Findlay and Comcare
[2005] AATA 206
•11 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 206
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/629; Q2001/1110;
GENERAL ADMINISTRATIVE DIVISION ) Q2003/765
Re SHERRILL MAREE FINDLAY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr SC Fisher, Member Date11 March 2005
PlaceBrisbane
Decision The Tribunal decides to:
1. Affirm the decisions in appeal number Q2001/1110 and in Q2000/629 and in appeal number Q2003/765 (but only to the extent it relates to back and psychiatric conditions).
2. Set aside the decision in appeal number Q2003/765 to the extent it relates to neck condition and remits the matter to the respondent for reconsideration to give effect to the findings of the Tribunal as set out in its reasons for decision that the applicant’s traumatic/degenerative changes at C4/5 and C5/6 spondylosis/osteoarthrosis were initiated by the repetitive abnormal stresses placed on the applicant's cervical
spine in the course of her employment in the mid-1980s and that this condition has been ongoing and continuous since 31 March 1986.
...................[Sgd].........................
SC Fisher
Member
CATCHWORDS
SOCIAL SECURITY – pensions benefits and entitlements – claim for cost of upgrade to personal computer under s39 of the Safety Rehabilitation and Compensation Act – whether respondent has liability to pay the cost of upgrade – no evidence the applicant has undertaken or completed a rehabilitation program or been assessed unable to undertake a program – respondent not liable for cost of upgrade - decision under review affirmed.
SOCIAL SECURITY – pensions benefits and entitlements – work related injury resulting in incapacity – application for respondent to accept liability for carpal tunnel syndrome – no evidence that applicant presently suffers from carpal tunnel syndrome – condition resolved – decision under review affirmed.
SOCIAL SECURITY – pensions benefits and entitlements – work related injury resulting in incapacity – application for respondent to accept liability for neck, back and psychiatric conditions – back and psychiatric conditions not shown to be attributable to applicant’s employment – neck condition initiated in the course of employment – decision so far as relates to back and psychiatric conditions affirmed – decision as related to neck condition set aside and substituted accordingly.
Safety, Rehabilitation and Compensation Act 1988 s4, 14, 16, 19, 24, 39
Secretary, Department of Social Security v Murphy Federal Court, 29 June 1998, 908/98; (1998) 52 ALD 268
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248; (2003) 74 ALD 21
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598; (1981) 4 ALD 198
Robertson and Comcare [2002] AATA 1259
Comcare v Nichols [1999] FCA 209
Houston and Comcare [2005] AATA 99
Lees v Comcare (1999) 29 AAR 350; (1999) 56 ALD 84,REASONS FOR DECISION
11 March 2005 Mr SC Fisher, Member Introduction and background
1. Ms Sherrill Maree Findlay (the applicant) was employed at all material times by the enterprise now known as the Commonwealth Bank of Australia (formerly the Commonwealth Banking Corporation) ("the Bank"). The applicant is no longer employed by the Bank.
2. This matter involves three separate appeals. The first appeal is Q2000/629 (instituted by an application dated 4 July 2000 to this Tribunal), which is a claim by the applicant for the cost of a computer upgrade to be met by Comcare (the respondent) pursuant to section 39 of the Safety, Rehabilitation and Compensation Act 1988. The second appeal is Q2001/1110 (instituted by an application dated 30 November 2001 to this Tribunal), where the applicant seeks to have the respondent accept liability for bilateral carpal tunnel syndrome pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988. The third appeal is Q2003/765 (instituted by an application dated 3 September 2003 to this Tribunal), where the applicant seeks to have the respondent accept liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of her neck, back and psychiatric conditions.
Jurisdiction
3. The Tribunal has jurisdiction in this appeal by virtue of Part VI of the Safety, Rehabilitation and Compensation Act 1988 (“the Act” or “SRCA”). References to statutory provisions are to provisions of the Act unless the context indicates otherwise.
4.By consent, all three appeals were heard together in the one hearing.
History of Previous Decisions, Determinations and Medical Findings
5. The history of previous decisions, determinations and medical findings in relation to the applicant's compensation affairs is as follows.
