Farrell and Comcare - [2006] AATA 715

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 715

ADMINISTRATIVE APPEALS TRIBUNAL ) N2005/770; N2006/173
N2006/149; N2006/174

)

GENERAL ADMINISTRATIVE DIVISION		)
Re		MAREE FARRELL

Applicant

And

COMCARE

Respondent
DECISION

Tribunal

Ms G Ettinger, Senior Member
Dr M E C Thorpe, Member

Date 18 August 2006

PlaceSydney
DecisionThe Tribunal affirms the decisions under review in Matters N2006/149, N2005/770, N2006/173, N2006/174.
Costs may not be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988.

Ms G Ettinger
Senior Member

CATCHWORDS

Compensation – De Quervain’s syndrome – liability accepted for injury at work to right arm – surgery- Respondent held that based on the medical evidence at 12 December 2005 there was no present liability to accept section 16 medical expenses – Applicant says that due to pain in her right arm, she used her left arm which she claims has also developed de Quervain’s – compensation claim - four applications, including permanent impairment – decisions under review affirmed.

Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24, 27

Casarotto v Australian Postal Commission (1989/90) 17 ALD 321

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

REASONS FOR DECISION

18 August 2006

Ms G Ettinger - Senior Member

Dr M E C Thorpe - Member

BACKGROUND

Ms Maree Farrell is 35 years old, and has a sixteen year old daughter. She commenced working at Centrelink as a customer service advisor in 2001. This involved call centre work, dealing with client queries, and typing up notes of the discussions with the clients, and action to be taken. Ms Farrell had previously done call centre work for three years, worked in retail pharmacies and in department stores. She says that she has had no previous injuries. Ms Farrell said however that during labour accompanying the birth of her daughter, she hit her hand on the side of the bed, causing the canula which had been inserted to come out; it then had to be re-inserted. Dr Forbes, her general practitioner noted an “aberrant artery” in the right wrist “where the vein normally is” with a “distinct pulse in surface artery”. Dr Forbes queried an “?iatrogenic AV fistula”.
Ms Farrell told us that in July 2003, she commenced feeling tingling pain, in her right hand, in her fingers, thumb and wrist, and along the radius while typing. She said that she thought it would pass as it was not constant, but by August, she became concerned. Ms Farrell said that she reported the sensations to her supervisor in August 2003 because her hand became so sore that she could not move it. She commenced using the (computer) mouse with her left hand. Ms Farrell said that the pain caused her problems going to the toilet, with car doors, and winding up car windows. Ms Farrell said that she took analgesics, but they did not help. She said that no changes were made to her work environment as a result of her complaints.
Ms Farrell said that by December 2003, she could not use her right hand even to hold a coffee cup, so she consulted Dr M Forbes, her general practitioner, who diagnosed right wrist tendonitis/tenosynovitis, prescribed anti-inflammatories and told her to rest.
On 21 December 2003, Ms Farrell made a claim for compensation for “right wrist tendonitis”. Liability was accepted from 20 December 2003 (Exhibit R2, T10), and various other determinations extending the time compensation was payable were made.
Ms Farrell was referred to Dr Tong who is an orthopaedic surgeon. In a report dated February 2004 at Exhibit R10, Dr Tong said that he felt Ms Farrell may have tendonitis of her extensor digitorum communis tendons and referred her for ultrasound. He reported that on examination, Ms Farrell was “teary and grabbing my hand. … She appeared to be tender everywhere.” She told him that her left arm felt sore and tired.
On Ms Farrell’s return to work in March 2004, she was under the supervision of an occupational therapist/rehabilitation person who ordered she have breaks as required, and other assistance. Dr Tong provided for Ms Farrell to have splint for her right arm.
