 2006 shows some changes in the endplate of L4. The most recent MRI of the lumbar spine shows desiccation of the L4/5 disc with inferior endplate changes of L4. There are modic endplate changes, mostly present on the left side. An MRI of the cervical spine dated 25 July 2011 is fairly normal. An ultrasound of the median nerve of the same date appeared normal. Lastly, there were 2 isotope scans dated 20 September 2005 and 16 September 2011 which were really not contributory.
On examination Dana was a heavily built lady of 112 kilograms. She walked with an antalgic gait favouring the left lower limb. She had a positive left sciatic stretch test. In lumbar flexion she could reach only to about the knees with her fingertips. She was tender over the L4/5 segment in the midline. The coccyx was not tender. Motor power, sensation and reflexes in the lower limbs appeared intact. Her cervical range of movement was normal. The carpel tunnel release scars were not tender and there were no adjacent sensory changes over the recurrent branch territory. The colour, temperature and sweating of both upper limbs was equal and there was no blanching of any digits. She was mildly tender in the radial forearm bilaterally. There was no allodynia to mechanical stimuli. Sensation was normal in the upper limbs. Reflexes were brisk and motor power was reduced in a generalised fashion in both upper limbs, especially the right. The ulnar nerve was not tender at the wrist or elbow. The cervical nerve roots were no [sic] tender to palpation.
Firstly, I think Dana developed a fairly typical Vibrating Syndrome, without the vascular effects. However, she has developed a chronic neuropathic pain state. I would like to exclude entrapment neuropathy, more proximal in the forearm, despite her normal electrophysiological studies. She may be a candidate for some form of stimulation technique for this pain state.
In the lumbar region I have organised a current MRI study to look at the L4/5 disc and the left L5 nerve root. I think both are involved in her presentation.
…” (Exhibit A3)
Dr Finch’s second report, dated 13 March 2012, is addressed to Dr Leong and states as follows:
“ I have just reviewed Dana Quirk with MRI studies of both forearms. Apart from minor cystic changes, involving the capitate bone in the right wrist, they are fairly normal studies. In the lumbar spine she does have changes at L4/5, with desiccation of the disc and endplate changes associated with facet changes. There is perhaps even fluid in the left hand facet joint at L4/5. It is possible that she has an early instability at this level.
I can try blocking the L4/5 disc and medial branch nerves to the facets to see if we can improve matters. I am not sure what to suggest for her forearm and hand neuropathic symptoms and will think about this again when I look at her low back.” (Exhibit A4)
Dr Finch’s third report, dated 13 April 2012, is addressed to the applicant’s solicitors and states as follows:
“ Thank you for your letter of 23 January 2012.
I have seen your client, Dana Quirk, on 3 occasions being 24 January 2012, 13 March 2012 and today. Your client was a merchant seaman in 2004 when she fell down some stairs and injured her low back. She developed low back and left lower limb pain which has persisted to date.
In the same year, 2004, she developed bilateral upper limb neuropathic pain after long periods of heavy use of vibrating tools. In general she was working on the decks and hulls of ships. She worked away at sea and in port. She often used heavy equipment such as pneumatic tools for chipping paint, grinders, hammers and electric wire brushes. The common feature with these devices is that they all come under the category of vibrating tools.
She therefore has 2 issues which relate to her work. Firstly, she has bilateral sensory changes and neuropathic pain in her upper limbs relating to the heavy use of vibrating tools. Secondly, she has a low back injury.
Your client’s symptoms include generalised altered sensation in both hands, especially the right. She describes aching and pain in the forearm and upper arm muscles with burning sensations even radiating into the forequarter and face. These upper limb symptoms have many of the hallmarks of a Vibrating Tools Syndrome following the prolonged use of vibrating tools in preparation work. Your client does not report the vascular effects that can be seen in such a condition, such as blanching of the fingers and the development of Raynaud’s phenomena. Her low back pain, which is a separate issue, is associated with ‘pins and needles’ in the left foot. There is radiation of pain to the left lower limb including the thigh, calf and foot and probably in the L5 nerve root distribution.
In 2008 your client was treated with bilateral carpel tunnel release by Mr Michael Halliday, orthopaedic surgeon. This improved your client’s symptoms in both hands to some extent. However, she took a year off work and had reduced activities. On returning to work she experienced a recurrence of her symptoms which have continued to date.
She now describes pain radiating mainly from the cubital fossa distally into the hand. She describes aching in the biceps region bilaterally. There are electric paraesthesiae or tingling radiating as far as the hands and involving the thumb, index fingers and little fingers of both hands. The extent of her sensory changes are more widespread than typical carpet tunnel involvement of the median nerve.
Your client stated that she was taking a number of anticonvulsant drugs previously and to date. These include Gabapentin 2400mg per day which is a reasonably high dose, Cymbalta 120mg per day which is an antidepressant drug but does improve neuropathic symptoms and lastly Tramadol which is a weak synthetic opioid at about 300mg per day. This is an average dose.
