Davey and Telstra Corporation Limited
[2007] AATA 1200
•2 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1200
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200500142
GENERAL ADMINISTRATIVE DIVISION ) No Q 200600146 Re MARGARET DAVEY Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date2 April 2007
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
...................................
MJ Carstairs
Senior Member
CATCHWORDS
COMPENSATION – Injury incurred to arm and hand following introduction of mouse-based computer program at applicant’s work – initial diagnosis of tendonitis – diagnosis and medical condition now in dispute – question of whether applicant suffers from chronic regional pain syndrome – applicant did not complete return-to-work program – applicant’s symptoms do not reflect a particular diagnosis – decision under review affirmed.
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16,19
Lees v Comcare (1999) 29 AAR 350
Comcare v Mooi (1996) 69 FCR 439
REASONS FOR DECISION
2 March 2007 M J Carstairs, Senior Member 1. In May 2004 Margaret Davey suffered an injury at work when Telstra introduced a change to the computer system, replacing a predominantly keyboard-based system with one which was predominantly mouse-based. The injury identified at the time was a tendonitis of the extensor tendons of the right wrist and thumb condition. Telstra accepted that injury was compensable.[1] That connection between the original injury and work is not in dispute.
[1] T Documents Q 2005/142, T25, decision dated 16 September 2004.
2. But since then, two other decisions have been made relating to Ms Davey’s compensation payment. These are the matters on review before me.
3. The first of these decisions was made towards the end of 2004 (“the first decision”), after a return-to-work program was formulated for Ms Davey as part of her rehabilitation program.[2] Ms Davey for the most part has not returned to the workplace since the time of the injury. In the first decision the delegate concluded that Ms Davey had an ability to earn an amount in suitable employment (as represented by what she would be paid for the proposed hours of work in the return-to-work program), and, accordingly the calculation of Ms Davey’s compensation payments under s19 of the Safety Rehabilitation and Compensation Act 1988 (the Act) had to incorporate those amounts – there being a formula in s19 to make such calculations.
[2] T Documents Q 2005/142, T39.
4. The second decision, on 26 October 2005, is perhaps the more crucial of the two decisions, as it brought to an end Ms Davey’s entitlements to payments for incapacity and for medical treatments entirely.[3] In the second decision the delegate decided that Ms Davey no longer suffered from the effects of tendonitis of the extensor tendons of the right wrist and thumb condition (“the second decision”).
[3] T Documents Q 2006/146, T14.
5. Whilst the respondent’s position is not to deny the initial liability, the respondent says that there is no reliable medical evidence identifying a medical condition from which Ms Davey now suffers, despite her continued complaint of certain symptoms.
6. Ms Davey sees things differently, and for the present purposes her contentions may be summarised as follows: prior to May 2004 she had no problem with her right wrist and arm; since that time, she has experienced pain in the right wrist and arm, including at times stabbing and burning sensations after the arm is used, and an abnormal reaction to cold. The symptoms to some extent have changed over time, but Ms Davey believes that they trace back to a common cause - the initial injury - and as a consequence she remains entitled to compensation.
ISSUES
7. The issues that arise before me, on the basis of the medical reports and other evidence, are as follows:
§what is the nature of the injury, if any, from which Ms Davey suffers; and
§whether the respondent is liable to pay compensation pursuant to s16 and s19 of the Safety Rehabilitation and Compensation Act 1988.
8. Both decisions under review can be addressed after examining those broad questions.
BACKGROUND
9. Briefly, Ms Davey has been employed by Telstra since 2002 as a service consultant. Service consultants take telephone calls and record data. I have already referred to the problems Ms Davey experienced after she started using the mouse predominantly to navigate around the system.
10. In Ms Davey’s initial claim for compensation she referred to muscle and ligament fatigue caused by the hand and arm being used and kept in the same position too long.[4] Her general practitioner, Dr W Bradshaw, used similar words in early medical certificates,[5] but later adopted a range of terms including tendonitis and fasciitis, ligament/muscle/tendon strain rt forearm, and fibro-muscular strain of the right forearm.
[4] T Documents Q 2005/142, T4, p13.
[5] For example, T Documents Q2005/142, T6.
11. On 16 September 2004, Ms Davey’s claim was granted after she was referred to Dr N Burke, consultant occupational physician, who diagnosed a tendonitis of the extensor tendons of the right wrist and thumb, the likely cause of which was the repetitive use of the mouse.