Ms Farrell’s duties were essentially to supervise trainee staff members. This work did not include much keying or computer work involving the use of a mouse (Exhibit R5). In June 2004, the program Dragon Dictate was installed for Ms Farrell. However she told us that she was given no instruction in it, and that it still involved some keying as well as finger work in turning the speakers on and off.
Ms Farrell claims that because of the problems with her right hand, she had to use her left hand in which she has now also developed de Quervains tenosynovitis. On 10 January 2005 Ms Farrell made a compensation claim for “Left De Quervain’s Tendonitis” (Exhibit T14), which she said she first noticed on 3 May 2004, and which was diagnosed by Dr G Couzens, a hand and wrist surgeon on 2 September 2004. Dr Black, MB BS, also diagnosed bilateral de Quervains disease. No liability has been accepted for the left wrist or hand, and no permanent impairment claim has been accepted for either hand or wrist.
In an ultrasound of the right wrist carried out on 16 June 2004, the radiologist commented “Two ganglia are seen arising from the scapholunate joint. No other abnormalities are apparent.” (Exhibit A2).
Ms Farrell underwent surgery by Dr Couzens on 9 August 2004 in relation to her right sided de Quervain’s tenosynovitis and right wrist ganglia. Prior to the surgery, she had approximately six weeks away from work. She said that her hand remained stiff for many months afterwards, and that that had later improved. She said that she continued not to be able to pick things up.
Ms Farrell told us that in May 2004 she developed pain in her upper back on the right and left sides.
Ms Farrell gave evidence that she currently finds difficulties with personal hygiene such as brushing her teeth, going to the toilet, and eating with a fork. Ms Farrell said that she has not worn make-up for three years or more because she cannot apply it, but would have a department store do it if she was going out. When asked about Dr McGill’s record in his report (Exhibit R4 dated 6 September 2005), that she was wearing make-up on the day he saw her, Ms Farrell said that she had not worn make-up for three years and did not remember much about the day she saw Dr McGill because she had been very distressed. She said that she can answer her mobile telephone, but does not do texting, and can write legibly with her right hand depending on the day, and the extent of her work load.
Ms Farrell has had various splints made for her, and she has undergone physiotherapy treatment. Ms Farrell said that she recently stopped wearing any splints after doing so for 18 months because she obtained no relief.
Ms Farrell told us that in February/March 2006 she commenced physiotherapy to strengthen her muscles, and build up any wasting which has occurred in her hands and arms. She is paying for that privately, and has not, so far, found it helpful, although she expects it to be beneficial going forward. (We noted from the examinations by doctors whom Ms Farrell has consulted that there is no evidence of muscle wasting).
Ms Farrell said that she has constant pain in her right arm and hand, and dullness and heaviness in her left hand and arm. Her right hand and arm are always worse than her left she said.
Ms Farrell agreed she had not consulted Dr Couzens between September 2004 and March 2006, but said that she had not been permitted to do so by her employer. She agreed however that she consulted Dr Allen twice without the agreement of Comcare.
When asked about any anxiety or depression she suffers, Ms Farrell said that she does not suffer anxiety, but has problems in regard to water because a friend of hers had died in water. She told us that she had suffered an anxiety attack while flying over water.
In this Decision, and Reasons for Decision, we had to decide the following in regard to the four reviewable decisions before the Tribunal.