6. The applicant commenced employment with the Commonwealth Bank in, or around, 1974. The applicant accepted a voluntary retrenchment on 15 October 1993. At the time of her retrenchment she was working as a Leading Teller.
7. The applicant lodged a claim for compensation form dated 30 March 1999, requesting that her compensation claim of 1987 be reopened in respect to her ongoing problems with bilateral carpal tunnel syndrome condition. The applicant claimed she first noticed the condition in 1986 and said her current condition was a “recurring injury and degeneration from previous injury I received from working in the bank”.
8. By determination dated 7 September 1999 liability was accepted to pay compensation under the Safety, Rehabilitation and Compensation Act (1988) (“the SRCA”) in respect of “bilateral carpal tunnel syndrome”. Liability was accepted for reasonable medical treatment pursuant to section 16 of the SRCA.
9. By determination dated 3 April 2000, the applicant’s claim for an upgrade of her personal computer was disallowed under section 39 of the SRCA.
10. By letters dated 18 April 2000 and 10 May 2000, the applicant, via her legal representatives, sought a review of the determination dated 3 April 2000.
11. By reviewable decision dated 26 June 2000, the determination dated 3 April 2000 was affirmed. The review delegate noted that, as there was no evidence that the applicant is “undertaking, or has completed, a rehabilitation program or has been assessed as not capable or undertaking such a program”, the preconditions to the operation of subsection 39(1)(e) of the SRCA were not satisfied.
12. On 10 July 2000, the applicant lodged an application for review of the reviewable decision dated 26 June 2000.
13. In a report dated 24 July 2000, Dr Douglas (Rheumatologist) diagnosed “fibromyalgia” which he said was a non-work related condition. The doctor said that the effects of the compensable injury in 1985 were not contributing to the fibromyalgia condition.
14. By determination dated 25 January 2001, it was determined that the applicant suffered from fibromyalgia which was unrelated to her former employment and that the applicant was not entitled to any compensation pursuant to any provision of the SRCA on, and from, close of business on 31 January 2001.
15. By letter dated 4 July 2001, the applicant, via her legal representatives, sought a review of the determination dated 25 January 2001.
16. In a report dated 14 February 2001, Dr Adam (Occupational Physician) said that carpal tunnel syndrome was insufficient to explain the applicant’s multiple symptom and prolonged incapacity. He said that “further, the condition has not improved despite extensive rehabilitation and not having worked since 1993”. The doctor said that there were inconsistencies in the applicant’s presentation and voluntary restriction of movement and her symptoms “are inconsistent with objective physical signs and appear exaggerated”. Dr Adam said that whilst the applicant may have initially suffered from bilateral carpal tunnel syndrome in 1985, which may have been attributable to her former employment, this condition would have settled relatively shortly after her surgery. Dr Adam was of the view that the applicant’s current disability was not caused or aggravated by her former employment.
17. In a report addressed to the applicant’s solicitor dated 8 May 2001, Dr Cooke (Orthopaedic Surgeon) said that the applicant’s bilateral carpal tunnel syndrome condition had resolved.
18. The applicant lodged a compensation claim for permanent injury form dated 23 May 2001.
19. By determination dated 2 July 2001, the applicant’s claim for permanent impairment compensation was disallowed.
20. By letter dated 20 July 2001, the applicant via her legal representatives, sought reconsideration of the determination dated 2 July 2001.
21. By reconsideration of own motion dated 26 September 2001, liability for the applicant’s condition was revoked. It was determined that there was no liability to pay compensation to the applicant and there was never any liability to pay compensation to the applicant arising from the claim for compensation dated 30 March 1999.
22. In a report dated 13 June 2002, Dr Douglas (Rheumatologist) diagnosed fibromyalgia and some degenerative changes in the cervical and lumbar spine. He said that these changes were consistent with her age. Dr Douglas was unable to find any evidence of persisting carpal tunnel syndrome condition. Dr Douglas said that the applicant exhibited an exaggerated response to pain during the examination which did not have an organic basis. He said that the applicant had the same exaggerated response to pain during the examination on 19 July 2000. Dr Douglas was unable to find any evidence that the applicant had a condition that had been caused and/or materially contributed to by her employment.
