Elmir and Comcare
[2006] AATA 1036
•1 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1036
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/355
GENERAL ADMINISTRATIVE DIVISION ) Re HELEN ELMIR Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date 1 December 2006
Place Canberra
Decision 1) The decision of Comcare made 14 November 2005 is set aside and in substitution it is decided that:
a) Since 11 August 2005 Mrs Elmir has been, and at the date of this decision is, partially incapacitated for work;
b) Since 11 August 2005 Comcare has not been, and at the date of this decision is not, liable to pay for the cost of massage therapy obtained by Mrs Elmir;
c) Since 11 August 2005 Comcare has not been, and at the date of this decision is not, liable to pay for the cost of household services obtained by Mrs Elmir.
2) The matter is remitted to Comcare to determine the extent of Mrs Elmir’s present incapacity.
3) Each party has liberty to apply for a direction in relation to the costs of these proceedings but if no such application is made within 14 days of the date of this decision the costs of these proceedings incurred by Mrs Elmir shall be paid by Comcare.
..............................................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – Aggravation of pre-existing injuries by employment related keyboard activity – Payment of cost of medical treatment and household services – Cease effects decision – Whether injury continues to result in total or partial incapacity for work – Whether medical treatment reasonably required – Whether household services reasonably required.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 16, 21, 29
Commonwealth v Borg (1994) 20 AAR 299
Comcare v Rowe (2002) 35 AAR 410; [2002] FCA 1034
Re Prica and Comcare (1996) 44 ALD 45
Re Smith and Comcare [2002] AATA 249
REASONS FOR DECISION
1 December 2006 J.W. Constance, Senior Member INTRODUCTION
1. From 1966 until 2005 Mrs Elmir received compensation for an injury she suffered at work in June 1995. In 2005 Comcare reviewed her situation and decided that at that time she was no longer suffering the effects of the injury. It is this decision which Mrs Elmir seeks to have reviewed by the Tribunal.
2. For the reasons which follow I have decided that at present Mrs Elmir is partially incapacitated for work and that the matter should be remitted to Comcare to determine the extent of that incapacity. This will require further expert assessment and the development of a plan for a graduated return to work by Mrs Elmir.
FACTS
3. Unless otherwise stated the following facts are based on the evidence of Mrs Elmir. I am satisfied of these facts on the balance of probabilities.
Mrs Elmir is 42 years of age. In 1983 she commenced employment with the Department of Social Security. In 1996 Mrs Elmir took a voluntary redundancy and since then Mrs Elmir has not been engaged in paid employment, but has spent her time at home caring for her husband and four children. At the time she ceased employment she had two children; her two younger children were born after she took the voluntary redundancy. Her children are now aged 18, 13, 3 and almost 2.
4. In 1992 Mrs Elmir was involved in a motor vehicle accident in which she sustained a whiplash injury to her neck as a result of which she suffered pain in her left shoulder, arm, neck and down to her lower back. In 1995 Mrs Elmir lodged a claim for workers’ compensation for an aggravation of the injuries she received in the accident. She claimed the aggravation was caused by her working on a keyboard. In 1997 this Tribunal found that the injuries suffered by her in the accident were aggravated by her work activities and that she may have become vulnerable to further injury. The Tribunal went on to find that Mrs Elmir’s "work activities, and her key-board work in particular, materially contributed to the development of the symptoms she complained of in June 1995 -- the development of wrist, elbow and shoulder pain, in her left wrist and arm in particular, and the deterioration of her neck and shoulder condition." [1]
[1] Exhibit A3, T36.
5. Following the Tribunal's decision Comcare paid compensation to Mrs Elmir for incapacity, for the cost of treatment related to her injury and for some household services. These payments continued until 11 August 2005 when Comcare determined that at that time Mrs Elmir was not entitled to payments for incapacity, medical expenses and household services as she did not then suffer from the effects of the compensable injury. This decision was affirmed on review by Comcare and it is this reviewable decision which Mrs Elmir now seeks to have set aside by the Tribunal.