WHAT IS THE NATURE OF MS DAVEY’S INJURY?
12. In part, Ms Davey’s evidence was contained in two witness statements, located within the T- Documents.[6] Briefly, the first of these traced the early course of the injury from May to July 2004. Ms Davey described, at that time, experiencing discomfort when using the mouse, which developed from a stabbing but not constant pain under the wrist, into a constant pain centred in the right upper forearm. The forearm was swollen and she could not write with it. Ms Davey attended physiotherapy and made adjustments at work including using the mouse left-handed. From 1 June 2004 she was unable to work. Dr Bradshaw then prescribed anti-inflammatory medication and pain killers.
[6] T Documents Q 2005/142, T14, p44: Statement dated 12 July 2004.13. In her second statement some ten months later, Ms Davey referred to the time around her attempted return-to-work in November 2004 (the period relating to the first decision). Around that time she was still experiencing stabbing pain when using the wrist in particular circumstances, but the constant ache in the lower arm had ceased. However a newly noticed symptom was a deep ache in the forearm when exposed to air-conditioning in shopping centres. When she attempted the return-to-work in November (in air-conditioning which she perceived as too cold) she was in pain at the end of the day and did not return to work thereafter. In the 2005 statement she referred to the limitations she experienced in day-to-day activities,[7] and her general symptoms (around 2005) were summarised in her Statement of Facts and Contentions[8] as follows:
§ pain in the region of the right forearm to the level of the right wrist;
§ stabbing sensation in the right wrist;
§ burning sensation and temperature sensitivity in the right forearm;
§ swelling and pain in the right forearm under some uses;
§ disordered sensory perception in parts of forearm.
[7] T Documents Q 2006/146, T9, p34: Statement dated 13 May 2005 para 7.
[8] Exhibit A3.
14. Ms Davey said at the hearing that now, if exposed to cold, she still experiences symptoms but they are more transitory. She agreed that observable swelling had gone by the time she saw Dr Burke, occupational physician, in August 2004. In her first statement, Ms Davey said that by resting the arm while not at work, the swelling went down and the constant pain gradually eased – such that she was able to carry out most household tasks and assist at the family hobby farm.[9] Ms Davey told me that she still experiences difficulty with fine motor skills. There are some things she simply cannot do – such as cutting or peeling vegetables.
[9] T Documents Q 2005/142, T14, p50.
15. I turn to the medical reports, but before doing so I make two observations:
§ The injury, as already noted, was accepted as compensable after Dr Burke examined Ms Davey in August 2004 and concluded that she suffered a likely tendonitis of the extensor tendons of the right wrist and thumb. However in reaching that conclusion he observed that there had been no investigations performed and he requested an ultrasound to confirm tendonitis. An ultrasound conducted on 18 August 2004 concluded:[10]
No muscle tear is seen. There is no haematoma. There is no evidence of tenosynovitis.
§ Much of the medical evidence at the hearing was directed to Table 16-16 of the American Medical Association Guide to the Evaluation of Permanent Impairment (5th ed).[11] Table 16.16 refers to Complex Regional Pain Syndrome Type 1 (reflex sympathetic dystrophy), which provides that the diagnosis of this condition must be made on objective findings identified in clinical examinations and demonstrated by radiological techniques, where at least 8 of the following symptoms (organised under headings) are present concurrently:
a. Vasomotor changes: skin colour; cool skin temperature; or as oedema
b.Sudomotor changes: skin dry or overly moist
c.Trophic changes: to skin texture (smooth, non-elastic); soft tissue (especially nails) atrophy; joint stiffness; nail changes, curved or talon like; hair growth changes (falls out or is longer or finer)
d.Radiographic signs: This might include bone changes.
[10] T Documents Q 2005/142, T20.
[11] Exhibit R2.
MEDICAL EVIDENCE
16. Dr R Watson, consultant rehabilitation specialist, and Ms Davey’s treating specialist, has reported on Ms Davey on a number of occasions. Dr Bradshaw, Ms Davey’s general practitioner, had referred her to Dr Watson in early August 2004. I note that none of the written reports clearly state a diagnosis of chronic regional pain syndrome, but it was clear from Dr Watson’s oral evidence that this is the condition from which he believes Ms Davey suffers.