23. The applicant lodged a claim for rehabilitation and compensation form dated 10 October 2002 in respect of “neck and back problems” and a “psychological reaction to all physical injuries” for which she first received medical treatment for in 1984 and which rendered her “totally disabled”.
24. By determination dated 12 March 2003, the applicant’s claim for neck and back problems and a psychological reaction to all physical injuries was disallowed.
25. By letter dated 14 July 2003, the applicant, via her legal representatives, sought a review of the determination dated 12 March 2003.
26. By reviewable decision dated 26 August 2003, the determination dated 12 March 2003 was varied unfavourably and was replaced with “Comcare is not liable to pay compensation in respect of degenerative changes of the cervical and lumbar spines and anxiety state allegedly sustained by employment with the Commonwealth Bank”.
27. The applicant lodged an application for review of this decision with the Administrative Appeals Tribunal on 3 September 2003.
28. In a report dated 20 January 2004, Dr McPhee (Orthopaedic Surgeon) said that the applicant’s present condition could not be attributable to carpal tunnel syndrome. Dr McPhee said that the radiological evidence of degeneration in the mid cervical and lower lumbar spines were minor and consistent with age. He said that since the initial radiological studies did not demonstrate any abnormality “it would be unreasonable to accept that work caused aggravation of any pre-existing degeneration”. Dr McPhee noted that the applicant had an exaggerated response to pain which did not have an organic basis. The doctor said that a precise diagnosis of the applicant’s condition could not be made and any relationship between her symptoms and her previous employment was “highly speculative”.
29. In a report dated 6 May 2004, Dr Reddan (Psychiatrist) confirmed that she examined the applicant on two occasions on 16 March 2004 and 23 March 2004. Dr Reddan said that the applicant was opiate dependent and diagnosed her as suffering from Somatisation Disorder. Dr Reddan also said that whilst the aetiology of the applicant’s condition was unknown it was not due to her duties at work.
The Role of the Tribunal
30. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy Federal Court, 29 June 1998, 908/98; (1998) 52 ALD 268. The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
The Material Before the Tribunal
31.The following documentary evidence was before the Tribunal:
Exhibit 1 Report of Professor Bruce McPhee dated 20 January 2004.
Exhibit 2Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 in relation to Q2000/629 (documents T1 – T13).
Exhibit 3Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 in relation to Q2001/1110 (documents T1 – T178).
Exhibit 4Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 in relation to Q2003/67 Liability for Neck and Back Conditions and Psychological Reactions (documents T1 – T27).
Exhibit 5Report of Dr Jill Redden dated 6 May 2004.
Exhibit 6Report of Dr John Cameron dated 19 October 2004.
Exhibit 7Report of Dr Gary Persley dated 10 September 2003.
Exhibit 8Statement of Mr Bruce Shepherd dated 2 November 2004.
Exhibit 9Subpoenaed medical records.
Exhibit 10Dr Hides’ medical notes and accompanying letter.
Exhibit 11Letter from Dr Brent Common to Dr Cooke dated 10 July 1986.
Exhibit 12Notice of Staff Accident Form dated 19 June 1986.
Exhibit 13Bundle of pathology report results.
Exhibit 14Commonwealth Banking Corporation Medical Report dated 7 December 1990.
Exhibit 15Notice of Staff Accident/Incidents dated 10 May 1993.
Exhibit 16Letter from Dr Enno Taemets to Dr I Johnson dated 28 May 1993.
32. The Applicant was represented by her daughter, Ms Melissa Findlay. Exhibits 7, 8, 10 and 11-13 were lodged on behalf of the Applicant. Previously, the applicant had been represented by Maurice Blackburn Cashman Lawyers.