ISSUES BEFORE THE TRIBUNAL

The Tribunal had to decide:

Ms Farrell’s claim for section 16 medical expenses pursuant to the Safety Rehabilitation and Compensation Act 1988 in relation to the right wrist, (de Quervain’s tendonitis); (N2006/149)
Ms Farrell’s claim for permanent impairment pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 in relation to the right wrist (de Quervain’s tendonitis); (N2006/173)
Ms Farrell’s claim for incapacity arising out de Quervain’s syndrome in relation to her left wrist; (N2005/770)
Ms Farrell’s claim for permanent impairment pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 in relation to the left wrist (de Quervain’s tendonitis); (N2006/174)

LEGISLATIVE FRAMEWORK AND CASE LAW

The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, (the Act”), in particular sections 4, 14, 16, 24 and 27.
Section 4 of the Act defines “disease” and “injury” as follows:
“4. (1) In this Act, unless the contrary intention appears:
...
“disease” means:
(a)       any ailment suffered by an employee; or
(b)       the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;
...
“injury” means:
(a)      a disease suffered by an employee; or
(b)     an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
...”

Sections 14(1) provides for liability for compensation for injured workers, and 16 of the Act provides for reasonable medical expenses to be paid in that regard.
“14 Compensation for injuries
14(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
16 Compensation in respect of medical expenses etc.
(1)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.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
…”
Sections 24 and 27 of the Act deal with permanent impairment of the worker. Ms Farrell has made claims for permanent impairment of both her left and right wrists in relation to de Quervains tendonitis.
There is of course well established authority both State and Federal, which deals with causation, and with aggravation or acceleration of injury, and contribution of the workplace in workers’ compensation cases. Casarotto v Australian Postal Commission (1989/90) 17 ALD 321 deals with aggravation and acceleration. In Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 it was held to be irrelevant that injury or disease acted upon an existing vulnerability. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, it was held that a de minimus contribution of the workplace suffices, and it is irrelevant that other non-work related factors may have also contributed to the injury or disease.

MS FARRELL’S CLAIM FOR SECTION 16 MEDICAL EXPENSES PURSUANT TO THE SAFETY REHABILITATION AND COMPENSATION ACT 1988 IN RELATION TO THE RIGHT WRIST (DE QUERVAINS TENDONITIS); (N2006/149)

Ms Farrell told us that in July 2003 she had commenced feeling tingling pain in her right hand, in her fingers, thumb and wrist, and along the radius while typing. She said he had thought it would pass as it was not constant. Ms Farrell said that she reported the sensations to her supervisor in August 2003 because her hand became so sore that she could not move it.
Comcare accepted liability pursuant to section 14 of the Act for de Quervain’s tensynovitis (right) on 15 January 2004 (N2006/149, T10), the deemed date of injury being 20 December 2003, which was the date Ms Farrell first sought treatment. On 12 December 2005, Comcare issued a determination finding that Ms Farrell has no present entitlement to compensation for medical treatment pursuant to section 16 of the Act in respect of de Quervain’s tenosynovitis (right), as the medical evidence suggested that she was not presently suffering from the effects of the accepted condition, and that she did not require further treatment (Exhibit R2, T69). A decision dated 6 February 2006 affirmed the earlier decision. (Exhibit R2, T73).
The Applicant’s general practitioner, Dr Forbes, diagnosed myalgic illness and de Quervains (T3). He continued to see Ms Farrell in 2004, and various reports and certificates of that practice are in Exhibit R2. Medical expenses were paid by the Respondent pursuant to section 16 of the Act.
Ms Farrell was referred to Dr M Tong who ordered splints be made for her. In his report of 17 February 2004 (Exhibit R10), he reported that Ms Farrell was “teary and grabbing my hand. She appeared to be tender everywhere. Several times during the examination of palpating her triangular fibrocartilage, her pain ranged from severe and jumping out of the chair when I first touched her wrist, to the last time that I touched it, when I was discussing treatment with the patient, and she felt no pain…”
Ms Farrell was also referred to Dr Couzens who operated on the Applicant’s right hand in early August 2004. Dr Couzens confirmed that in addition to de Quervain’s (right), Ms Farrell had a right dorsal ganglion which was not related to her work, but which he excised when he operated for de Quervains. Dr Couzens diagnosed de Quervains (left) when Ms Farrell consulted him on 2 September 2004. Dr Couzens said that Ms Farrell told him she had more pain in her left wrist after the operation because she had had to use her left hand more.