17. In his first report he described Ms Davey as having signs consistent with repetitive overuse syndrome of the right arm causing neuropathic sensory phenomena.[12] In other reports he referred to a definite right upper limb neuropathic pain problem with forearm swelling, hyperalgesia, allodynia and hyperpathia[13] and to a central spinal cord hypersensitivity syndrome.[14] In his oral evidence he agreed that this terminology was a description of her symptoms. He said, however, that his intention in using that description was to differentiate her pain from ordinary nociceptive pain, as would be experienced with bruising; a wound; or a broken bone. Neuropathic pain on the other hand, he said, involves messages from the brain and spinal cord, and is the province of neurologists.
[12] T Documents Q 2005/142, T17, p171: Report dated 11 August 2004.
[13] T Documents Q 2005/142, T42, p217: Dr Watson’s report dated 11 January 2005.
[14] T Documents Q 2006/146, T8, p25: Dr Watson’s report dated 13 April 2005.
18. Dr Watson believes that the initial diagnosis of tendonitis of the extensor tendons in the right arm and thumb was a misdiagnosis. He said that this diagnosis might have been right in the early stages (and before he first saw Ms Davey) but even at that stage he believes that it was a misdiagnosis on Dr Bradshaw’s part. Dr Watson said that, as he sees it, what started as a repetitive overuse syndrome, continued as neuropathic pain. Dr Watson said that Ms Davey’s neuropathic pain appears when the arm is used, at least with fine motor or repetitive movements; and another feature is that Ms Davey experiences swelling and sensory changes such as burning, which indicates sensory disturbance.
19. As stated however, Dr Watson now takes the view that Ms Davey’s condition is a complex regional pain syndrome (Type I). When cross-examined on this Dr Watson said that Ms Davey’s case would fall within the taxonomy for chronic regional pain syndrome without fulfilling all the criteria of Table 16-16. But he agreed, in principle, that a diagnosis of chronic regional pain syndrome requires applying Table 16-16 and observing the presence of at least 8 objective signs. He also agreed that some of Ms Davey’s symptoms were subjective, not objective signs.
20. I took from Dr Watson’s evidence that he considered, as critical for his diagnosis, Ms Davey’s arm swelling when she experiences severe pain and her weakened grip strength. Dr Watson indicated that the requirement for the 8 criteria in Table 16-16 is too strict, and this is under professional debate, with the likelihood that the Guide will be updated to provide differently in the future.
21. Dr J Cameron, consultant neurologist, first saw Ms Davey in June 2005.[15] Like others who have reported on the case, he referred to her early (that is, 2004) symptoms, not in dispute here. His clinical examination of her in 2005 revealed that she moved freely and used her right hand actively. She had no loss of muscle tone, nor loss of fine movements, coordination, or strength in the upper limbs and hand. She did have an area of tenderness near the common extensor origin at the right forearm, but there was no specific tenderness over the common extensor origin generally. Her wrist and fingers were normal but there was some discomfort over the extensor tendons to the thumb. Hand temperature was symmetrical and normal and there were no vasomotor changes. Shoulders, elbow and neck exhibited full range of movement.
[15] T Documents Q 2006/146, T10: Report dated 19 June 2005.
22. Dr Cameron thought that her original injury was to soft tissue, and was work-related, but he concluded that she suffered no incapacity now.
23. Both Dr Cameron and Dr Millroy (whose reported findings are set out below) observed that Ms Davey had no muscle wasting or loss of strength or coordination in the upper limbs. Dr Millroy said that it was noticeable from Ms Davey’s palms, and by the absence of muscle wasting, that both her hands were being used. I should point out that Ms Davey does not deny this. She and her husband have a hobby farm where she continues to undertake tasks such as carrying feed and water, although she limits the weights she carries. Ms Davey says that she was told to continue actively using the right hand and arm, and she does so. It was part of her submissions that without her efforts to undertake activity, she might have more observable symptoms of chronic regional pain syndrome, given that the symptoms largely arise from disuse.
24. Dr Cameron said that Ms Davey’s symptoms are atypical, and he could offer no prognosis. Dr Cameron appears to accept that Ms Davey has some arm discomfort and experiences an altered reaction to cold temperatures, but his evidence was that there was no medical explanation for this. He was unable to relate Ms Davey’s symptoms to features of her workplace or the activities that resulted in the original injury. In his opinion, and with reference to the first decision under review, he considered that she would have been be able to perform the duties assigned to her in the rehabilitation program and return to work plan dated 29 October 2004.[16]
[16] T Documents Q 2006/146, T10, p41.