I looked at a number of radiological studies dating back to 2004. These included sacrum and coccyx studies dated 7 April 2011 which possibly show a small facture of the coccyx. A CT of the lumbar spine region dated 27 April 2004 appeared fairly normal. A CT of the lumbar spine dated 12 April 2006 shows some changes in the endplate of L4. The most recent MRI of the lumbar spine shows desiccation of the L4/5 disc with inferior endplate changes of L4. There are modic endplate changes, mostly present on the left side. An MRI of the cervical spine dated 25 July 2011 is fairly normal. An ultrasound of the median nerve of the same date appeared normal. Lastly, there were 2 isotope scans dated 20 September 2004 and 16 September 2011 which were really not contributory.
On examination your client was a solidly built lady. She walked with an antalgic gait favouring the left lower limb. She had a positive left sciatic stretch test. In lumbar flexion she could reach only to about the knees with her fingertips. She was tender over the L4/5 segment in the midline. The coccyx was not tender. Motor power, sensation and reflexes in the lower limbs appeared intact. Her cervical range of movement was normal. The carpel tunnel release scars were not tender and there were no adjacent sensory changes over the recurrent branch territory. The colour, temperature and sweating of both upper limbs was equal and there was no blanching of any digits. She was mildly tender in the radial forearm bilaterally. There was no allodynia to mechanical stimuli. Sensation was normal in the upper limbs. I did not detect any significant sensory changes in the upper limbs although there was hyperaesthesia in a generalised fashion in the forearms and hand. Reflexes were brisk and motor power was reduced in a generalised fashion in both upper limbs, especially the right. The ulnar nerve was not tender at the wrist or elbow. The cervical nerve roots were no [sic] tender to palpation. There was mild tenderness of the brachial plexus in the supraclavicular area bilaterally.
I concluded your client had a fairly typical Vibrating Tools Syndrome without the vascular effects. This is probably due to the development of a sensory neuropathy or damage to the sensory nerves supplying the upper limbs. She has developed a typical chronic neuropathic pain state which only partly responds to anticonvulsant and antidepressant drugs.
When I first saw your client I suggested she undergo an MRI to exclude an entrapment neuropathy more proximal in the forearm. I enclose a copy of the MRI report dated 7 February 2012. This shows minor degenerative changes in one of the small bones of the right hand.
In the lumbar region I also suggested that your client undergo an MRI study looking at the L4/5 disc and the left L5 nerve root. I enclose a copy of the report which does establish disc degeneration at L4/5 and endplate changes. There is no obvious nerve root compression and there are mild to moderate facet joint changes at L4/5.
I suggested that we inject the L4/5 disc and facet joint nerve supply. This will be undertaken at some point. Once a clear diagnosis has been obtained in the lumbar spine then methods of long-term management can be suggested.
In answer to your questions:
…
3.The findings on examination are set out above. The diagnosis is that your client has both a low back injury involving the L4/5 segment, including the disc and facet joints, and secondly she developed ‘Vibrating Tools Syndrome’ due to the use of heavy vibrating devices in the course of her work as a seafarer.
…
5.There has been no new treatment administered. Your client continues to take anticonvulsant and antidepressant drugs which is quite reasonable and does help her to some extent. I intend, at some point, to investigate her low back with injection of contrast into L4/5 disc and injection of local anaesthetic to see if this segment is involved in her pain. Longer term management can then be considered.
6.First of all, your client should never return to vibrating tool use. This will make matters worse. It is likely that she will have a permanent problem in both upper limbs as matters have now been established for 6 years. It is possible that she might be a suitable candidate for spinal cord stimulation at a later date.
Your client’s low back symptoms restrict her work to sedentary activities. She is currently working in an office, which is a full-time position, and she can manage with some difficulties.
7.Your client’s incapacity for work can be directly contributed [sic] to a heavy fall at work injuring her low back and the use of vibrating tools in her preparatory work as a seafarer.
8.Unfortunately, I think it likely that your client will continue to be incapacitated to [sic] any manual activities and should continue in sedentary work. She should never return to the use of vibrating tools.
…
10.Your client will require medical treatment in the future. Firstly, she will require investigation into and treatment of her low back pain. This may originate in the L4/5 disc and facet joints. This may even require a surgical approach at some stage.
Secondly, your client will need management of her upper limb symptoms. She is already on significant amounts of medication and it is unlikely that further changes with further drugs will alter matters greatly. It is possible that spinal cord stimulation may be appropriate for her.
11.Your client lives alone and most probably does require domestic assistance with heavier tasks at home such as floor cleaning etc.
…
13.Your client may need the implantation of a cervical spinal cord stimulator for treatment of her upper limb pain. This is a long-term implantation and the costs of a spinal cord stimulator are significant, approximately $38,042.00 plus hospital and anaesthetic fees (including the trial).
14.If your client’s low back can be improved by specific interventions then a rehabilitation program, with exercise and loss of weight, would certainly be beneficial to her.