Dr Couzens gave oral evidence at the Tribunal hearing. He also produced a report dated 15 December 2005 which was Exhibit A1. In that report Dr Couzens referred to last having seen Ms Farrell in September 2004; he had not examined Ms Farrell before producing the report of 15 December 2005.
The clinical notes of Dr Couzens dated 10 March 2006 were at Exhibit A3. They indicated Dr Couzens had seen Ms Farrell on that date. He had made a note in which he suggested she see a musculo-skeletal physician.
In his oral evidence, Dr Couzens was referred to the ultrasound of Ms Farrell’s wrist of 16 June 2004, where Dr Lim reported that there were two ganglia seen arising from the scapholunate joint, and noted that there were no other abnormalities present. Dr Couzens said that he relied on his clinical examination which showed that Ms Farrell had de Quervains (right), and indicated that he would consider his examination to be more reliable than the ultrasound. He said that most people responded well to the operation, opining that in his practice which is restricted to hand and wrist surgery, he might see one patient a year who failed to respond to surgical decompression of the first dorsal compartment for de Quervain’s tenosynovitis. As to the de Quervain’s tenosynovitis (left), he commented that this was “exacerbated by the increased use once she had had surgery on the right side”.
When asked whether there were any non-organic features in Ms Farrell’s presentation, Dr Couzens replied that initially there were not, but that later there may have been because Ms Farrell reported more widespread pain. He agreed that her back pain and pain around the scapular region may have had non-organic causes. When referred to clinical notes indicating that Ms Farrell was depressed and suffered anxiety, Dr Couzens confirmed the Applicant suffered de Quervains, but considered that her underlying psychological problems could be impacting on her symptomatology. Dr Thorpe of the Tribunal asked Dr Couzens about the crepitus found by Dr Black in his examination of Ms Farrell. Dr Couzens opined that it would be unusual in a case of de Quervains. He added that he had not seen Ms Farrell between her post operative consultation in September 2004 until he saw her again in March 2006.
Dr J Black, MB BS, produced a report dated 10 October 2005 (Exhibit R2, T68). He diagnosed bilateral de Quervains disease of both wrists. He did not find that there was anything inorganic in Ms Farrell’s presentation. Dr Black’s opinion was that notwithstanding Ms Farrell’s change in duties and restrictions to her duties, once a condition like de Quervains is established, that will continue regardless. Dr Black agreed when questioned, that if Ms Farrell had not used her right hand for one and a half years at the time he saw her in October 2005, then he might have expected some muscle wasting which was in fact not evident. When questioned about Ms Farrell’s back and scapular pain, Dr Black said that it could be due to altered bio-mechanics. Dr Black did not know that Ms Farrell had undergone surgery for removal of two ganglia, neither the results of the ultrasound of Dr Lim of June 2004 which indicated no abnormalities other than the ganglia, but said that having that information would not change his opinion. We noted Dr Black’s lack of specialist qualifications, and we did not find his evidence consistent or of great assistance. Accordingly we have given it little weight in our decision making.
Dr D Stabler who is an orthopaedic surgeon produced reports dated 25 October 2005 (Exhibit R8), and 21 April 2006 (Exhibit R7). He reviewed a number of the medical reports which were also before the Tribunal. He opined that Ms Farrell should have been able to perform full duties and full hours by January 2005, and suggested that it was possible her apparent inability to return to work may have been due to non-physical factors.
We also had before us the report of Dr R Parkington, an orthopaedic surgeon dated 10 March 2004 (Exhibit R9), in which reported on his examination of Ms Farrell. He opined that Ms Farrell had a complex problem and that the basic underlying problem was stress in the workplace. He stated that he found no evidence of tendinitis or other physical condition causing symptoms. He added that “they are a physical manifestation of an underlying emotional disorder which may be secondary to her employment.”
Dr P Allen, an orthopaedic surgeon produced reports dated 29 March 2005 (Exhibit R11), and 10 May 2005 (Exhibit R12). Dr Allen referred to a history Ms Farrell had of anxiety and depression and prescribed anti-inflammatory medication for her, as well as blood tests. He recommended Ms Farrell see a counsellor to assist with the psychological aspects of her condition and coping with it.