25. In oral evidence Dr Cameron said that chronic regional pain syndrome is a neurological condition, as Dr Watson had said. However Dr Cameron could find no neurological impairment. Dr Cameron said that he accepted Ms Davey’s complaints of pain, but said that pain is a non-specific symptom and in her case he could not identify an organic basis for it. He said there was no medical explanation of why Ms Davey would experience a reaction when exposed to cold.
26. In his oral evidence Dr Cameron said that the reason for the American Medical Association settling on the 8 objective criteria in the Guidelines was to rule out cases which might more truly reflect psychiatric disturbance or malingering. However he said that the disease remains a source of debate. Dr Cameron agreed that the clinical features of chronic regional pain syndrome appear to be the result of disuse of the limb.
27. Dr P Millroy, an orthopaedic surgeon and upper limb specialist, also reported on Ms Davey’s initial symptoms, although he did not see her until 2006 – over two years after the injury. He wrote in similar terms to those of Dr Cameron regarding Ms Davey’s symptoms in the early stages of 2004.[17] At the time of examination, as I understand Dr Millroy’s report, the only sign he observed was some hypersensitivity of the skin on the whole extensor aspect of the right forearm and the lower half of the flexor aspect.
[17] Exhibit R1: Report dated 9 October 2006.
28. Dr Millroy observed in 2006 that Ms Davey had a sensitivity to light touch on both the extensor and the lower flexor aspect of the forearm. He said she had no swelling, no signs that her hands were not used, and she had no wasting of muscles of the right arm forearm or hand – rather, he thought her muscles were well-toned. In his oral evidence he said there was enough muscle there to give her normal power. She had full hand and wrist movement (apart from a slight discomfort on full extension of the wrist), normal sensation in her hand, and a full range of movement of elbows and shoulders.
29. Dr Millroy concluded that Ms Davey had no tendonitis or tenosynovitis when he examined her in 2006, and he said that neither was present when the ultrasound was taken in August 2004. He concluded that if she had tenosynovitis in 2004, it had improved within a matter of months – as is expected for resolution of the condition - and now she had no evidence of any specific condition persisting in the right upper arm.
30. Dr Millroy considered Dr P Keary’s (rheumatologist) report[18] that Ms Davey might have chronic regional pain syndrome (Type I). But Dr Millroy could not agree, because Ms Davey did not have the necessary 8 clinical signs to fit the criteria set out in the Guide. Indeed, he said that she had no objective abnormal clinical signs whatsoever. He noted that neuropathic pain is a subjective vague symptom and not a diagnosis. I would add also that Dr Keary’s report did not set out what, if any, clinical tests he carried out. His brief report refers only to Ms Davey’s subjective symptoms.
[18] T Document Q 2006/146, T15, p53.
31. Dr J O’Callaghan, pain specialist, said that when he saw Ms Davey in October 2006, she had some aching in the muscles of the extensor compartment and an unpleasant sensation in the skin of this area with intermittent stabbing pains in her wrist. She denied any colour or skin temperature changes or abnormal sweating or swelling of the arm. He thought her limbs looked and felt normal. She had no sensory loss in the right upper limb but there was some discomfort to light touch. In many respects this report’s findings were indistinguishable from those of Dr Millroy. Ms Davey did not want treatment and assured Dr O’Callaghan that she was slowly getting better.[19] Dr O’Callaghan’s report was confirmatory of the then current symptoms but added little else – stating it was difficult to place a name on the chronic pain syndrome that Ms Davey is suffering from.
[19] Exhibit A1: Dated 8 November 2006.
32. Finally, there were the reports of Dr Burke, to the first of which reference has already been made in the context of his assessment in August 2004 leading to the favourable determination of Ms Davey’s claims, despite his concerns expressed therein that there had been no radiological investigations carried out.[20] Again it is not necessary to canvass in detail this report’s summary of the early symptoms, except to say that their contents were consistent with other reports and relied on the history provided by Ms Davey. Briefly Dr Burke noted in August 2004 that Ms Davey had no abnormal appearance or swelling in the right forearm and had no restriction of movement, but she did have slightly diminished grip strength. All neurological examinations were normal.
[20] T Documents Q 2005/142, T19.