6. Mrs Elmir gave evidence that when she ceased keyboard work in 1996 the pain in her neck and arms and a feeling of numbness in her arms continued and have continued to the present. She described her condition at the time of the hearing as follows:
·“I still suffer a lot of pain, stiffness, and limited movement in my back;"
·“I can't lift heavy things, although I've had to pick up my children, and it’s really painful”;
·“I can't normally push heavy objects without being in a lot of pain’;
·"I can't lift my hands straight up, because it's too painful”;
·“when I bend over, can't bend straight, because when I do, it's very painful in my mid to lower back”;
·“I still get headaches, but they're not as severe";
·"I'm still getting that [numbness] and getting it more………. in my right hand".[2]
[2] Transcript of Proceedings, 4 September 2006, pp 8-12.
7. Mrs Elmir does most of the household tasks associated with caring for her four children and her husband. She suffers pain whilst undertaking these tasks but does the best she can. Mrs Elmir has not tried to obtain employment since she took the voluntary redundancy in 1996. She said that she had not done so as she is in too much pain to work.
8. Comcare produced two surveillance videos taken during the periods 28 October 2004 to 7 November 2004 and 13 April 2006 to 4 May 2006.[3] These videos show Mrs Elmir driving a motor vehicle, shopping, pushing a shopping trolley, picking up and holding items with each hand separately, lifting items including a child’s stroller into the boot of a vehicle, lifting her children and bending over.
[3] Exhibit R1 and R2.
Medical evidence
9. Dr Champion, Consultant Physician in Rheumatology and Pain Medicine, examined Mrs Elmir at the request of her solicitors for the purpose of these proceedings. The examination took place on 19 January 2006. In his report of 27 January 2006 [4] Dr Champion gave the following opinion:
“Over the last 10 years, although spontaneous pain has reduced particularly in her arms (perhaps somewhat more than the neck and back) she has easily provoked pain of significant degree. The whiplash associated disorder of her cervical spine with similar thoracolumbar spinal pain syndrome has been primarily caused by the motor vehicle accidents with an aggravating contribution particular to neck pain from the nature and conditions of her work. These spinal pains are important because they limit her capacity to sustain sitting.
The work-related arm pain disorders have improved but are still important, with spontaneous pain, easily provoked pain from use, cutaneous sensory abnormalities, abnormal mechanosensitivity of the brachial plexus/proximal median nerves, and deep secondary allodynia………. If she were to attempt to resume usual keyboard duties, especially full on from the outset, there is no doubt that there would be sustained and potentially quite severe exacerbation. I expect that theoretically with the upper limb disorder if she were not caring for a young family and if she did not have the addition of neck and back pains (I should reiterate that the work-related condition includes aggravation of the neck and left shoulder pain syndrome) I expect she would be able to perform light clerical duties on a part-time basis. She would not, even in those ideal and theoretical circumstances, be able to perform normal work full time."
[4] Exhibit A3.
10. In cross examination Dr Champion said that Mrs Elmir's limitation was "mainly task-specific, though not absolutely limited to keyboard applications." [5] In his view, repetitive activities ( i.e. doing the same thing every one to four seconds) were likely to be highly provocative of pain. He agreed that if Mrs Elmir did not have the care of children, she might be fit for some part-time work and it would be appropriate that she begin work in a graduated manner, in a non-repetitive role, in the hope that she would eventually return to full-time duties.
[5] Transcript of Proceedings, 4 October 2006, p. 32.
11. Dr Stevenson, Consultant Physician, who examined Mrs Elmir on behalf of Comcare, took a very different view to that of Dr Champion.[6] He assessed her on 12 November 2003 and 26 April 2005. In the opinion of Dr Stevenson, at those times Mrs Elmir did not suffer any physical incapacity for work and was able to work as a clerk. He is of the view that there was no requirement for any treatment program as there was no disease or injury to treat. In relation to the massage treatment which Mrs Elmir has received for several years, he said that "inappropriate reliance on passive therapy simply perpetuates and entrenches symptomatology. It only serves further to justify invalidity, providing the suggestion that there remains injury to treat. It is useless and counter-productive." [7] In any event Mrs Elmir says that the benefit of the therapy lasts for only an hour and a half.[8]
[6] Exhibit R6 and R7, reports of 19 November 2003 and 2 May 2005.
[7] Exhibit R7.
[8] Transcript of Proceedings, 4 October 2006, p. 8.