On 6 September 2005, Dr McGill, a rheumatologist, provided a report of an examination of Ms Farrell (Exhibit R4). He provided a further report dated 26 March 2006 (Exhibit R6), and also gave oral evidence before the Tribunal. In his first report, Dr McGill commented on the other medical reports which were also before the Tribunal, and summed up his views on Ms Farrell: “presented tense, angry and anxious. She explained that she has ‘another issue’ and she indicated that the ‘other issue’ was responsible for her current sleep disturbance…. I do not think that her hand and wrist symptoms relate to a physical disorder. Specifically with respect to the left hand and wrist, I do not think there is any physical disorder…. She is not incapacitated for work…”
In his report of 26 March 2006, Dr McGill referred to the ultrasound of Ms Farrell’s right wrist of 16 June 2004, noting that : “It was specifically noted that there was no abnormality of the structures involved in deQuervain’s tenosynovitis.” He concluded by opining that “I confirm that I do not think that her hand and wrist symptoms relate to a physical disorder.”
In his oral evidence Dr McGill confirmed that there were no objective findings in relation to a diagnosis of de Quervains in Ms Farrell’s wrists. He reported that the range of movement during Finkelstein’s test was full, bilaterally, and there was no swelling. Dr McGill told the Tribunal that Ms Farrell’s hand dexterity was normal, but that she demonstrated reduced grip strength on both hands. He said that she did not give her full cooperation when he tested her muscle strength. Dr McGill confirmed what he had written in his report, indicating that Ms Farrell was not distressed, but rather, angry and tense on the day he examined her.
In summary, Dr McGill stated in relation to the Applicant that:

Ms Farrell is not incapacitated for work. Her comments in regard to being unable to cut food and hang out the washing were inconsistent with the physical findings and inconsistent with her actions such as pushing herself off the examination couch, picking up her bag, putting her shoes back on and doing up the straps.
there were no objective signs of de Quervains;
the ultrasound was normal;
Dr Couzens’ diagnosis of de Quervains had been incorrect;
there was no mention of de Quervains in the operation report. (We noted Dr Couzens had reported on release in relation to the right wrist consistent with de Quervains)
no mention of de Quervains in Dr Couzens’ later report of March 2006.

On 12 December 2005, Comcare issued a determination finding that Ms Farrell has no present entitlement to compensation for medical treatment pursuant to section 16 of the Act in respect of de Quervain’s tenosynovitis (right), as the medical evidence suggested that she was not presently suffering from the effects of the accepted condition, and that she did not require further treatment (Exhibit R2, T69). A decision dated 6 February 2006 affirmed the earlier decision. (Exhibit R2, T73).
We are mindful that Ms Farrell is working in a supervisory capacity at duties which do not include much computer, mouse or keying work. As to whether there is present entitlement to compensation for medical treatment; we are mindful that:

Dr Couzens diagnosed de Quervains of Ms Farrell’s right wrist and hand and carried out surgery on her right hand in which he also excised two ganglia arising from the scapholunate joint. He diagnosed de Quervains (left) in 2004, and in March 2006 made a note in his clinical records that Ms Farrell should consult a musculo-skeletal physician. He also stated in his report of 15 December 2005, that he could not make specific comment about Ms Farrell’s fitness for employment as he had not seen her since September 2004, but added that if she continued to be troubled by symptoms of bilateral de Quervains then she would require modified duties. In that regard we noted that Ms Farrell is already working on modified duties.
Dr Black diagnosed bilateral de Quervains and found nothing inorganic in Ms Farrell’s presentation, although in his oral evidence he conceded there could be.
The results of tests carried out by Drs McGill and others such as Finkelstein’s test and testing for crepitus indicate that the diagnosis of de Quervains was inappropriate;
The results of the ultrasound, (16 June 2004), reported by Dr Lim as follows: “Two ganglia are seen arising from the scapholunate joint. No other abnormalities are apparent.” (Exhibit A2).
Dr Allen who noted Ms Farrell’s history of anxiety and depression and recommended the Applicant see a counsellor to assist with the psychological aspects of her condition;
Dr Stabler who opined that Ms Farrell should have been able to perform full duties and full hours by January 2005 and suggested that it was possible her apparent inability to return to work may have been due to non-physical factors;
Dr Parkington who opined that Ms Farrell had a complex problem and that the basic underlying problem was stress in the workplace. He considered that any physical symptoms were “a physical manifestation of an underlying emotional disorder which may be secondary to her employment”.

Dr McGill opined Ms Farrell’s reported pain in her hands and wrist do not relate to a physical disorder; he was satisfied that Ms Farrell should have been able to perform full duties and full hours by early January 2005.
We were mindful that Dr Hamilton, Ms Farrell’s general practitioner, recorded significant psychological problems between 1996 – 1999 and referred Ms Farrell to a psychologist. The document at Exhibit R15 indicates a significant level of depression.
We were mindful that Dr Couzens diagnosed de Quervains (right), and carried out surgery on Ms Farrell’s right wrist and hand in the face of an ultrasound examination in June 2004 which indicated there were two ganglia seen arising from the scapholunate joint but that there were no other abnormalities present. We noted further that Dr Couzens agreed in his oral evidence that Ms Farrell’s underlying psychological problems could be impacting on her symptomatology.
As to Dr Black, we have already stated above that due to his lack of specialist qualifications, we gave little weight to his evidence and to his diagnosis of bilateral de Quervains.
We have preferred the opinions of the majority of the doctors who examined Ms Farrell, a summary of which appears in the paragraphs above. We have also relied on the results of objective tests indicating that the pain she reported did not relate to a physical disorder. Accordingly, we were able to conclude that as the medical evidence suggested Ms Farrell was not presently suffering from the effects of the accepted condition, and that she did not require further treatment, she has no present entitlement to compensation for medical treatment pursuant to section 16 of the Act in respect of de Quervain’s tenosynovitis (right). Accordingly the decision of the Respondent of 12 December 2005 which was affirmed on 6 February 2006 should be affirmed.