15.I consider that your client’s upper limb symptoms are the result of vibrating tool use and involve more than the median nerve. It was the median nerve that was released in the carpel tunnel and it does not surprise me that she has ongoing symptoms in both upper limbs. The neurological injury is therefore more extensive than just involving the median nerve in the carpel tunnel.
Unfortunately, once developed and established Vibrating Tools Syndrome symptoms can continue indefinitely. It is considered that sensory nerve involvement is permanent and longstanding. Surgery is not successful in this condition unless there is a specific nerve entrapment syndrome.
I therefore consider that the symptoms your client is experiencing are due to the development of Vibrating Tools Syndrome. If the median nerve was compressed in the carpel tunnel this is part of the overall condition.
Lastly, your client claims that using a computer and typing exacerbates the neuropathic symptoms in both upper limbs. It is quite possible that any activity using the upper limbs would exacerbate her symptoms and on a long-term basis.
16.It would appear that your client can just manage to work in a sedentary occupation in an office. She does experience increased symptoms with the use of a typewriter. Obviously she should avoid using vibrating tools and there are probable limits with her capacity to sit for long periods of time on account of her low back symptoms. I would advise against carrying heavy objects.
Your client is already on a number of medications which I have set out above. These are most appropriate for her condition and should continue.
17.The prognosis for your client’s upper limb symptoms is guarded. It is likely that they will continue at the current level indefinitely and my experience with this condition in the past is it tends to persist.
Your client’s low back symptoms may be improved by appropriate investigation and treatment. It is difficult to provide you with a prognosis in this area.
18.I do not have any problems with the way your client presents her symptoms.
…” (Exhibit A5)

In his oral evidence Dr Suthers confirmed that, in his most recent examination of the applicant on 8 August 3012, he “could not find any evidence of symptomatic carpal tunnel syndrome.”
In cross-examination Dr Suthers agreed with Dr Finch’s opinion that the applicant, in respect of her upper limbs, had “developed a chronic neuropathic pain state” (see paragraphs 29 and 31 above). He agreed, more generally, that the applicant has an “ongoing chronic pain state”.
ADDITIONAL MEDICAL EVIDENCE
Dr John Hayes
A report of Dr Hayes, Consultant Rheumatologist, dated 9 August 2012, was tendered in evidence by the applicant (Exhibit A21). Dr Hayes was not required for cross-examination and his report was tendered by consent.
Dr Hayes’ report of 9 August 2012, which was prepared on the basis of his assessment of the applicant on 1 August 2012 and which is addressed to the respondent’s solicitors, states as follows:
“ …
HISTORY:
Occupation/Work Duties:
Ms Quirk completed Year 11 at secondary school, leaving school at age 17 years.
In 2001 she became a merchant seaman (Integrated Rating). She attended the Fremantle Maritime Centre where she completed several certificates in this field.
Mechanism of Alleged Injury/Sequence of Events:
On 11 February 2004 she was working as an integrated rating on a ship called the ‘Total Voyager’. She accidentally fell down steps landing heavily on her buttocks. She experienced severe pain in the low back and buttocks and was subsequently unable to work for three months. She experienced ongoing pain in the low back and buttocks and found it painful to sit. She eventually returned to work however in late 2004 she began experiencing paraesthesia in both hands.
Initial/Early Treatment Received:
She attended the Point Walter Medical Centre where she was seen by a doctor and had physiotherapy. She was referred for X-rays of the lumbosacral spine and coccyx.
Subsequent Progress/Specialist Management:
She continued to be plagued with pain in the low back and buttocks and furthermore the upper limb symptoms increased in severity with pain radiating into her forearms and arms. She was referred to Dr W Knezevic, Neurologist who performed nerve conduction studies on 3 March 2007. This revealed evidence of a mild left carpal tunnel syndrome and a moderate right carpal tunnel syndrome. Ms Quirk volunteered that she had previously been using a lot of vibrating tools in her position as an integrated rating.
The symptoms in her hands continued and she was seen by Dr Michael Halliday, Orthopaedic Surgeon. The nerve conduction studies were repeated on 22 August 2008 and this revealed normal conduction in the median and ulnar nerves in both upper limbs.
Ms Quirk nevertheless underwent a left carpal tunnel release by Dr Halliday on 22 January 2008 followed by a right carpal tunnel release on 29 April 2008.
Following surgery to her hands she continued to experience paraesthesia in her hands and upper limbs.
She was later seen by Dr W K Leong, Neurologist who in turn referred her to Dr Philip Finch, Pain Specialist.
Current Status:
Ms Quirk continues to be plagued with constant ‘shooting pains’ in both upper limbs and hands as well as ‘numbness’ in all digits of both hands.
She continues to experience chronic low back pain which radiates into both buttocks. As a result she has reduced mobility in the lumbosacral spine and the pain may radiate down the left lower limb.
Present Work Status:
Since November 2010 she has been working in an office as a Personal Assistant at People and Communities, Mandurah.
She last worked at Total Marine Harbour in 2006 and has subsequently been under Star Injury Management for retraining in a clerical position.