12. Dr McGill, Consultant Rheumatologist examined Mrs Elmir on 30 September 1996 at the request of Comcare’s solicitors. This examination took place between the time Mrs Elmir lodged her claim for aggravation of her pre-existing condition and the decision by this Tribunal in 1997. Dr McGill found no evidence of any physical disorder and had reservations about accepting Mrs Elmir’s history of pain. He did not believe that further medical treatment was appropriate and expressed the opinion that "further attempts to "treat" her symptoms is likely to be counter productive by reinforcing the concept that she has disorder requiring treatment which I think is not true." [9] Dr McGill's views were not challenged by Counsel for Mrs Elmir.
[9] Exhibit R4.
13. Mrs Elmir was also assessed in September 1996 by Dr Hopkins, Consultant Orthopaedic Surgeon. This assessment was also carried out at the request of Comcare’s solicitors. Dr Hopkins diagnosed Mrs Elmir as suffering from a "mild regional pain syndrome" which in his opinion was a long-term consequence of the motor vehicle accident in 1992. In his view Mrs Elmir’s employment provoked some symptoms in the same way as certain activities in her household had done so.[10] Dr Hopkins’ views were not challenged.
[10] Exhibit R5.
14. Ms Cursley, Physiotherapist & Ergonomic Consultant, visited Mrs Elmir at her home in August 2004 for the purpose of preparing a report for Comcare’s solicitors as to Mrs Elmir’s need for household assistance arising from her injury. Ms Cursley practises as a Rehabilitation Consultant. She was of the opinion that Mrs Elmir did require household assistance but not as a result of her injury, rather as a result of “her having to cope with a busy household and a young child".[11] This visit was prior to the birth of Mrs Elmir's fourth child and Ms Cursley’s opinion at the time was that the need for assistance would increase after the birth. Ms Cursley gave evidence and confirmed the opinions expressed in her report.
[11] Exhibit R3.
ISSUES FOR DETERMINATION
15. Three issues arise for determination:
1)does the injury suffered by Mrs Elmir in June 1995 continue to result in her being incapacitated for work;
2)does Mrs Elmir continue to obtain medical treatment which is reasonable for her to require in the circumstances in relation to the injury; and
3)does Mrs Elmir continue to reasonably require household services as a result of the injury?
STATUTORY BACKGROUND
16. Section 21 of the Act relevantly provides:
“(1)This section applies to an employee who, being incapacitated for work as a result of an injury retires voluntarily ……….. from his orl her employment at any time after the commencement of this section and, as result of the retirement, receives a lump sum benefit under a superannuation scheme.
(2) Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employees incapacitated."
Subsection 4 (9) of the Act provides:
“A reference in this Act 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 engaging work at the same level at which he or she was engaged by the Commonwealth by licensed Corporation in that work or any other work immediately before the injury happened."
17. Subsection 16 (1) of the Act provides:
“ Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment."
18. Subsection 29 (1) of the Act relevantly provides:
“Subject to subsection (5), where, as result of an injury to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances……….”.
DETERMINATION OF THE ISSUES
19. A decision that compensation is not payable (in a situation where it has been paid previously) should not be made unless the decision maker “was persuaded that one of the entitling circumstances and on or before the [the date of the decision] cease to exist": Commonwealth of Australia v Borg (1994) 20 AAR 299.
Does the injury suffered by Mrs Elmir in June 1995 continue to result in her being incapacitated for work?
20. When considering whether an employee has become, or continues to be, incapacitated for work it is necessary to decide whether the requirements of subsection 4 (9) (b) of the Act are met: Comcare v Rowe (2002) 35 AAR 410. These requirements are:
a)when did the injury happen;
b)what was the work in which the employee was engaged immediately before the injury;
c)what was the level at which the employee was engaged to work immediately before the injury;
d)is the employee incapacitated from engaging in work at the same level at which he or she was engaged to work immediately before the injury?
21. It is not in issue that the date of injury was 5 June 1996. This was determined by the Tribunal in its decision of 9 October 1997.[12] On the basis of the documents tendered on behalf of Mrs Elmir and her evidence I am satisfied that immediately prior to the injury she was employed as a clerk in the Department of Social Security and that immediately prior to the injury her duties were predominantly keyboard work.