MS FARRELL’S CLAIM FOR PERMANENT IMPAIRMENT PURSUANT TO SECTIONS 24 AND 27 OF THE ACT IN RELATION TO THE RIGHT WRIST (DE QUERVAINS TENDONITIS); (N2006/173)

Ms Farrell has made claims for permanent impairment in relation to de Quervains tendonitis in relation to her right and left wrists. Liability was accepted by the Respondent for injury to the right wrist, and compensation was paid.
No liability has been accepted for the left wrist, and in order for the Applicant to be entitled to compensation in respect of permanent impairment, liability for the condition pursuant to section 14 would first have to apply.
Dealing first with the right wrist; for permanent impairment to apply, Ms Farrell has to satisfy conditions pursuant to sections 24 and 27 of the Act. As relevant those sections provide:
“Section 24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purposes of determining whether an impairment is permanent; Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
….
Section 27 Compensation for non-economic loss
(1)Where an injury to an employee results in permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
….”
The legislation requires that permanent impairment can only be assessed once an injury has become permanent.
Dr Couzens diagnosed de Quervains of the right and left wrists and stated in his report of 15 December 2005 that in his practice, which is restricted to hand and wrist surgery, perhaps one patient a year fails to respond to surgical decompression of the first dorsal compartment for de Quervains tenosynovitis. He stated in his report that the reasons were unclear, and that the patients may then require further investigation. He also opined that the prognosis was poor in someone who had undergone de Quervains release and had persistent symptoms and also that the prognosis was poor because of the duration of symptoms. When asked about non-organic features in Ms Farrell’s presentation, he said that initially he did not observe any, but when he saw her in March 2006, he accepted there were some.
Dr Black in a report dated 10 October 2005 (Exhibit R2. T68), reported Ms Farrell expressed extreme pain with Finkelstein’s test at both wrists and found that there was crepitus over the APL and EPB tendons at both wrists. He considered that Ms Farrell’s employment had contributed significantly to her condition of bilateral de Quervains of both wrists. He found permanent impairment in relation to Table 9.4 of the Comcare Tables, being 20% of the right and 20% of the left upper limbs, but admitted when questioned at the Tribunal that he had carried out no objective testing.
Dr McGill, in his report of 6 September 2005 (Exhibit R4), stated in relation to Ms Farrell’s claims for permanent impairment that “because of the marked discrepancy between her reported symptoms on one hand and the lack of evidence of any physical disorder and observation of her actions during the interview and examination on the other it is not valid in this case to use her history as a means of determining impairment. Taking into consideration all of the available information I think it is clear that she has no permanent impairment in accordance with Table 9.4.”
At Exhibit R6, there is a report of Dr McGill dated 26 March 2006 in which he reviews other medical reports and medical records, including those of Dr T Hamilton, Ms Farrrell’s general practitioner dated from 1996. Dr McGill noted that the further documentation provided indicated the degree to which anxiety, stress and other psychological symptoms had interfered with Ms Farrell’s functions in the past, but noted that there was no new positive information with regard to physical disorders in the region of either wrist. He confirmed in that report that accordingly, he did not change any of his earlier conclusions.
Dr Stabler also updated his earlier report on 21 April 2006 (Exhibit R7), and maintained his view that any condition the Applicant suffers did not arise out of her employment, and neither that it was contributed to a material degree by her employment. He was satisfied that there were psycho-social factors affecting Ms Farrell. He was satisfied that Ms Farrell should have been able to perform full duties and full hours by early January 2005.
Dr Parkington (Exhibit R9, dated 10 March 2004), found Ms Farrell’s right wrist to be quite normal. He did not comment on permanent impairment, but emphasised that the basic underlying problem was stress in the workplace, and that psychological intervention was indicated.
Dr Allen did not comment on permanent impairment and in his earlier report in March 2005 (Exhibit R11), he thought Ms Farrell might have a generalised tendency towards tendonitis so he organised blood tests and anti-inflammatory medication for her. When he saw her again in May 2005 (Exhibit R12), Dr Allen again advised against surgery. He noted that Ms Farrell told him “her right wrist had improved significantly since she saw a person in Murwillumbah who re-aligned her tendons”, but that her left thumb continued to be a problem. He too addressed the psychological aspects of Ms Farrell’s condition.
We have considered the reports in regard to any permanent impairment Ms Farrell may suffer as a result of de Quervains (right) for which liability was accepted by the Respondent. Most of the doctors who examined Ms Farrell did not give a rating for permanent impairment of her right wrist or hand as a result of de Quervains. Most, as noted above, expressed concern as to the origins of her widespread pain, and thought that it was due to anxiety, anger or other psychological origin which required counselling or treatment. That in itself indicates that they did not consider the pain Ms Farrell reports to be due to de Quervains, or indeed permanent.
We were mindful also of Dr Couzens’ evidence which was that perhaps one patient a year fails to respond to surgical decompression of the first dorsal compartment for de Quervains tenosynovitis. He stated in his report that the reasons were unclear, and that the patients may then require further investigation. He also opined that the prognosis was poor in someone who had undergone de Quervains release and had persistent symptoms, and also that the prognosis was poor because of the duration of symptoms.
We noted Dr McGill opined that “because of the marked discrepancy between her reported symptoms on one hand and the lack of evidence of any physical disorder and observation of her actions during the interview and examination on the other it is not valid in this case to use her history as a means of determining impairment. Taking into consideration all of the available information I think it is clear that she has no permanent impairment in accordance with Table 9.4.”
We were mindful of the overwhelming medical evidence as summarised above, including that of Dr Couzens who operated on Ms Farrell’s right hand for de Quervains, that the pain Ms Farrell reports is likely to have origins in anxiety, anger or other psychological reasons. We noted from Dr Hamilton’s medical notes at Exhibit R16, which commenced in 1996, that Ms Farrell had consulted him depressed, and with anxiety symptoms. In August 1999, he had recorded at one consultation in inverted commas, (presumably as a quote from Ms Farrell), “lost the plot”. We consulted Table 9.4 of the Comcare Guide, but we were mindful of the discrepancy between Ms Farrell’s reported symptoms and the observations of her actions during interview and examination with various doctors, including Dr McGill. Taking into account all the medical evidence as well as Ms Farrell’s evidence and the tests pursuant to the Comcare Guide, we could not be satisfied that Ms Farrell suffered permanent impairment of her right wrist or hand as a result of the accepted condition of de Quervains (right).