33. The Respondent lodged documents under section 37 of the Administrative Appeals Tribunal Act 1975 in relation to each appeal as described above. These documents were taken into evidence as Exhibits 2, 3 and 5. Exhibits 1, 5, 6, 9, 14, 15 and 16 were lodged on behalf of the Respondent.
34. The Respondent was represented by Mr CJ Clark of counsel, who was instructed by Sparke Helmore Solicitors. The Respondent provided a Statement of Facts and Contentions to the Tribunal.
35. The Applicant lodged an outline of submissions with the Tribunal. The Tribunal considered carefully all of the documentary and oral evidence before it.
Evidence on behalf of the Applicant
36. The applicant gave evidence in person. Evidence was given on behalf of the applicant by Dr Gary Persley, Dr Robert Cooke and Mr Bruce Sheppard.
Evidence of Sherrill Findlay
37. The evidence of the applicant is summarised in the following account:
A.The applicant explained her work history in some detail and how it came to be that she sustained her first injury in 1986. At the time the applicant was working as a batch clerk using equipment that was not suitable for her size and posture. The applicant said that she made complaints to her supervisors who basically ignored her complaints. It was only after she sought union assistance that she was able to get her complaints treated seriously.
B.The applicant described that at that time she had neck pain and pain in her back, arms and hands.
C.The applicant described how she had a bilateral carpal tunnel release in 1987. After she returned to work she continued to do bank telling work such as carrying coin bags which she found very difficult to do.
D.The applicant said that she did not have any neck or back symptoms before early 1998, except in relation to one of her pregnancies in 1984 also during 1985.
E.The applicant said that it was in the mid-80s that she experienced carpal tunnel symptoms, beginning first in her right arm and then her left.
F.The applicant described how she had left the bank in 1993 when the bank restructured and she was not offered a job on account of her repetitive strain injury.
G.The applicant described her work history since the Bank, comprising short stints in other banks and work outside the financial services sector.
H.The applicant described her typical daily routine.
I.The applicant said that she would love to work if she could but that she has been medically diagnosed as unlikely to be able to return to work because she is unemployable on account of her medical conditions.
J.The applicant explained the delay from 1993 to 1998 to make the claim for compensation on the basis that she had been fobbed off by various people inside the bank, that she had taken a while to get appropriate legal advice and that she had been promised medical help from the bank which was never forthcoming.
K.The applicant said that her original injuries were to her hands, arms, shoulders and neck. The applicant explained how her treating doctors had diagnosed her with repetitive strain injury, carpal tunnel syndrome and neck injury, with only 45% movement in her neck. The applicant explained how she was very confused with all the different diagnoses made by her treating doctors and specialists and by those acting on behalf of the respondent.
L.The applicant did not consult Dr Johnston for neck or back pain during 1993. The applicant said that she thought she had attended another medical practitioner for these problems at that time, possibly Dr Leonie Mitchell at Park Ridge.
M.The applicant said that when she lodged an accident report form in June 1986 she experienced opposition from her supervisors, so much so that the original accident report the applicant provided had been ripped up by someone in the bank in front of her face.
N.In cross-examination, the applicant denied that it was physiotherapy that had caused her neck pain. The applicant agreed with the proposition put to her that contemporaneous medical records suggested that her neck pain was not caused by her work but rather from physiotherapy.
O.The applicant agreed in cross-examination that the symptoms in her left arm were not reported to Dr Cooke until 28 November 1986.
P.In cross-examination, the applicant agreed that she had not mentioned low back pain to her treating doctor during 1988.
Q.In cross-examination, the applicant agreed that when she re-applied for work with the Bank in December 1990 she did not disclose her back injury or back condition even though she had said before that she was suffering from recurring bouts of low back pain during 1998.
R.The applicant said that when she consulted Dr Enno Taemets for stress she did report the physical symptoms to him even though the doctor did not report this in his report.
Evidence of Dr Gary Persley
38. The evidence of Dr Gary Persley, Consultant Psychiatrist (called by the applicant) in these proceedings is summarised as follows:
A.The evidence-in-chief of Dr Persley is in part contained in his report of 10 September 2003 (Exhibit 7).
