Douglas and Comcare

[2004] AATA 256

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 256

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/101

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PATRICIA MARIE DOUGLAS

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date12 March 2004

PlaceBrisbane

Decision

1.     The Tribunal sets aside the decisions dated 7 June 2002 and 11 December 2002.  

2.     In lieu thereof it is determined:

         (a)    that the respondent’s liability to pay to or for the applicant compensation as provided for in the Safety, Rehabilitation and Compensation Act 1988 as determined on 14 February 2002 should not have ceased on 9 June 2002; and

         (b)     that such liability has continued since 9 June 2002 and is presently continuing.

[Sgd The Hon C R Wright]

Deputy President

CATCHWORDS

Compensation – applicant suffering from occupational overuse syndrome (RSI) -  accepted for compensation and rehabilitation February 2002 – payments cancelled June 2002 – cessation of payments not justified.

Safety Rehabilitation and Compensation Act 1988

Australian Postal Commission v Burgazoff (1989) 10 AAR 296

Re Musumeci and Department of Health (1990) 19 ALD 797

Re Labi and Comcare (1998) AATA 979

REASONS FOR DECISION

12 March 2004 The Hon C R Wright QC., (Deputy President)  

1.      This is an application to review a decision by the respondent’s Senior Claims Officer made on 11 December 2002 affirming an earlier decision by Claims Officer Padget made on 7 June 2002.

2.      By that decision Claims Officer Padget determined that the respondent’s liability to pay the applicant compensation in respect of “repetitive strain injury (right arm) shoulder and wrist tendonitis” ceased on 7 June 2002.

3.      Liability of the respondent to pay the applicant compensation in respect of her incapacity resulting from these ailments had been determined in the applicant’s favour by Claims Officer Padget on 14 February 2002, and, in consequence, the applicant was paid compensation for periods during which she was unable to work and also received medical treatment in respect of her relevant ill health at the respondent’s cost until the determination to cease payment on 7 June 2002.

4.      On 8 September 2003, due to the respondent’s inability to find suitable work for the applicant to perform within the medical restrictions recommended by medical advisers, her employment with the respondent was terminated.

5.      The applicant commenced employment with the respondent in 1988 and started work as a logistics officer in about June 1999.    In this role most of her time (about 90% - 95%) was spent using a keyboard.

6.      During the last quarter of 2002 she began to experience pain in the right wrist arm and shoulder.   These symptoms intensified in December 2002 due to the applicant’s increasing workload.   She commenced a period of approximately 3 months sick leave late in December and returned to work with reduced or modified duties in March 2003.

7.      These rehabilitation steps failed to alleviate the applicant’s chronic pain in the right arm and, according to the applicant’s evidence, actually increased the severity of her symptoms.   The applicant says that she is now unable to perform numerous activities involving fine hand movements, in particular.

8.      She says any activity involving gripping with the right hand and using force  causes sharp shooting pain in the forearm.   She used to swim and surf, but no longer does so.   She still enjoys recreational walking, but has ceased gym work.   She is single and lives alone, but is able to do her housework at reduced speed and with difficulty.

9.      Computer keyboard work, writing and any repetitive work causes pain.  The applicant says there is no form of employment in which she could utilise those skills for which she was trained and qualified.

10.     The respondent contends that the applicant’s present incapacity results not from any form of occupational overuse syndrome or chronic regional pain syndrome caused by her employment, but from a non work related condition of calcific tendonitis of the right shoulder.    It is conceded by the respondent that initially the applicant’s work duties may have aggravated that underlying condition, but it is contended that that aggravating effect has now ceased.

11.     The application for review was called on for hearing before me in Brisbane on 27 November 2003.   Due to unavailability of witnesses for the respondent and the need for the applicant to call additional witnesses upon new issues it was then adjourned until 20 January 2004, when the hearing was concluded.   On each occasion the applicant was represented by Ms K Cochrane of counsel and the respondent by Mr C G Clark of counsel.   Oral evidence was given by the applicant, Dr D W Allen, Dr D Todman, Dr A M Donoghue, Dr S Kevat, Dr K Outerbridge and Dr R J Parkington.   These witnesses also provided written reports which were taken into evidence as exhibits.   The T documents were also taken into evidence (Exhibit 2).   The T documents included written reports by Dr Greenbury, Dr Gilpin, Dr James O’Callaghan and Ms Anitra Thomas (Naturopath) which have been considered along with the other evidence.