Present Treatment:
At present she is under the care of Dr Philip Finch, Pain Specialist. She is taking Gabapentin 800mg tds, Cymbalta 120mg per day and Targin 20/10mg one daily together with Mersyndol on a prn basis.
In the past she has seen Ms Leonie Coxon, Clinical Psychologist. Ms Quirk has a referral to see a psychiatrist but cannot recall his name.
Past Medical History:
She has otherwise been in good health and denied having any previous back problems.
Family History:
Both parents are alive and well …
Personal/Social History:
Ms Quirk is a single woman who lives alone in her own home. She has not had children. She is a non-smoker and rarely drinks alcohol.
PHYSICAL EXAMINATION:
She presented as an obese 36 year old woman, 169cm in height and weighing 118kg. She broke down several times during the consultation for no apparent reason.
Upper Limbs/Shoulder Girdles:
Her hands and forearms had normal colour and temperature and normal sensation to light touch and pinprick. There was mild tenderness over both carpal tunnels and increased neural mechano-sensitivity on performing clinical tests to stretch the upper limb nerves.
The small joints of the hands as well as both wrists, elbows and shoulder joints had a full range of movement and appeared normal.
Back/Spine:
The thoracolumbar spine had a normal contour. Palpation revealed tenderness over both sacroiliac joints in particular. She was also tender in the midline at L5/S1.
Forward flexion was limited to knee level only and reproduced pain in her low back and buttocks.
Lateral flexion to either side measured 20° and produced moderate pain.
In the supine position, straight leg raising on the left produced marked pain on elevation to 30°. On the right, straight leg raising to 45° produced significant back and buttock pain but less severe than on the left side.
Ms Quirk was unable to sit bolt upright on the couch as this particularly aggravated her back symptoms.
Lower Limbs:
The hips, knees and ankle joints were all clinically normal.
Lower limb reflexes were equal and symmetrical. Likewise there was normal sensation to light touch and pinprick and normal power in all muscle groups in the lower limbs.
INVESTIGATIONS:
MRI Lumbosacral Spine (11 February 2005): Reported by Dr Ian Morrison, Radiologist.
This revealed evidence of an inferior end plate compression fracture at L4 with changes of bone bruising all consistent with a compression-type injury. There was no loss of vertebral body height. There was some reduction in the T2 signal at the L4/5 level consistent with an interbody disc injury with subsequent degenerative change in the disc. There was no evidence of a disc protrusion or nerve root compression.
X-ray Sacrum & Coccyx (7 April 2004):
No fracture or residual deformity was seen. The sacro-coccygeal joint appears enlocated.
CT Scan Pelvis (11 March 2004): Reported by Dr John Fraser, Radiologist – SKG Radiology.
There was no evidence of a fracture of the acetabulum. There was evidence of a small undisplaced fracture on the left lateral aspect of the first coccygeal segment. Conclusion: No pelvic ring fracture. Undisplaced coccygeal fracture.
MRI Left Forearm (7 February 2012):
No abnormality demonstrated.
SUMMARY AND ASSESSMENT:
This 36 year old woman has two problems related to her work.
She has a Neuropathic Upper Limb Regional Pain Syndrome which has been brought on by using Vibrating Tools in her job as an integrated rating.
Her second problem is a low back injury secondary to the fall on 11 February 2004. In the fall she sustained a fracture to the inferior end plate of the L4 vertebral body and a minor fracture to the left lateral aspect of the first coccygeal segment.
In addition she is tender over both sacroiliac joints consistent with injury to both sacroiliac joints.
Her injuries are thus considerably more than ‘soft tissue injury’ as claimed by several other medical specialists.
…
My answers to the questions listed in your letter dated 23 July 2012 are as follows:
3.1The history given to you by Ms Quirk.
Ms Quirk fell heavily down stairs on 11 February 2004 landing on her buttocks. She experienced severe pain in her low back and buttock region. She was subsequently off work for three months and underwent physiotherapy treatment but continued to be plagued with low back and buttock pain. She tried returning to work but was unable to cope. She subsequently worked on land with Total Marine Harbour until 2006. She is no longer working in the maritime industry and now has an office job. Ms Quirk related how she developed paraesthesia in both hands and upper limbs in 2004 and these symptoms were not relieved by undergoing bilateral carpal tunnel release.
3.2A history from Ms Quirk of her current complaints and symptoms.
Ms Quirk continues to be plagued with bilateral upper limb paraesthesia and ‘shooting pains’ which radiate up both arms and forearms.
Her second problem is that of chronic low back and buttock pain which may radiate into the left lower limb. There has been little improvement in her back symptoms in recent years.
3.3Your findings upon examination of Ms Quirk.
Ms Quirk was noted to be tender over the lower lumbar spine and both sacroiliac joints. Straight leg raising was restricted in both lower limbs more so on the left side with nerve tension signs but no clinical signs of nerve root entrapment. MRI revealed evidence of a vertebral compression fracture at L4 and probable injury to the L4/5        intervertebral disc. Her ongoing condition is thus not simply a ‘soft tissue injury’ as claimed by other medical specialists.