B.Dr Persley made a diagnosis of chronic pain disorder with both psychological factors and a medical condition pursuant to the DSM IV– TR. Dr Persley discounted any somatisation disorder.
C.Dr Persley said that he did not have any medical records relating to the applicant from any of the applicant's treating general practitioners nor from the Logan Hospital or the Queen Elizabeth II Jubilee Hospital when he interviewed the applicant and wrote his subsequent report.
Evidence of Dr Robert Cooke
39. Dr Robert Cooke, Orthopaedic Surgeon, gave evidence on behalf of the applicant. The gist of this witness's evidence is as follows:
A.Dr Cooke said that the applicant first attended on him on 25 July 1986. Dr Cooke made diagnoses of "right carpal tunnel syndrome" and "right C4/5 and C5/6 spondylosis causing right C5/6 neuralgia or brachalgia”.
B.When Dr Cooke next reviewed the applicant on 28 November 1986, the applicant complained of recurring symptoms of pain and paraesthesia in both arms and hands initiated by the use of machinery at work.
C.The applicant underwent surgical decompression of the right carpal tunnel on 14 December 1986. This surgery was successful.
D.A subsequent pregnancy of the applicant exacerbated the median nerve function of the left hand during 1987.
E.In 1999, Dr Cooke diagnosed "degenerative C4/5 and C5/6 spondylosis and bilateral C5 and C6 brachalgia” and that the applicant presented with signs of bilateral carpal tunnel syndrome with the signs being more marked on the left side.
F.When Dr Cooke reviewed the applicant on 29 March 2001, he made the diagnoses of "bilateral carpal tunnel syndrome -- resolved" and “degenerative C4/5 and C5/6 spondylosis with central posterior disc protrusion causing a degree of central canal and neural foramenal stenosis with probable irritation of C5 and C6 nerve roots -- active" and "degenerative L5/S1 spondylosis and osteoarthrosis causing irritation of the S1 nerve root -- active".
G.Dr Cooke opined that the applicant's traumatic/degenerative changes at C4/5 and C5/6 spondylosis/osteoarthrosis were initiated by the repetitive abnormal stresses placed on the applicant's cervical spine in the course of her employment in the mid-1980s. Dr Cooke further opined that the applicant's symptom complex of neck pain, stiffness and bilateral brachalgia is directly attributable to her workplace injury.
H.Surgical decompression of both carpal tunnels in October 1999 relieved the median nerve symptoms but without relieving her neck pain and brachalgia.
I.The applicant’s duties in 1987 involved a lot of repetitive bending and lifting of heavy containers of coins which resulted in the onset of low back pain. There were parallel degenerative changes of long standing that were in part the result of injuries sustained in the course of the employment of the applicant in 1987.
J.A diagnosis of fibromyalgia was not tenable on the evidence before him.
K.Dr Cooke said that the bilateral carpal tunnel syndrome of the applicant developed subsequent to the applicant's degenerative cervical spondylitic and osteoarthritic changes from similar causes. The surgical decompression of both carpal tunnels has given the applicant some relief, the changes involved in the C4/5 and C5/6 segment of the cervical spine have persisted resulting in the symptoms that continue to trouble the applicant.
L.In cross-examination, Dr Cooke accepted that if a workplace irritant ceases and the patient presents with the later symptoms of carpal tunnel syndrome, then other causes may contribute to the symptoms rather than the earlier (but now ceased) workplace irritant. Dr Cooke also said that if work activities are the cause of carpal tunnel syndrome, then even if the work activities or change, the symptoms may still progress because of the degenerative changes that have been instituted or caused by the repetitive work activity.
M.In cross-examination, Dr Cooke said that the obesity and lack of physical fitness of the applicant after her redundancy in 1993 were important factors in the causative chain of medical events that led to the recurrence of her carpal tunnel syndrome symptoms later on.
Evidence of Bruce Sheppard
40. Mr Bruce Sheppard was a former colleague of the applicant when she worked in the bank. A summary of the evidence given by this witness in these proceedings is as follows:
A.A statement of Mr Sheppard dated 2 November 2004 was Exhibit 8 in these proceedings.