12.     It is clear that the respondent’s decision to cease compensation payments to the applicant was based upon the opinions expressed by Dr Parkington in his report of 24 April 2002 (Exhibit 2 pp 36-39).   In that report Dr Parkington made the following observations.

(a)That ultrasound and x-ray investigation revealed that the applicant’s right wrist appeared normal and her right shoulder contained calcification of the supraspinatus tendon.

(b)That calcific tendonitis of the shoulder is a degenerative age related condition and is not caused by trauma or repetitive activities.

(c)That calcific tendonitis is the cause of pain and restriction in the applicant’s right shoulder and right-upper arm.

(d)That calcific tendonitis does not usually cause referred pain into the forearm, but because there is no evidence of pathology in the forearm and no other apparent cause of the applicant’s forearm pain, it should be assumed that the pain in the applicant’s forearm is in fact referred pain from her shoulder.

(e)That therefore neither the calcific tendonitis nor the regional pain in the right forearm are work-related conditions.

(f)That her work factors may have caused discomfort and aggravated her pre-existing condition, but the effects of such aggravation were temporary and have now (ie as at 24 April 2002) ceased.

13.     At the conclusion of his report, Dr Parkington added:

“I think that the Neurontin has helped her.   It is not just an anticonvulsant medication it is also useful for neuralgia type pain.   I would not have expected it to have benefited her from the pain which she is experiencing from her calcific tendinitis but if she has regional pain in the forearm unrelated to her calcific tendinitis it may well have assisted this.”

14.     This part of Dr Parkington’s report features a number of matters of some significance to the applicant’s case as follows:

(a)It appears to acknowledge a fact which is not seriously contested by the respondent, viz that the applicant does have substantial pain in the right forearm.

(b)It mentions the fact, confirmed by the applicant’s evidence, and again, not seriously challenged, that she has had considerable and consistent relief from her pain in the forearm by taking Neurontin capsules prescribed by Dr Allen.

(c)That Neurontin assists neuralgic pain and is unlikely to assist pain from calcific tendonitis, thus it suggests that the forearm pain may be of neural origin.   This final proposition plainly tends to undermine propositions c, d and e in paragraph 12 above.

15.     Another feature of Dr Parkington’s report is to be found in his assertion that upon his examination of the applicant “She was not tender in the right forearm.   She indicated varying areas of pain around the right upper arm and lower arm, but these did not appear to be tender.”   This passage may be contrasted with a passage in Dr Allen’s report of 8 May 2002 (Exhibit 2, page 43) where her said:

“While I agree with much of the substance of Dr Parkington’s report, I feel that he does not adequately appreciate the condition of chronic regional pain, and failed to elicit the signs of this in my patient.   Specifically, his statement that she was not tender in the right forearm is not consistent with my findings on examination at every attendance.   She has been consistently tender over the proximal lateral forearm, with hyperalgesia and occasionally even allodynia.”

16.     The conflict that may be suggested in the applicant’s account of her forearm condition to Dr Parkington on the one hand, and to Dr Allen on the other, seems to me to be readily explained by Dr Parkington’s answers to me in the concluding stages of his oral evidence in which he said in effect, that upon examining the applicant he was looking for areas of discomfort in the applicant’s forearms over the specific areas of the surface of the forearm beneath which lay the tendons.   The clear inference is that he was looking for tenderness to see if there were areas of pain or discomfort other than those in respect of which the applicant had complained of pain.   This led  Dr Parkington to conclude there were no signs of pathology in the tendons, but this does not lead me to conclude that in respect of this matter the applicant is an unreliable witness or that she has been inconsistent in describing the location of pain or tenderness to examining medical practitioners.