Ms Quirk continues to be plagued with the bilateral upper limb paraesthesia which clinically is consistent with a Neuropathic Regional Pain Syndrome. This has been brought on by using vibrating tools in her job as an integrated rating.
3.4Whether there are any inconsistencies between Ms Quirk’s subjective complaints and your objective clinical findings.
There is a medical explanation for both her ongoing upper limb symptoms and chronic low back and buttock pain. Ms Quirk’s symptoms however are influenced by significant psychosocial factors including chronic depression. She claims that she has a referral to see a psychiatrist and further expert opinion should be obtained from the psychiatrist as this is outside my speciality.
3.5With respect to any injuries or conditions relating to the incident that occurred during October/November [sic] 2004:
(a)Your opinion as to Ms Quirk’s current capacity for her pre-injury work as an integrated rating on a full-time or part-time basis:
Ms Quirk is currently unfit to return to her pre-injury work as an integrated rating either on a full-time or part-time basis.
(b)If Ms Quirk does not currently have the capacity to work as an integrated rating on a full-time or part-time basis, whether she will in the future have the capacity, and if so, when do you anticipate that this may likely occur?
Ms Quirk is permanently unfit to return to work as an integrated rating at any time in the future.
(c) If Ms Quirk does not currently have the capacity to work as an integrated rating, is she fit to perform alternative work in a full-time or part-time capacity, and if so, what type of work do you consider she is able to perform?
Ms Quirk is currently working on a full-time basis as a personal assistant performing secretarial work. In my opinion she is capable of working in this capacity.
(d)What restrictions, if any, would you impose?
She should avoid bending and lifting as this will aggravate her back symptoms. Likewise she should avoid excessive typing and keyboard work as this will further exacerbate her upper limb symptoms. Furthermore she should avoid using vibrating tools at any stage in the future.
3.6    Does Ms Quirk currently require any medical treatment?
Regarding medical treatment, Ms Quirk is on medications from Dr Philip Finch including Gabapentin, Cymbalta, Targin and Mersyndol. I feel that she also needs psychiatric treatment and I note that she has a referral to see a psychiatrist (?name).
Clinical examination also revealed tenderness over both sacroiliac joints and it is possible that she may be helped by injections into the sacroiliac joints. As yet this has not been performed.
Ms Quirk may also need to undergo further procedures as recommended by Dr Finch.
3.7If you consider that Ms Quirk currently requires, and will require medical treatment in the future:
(a)What form of treatment do you recommend?
I would recommend continuing with medical treatment from Dr Philip Finch and also psychiatric treatment as well.
She may also benefit from sacroiliac joint injections as well as a weight loss program. Her weight has increased by over 25 kg since the fall eight years ago.
She may also benefit from hydrotherapy treatment. I would not recommend passive physiotherapy in this lady.
(b)For what period of time, and at what frequency?
I suspect that she has a chronic low back problem. She has already been symptomatic for eight years and I consider that the problems in her back and upper limbs are chronic and longstanding.
(c)What benefit do you expect that Ms Quirk will receive from such treatment?
Psychiatric treatment my help her cope better with her Chronic Pain Syndrome. At present she is not coping at all well. Sacroiliac injections may help reduce the severity of pain felt in her buttocks.
With respect to the upper limb symptoms, it is important that she avoid repetitive use of the upper limbs eg upper limb exercise programs as this will exacerbate symptoms in her upper limbs,
3.8Is there any evidence of non-organic factors and voluntary or involuntary exaggeration of the symptoms or signs? If so, please explain the reasons for your opinion.
Ms Quirk has evidence of a Chronic Pain Syndrome with probable Depression and this is affecting her ability to cope with pain. However, she has definite organic pathology in the low back as well as bilateral upper limb neural sensitisation to explain her persistent upper limb symptoms.
The contents of this report are true to the best of my knowledge and belief.
…”
Dr Wai K Leong
The following letter, dated 29 September 2011, from Dr Leong, Consultant Neurologist, to Dr Philip Finch is included in the T Documents (T91):
“Re: Dana QUIRK …
Diagnosis:
1.   Brachial pain syndrome – abnormal central sensitisation
1.1     Bilateral carpal tunnel decompression 2008
1.2     Nerve conduction studies upper limbs (30/5/11) normal
1.3     MRI cervical spine (25/7/11) normal, bilateral median nerve ultrasound (25/7/11) no median compression or other abnormality
1.4     Bone scan (16/9/11) no abnormality of cervical/thoracic spine or upper limbs. No features of reflex sympathetic dystrophy.
2.   Chronic lumbar/coccygeal pain – following injury 2004
2.1     Previous lumbar compression fracture/coccygeal fracture
2.2     Previous sacro-iliac joint/various injections
3.    Increasing obesity (BMI>40)
Thank you for seeing this 35 year old right handed single female who has chronic brachial pain syndrome on a background of chronic lumbar/coccygeal pain.