[12] Exhibit A3, T36.
22. In deciding whether an injured employee is able to engage in work "at the same level" as that in which he or she was engaged immediately prior to the injury it is necessary to consider the nature and quality of the work being done, rather than the grade or salary level: Re Prica and Comcare (1996) 44 ALD 45 at 41; Re Smith and Comcare [2002] AATA 249 at paragraph 85. The definition of "incapacity for work" in subsection 4(9) refers to an incapacity to engage in work "at the same level"; it does not require a return to precisely the same duties. To interpret subsection 4(9) to require an injured employee to be able to perform each and every pre-accident duty would be to place a very restrictive interpretation on the provision and would be contrary to the clear intention of Parliament in enacting the legislation to provide for the rehabilitation of injured workers to the greatest extent possible.
23. In this matter I am satisfied that the level at which Mrs Elmir was working at the time of her injury was the performing of clerical work, involving keyboard duties. The fact that immediately prior to the injury she was engaged predominantly in keyboard work does not mean that this was at the level at which she was working for the purposes of the Act. At the hearing before the Tribunal in 1997 Mrs Elmir gave evidence that June 1995 "was a busy and hectic time………. and that the area in which she worked was short staffed, causing an increase in her workload." [13] In a report relating to the injury, the Director of the area in which Mrs Elmir worked reported that following the injury Mrs Elmir had been given a greater variety of work.[14] Taking this into account, I am satisfied that the level at which Mrs Elmir was working immediately prior to the injury was that of a clerk required to undertake some keyboard duties, but not necessarily to the extent she was at 5 June 1995.
[13] Exhibit A3, T36.
[14] Exhibit A3, T7.
24. I now turn to the evidence as to whether Mrs Elmir continues to be incapacitated to engage in work at the level I have found in the preceding paragraph. This evidence comes from Mrs Elmir and from the medical practitioners who have given evidence and/or have prepared reports which have been taken into evidence.
25. I accept the evidence of Mrs Elmir that she suffers pain in her neck, shoulders, arms and back. However in the light of the observations of Dr Stevenson, Ms Cursley and the video evidence I am satisfied that Ms Elmir is prone to exaggerate the extent of her symptoms from time to time. I also take into account Mrs Elmir's evidence that she is able to care for her husband and four children, apparently with limited assistance. For these reasons it is necessary to carefully consider her statements as to what she can and cannot do.
26. I am satisfied that Dr Stevenson and Dr Champion appear to have very strongly held, but opposed, beliefs as to the likely consequences of repetitive activity such as keyboarding. I have evaluated their evidence on this basis. In each case this has affected the extent to which I can properly rely on the view expressed. In the case of Dr Champion, he was dismissive of Dr Stevenson's views based on Mrs Elmir's symptomology being unchanged. In Dr Champion’s opinion the conclusion that her symptoms were unchanged was not credible.[15] However, Mrs Elmir repeatedly told me that in a number of respects her condition has been unchanged since 1996. In relation to Dr Stevenson's evidence, I have taken into account that his reports are at times argumentative in presentation and that while he is firmly of the opinion that excessive treatment by way of massage has contributed to Mrs Elmir's condition, he makes no allowance for this in his conclusion that she is fit for an immediate return to work. The opinion of each practitioner as to the condition of Mrs Elmir was entirely predictable based on his view as to the nature of the consequences of repetitive movement.
[15] Transcript of Proceedings, 4 October 2006, p. 20.
27. In considering the evidence as to Mrs Elmir's present condition I have taken into account the view of Dr McGill in 1996 that further attempts to treat Mrs Elmir's symptoms were likely to be counter-productive by reinforcing her concept that she had a disorder requiring treatment. I also take into account the opinion of Dr Hopkins, expressed at the same time, that Mrs Elmir was suffering from a "mild regional pain syndrome" which was a long-term consequence of the 1992 motor vehicle accident and which had been provoked in part by her employment. In addition, there is the evidence of Ms Cursley that despite Mrs Elmir’s claims, the need for household assistance was a result of having to cope with a busy household and young child rather than a result of her injury.