17.     The respondents at the hearing also relied upon an opinion of Dr Sumant Kevat, a consultant rheumatologist to justify the decision to cease payments of compensation to the applicant.  Dr Kevat provided 3 reports which were taken into evidence (Exhibits 10, 11 and 12).    In Exhibit 12, Dr Kevat expressed the opinion that –

“I do consider that Ms Douglas as at March 2003 had a condition which had been caused and materially contributed to by her employment.   The outset of the complaint was related to intensive use of the computer mouse and keyboard, and these are the very activities which tend to exacerbate symptoms.”

18.     However, the part of Dr Kevat’s report upon which the respondent placed particular reliance is to be found in his response to the following questions posed by the respondent’s solicitors:

“We note that the Applicant reports that her condition remains unchanged, despite the fact that she has not worked since December 2002.

(a)Do you consider the employment related effects of her condition are likely to be continuing?

(b)If so,

(i)please explain why this is the case, and

(ii)do you consider that they will cease in the near future?

(c)If the employment related effects of her condition are not likely to be continuing when do you consider that they ceased?

(d)Please provide reasons for your answers.”

To these queries Dr Kevat responded as follows:

“I am unable to offer, on a scientifically defensible basis, a response to this question in the dichotomous terms that these questions are framed.

I would comment that the complaint has been present for a longer duration than in the average case.

Secondly, psychological factors such as the sufferer’s perception and motivation do have an important role in recovery, and these factors may well be beyond the influence of the employers.   Therefore it would seem fair for me to nominate six months as a reasonable period beyond which, if symptoms continue despite cessation of work and appropriate rehabilitation measures, that employment related factors no longer be considered operative.”

19.     Counsel for the applicant objected to the reception into evidence of the final sentence of this response.    The Tribunal is not bound by the rules of evidence applicable in a court of law, but nonetheless should follow the general principles of admissibility.   I took the view at the hearing (to which I still adhere) that expressed in the terms used by Dr Kevat the opinion was not an expert opinion..    I did not subscribe to Ms Cochrane’s submission that the material was inadmissible as being one upon the ultimate issue to be determined by the Tribunal.

20.     Nonetheless I admitted the evidence de bene esse and I said I would rule upon it when delivering my substantive decision in the matter.   In Dr Kevat’s oral evidence (at pp167-8 of my copy of the transcript) the following exchange took place between Mr Clark and the doctor after Mr Clark had read out the passage of the report now under discussion.

“Okay.   Now, Doctor, you’re expressing an opinion there which emanates from your medical expertise.   Isn’t that so? --- I can’t say that that’s medical.  I think that’s more I’m perhaps stepping outside a little bit of my medical expertise in trying to nominate, you know, when the effects of something might be said to last.   Now, the only medical basis that I could give for that is that most structural injuries that people suffer at six months you would consider that any process should have been completed.   So for physical aspects of the ….. that would be the physical basis for nominating that time.

All right.   Well ---? ---- But as ---

Can I just interrupt you there for a moment? --- Yes.

That’s a medical opinion, isn’t it? ---- Well, that is the core scientific knowledge that I would base that on, yes.”

21.     It has sometimes been said that it is not possible to “lead” an expert witness but Mr Clark’s questions (which were not objected to) certainly seemed to me to be a valiant attempt to do so.   Even so Dr Kevat responded in terms which clearly demonstrate to me that his written opinion upon this matter is not an expert opinion and should not be admitted in evidence.   If I am wrong as to this and it should be admitted I am left in no doubt that it should not be acted upon.   No acceptable basis for the opinion was provided in my view.    It amounted in substance to no more than an observation as to the usual or normal course of such conditions.   It was not expressed as an opinion appropriately related to the applicant and to me bears no weight in the resolution of the present matter.

22.     It should be noted that there is no current issue as to whether or not the applicant’s claimed disability has produced a permanent incapacity for work.   Some of the medical reports related (inter alia) to this question but counsel were agreed that my only task is to determine whether or not the respondent’s liability to pay compensation to the applicant extended beyond the 7 June 2002.   No doubt if I were to find that liability extended beyond that date, but had ceased prior to my decision I would be expected to say so.   Counsel did not address me as to this, but in the circumstances I find it unnecessary to dwell upon this as a potential issue.