B.Mr Sheppard said that he first met the applicant in the bank in 1974 and that he worked with her in the Computer Data Processing Centre and later at the Woodridge branch.
C.Mr Sheppard said that following an OH & S visit to the Woodridge branch, significant changes were made to office furniture, work systems and the physical positioning of bank telling staff.
D.Mr Sheppard explained how critical the proofing machines were to the operation of the branch and the pressure that proofing machine staff (including the applicant) were under to make sure there were no mistakes.
E.Mr Sheppard said that the applicant was "scoffed at" for reporting symptoms resulting from her work.
Evidence on behalf of the Respondent
41. The following persons gave evidence on behalf of the respondent: Dr John Cameron, Dr Keith Adam, Dr William Douglas, Dr Jill Reddan and Dr Bruce McPhee.
Evidence of Dr John Cameron
42. Dr John Cameron, Consultant Neurologist, gave evidence on behalf of the respondent. Dr Cameron provided a report dated 19 October 2004, which was Exhibit 6 in these proceedings. A summary of the evidence of this witness is as follows:
A.Dr Cameron performed nerve conduction studies on the applicant's hands on 23 March 1999, with a subsequent report dated 24 March 1999.
B.Dr Cameron opined that the applicant's employment between 1986 to 1999 did not cause her to develop bilateral carpal tunnel syndrome.
C.Dr Cameron opined that carpal tunnel syndrome is predominantly due to constitutional factors existing at the wrist which predispose the person to developing symptoms of nerve compression. Being female is also a risk factor. Obesity, pregnancy, being middle-aged and hormonal change are also risk factors. Dr Cameron said, that based on information provided to him, a number of these risk factors were in existence when the applicant developed symptoms of carpal tunnel syndrome.
D.Dr Cameron said that if a workplace was a contributing factor to make carpal tunnel syndrome, then once a person was taken away from that type of environment, then the workplace would cease to have any role in the continuation of that condition.
E.Dr Cameron said that a carpal tunnel decompression surgical procedure would normally be successful in about 90% of cases.
F.Dr Cameron said that a six year gap in the employment of the applicant (from 1993 to 1999) would have absolutely no bearing whatsoever on her presentation later for carpal tunnel syndrome. Once a person is removed from a work environment that irritates or causes carpal tunnel syndrome, then those symptoms should resolve.
Evidence of Dr Keith Adam
43. Dr Keith Adam, Specialist in Occupational Medicine, gave evidence on behalf of the respondent. Dr Adam provided a report dated 14 February 2001 (T15 in appeal no Q2003/765, being part of Exhibit 4 in these proceedings). The evidence of Dr Adam can be summarised in these terms:
A.Dr Adams said that even accepting the initial diagnosis made of carpal tunnel syndrome, as confirmed by nerve conduction studies, carpal tunnel syndrome was insufficient to explain her multiple symptoms and prolonged incapacity.
B.Dr Adam found it difficult to reach a diagnosis of the applicant's condition or conditions.
C.Dr Adam said that he suspected that psychological factors were playing a role in perpetuating the applicant's symptoms and disability.
D.Dr Adams said that the current complaints of the applicant cannot be attributed to the initial carpal tunnel syndrome, and that her then current disability was not caused or aggravated by her former Bank employment.
E.Dr Adam said that since carpal tunnel syndrome first presented itself in the applicant, she may have subconsciously adopted learnt illness behaviour, which has now become part of her life and that she may have no insight into this process.
F.Dr Adams said that if a person's carpal tunnel syndrome was caused by that person's work, then if that person is removed from the work environment, then it can normally be expected that the person's condition will improve.
G.In cross-examination, Dr Adam said that he sounded a note of caution in relation to the request of the applicant for a computer as an aid or appliance given that it was keyboard work that had caused the applicant's carpal tunnel syndrome in the first place.