28. On the other hand, there is the opinion of Mrs Elmir's general practitioner, Dr Leerdam, expressed over many years, that Mrs Elmir suffers from a regional pain syndrome affecting her neck and shoulder regions and that this condition is a direct result of a work-related injury.[16] Dr Leerdam's opinion was not challenged by Counsel for Comcare, however I take into account that Dr Leerdam's many reports were written in support of requests by Mrs Elmir for various forms of assistance, including ongoing massage and household services. In this regard Dr Leerdam appeared to be quite properly relying on the history being given to him by Mrs Elmir and quite properly assisting her in her claims.
[16] Exhibit A3, T129, report of 3 October 2001.
29. Taking into account all of the evidence to which I have referred, in addition to the other documents tendered on behalf of Mrs Elmir, I am satisfied on the balance of probabilities that Mrs Elmir is not presently totally incapacitated for work at the level at which she was employed at the time of her injury. When she was being assessed by Dr Champion, Mrs Elmir was of the view that if she did not have children to care for she may be able to return to part-time light work. In giving evidence, she was unsure as to the type of work she could manage. Dr Champion is of the opinion that without the requirements of family and housework and given appropriate tasks and encouragement, Mrs Elmir would be able to return to part-time work and maybe eventually full-time work. He was clear that Mrs Elmir was not totally disabled for work.[17]
[17] Transcript of Proceedings, 4 October, 2006, pp 33-34, 42.
30. It is also necessary to take into consideration that Mrs Elmir has been given massage therapy over many years. I accept the evidence of Dr Stevenson, supported by Dr McGill, that treatment of this extent has entrenched and perpetuated a belief in Mrs Elmir that she is incapable of returning to work.
31. I am satisfied on the balance of probabilities that at present Mrs Elmir is partially incapacitated for work in that I am satisfied she is not capable of an immediate return to her pre-injury employment on a full-time basis. I am satisfied that she has been partially incapacitated since 11 August 2005. On the basis of the medical evidence I am satisfied that she reasonably requires a graduated return to work. This should include a very carefully supervised return to keyboarding duties if it is assessed that a return to such duties is appropriate.
32. I intend to remit the matter to Comcare to determine the present extent of that incapacity. The time (if any) at which Mrs Elmir may cease to be incapacitated at all is a matter for a decision to be made in future and is not a matter to be decided by the Tribunal in the present application.
Does Mrs Elmir continue to obtain medical treatment which is reasonable for her to require in the circumstances in relation to the injury?
33. On the evidence before me Mrs Elmir does not require pain medication. The only treatment in issue is the massage therapy. For the reasons I have stated in considering whether Mrs Elmir continues to be incapacitated for work, I am satisfied on the balance of probabilities that from 11 August 2005 to the date of this decision, massage therapy was not medical treatment Mrs Elmir reasonably required. Whether other treatment is appropriate as part of a rehabilitation program is a matter for future decision.
Does Mrs Elmir continue to reasonably require household services as a result of the injury suffered by her?
34. On the basis of the evidence of Ms Cursley and the evidence of Mrs Elmir as to the activities she is able to undertake, I am satisfied on the balance of probabilities that from 14 November 2005 until the date of this decision Mrs Elmir has not reasonably required household services as a result of the injury she suffered in 1995.
DECISION
35. The decision of Comcare made 14 November 2005 is set aside and in substitution it is decided that:
1)Since 11 August 2005 Mrs Elmir has been, and at the date of this decision is, partially incapacitated for work;
2)Since 11 August 2005 Comcare has not been, and at the date of this decision is not, liable to pay for the cost of massage therapy obtained by Mrs Elmir;
3)Since 11 August 2005 Comcare has not been, and at the date of this decision is not, liable to pay for the cost of household services obtained by Mrs Elmir.
36. The matter is remitted to Comcare to determine the extent of Mrs Elmir’s present incapacity.
37. Each party has liberty to apply for a direction in relation to the costs of these proceedings but if no such application is made within 14 days of the date of this decision the costs of these proceedings incurred by Mrs Elmir shall be paid by Comcare.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 4-5 September 2006, 4 & 6 October 2006
Date of Decision 1 December 2006
Counsel for the Applicant Mr R Thomas
Solicitor for the Applicant Max Emanuel Solicitor
Counsel for the Respondent Ms L Walker
Solicitor for the Respondent Dibbs Abbott Stillman
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