23.     I have found it convenient in dealing with the liability issue in this matter to discuss some of the key areas of the respondent’s case before dealing with the applicant’s case.    I have done this because it seemed appropriate to me to do so.   Its case is centred upon the question whether or not the respondent was justified in ceasing compensation payments to the applicant.   It seems to me that in these circumstances a substantial evidentiary burden falls upon the respondent.

24.     It seems to me that this is correct notwithstanding that the respondent did not initially accept an unlimited liability to pay the applicant and did not simply reduce payments to her but cancelled them altogether.   I am greatly attracted to and assisted by the decision of Davies J in Australian Postal Commission v Burgazoff (1989) 10 AAR 296 @ 198-299 where he said:

“I accept without qualification the point that there was no strict onus of proof to be applied in the proceedings before the Tribunal. In this respect, the principles have been fully considered in McDonald v. Director-General of Social Security (1984) 1 FCR 354. I agree entirely with the separate observations made by Woodward, Northrop and Jenkinson JJ. in that case and I am, indeed, bound to apply their Honours' judgment.

What was said in McDonald's case is consistent with the views earlier stated by Fox J. in Ladic v. Capital Territory Health Commission, (partly reported in (1982) 5 ALN N60). His Honour said, inter alia:-

"Subject to relevant legislation, it is for the Tribunal to decide upon its own procedure. Although in many ways resembling a court of law, and although it finds it helpful to follow, in general, the course of proceedings in a court of law, it must always be remembered that its role is fundamentally administrative. Its task is to inquire. By way of contrast, the task of a court of law is, in general, to decide which of two opposed cases is to be preferred. It was well within the competence of the Tribunal in the present case to decide at what stage Mrs. Ladic should have been required to give evidence.

The term 'onus of proof' (or 'burden of proof') has much of its application as an incident of the adversary system of litigation found in common law countries. This is not the occasion to examine its meaning and application in proceedings before the Tribunal. It was undoubtedly necessary for the Tribunal in the present case to be satisfied, on the facts, of certain matters. This was a legal burden, or requirement, and could, as a matter of common sense, be said to have rested with the party seeking the result. If there had been continuing periodical payments for incapacity, one matter of which the Tribunal would have had to be satisfied was that there had been a change, justifying cessation or reduction of payments (see The Commonwealth v Muratore (1978) 141 CLR 296)."

It was these principles which the Tribunal applied. The Tribunal did not treat the proceedings before it as adversarial proceedings in the nature of proceedings in a court. Indeed, it seems that the Tribunal, in accordance with the ordinary practice of the Administrative Appeals Tribunal, took into evidence before it the documents described as the "T documents", a nomenclature given to such documents as a recognition of the Tribunal's function as an administrative body and a notification to the parties before it, that, in addition to any material any party might wish to put before it, the Tribunal would take the "T documents" into account.

Because of the nature of its function and the fact that it proceeds by way of a hearing at which parties are entitled to appear and be represented, the Administrative Appeals Tribunal itself rarely calls evidence and never itself makes investigations outside the conduct of the hearing. But an Administrative Appeals Tribunal, as an administrative body, will feel free to suggest to the parties other additional information which ought to be obtained and sometimes appropriate means of obtaining the information and bringing it into evidence. An Administrative Appeals Tribunal may also, in the course of its proceedings, make it clear to one or other of the parties what the position would be if the evidence before the Tribunal were left in its then state. If it does so it is not then placing a legal onus of proof upon a party but merely making it clear to a party what would be the Tribunal's state of satisfaction as to relevant matters if no further evidence were called. As Woodward J. said in McDonald's case, cited above, at p 357:-

"Certainly if no material is available to the decision-maker, or if available material leaves the decision-maker quite uncertain whether the person is permanently incapacitated, the claim must fail. But I think it would be artificial to describe this situation in terms of the legal onus of proof."