Evidence of Dr William Douglas
44. Dr William Douglas, Physician and Rheumatologist, gave evidence on behalf of the respondent. A summary of the evidence of this witness is as follows:
A.Dr Douglas provided a report dated 13 June 2002 (T19 in appeal no Q2003/765, being part of Exhibit 4 in these proceedings). Dr Douglas had provided an earlier report on 24 July 2000.
B.Dr Douglas made a diagnosis of fibromyalgia and some degenerative changes in the cervical and lumbar spine consistent with her age. In his earlier 24 July 2000 report, Dr Douglas said that fibromyalgia is a non-work-related condition.
C.Dr Douglas was not able to find any evidence of persisting carpal tunnel syndrome.
D.Dr Douglas said that the applicant exhibited an exaggerated pain response, which does not appear to have an organic basis.
E.In cross-examination, Dr Douglas conceded that fibromyalgia was not a condition that the medical profession as a collective is necessarily in agreement with.
F.In re-examination, Dr Douglas said that the degenerative changes in the cervical and lumbar spine of the applicant were consistent with age and that nothing in his examination of the applicant suggested any sort of trauma or anything beyond naturally occurring degeneration.
Evidence of Dr Jill Redden
45. Dr Jill Redden, Consultant Psychiatrist, gave evidence on behalf of the respondent. Dr Redden provided a report dated 6 May 2004, which became Exhibit 5 in these proceedings. A summary of the evidence provided by Dr Redden is set out next:
A.Dr Redden said in her report that the applicant has unusual symptomatology, and that a perusal of the medical records revealed even more extensive symptomatology then the applicant reported at interview.
B.Dr Redden said in her report that the applicant's psychiatric condition is complex. Her presentation and longitudinal history suggests that she has some histrionic and passive-aggressive personality traits.
C.Dr Redden said in her report that the applicant's history suggest that she is opiate dependent (DSM – IV - TR) but there seems little (if any) history of opiate abuse.
D.Dr Redden said in her report that the nature of the applicant's somatic complaints and her lack of response often to treatment suggested that her somatic complaints have not been fully explained by any general medical condition.
E.Dr Redden made a diagnosis in her report of somatisation disorder within the DSM – IV - TR nosological schema.
F.Dr Redden said in her report that the applicant's somatisation disorder did not occur due to duties at work, but rather it is likely that her psychiatric condition affected her progress at work, as well as markedly influencing and perpetuating any difficulties, whether industrial, social, interpersonal or somatic; the applicant's symptomatology and current impairment represents the natural history of the condition.
G.Dr Redden said in her evidence-in-chief that she agreed with the assessment of Dr Persley to the effect that the applicant had become very attuned to her bodily conditions and to life changes going on around her.
H.Dr Redden said in her evidence-in-chief that the precise aetiology of somatisation disorder was unknown, and that this was applicable to the applicant.
Evidence of Dr Bruce McPhee
46. Dr Bruce McPhee gave evidence on behalf of the respondent. Dr McPhee provided a medical report dated 20 January 2004, which was taken into evidence as Exhibit 1 in these proceedings. Dr McPhee’s evidence to the Tribunal was as follows:
47. In his report of 20 January 2004, Dr McPhee made the following observations and findings and expressed the following opinions:
Current Situation
48. Ms Findlay has a constellation of musculoskeletal symptoms extending over most of her body. She has pain in her neck and throughout her spine with pain in all limbs.
49. Her principal complaint is neck pain which she describes as a “tight knot”. It extends down the muscles across the shoulders. She says that the shoulder muscles always feel in spasm. Her arms feel heavy and when working overhead her elbows feel “dead”. Both arms ache constantly throughout the day being sore towards the end of the day. There is persistent tingling in the fingers and thumbs of both hands accompanied by swelling. She complains of deep pain in the centre of both wrists. She says that there is pain in both thumbs which click and crunch. She states that she can only elevate her arms so high before she has to use the opposite hand to lift it further. Movements of the neck are reduced and painful. When moving her neck she is aware of some cracking which sometimes gives the impression of locking.