She developed her right brachial pain whilst working as a seafarer in about 2004. She initially had painful tingling in the hands attributed to carpal tunnel syndrome, with apparently typical neurophysiological features (March 2007). She then went on to have the left then right carpal tunnel decompressed in January and March 2008. The painful paraesthesias disappeared but she was then left with unusual tingling numbness in the arms.
Her last nerve conduction studies in 2008 as well as May 2011 show entirely normal median and ulnar conductions in both arms. She now has a normal bone scan (Sept 2011) and MRI of the cervical spine (July 2011), and bilateral median nerve ultrasounds (July 2011) were also normal.
Her current problem is painful numbness and tingling in the right digits extending to the forearm associated with a perception of thickness or tightness in the right forearm. There is at times some wrist pain, more prominent over the ulnar border of the hand. She has a normal neurological examination.
I have suggested that she start on Cymbalta and gabapentin (previously had taken Lexapro and Lyrica). She should be taking Cymbalta 60 – 120 mg mane and gabapentin 800mg tds by November 2011. It would be appreciated if you could see her for further review and suggestions for further management.
She would also like to discuss ongoing management of her chronic back problems which followed a fall and compression fracture of the lumbar vertebrae and coccyx (2004). She has had previous sacroiliac joint and other injections.
…”
THE RELEVANT LEGISLATION
45.The SRC Act relevantly provides as follows:
“6       Injuries suffered by employees
A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee for which compensation is payable under this Act.”
“8       Incapacity for work
A reference in this Ace to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury being:
(a)     an incapacity to engage in any work; or
(b)     an incapacity to engage in work as an employee at the same rank or level at which he or she was engaged immediately before the injury happened.”
“24     Liability to pay compensation
The liability of an employer to pay compensation to a person under this Act is the liability of the employer to pay the amount or amounts that the employer determines, in accordance with this Act, to be payable to the person.
25Compensation to be paid in full
Subject to subsection 29(4) and sections 30 to 37 (inclusive), 47, 55, 58 and 139, compensation in respect of an injury must be paid in full by an employer whose employment has made a material contribution to the injury.
26Compensation for injuries
(1)If an employee suffers an injury that results in his or her death, incapacity for work, or impairment, compensation is payable for the injury.
…”
“28     Compensation for medical and related expenses
(1)If an employee:
(a) suffers an injury; and
(b)obtains medical treatment for the injury, being treatment that it was reasonable for the employee to obtain in the circumstances;
compensation is payable for the cost of the medical treatment, of such amount as is appropriate, having regard to the nature of the treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
…”
Section 31 of the SRC Act provides for the payment of compensation to “an employee who is incapacitated for work as a result of an injury …”.
Analysis – Application 2012/0879
Is compensation payable by the respondent to the applicant for the cost of medical treatment for the lower back injury, in accordance with s 28 of the SRC Act, for the period from 28 February 2011 to date?
The evidence of the medical witnesses in relation to this issue may be summarised as follows:
·Dr Yeo – the applicant, as a result of the lower back injury, has continued to suffer lower back pain (occasionally radiating down to her left 2^nd toe) from time to time and intermittent coccygeal pain and has occasional muscle spasms in her left buttock, and she has required, and continues to require, “ongoing treatment/rehabilitation” for the management of that pain;
·Mr Slinger – as at 21 September 2011 and 2 January 2013 the applicant, as a result of the lower back injury, continued to suffer pain in the low back, sacrum and coccyx and she has required, and continues to require, medical treatment for the management of that pain;
·Dr Finch – as at 13 April 2012 and 15 January 2013 the applicant, as a result of the lower back injury, had persisting low back and left lower limb pain for which she has required, and continues to require, medical treatment;
·Dr Bowles – as at 7 October 2010 the applicant was suffering “non-specific low back pain of an intermittent and variable nature” which was unlikely to be resulting from the lower back injury;
·Dr Suthers – as at 8 August 2012, the applicant had “ongoing chronic pain” as a result of the lower back injury but did not require “any further specific medical intervention with regard to the lower back”.

Dr Hayes, in his report of 9 August 2012, expressed the opinion that the applicant was suffering “chronic low back and buttock pain” as a result of the lower back injury and that she continued to require medical treatment for the management of that pain.
In the Tribunal’s opinion the medical evidence before it, on balance, clearly supports the proposition that, from 28 February 2011 to date, the applicant has continued to suffer lower back pain symptoms as a result of the lower back injury and has required, and continues to require, medical treatment for the management of those pain symptoms. The Tribunal notes that Dr Bowles examined the applicant only once, namely, on 7 October 2010, and, accordingly, it attaches less weight to his evidence than it attaches to the evidence of Dr Yeo, Mr Slinger and Dr Finch who have examined her more often and more recently. As regards Dr Suthers, the Tribunal notes that, although he opined that the applicant did not require “any further specific medical intervention with regard to the lower back”, he accepted that the applicant was suffering “ongoing chronic pain” as a result of the lower back injury, and he did not go so far as to opine that the applicant did not require any medical treatment for the management of that pain.