The facts which were before the Tribunal in the prsent case would, in a court of law, have called up an onus of proof if the proceeding had been a proceeding in a court of law. As this matter has been fully considered in Commonwealth of Australia v. Muratore (1978) 141 CLR 296, I need not elaborate upon it. Although there was not here a determination of entitlement which was unlimited in time, nevertheless, the course of administration of Mr Burgahoff’s claim was such that he would have continued to receive compensation unless the Commissioner for Employees' Compensation or his delegate had been satisfied that there was good reason for terminating that entitlement. This circumstance, which in a court of law would have called up an onus of proof, therefore, in proceedings before the Tribunal, called up the need for the Tribunal to be satisfied that the entitlement should be terminated.”

25.     In discussing the major aspects of the evidence supportive of the respondent’s case, I have not been looking to see if the applicant has, in effect, a case to answer.  Far from it.   But I do think it useful to identify and analyse the respondent’s basis for claiming that cessation of compensation payments was justified.   At no time did Mr Clark seek to agitate the issue as to whether or not the applicant had ever had a legitimate and sustainable claim for compensation against the respondent.

26.     Before leaving this discussion of some of the broader aspects of the case it is appropriate to make two general observations.

(a)The respondent suggested that the applicant’s continuing pain may have a psychological or psychiatric component.   Whilst some of the medical witnesses tended to agree with the proposition that such an assessment may be helpful, there was, in my opinion, no substantial basis for my concluding that the absence of a psychiatric evaluation leaves an unexplained gap in the evidence necessary to establish the aetiology of the applicant’s forearm pain.  The respondent appears not to have sought a psychiatric examination of the applicant at any time prior to the hearing.

(b)The applicant was cross-examined by Mr Clark as to the sequence of events leading up to her initial incapacity which became manifest in December 2001.   She was also cross-examined as to her earlier statements as to the progress and duration of her symptoms with a view to showing her unreliability as an historian in relation to both her symptoms and the chronological sequence of their development.   I accept Mr Clark’s submission that in certain respects she gave answers and evidence which was internally inconsistent.   He gave some illustrations of this during his final address.   Not all of those illustrations demonstrated unrelialbility however.   For example, he quoted Dr Allen’s note that the applicant ”had no pain during two months in Switzerland” (see Exhibit 5) as an example of inconsistency.   Mr Clark asked Dr Allen as to this note in cross-examination.   Dr Allen confirmed the note and was asked  “So that was information that she gave you.   Is that so?”   Dr Allen replied “That’s correct”.    That is as far as the questions went on this issue.  At face value this could be taken as an assertion by the applicant that she had no pain whatsoever in her forearm during her Swiss holiday of 2 months duration.   However I very much doubt that this is what she said to Dr Allen.   During her evidence on 27 November 2003, she was asked by her counsel.

“Did your right arm condition cause you any difficulty while you were away overseas? --- No.

Did you have to take any Neurontin while you were on holiday? --- Very little.

How many would you have taken? --- I would say approximately six.”

To me this indicates a substantially diminished experience of pain during the two month period, but not a complete absence of pain.   I do not accept this material as impinging upon the applicant’s credibility and, overall, I am of the opinion that notwithstanding some minor inconsistencies between her evidence and prior statements she was, in general, a credible and reliable witness.

27.     I accept that some time between September and November 2001, the applicant began to suffer pain as a result of her heavy workload involving almost constant keyboard and mouse work on the computer.   She first sought medical assistance in respect of this in late December 2001 and was told by her general practitioner that she had RSI.   There is no need to detail her dealings with her general practitioner and specialists thereafter, nor is there a need to detail the sequence in which the painful condition of her shoulder, forearm and wrist developed.  Efforts were made by the respondent in conjunction with her medical advisers to get her back to work.   I am satisfied that she was cooperative and well motivated to resume her normal employment duties, but eventually found this to be impossible as her condition failed to respond to the rehabilitative programmes being undertaken.

