DQRG and COMCARE

[2009] AATA 234

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 234

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0392

GENERAL ADMINISTRATIVE DIVISION		)
Re		DQRG

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date8 April 2009  

PlaceBrisbane (heard in Townsville)

Decision The decision under review is affirmed.

.................[Sgd].............................

Deputy President

CATCHWORDS

WORKER’S COMPENSATION – diagnosis of complex regional pain syndrome not accepted – not necessary to find a specific diagnostic label – no connection between employment and applicant’s condition – decision under review affirmed.

REASONS FOR DECISION

8 April 2009	Deputy President P E Hack SC
Introduction

1.The applicant was employed by an agency of the Commonwealth between 1986 and 1995 and by another agency between 2001 and 2007. The applicant contends that she suffers from a condition described as complex regional pain syndrome (CRPS) and that the condition arises out of her employment with the Commonwealth.

2.The respondent, Comcare, rejected the applicant’s claim for compensation lodged on 22 May 2006 and determined that there was no liability to pay compensation to the applicant. That determination, made on 5 September 2006, was affirmed on reconsideration on 26 November 2007.

3.In the course of the hearing Mr Clark, counsel for Comcare, advised that he intended to raise with the applicant that she had been the victim of a sexual assault as a child; that event, on one view of the evidence, being a potential cause of the matters of which the applicant claims. In those circumstances I made orders designed to prevent publication of the name of the applicant and of evidence that might identify her.

Background

4.The applicant has a very complex history of symptoms dating back over twenty years and she has been seen by a vast range of medical practitioners. It will suffice to start with a claim for compensation made in May 2002. The applicant saw her general practitioner in April of that year complaining of “bilateral thenar pain and ?cyanosis at work typing”. This was recorded as having occurred for “about a year”. The applicant was referred to Dr Jon Weimers, a neurologist, who found it difficult to arrive at any specific diagnosis for the complaints made. Nerve conduction studies were performed on both hands. No evidence of any significant median nerve compression was shown.

5.Then in August 2002 the applicant was seen by Dr RRD Watson. He described the symptoms thus:

“She continues to have chronic neck pain stiffness and headache, bilateral jaw joint pain, anterior chestwall pain, blueness of the hands, dysaesthesia and numbness in the ulnar three fingers bilaterally, excessively sweaty palms, plus a pulsating feeling in the palms and tingling on the dorsum of the hands.” 

Dr Watson diagnosed a bilateral upper limb neuropathic pain syndrome which he said had been predisposed by an earlier repetitive strain injury.

6.The applicant was seen by Dr Max Wearne, an orthopaedic surgeon, on 13 August 2002. He “found it difficult to reconcile [the applicant’s] physical appearance with her complaints”. He was unable to find any evidence that the applicant had CRPS although he regarded the diagnosis as uncertain. Dr Ian Low, specialist in occupational medicine, reached a similar conclusion about the absence of CRPS when he saw the applicant in August 2003.

7.Dr David Douglas, a consultant occupational physician, saw the applicant in September 2006. At that time he concluded that she was suffering from a general anxiety state. He remained of that view in November 2007 when he saw her again. Dr Douglas gave evidence before me. He rejected a diagnosis of CRPS on the basis that the applicant had never complained of relevant symptoms.

8.I should, at this juncture, make greater reference to CRPS. Extracts from the Fifth and Sixth Editions of the American Medical Association’s “Guide to the Evaluation of Permanent Impairment” are in evidence. It will be helpful to set out the following passage from the Fifth Edition of the Guide[1]:

[1]        At page 496.

“Since a subjective complaint of pain is the hallmark of these conditions, and many of the associated physical signs and radiological findings can be the result of disuse, the differential diagnosis is extensive; it includes somatoform pain disorder, somatoform conversion disorder, factitious disorder, and malingering. Consequently, the approach to the diagnosis of these conditions should be conservative and based on objective findings. The criteria listed in Table 16-16 predicate a diagnosis of CRPS upon a preponderance of objective findings that can be identified during a standard physical examination and demonstrated by radiologic techniques. At least eight of these findings must be present concurrently for a diagnosis of CRPS. Signs are objective evidence of disease perceptible to the examiner, as opposed to symptoms, which are subjective sensations of the individual.

Local clinical signs

Vasomotor changes

·Skin color: mottled or cyanotic

·Skin temperature: cool

·Edema

Sudomotor changes

·Skin dry or overly moist

Trophic changes

·Skin texture: smooth, nonelastic

·Soft tissue atrophy: especially in fingertips

·Joint stiffness and decreased passive motion

·Nail changes: blemished, curved, talonlike

·Hair growth changes: fall out, longer, finer

Radiographic signs

·Radiographs: trophic bone changes, osteoporosis

·Bone scan: findings consistent with CRPS.”