33. On the second occasion when Dr Burke examined her[21] he said Ms Davey’s reported symptoms were now an ache in the dorsal aspect of the right forearm, worse with activity, and a sensation of her skin burning, especially with the cold; cold air; or rain - this sensation tending to come and go. The clinical findings were much as in the previous report, except that Dr Burke noted she had a quite pronounced impairment of touch sensation (dysaesthesia) associated with stroking her arm. There were no sweating changes, skin colour changes temperature changes or nail changes. There was no pain the right wrist but there was pain present. He concluded that there were no sudomotor[22] or motor/trophic[23] changes. The changes he referred to were of the vasomotor kind.[24]
[21] T Documents Q 2006/146, T7: Report dated 13 April 2005.
[22] Such as sweating changes.
[23] Such as muscle wasting.
[24] Such as changes in skin colour, skin temperature and oedema (swelling).
34. Importantly, Dr Burke’s second report accepted that the changes were indicative of a neuropathic condition, and concluded further that, as a sequence, it seemed that there was a connection between the events at work affecting her right forearm and the neuropathic symptoms. However in his oral evidence Dr Burke said that he could only describe these symptoms - it was not a diagnosis, and he would defer to Dr Cameron’s conclusions as he was a leading specialist in neurological disorders. He said, having read Dr Cameron’s report, that he would revise his opinion about the relationship of the current symptoms to work, because a neuropathic condition requires there be nerve injury. Dr Cameron could find no nerve injury.
LEGISLATION
35. The terms injury, disease and ailment are defined in s4 of the Safety Rehabilitation and Compensation Act 1988 (the Act). Section 14 of the Act provides that compensation is payable in respect of an injury suffered, if this results in incapacity for work or impairment. In Ms Davey’s case liability has been accepted for tendonitis of the extensor tendons of the right wrist and thumb condition. However it was abundantly clear that Ms Davey has recovered from any tendonitis or possible tenosynovitis, being the kind of soft tissue injury sustained after the introduction of the mouse-based computer program in early 2004. That is, I accept the evidence that a person will recover from that kind of injury within a relatively short period and the evidence here, particularly the radiological evidence from August 2004, shows that her recovery from the named condition had taken place by then.
36. Of course Ms Davey’s initial diagnosis and the acceptance of liability for that injury is not the matter before me. Liability as provided for in s14 of the Act is not in issue. What the second decision decided was that Ms Davey was no longer incapacitated by that injury, a conclusion which then affects entitlements under s16 and s19 of the Act. Section 14 creates the overall liability but the liability, is qualified, as the Court noted in Lees v Comcare (1999) 29 AAR 350, by other provisions of the Act.
37. A decision to cancel a person’s entitlement to compensation payments, including those under section 16 and 19 of the Act, must rest upon proper evidence. The medical evidence in this case provides a sound foundation to conclude that Ms Davey had recovered from tendonitis, previously found to be related to her work. To some extent the diagnosis in the first instance was put in doubt, particularly because of the delay in carrying out any tests which might have confirmed the condition, a delay that extended beyond the time in which such a condition would be expected to show improvement. However it seems to be generally accepted that the diagnosis of Dr Bradshaw was right at the time.
38. As to Ms Davey’s continued complaints with regard to her right forearm, the case is clearly more difficult. It is well recognised under the Act that it is not necessary to attach a particular medical label to a condition in order for there to be an entitlement to compensation: Comcare v Mooi (1996) 69 FCR 439. Clearly the definition of disease is a broad one, encompassing as it does ailments, which in turn extends to disorders and defects.
39. The medical reports showed quite conclusively that a diagnosis of chronic regional pain syndrome could not be made by applying the diagnostic requirements set out in the AMA Guide, either at the time of the initial acceptance of liability, or at the time her compensation payments were cancelled (the time which I must focus on for the second decision) or now.
40. I have already noted that no doctor suggested that Ms Davey was exaggerating her symptoms, or presenting anything other than an honest account of what she experienced. That assessment accords with my observations of Ms Davey at the hearing. However I am unable to conclude that that Ms Davey has any diagnosable condition which is a significant departure in any medically relevant sense from a normal physical state. No physical changes are observable in radiological studies of the upper limb. Dr Cameron, the neurologist, found no neurological abnormality of any kind. He said there was no physiological explanation for the experienced symptoms. Dr Millroy also could find no objective signs of abnormality.
41. This essentially left Dr Watson. I have already referred to the range of diagnoses he has given to Ms Davey’s condition. I am unable to accept his present diagnosis that Ms Davey suffers from chronic regional pain syndrome, when this clearly is not consistent with the AMA Guide requiring certain factors be met, factors which are absent in Ms Davey’s case. Even Dr Watson acknowledged this, whilst observing that the research and debate on taxonomy is in a state of flux and the taxonomy may be updated in the future.