28.     The applicant has been treated for the greater part of her incapacity by her general practitioner, Dr Allen.    She has also been seen by a number of specialist medical practitioners in a variety of disciplines.  With full deference to the expert opinions of the various specialists  I think that Dr Allen summarised her situation as well as anyone when, in his report of 7 November 2002 (Exhibit 2 p.71) he said:

“This lady continues to suffer severe pain in her arms whenever she uses a keyboard or mouse – a form of occupational overuse syndrome or chronic regional pain syndrome, rather than an orthopaedic condition.   This uncommon condition is triggered by repetitive overuse (eg keyboard work0 setting up a self-perpetuating neuronal pathway in susceptible individuals.”

29.     Dr Parkington, whose evidence has already been discussed above is an orthopaedic surgeon of considerable experience but, as I have already observed I think, his examination of the applicant was focussed upon the issue of whether or not there was a demonstrable organic explanation for her condition.   He found one, which he acknowledged as highly unlikely in view of his own experience, in the presence of calcific tendonitis in the supraprinatus tendon.    Although somewhat dismissive of occupational overuse syndrome as a “ragbag description” and “not a pathological diagnosis”, he acknowledged that it would be appropriate to refer a patient complaining of chronic pain to a pain clinic.

30.     Dr Outerbridge provided one of the earlier reports on the applicant dated 6 February 2002 (Exhibit 2 p18-21).     Like Dr Parkington, Dr Outerbridge is an experienced orthopaedic surgeon.   Dr Outerbridge expressed the opinion that the applicant had developed “an extensor as well as flexor tendonitis involving the muscles and tendons of the right forearm”..   He observed that there was no evidence of reflex sympathetic dystrophy or, as it is known, complex regional pain (a view shared by all medical practitioners involved in the case who have addressed their minds to it).   He also took the view that the applicant’s pain in the right shoulder resulted from her “constant typing”..   He recommended a number of improvements and modifications to her working station and conditions.   He was also of the opinion that, at that stage, the applicant was totally incapacitated for work.

31.     After Dr Parkington examined the applicant, his report and other documents (including reports by Dr O’Callaghan and Dr Allen) were sent to Dr Outerbridge for comment.   Having reviewed this material Dr Outerbridge (on 31 March 2003) retracted his original diagnosis as to the cause of the applicant’s painful forearm.  He thought Dr Allen’s causal explanation for the pain to be “somewhat dubious”, but he agreed with both Dr O’Callaghan (a pain management specialist) and Dr Allen that a pain management program should be devised to assist the applicant’s rehabilitation (see Exhibit 13).   Like Dr Parkington, Dr Outerbridge was dismissive of the term “occupational overuse syndrome” as a diagnostic term.   He said “I personally don’t use the term because I don’t feel it exists”.    I regret to say that I did not regard Dr Outerbridge as an impressive witness.   His recollection of the applicant was virtually non-existent and he was plainly prepared to defer to Dr Parkington’s views without e-examining the applicant.   He was also poorly prepared to give evidence and to my mind was too dogmatic in his dismissal of the idea of pain without demonstrable physical cause.

32.     Only 7 days after the respondent ceased compensation payments, i.e on 14 June 2002, the respondent received a report from Dr Donoghue (Exhibit 6).   In that report Dr Donoghue, a specialist in occupational medicine since 1996 and with substantial professional qualifications, diagnosed the applicant as having a diffuse occupational over use syndrome of the right arm probably caused by work factors.   He expressed the view that her progress was slow and steady and added:

“It is fairly common for recovery to take several months and I do not think that her progress has been unusually slow.”

He thought the applicant would be able to resume normal duties within 6 months.   Oddly enough this report was not referred to in any way by the Senior Claims Officer in the reasons for his decision made on 11 December 2002.   