In the Sixth Edition of the Guide the diagnostic criteria are described as follows:

“1) Continuing pain, which is disproportionate to any inciting event.

2) Must report at least 1 symptom in 3 of the 4 following categories:

­­­___ Sensory: Reports of hyperesthesia and/or allodynia

­___ Vasomotor: Reports of temperature asymmetry and/or skin color changes and/or skin  color asymmetry

___ Sudomotor/Edema: Reports of edema and/or sweating changes and/or sweating asymmetry

___ Motor/Trophic: Reports of decreased range of motion and/or motor dysfunction (weakness, tremor, dystonia) and/or trophic changes (hair, nail, skin)

3) Must display at least 1 signª at time of evaluation in 2 or more of the following categories:

___ Sensory: Evidence of hyperalgesia (to pinprick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement)

___ Vasomotor: Evidence of temperature asymmetry and/or skin color changes and/or asymmetry

___ Sudomotor/Edema: Evidence of edema and/or sweating changes and/or sweating asymmetry

___ Motor/Trophic: Evidence of decreased range of motion and/or motor dysfunction (weakness, tremor, dystonia) and/or trophic changes (hair, nail, skin)

4) There is no other diagnosis that better explains the signs and symptoms.

ª A sign is counted only if it is observed and documented at the time of the impairment evaluation.”

9.The critical question in this case is that of diagnosis. I have the benefit of the evidence of three medical practitioners on that issue – Dr Douglas, Dr Watson and Dr Gregory Ohlrich, a consultant neurologist. Dr Watson says confidently that the applicant suffers from CRPS; Dr Douglas and Dr Ohlrich say with equal confidence that she does not. As will appear, I prefer the opinions of Dr Ohlrich and Dr Douglas.

10.Dr Watson said of the applicant’s condition that it had “features that allow it to be probably characterised as CRPS”. He described three clinical signs that he had observed over the years – marked swelling of the arm and forearm, a mottled skin to the arm and forearm and sweating. But the consensus of medical opinion, as exemplified in the American Medical Association’s Guide, is that a far greater number of signs need be present concurrently before a diagnosis may be made. Dr Watson, as I understood him, had not made these observations concurrently nor had he observed the number of signs that the Guide suggests need be observed before a diagnosis may be made. It is difficult to see how Dr Watson could have reached the diagnosis that he did. His willingness to do so and his long history of treating the applicant lead me to conclude that I ought not rely on his evidence.

11.For his part Dr Ohlrich rejected the diagnosis of CRPS. When he examined the applicant in May 2008 he saw none of the signs of the condition. Indeed, in the course of a detailed neurological examination he could find no organic or structural cause for the applicant’s complaints of pain and hypersensitivity all over her body. Those complaints, he said, were “wildly out of proportion to the asserted injury”. Similarly, Dr Douglas rejected a diagnosis of CRPS on the basis that she had never complained of the relevant symptoms. He was of the view that the applicant’s condition was more accurately diagnosed as a longstanding psychiatric disorder which was consistent with the admitted history of childhood sexual abuse. These opinions are logical and persuasive and I accept them.

12.In the result I am not satisfied that the applicant’s condition is that of CRPS. But that is not the end of the matter. Comcare accepts that it is not necessary to find a specific diagnosis or diagnostic label although it must be established that some injury or disease exists. Thus the question that arises is whether, however the applicant’s condition be described, it has the necessary connection to the applicant’s employment.

13.As I have said, Dr Douglas ventures the opinion of a psychiatric disorder. I need not determine whether that is a correct diagnosis. It is sufficient to say that there is no apparent connection between such a condition and the applicant’s employment. Dr Ohlrich says of the applicant’s symptoms that they are not organic and not structurally based. He says that they are not related to her employment. His reasons for that conclusion are:

“1.[The applicant] has diffuse, widespread complaints in multiple body systems. She has multiple complaints, not just pain.

2.She still has a major disability 12 months after stopping work.

3.There are no objective findings on examination.”

14.As I have said I prefer the evidence of Dr Ohlrich and Dr Douglas to that of Dr Watson. I am then not satisfied that there is any connection between the applicant’s condition, however described, and her employment. I would affirm the decision under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .......................[Sgd].........................................................
  Melissa Hamblin, Associate

Date of Hearing  19 March 2009 
Date of Decision  8 April 2009
The Applicant appeared in person  
Counsel for the Respondent     Mr C Clark 
Solicitor for the Respondent     Sparke Helmore