On the basis of the whole of the medical evidence before it, the Tribunal finds that, from 28 February 2011 to date, the applicant has continued to suffer lower back pain symptoms as a result of the lower back injury and has required, and continues to require, medical treatment for the management of those pain symptoms.
Although the respondent put in issue the applicant’s credibility and the reliability of her evidence regarding her symptomatology following the lower back injury, the Tribunal accepts her evidence in that regard. The Tribunal notes, furthermore, that none of the abovementioned medical witnesses questioned the genuineness of the applicant’s complaints of ongoing lower back pain.
Accordingly, the Tribunal concludes that compensation is payable by the respondent to the applicant for the cost of medical treatment for the lower back injury, in accordance with s 28 of the SRC Act, for the period from 28 February 2011 to date.
Is compensation payable by the respondent to the applicant for incapacity for work as a result of the lower back injury, in accordance with s 31 of the SRC Act, for the period from 28 February 2011 to date?”
The meaning of the phrase “incapacity for work” in the SRC Act is set out in s 8 of that Act. It is common ground, and the Tribunal finds, that, in the period from 28 February 2011 to date, the applicant has at no time been totally incapacitated for work (within the meaning of para (a) of s 8) but that, throughout that period, she has been, and continues to be, partially incapacitated for work (within the meaning of para (b) of s 8).
The issue for the Tribunal’s determination is whether, in the period from 28 February 2011 to date, the applicant’s incapacity for work, within the meaning of para (b) of s 8 of the SRC Act, has been suffered by her as a result of the lower back injury.
As regards the evidence of the medical witnesses in relation to this issue:
·Mr Slinger, Dr Finch and Dr Suthers opined that the applicant has been partially incapacitated for work as a result of the lower back injury;
·Dr Bowles, in his report of 7 October 2010, opined that the applicant was partially incapacitated for work but he had not been asked to express an opinion, and did not express an opinion, as to whether or not that partial incapacity for work had resulted from the lower back injury.
The Tribunal, however, infers from Dr Bowles’ stated opinion that it is unlikely that her ongoing lower back pain resulted from the lower back injury that, likewise, it is his opinion that it is unlikely that her partial incapacity for work has resulted from the lower back injury.
The Tribunal, however, infers from Dr Hayes’ report of 9 August 2012 that it is his opinion that the applicant has been partially incapacitated for work as a result of the lower back injury.
In the Tribunal’s opinion the medical evidence before it, on balance, clearly supports the proposition that, from 28 February 2011 to date, the applicant has been, and continues to be, incapacitated for work, within the meaning of s 8 (b) of the SRC Act, as a result of the lower back injury. The Tribunal so finds .
Accordingly, the Tribunal concludes that compensation is payable by the respondent to the applicant for incapacity for work as a result of the lower back injury, in accordance with s 31 of the SRC Act, for the period from 28 February 2011 to date.
Analysis – Application 2012/0846
Is compensation payable by the respondent to the applicant for the cost of medical treatment for the bilateral carpal tunnel injury, in accordance with s 28 of the SRC Act, for the period from 28 February 2011 to date?
The evidence of the medical witnesses in relation to this issue may be summarised as follows:
·Dr Yeo – the applicant, as a result of the bilateral carpal tunnel injury, has continued to suffer pain and related symptoms in her upper limbs and she has required, and continues to require, “ongoing treatment/rehabilitation” for the management of those symptoms;
·Mr Slinger – as at 27 September 2011 and 2 January 2013 the applicant, as a result of the bilateral carpal tunnel injury, has continued to experience symptoms in her upper limbs, and she has required, and continues to require, medical treatment for the management of those symptoms;
·Mr Halliday – as at 14 April 2011 and 23 January 2013 the applicant, as a result of the bilateral carpal tunnel injury, has continued to experience symptoms in her upper limbs;
·Mr Ecker – as at 2 August 2011 the applicant, as a result of the bilateral carpal tunnel injury, has continued to experience symptoms in her upper limbs;
·Dr Finch – as at 24 January 2012 and 13 April 2012 the applicant, as a result of the use of vibrating tools in performing the duties of her employment with the respondent in 2004, developed vibrating tools syndrome in her upper limbs and has continued to suffer from neuropathic pain in her upper limbs and has “developed a chronic neuropathic pain state”, for the management of which she has required, and continues to require, medical treatment;
·Dr Bowles – as at 7 October 2010 the applicant was experiencing “non-specific hand and arm complaints” which were “not suggestive of carpal tunnel syndrome”, the bilateral carpal tunnel injury having resolved following carpal tunnel release surgery in 2008;
·Dr Suthers – as at 8 August 2012 the applicant was suffering an “ongoing chronic pain state” in respect of her upper limbs but he “could not find evidence of symptomatic carpal tunnel syndrome”.
Dr Hayes, in his report of 9 August 2012, expressed the opinion that the applicant, as a result of the bilateral carpal tunnel injury, continued to suffer symptoms in her upper limbs for which she has required, and continues to require, medical treatment.