33.     Dr Donoghue reviewed the applicant again on 17 January 2003 and in a report to the respondent of the same date (Exhibit 7) confirmed his original diagnosis.   He found that the applicant’s condition had not improved and her recovery was likely to take many months more.     He recommended her referral to a Specialist Rheumatologist.  When giving oral evidence to the Tribunal on 27 November 2003, Dr Donoghue was asked whether occupational overuse injury can set up self perpetuating neuronal pathways (as predicated by Dr Allen).   He replied:

“I would be a little cautious about saying that a particular mechanism was at play.   One of the problems with this condition is that it is not fully understood.   There has been a lot of research done into occupation overuse syndrome and it has a number of names, I might point out, as well, which also vary depending on which part of the world you are in.   There are a lot of theories as to the patho-physiology, if you like, or the mechanism by which the condition is caused but, as yet, the body of evidence to really determine the nature of that mechanism is not substantial to the point of being able to reach a very definite conclusion.   I know that people have postulated mechanisms involving the nervous system, but also the vascular system and also muscular – inherent muscular disorders.   Now, as yet, the exact mechanism, I don’t believe, has been clarified, but returning to your question, really, certainly the outlook for some people with this condition is poor.   It is recognised that a proportion of cases do develop chronic pain and disability, and, in some cases, find that they are unable to return to their normal duties.   Obviously, we all try and emphasise rehabilitation as early as possible to try and improve a return to work, but sometimes it has to be acknowledged that this doesn’t work out.”

Under cross-examination by Mr Clark, Dr Douglas said:

“Well, the most recent sort of literature now is really talking about a bio-psychosocial model for occupational overuse or cumulative trauma disorders, as the Americans call them.   And that really is a reflection of the recognition that psychological conditions, social conditions, as well as the biological or physical, if you like, conditions, are all relevant to the condition.”

34.     As a consequence of Dr Donoghue’s recommendation, the applicant was referred to Dr Kevat, a consultant rheumatologist on 21 March 2003.   I have already referred to some aspects of Dr Kevat’s evidence.    In his report to Dr Donoghue dated 25 March 2003 (Exhibit 10) Dr Kevat said:

“I agree with your diagnosis of a diffuse form of occupational over use syndrome.   There is no evidence of alternative rheumatic disease.”

35.     In a subsequent report (Exhibit 11, 20 September 2003) Dr Kevat expressed the view that there was no permanent impairment, but recommended that the applicant’s impairment could be reduced by participation in a pain management program.   In response to a request by the respondent’s legal advisers, Dr Kevat provided this useful definition of “diffuse form of occupational over use syndrome with reference to its cause, symptoms and prognosis.”

“The term `syndrome’ in this expression implies that the complaint is not capable of being defined in precise anatomical or physiological terms, but is rather a description of a phenomenon.

The words `occupational overuse’ indicates that the complaint is precipitated by an increased occupational workload.

Finally `diffuse’ refers to the extended distribution of the pain complaint so that its origin cannot be pinned down to a particular anatomical structure.   The prognosis for this complaint is highly variable.   The majority of sufferers are able to return to work in a graduated return to work programme.   The duration of the symptoms tend to be longer than those where a more definite process such as muscle strain, tendinopathy or fracture are involved.”

36.     At the request of the applicant’s solicitors she was also seen by Dr Don Todman a consultant neurologist.   He provided reports dated 14 May 2003 (Exhibit 3) and 29 July 2003 (Exhibit 4).   He expressed his opinion as follows (Exhibit 3, page 3):

“Miss Patricia Marie Douglas has a chronic pain syndrome which has involved primarily the right upper limb with mild symptoms involving the left upper limb.  These symptoms came on during the course of her work with Telstra particularly continuous keyboard work.    The symptoms were aggravated by keyboard use and eased partly with rest.

My examination revealed multiple tender spots in the right upper limb.   There was no weakness or any evidence of sensory loss or reflex change.   Nerve conduction studies in an E.M.G. examination were normal in the right upper limb with no evidence of nerve entrapment.

Miss Douglas has a chronic pain syndrome which came on initially with her repetitive keyboard use.  In my opinion the keyboard use has been the cause of her symptoms as these have been historically linked to this use and have eased partly with cessation of keyboard activity.   As such it represents a form of overuse syndrome.”

He refined this in his second report (Exhibit 4) where he said:

“(a)In my opinion the right forearm pain is a separate condition from calcific tendonitis in the right shoulder which has been diagnosed by Dr K Outerbridge.   Although shoulder symptoms can occasionally radiate into the arm, the characteristics of the symptoms in her forearm indicate that this is a separate condition.

(b)The continuing symptoms in the right forearm and upper limb are a consequence of the occupational overuse syndrome.