MS FARRELL’S CLAIM FOR INCAPACITY ARISING OUT OF DE QUERVAINS SYNDROME IN RELATION TO HER LEFT WRIST; (N2005/770)

Ms Farrell’s evidence was that by August 2003, the pain in her right wrist, hand and arm was so intense that she commenced using her left hand to operate the computer at work. Following that, Ms Farrell was diagnosed as suffering left sided de Quervain’s tenosynovitis by Dr Couzens on 2 September 2004 (Exhibit A1).
On 10 January 2005 Ms Farrell made a compensation claim for “Left De Quervain’s Tendonitis” which she said she first noticed on 3 May 2004. No liability has been accepted for the left wrist or hand.
Ms Farrell told us that even though the pain in her right arm and hand is worse than on the left, she has a feeling of dullness and heaviness in her left hand and arm.
We were mindful that Dr Couzens diagnosed de Quervains (left) in September 2004, which he attributed to the nature of the clerical work Ms Farrell was doing for her employer, and was being exacerbated by the increased use once she had had surgery on the right side. He considered the prognosis poor for both sides because Ms Farrell had had surgery for a right sided de Quervains release and reported persistent symptoms following the surgery, and because of the duration of the symptoms. We noted that Dr Couzens, who had not seen Ms Farrell since 2004, suggested in his medical notes of 10 March 2006, that Ms Farrell should consult a musculo-skeletal physician. In his oral evidence Dr Couzens agreed that Ms Farrell’s underlying psychological problems could be impacting on her symptomatology. He did not order any tests in relation to the left arm. In fact Ms Farrell has had no radiological investigations made of her left arm.
We were mindful that Dr Black was the only other of the doctors qualified for this matter who also diagnosed bilateral de Quervains, and have already stated the reasons above why we gave little weight to his opinions.
Dr McGill commented on the other medical reports which were also before the Tribunal, and summed up his views on Ms Farrell: “presented tense, angry and anxious. She explained that she has ‘another issue’ and she indicated that the ‘other issue’ was responsible for her current sleep disturbance…. I do not think that her hand and wrist symptoms relate to a physical disorder. Specifically with respect to the left hand and wrist, I do not think there is any physical disorder…. She is not incapacitated for work…”
Dr McGill referred to the ultrasound of Ms Farrell’s right wrist of 16 June 2004, noting that : “It was specifically noted that there was no abnormality of the structures involved in deQuervain’s tenosynovitis.” He concluded by opining that “I confirm that I do not think that her hand and wrist symptoms relate to a physical disorder.”
In his oral evidence Dr McGill confirmed that there were no objective findings in relation to a diagnosis of de Quervains in either of Ms Farrell’s wrists. He reported that the range of movement during Finkelstein’s test was full, bilaterally, and there was no swelling. Dr McGill told the Tribunal that Ms Farrell’s hand dexterity was normal, but that she demonstrated reduced grip strength on both hands. He said that she did not give her full cooperation when he tested her muscle strength.
Dr McGill stated in relation to the Applicant that Ms Farrell is not incapacitated for work. Her comments in regard to being unable to cut food and hang out the washing were inconsistent with the physical findings and inconsistent with her actions such as pushing herself off the examination couch, picking up her bag, putting her shoes back on and doing up the straps.
As to Ms Farrell’s duties since her return to work after her surgery; we have noted that they are supervisory, and as an instructor, and include little keying or mouse work. None of the doctors found that she had muscle wasting, and we were satisfied with the opinions of the majority of doctors (Couzens, Allen, Stabler, Parkington, and McGill) whose reports were before us, that there are inorganic reasons for Ms Farrell’s reports of pain which are now widespread and include her scapular and back regions. Consistently with their views on the origins of Ms Farrell’s complaints, none of the doctors suggested that further surgery would assist.
We are satisfied that any left hand or wrist pain Ms Farrell suffers is not due to any de Quervains, but rather due to underlying emotional disorder which may require psychological counselling and treatment.

Accordingly we could not be satisfied that Ms Farrell suffers de Quervains of her left hand or wrist, and are satisfied that the decision of the Respondent to deny liability should be affirmed.

MS FARRELL’S CLAIM FOR PERMANENT IMPAIRMENT PURSUANT TO SECTIONS 24 AND 27 OF THE ACT IN RELATION TO THE LEFT WRIST (DE QUERVAINS TENDONITIS); (N2006/174)

Ms Farrell made a claim for permanent impairment of the left wrist on 10 January 2005 (Exhibit R4, T14).
However, no liability has been accepted for any injury to the left wrist, and in order for the Applicant to be entitled to compensation in respect of permanent impairment, liability for the condition pursuant to section 14 would first have to apply.
As we have already found in the paragraphs above that there is no liability for injury to the left wrist as a result of any work related injury, and no diagnosis of de Quervains, we cannot find that there is liability for permanent impairment of the left wrist which should be accepted. The decision under review in matter N2006/174 must be affirmed.

DECISION

The Tribunal affirms the decisions under review in Matters N2006/149 N2005/770, N2006/173, N2006/174.
Costs may not be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988.

I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr M E C Thorpe.

Signed:

Associate

Dates of Hearing 12 & 13 July 2006
Date ofDecision 18 August 2006

Solicitor for the Applicant                 Slater & Gordon
Counsel for the Applicant                Mr G Giagios
Counsel for the Respondent           Mr M Gollan
Solicitor for the RespondentPhillips Fox