In the Tribunal’s opinion the medical evidence before it, on balance, supports the proposition that, from 28 February 2011 to date, the applicant has continued to suffer symptoms in her upper limbs as a result of the bilateral carpal tunnel injury, and that, in that period, she has required, and continues to require, medical treatment for the management of those symptoms. The Tribunal so finds.
The Tribunal, furthermore, accepts the applicant’s evidence regarding the onset and continuation of her upper limbs symptomatology.
Accordingly, the Tribunal concludes that compensation is payable by the respondent to the applicant for the cost of medical treatment for the bilateral carpal tunnel injury, in accordance with s 28 of the SRC Act, for the period from 28 February 2011 to date.
Is compensation payable by the respondent to the applicant for incapacity for work as a result of the bilateral carpal tunnel injury, in accordance with s 31 of the SRC Act, for the period from 28 February 2011 to date?
The Tribunal has found (see paragraph 52 above) that the applicant, throughout the period from 28 February 2011 to date, has been, and continues to be, incapacitated for work, within the meaning of s 8(b) of the SRC Act. The present question is whether the applicant has suffered, and is presently suffering, that incapacity for work as a result of the bilateral carpal tunnel injury.
As regards the evidence of the medical witnesses in relation to this issue, Dr Yeo and Mr Slinger opined that the applicant has been partially incapacitated for work as a result of the bilateral carpal tunnel injury, and Dr Finch opined that she has been partially incapacitated for work as a result of vibrating tools syndrome in her upper limbs which arose out of her employment with the respondent in 2004. Both Dr Bowles and Dr Suthers also opined that the applicant was partially incapacitated for work, but neither of them had been asked to express an opinion, and neither of them expressed an opinion, as to whether or not that partial incapacity for work was a result of the bilateral carpal tunnel injury. The Tribunal, however, infers from the contents of each of their reports that both Dr Bowles and Dr Suthers are of the opinion that the applicant’s partial incapacity from work is not a result of the bilateral carpal tunnel injury.
In his report of 9 August 2012, Dr Hayes, in response to a question regarding “any injuries or conditions relating to the incident that occurred during October/November 2004”, expressed the opinion that the applicant is permanently unfit to return to her pre-injury work as an integrated rating but that she is capable of “working on a full-time basis as a personal assistant performing secretarial work”, as she was currently doing.
In the Tribunal’s opinion the medical evidence before it, on balance, supports the proposition that, from 28 February 2011 to date, the applicant has been, and continues to be, incapacitated for work, within the meaning of s 8(b) of the SRC Act, as a result of the bilateral carpal tunnel injury, and the Tribunal so finds. In forming that opinion and making that finding the Tribunal has attached the greatest weight to the evidence of Dr Yeo, the applicant’s longstanding treating general practitioner, and the evidence of Mr Slinger, an orthopaedic surgeon who has examined the applicant on four occasions, namely, in July 2006, August 2007, September 2011 and January 2013 (the last two examinations relating to her upper limbs as well as her lower back). Dr Yeo and Mr Slinger were both unequivocally of the opinion that the applicant continues to be partially incapacitated for work as a result of the bilateral carpal tunnel injury.
Accordingly, the Tribunal concludes that compensation is payable by the respondent to the applicant for incapacity for work as a result of the bilateral carpal tunnel injury, in accordance with s 31 of the SRC Act, for the period from 28 February 2011 to date.
DECISION
For the above reasons the Tribunal decides as follows:
Application 2012/0846
·the decision under review is set aside and, in substitution therefor, it is decided that, for the period from 28 February 2011 to date, and as at the present date, compensation is payable by the respondent to the applicant for the cost of medical treatment for the bilateral carpal tunnel injury, in accordance with s 28 of the SRC Act, and for incapacity for work as a result of the bilateral carpal tunnel injury, in accordance with s 31 of the SRC Act.
Application 2012/0879
·the decision under review is set aside and, in substitution therefor, it is decided that, for the period from 28 February 2011 to date, and as at the present date, compensation is payable by the respondent to the applicant for the cost of medical treatment for the lower back injury, in accordance with s 28 of the SRC Act, and for incapacity for work as a result of the lower back injury, in accordance with s 31 of the SRC Act;

I certify that the preceding sixty eight (68) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member.

................[sgd D Brodie]....................................
Administrative Assistant
Dated 28 March 2013

Dates of hearing 12–15 February 2013

Counsel for the Applicant Mr G Stubbs

Solicitors for the Applicant Dwyer Durack

Counsel for the Respondent Mr C Clark

Solicitors for the Respondent Sparke Helmore

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2012/0846 2012/0879
Re	Dana Quirk
APPLICANT
And	Total Marine Services Pty Ltd
RESPONDENT

Tribunal	Deputy President S D Hotop Dr J Chaney, Member
Date	28 March 2013
Place	Perth

Dates of hearing	12–15 February 2013
Counsel for the Applicant	Mr G Stubbs
Solicitors for the Applicant	Dwyer Durack
Counsel for the Respondent	Mr C Clark
Solicitors for the Respondent	Sparke Helmore