(c)The effects of the occupational overuse syndrome have continued beyond 07.06.2002.

(d)The effects of the continuing symptoms of this injury are work-related.

(e)The prognosis is guarded at this time, but it is likely to be further symptoms at this level.   She has experienced improvement with treatment whilst not working.   It is quite likely that by re-entering the workforce and writing or typing, the symptoms will worsen.   I expect that current symptoms will remain at about this level as a permanent state of affairs.

(f)Further employment may be possible for Miss Douglas in the future, but she is restricted from repetitive tasks involving her right arm which unfortunately would also involve writing and typing.   As a consequence of these limitations she will have difficulty obtaining employment in the open work place.”

37.     Dr Todman also gave oral evidence but nothing of significance by way of new information or modification of his opinions emerged.   I found him to be a helpful witness and I accept his evidence.

38.     On the whole of the evidence I am left in little doubt that the applicant on 7 June 2002 was incapacitated for her work by a work-related ailment known variously as occupational overuse syndrome or chronic regional pain syndrome.

39.     In reaching this conclusion I have considered the shortcomings of some of the evidence by Dr Parkington and Dr Kevat discussed in the earlier parts of these reasons.   I have also mentioned my reservations as to the views of Dr Outerbridge.   There has been no challenge to the applicant’s contention that she has suffered and continues to suffer genuine pain in her right forearm.   I am satisfied that such pain incapacitates her for her employment.   Such incapacity is total and probably permanent, although I make no finding on the latter issue at the present time.   I am also satisfied that her work activities caused the onset of the forearm pain and served to perpetuate such symptoms thereafter.    These conclusions are supported by the weight of the expert medical opinions including those of Dr Allen who, notwithstanding his general practitioner status has had a continuing professional relationship with the applicant and was an impressive witness who demonstrated a sound knowledge on the medical issues arising in this case.

40.     The aetiology of occupational overuse syndrome is controversial in some areas of medicine and is not well understood.   It is not possible to say affirmatively that it results from “self perpetuating neuronal pathways” as predicated by Dr Allen, but this does not lessen my confidence that it is a genuine compensable condition in individuals who are able to demonstrate an appropriate nexus between the onset and continuation of the pain condition and their work activities.   It is immaterial that there is no clear medical consensus as to the terminology which best describes the condition or the physiological features which in combination with work practices produce the painful symptoms. (see Re Beer and Australian Telecommunications Commission (1990) AAT No 59974 (R K Todd, Deputy President); Jeremic and Comcare (1990) AAT No 5975 (R K Todd, Deputy President) and Musumeci and  Department of Health (1990) 19 ALD 797 (R K Todd, Deputy President). In Musumeci Deputy President Todd said:

“… proven pain may in some circumstances fall within the statutory definition of disease notwithstanding that medical science is unable to agree on the label that is to be attached to the condition that gives rise to the production of non-transient symptoms that constitute pain.”

Similar views were expressed by the Tribunal in Labi and Comcare (1998) AATA 979 @ paragraphs 24 and 25.

41.     In my opinion the decision of the respondent dated 7 June 2002 and 11 December 2002 should be set aside.   In lieu thereof it will be determined that the respondent’s liability to pay to or for the applicant compensation as provided for in the Safety, Rehabilitation and Compensation Act 1988 as determined on 14 February 2002 should not have ceased on 9 June 2002 and that such liability has continued since 9 June 2002 and is presently continuing.

42.     The question of costs is dealt with by s67(8) of the Act.   In my opinion the respondent should pay the applicant’s costs of these proceedings and I so order.   In the event that the parties are unable to agree the amount thereof those costs are to be taxed as provided in s67(13).

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed:  K L Miller (Administrative Assistant)     

Date/s of Hearing  27 November 2003 and 20 January 2004      
Date of Decision  12 March 2004
Counsel for the Applicant         Ms K Cochrane
Solicitor for the Applicant          Kathy Delaney, Delaney Solicitors

Counsel for the Respondent     Mr C Clark           
Solicitor for the Respondent     Sparke, Helmore