42. I do not accept that Dr Watson’s other more general expressions of Ms Davey’s symptoms (set out above) identify any recognised disease or injury, and whilst this is not an absolute requirement given the breadth of the definitions in the Act, it seems to me that it makes the posited connection with the workplace in Ms Davey’s case more difficult to establish. I found Dr Watson’s reports less thorough and less detailed than those of the specialists. It seemed to me that he was much more ready to take a cluster of symptoms as expressive of a disorder, without recourse to objective clinical indicia. I accept the evidence of Dr Cameron about the importance of distinguishing between symptoms and signs when making a diagnosis. I placed most reliance on the report of Dr Cameron. If there was a disorder by the end of 2004, on the medical evidence it could only have been of a neurological kind - being Dr Cameron’s area of expertise, as was acknowledged by Dr Watson. Neurological disorder seems to be the primary reference point in Dr Watson’s reports however objective testing revealed no such neurological disorder.
43. Based on all the medical evidence, the correct and preferable decision was to cancel Ms Davey’s entitlement under s16 and 19 of the Act as was done in the second decision. This decision reflects that Ms Davey had a compensable condition in 2004, but the best medical evidence brought to bear on her symptoms and signs as described in 2005 could not identify a condition. There was no medical explanation of, and no organic basis for, the experienced symptoms. As Dr Millroy said, there was no specific condition subsisting in Ms Davey’s arm. If, as it is now thought, the original injury was a soft tissue one, it would have got better within a relatively short period. There was no medical evidence of a soft tissue injury still being in existence in 2005. The diagnoses of tenosynovitis or tendonitis find no support in the reports of any medical practitioners at that time.
44. There was no medical evidence that there was any aggravation of that condition or further development from it, itself connected with work. There was no convincing evidence that the symptoms which Ms Davey relates lead to incapacity for work or impairment. Dr Burke revised his opinion on that point. In view of the medical evidence I was satisfied that Ms Davey no longer suffers the effects of injury or disease within the meaning of the Act.
45. For these reasons I affirm the second decision under review, that is, the decision that at October 2005 Ms Davey no longer suffered the effects of tendonitis of the extensor tendons of the right wrist and thumb condition with the consequence that she was no longer entitled to payments under s16 or s19 of the Act.
46. I turn now to the first decision under review, made on 1 December 2004, as affirmed on review on 6 January 2005, that Ms Davey’s entitlement under s 19 of the Act should take into account an ability to earn, as per her proposed return to work plan. This had involved a proposal that would see her engaging in duties that did not involve repetitive use of the right arm. Dr Burke had certified that Ms Davey would be able to return to work as long as she was not using the arm in certain ways. Dr Watson had at first agreed.[25] The return-to-work program proposed that Ms Davey would work as a floor consultant, a position that would have minimal keyboard work. It was to commence as a 3 day week, 2 hours per day. Ms Davey attended on the first day of the return to work program and did not continue thereafter.
[25] T Documents Q 2005/142, T17, p 172.
47. With regard to that decision I took into account the medical evidence, including Dr Cameron’s evidence that Ms Davey would have been capable of her pre-injury duties at that stage in 2004 when the return-to-work was proposed. It seems to me that Dr Watson changed his mind, not on medical grounds, but having regard to Ms Davey’s preferences at the time. I concluded that his better clinical judgment was reflected in his reports at T27 and T31, certifying that Ms Davey would be able to carry out the proposed duties. Dr Millroy agreed.
48. Having reviewed the available medical evidence I was satisfied that there was no reason why Ms Davey could not have undertaken the proposed return-to-work program at the time it was initiated for her. For this reason the first decision was correctly made and as a result, Ms Davey’s entitlements to incapacity payments under s19 of the Act in the period 1 November 2004 to 25 October 2005 should be calculated having regard to the proposed hours contained in the return-to-work program.
DECISION
49. The Tribunal affirms the decisions under review.
I certify that the preceding 49 paragraphs are a true copy of the reasons for the decision herein of Senior Member M J Carstairs.
Signed: …………………………
AssociateDates of Hearing 12 and 13 March 2007
Date of Decision 2 March 2007
The applicant was self-represented
Counsel for the Respondent Mr C. Clark
Solicitor for the Respondent Ms S. Dole, Sparke Helmore
T Documents Q 2006/146, T9, p34: Statement dated 13 May 2005.
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