50. Ms Findlay is a woman of shortish stature and a little overweight. Her posture and gait were normal. Examination of the lumbar spine showed a mild reduction of all movements. She could flex 45º to reach her knees. When seated with her legs extended she could reach about one third of the way down the shin or equivalent to 60º of flexion. Pain was reproduced on axial compression and pseudo rotation. Active straight leg raising was to 10º bilaterally. Passive straight leg raising was to 60º bilaterally limited by low back pain. She exhibited no nerve root tension signs. Deep tendon reflexes, power and sensation in both lower limbs were normal. There was no measurable difference in limb girth. Tenderness was located over the lumbosacral junction.
51. Examination of the neck showed some reduction in neck movements. She had 50º flexion and 40º of neck extension. Rotation in the sitting position was to 30º. This improved to 60 º bilaterally when lying down. Lateral flexion was symmetrical to 30º. Examination of the upper limbs showed normal deep tendon reflexes and sensation. There was no measurable difference in limb circumference. She exhibited gross global weakness throughout both arms which was non-anatomical. Voluntarily she was able to elevate her arms to about 60º. With encouragement she was able to get her arms above shoulder level. It was noted that when lying down she had no difficulty actively placing her arms above her head in a position of full elevation. Clinically she exhibited no evidence of a painful arc syndrome while impingement tests for rotator cuff pathology were negative. No tenderness was noted over the rotator cuff. Tenderness was noted over the occiput and the lower cervical spine.
52. X-rays of the cervical spine have been done on 8 July 1986, 23 May 1996 and 9 March 1999. All studies were normal. X-rays of the cervical spine done on 12 July 2000 are reported as demonstrating some mild narrowing of the C5/6 disc posteriorly. Having reviewed the films, I am unconvinced. The most recent x-rays of the neck were performed on 3 April 2003. I would consider that these films were within normal limits.
53. A CT scan of the cervical spine done on 9 March 1999 shows minor central protrusions of the C4/5 and C5/6 disc consistent with some degeneration. There is bulging on both of both discs without neurological compromise.
54. An MRI scan of the cervical spine done on 24 February 2000 shows signal changes in the C4/5 and C5/6 disc consistent with some degeneration. There is bulging of both discs without neurological compromise.
55. X-rays of the lumbar spine done on 28 May 1999 were within normal limits for her age. Small marginal osteophytes were noted. Repeat x-rays of the lumbar spine done on 6 May 1997 and 8 November 2000 were essentially unchanged. More recent x-rays of the lumbosacral spine were done on 1 October 2001. These show only mild spondylolytic changes of a constitutional nature. Most recent x-rays of the lumbar spine done on 3 April 2003 show some narrowing of the lumbosacral disc. There are sclerotic changes in the lumbosacral facet joint consistent with degeneration.
56. X-rays on both shoulders done on 15 July 1999 and of the right shoulder done on 12 July 2000 were normal. An ultrasound of the shoulder done on 12 July 2000 shows some thickening of the sub deltoid bursa and a small amount of free fluid around the biceps tendon. A previous ultrasound done on 30 March 1999 was normal.
Opinion
57. Ms Findley presents with a constellation of symptoms characterised by widespread musculoskeletal pain. All regions of the body are affected. There is no supporting investigatory evidence that this is due to a systemic disorder. The presentation is not characteristic of non-systemic musculoskeletal disorders and hence any diagnosis must be suspect. It is probable that there are underlying psychological and social factors present which may be amplifying her pain and disability.
58. In view of the wide ranging symptoms, it is difficult to reach a precise diagnosis. On the basis of nerve conduction studies, it would be reasonable to accept that in 1985 and 1999 Ms Findlay had carpal tunnel syndromes for which she underwent surgery. The bilateral carpal tunnel syndromes have been attributed to her duties with the Commonwealth Bank. The majority of operations for carpel compression successfully and rapidly relieve the symptoms. It would be uncharacteristic that both operations would fail. Her present symptomatology cannot be attributed to carpal tunnel syndrome.
59. There is a radiological evidence of degenerative changes in the mid cervical and lower lumbar spines. The extent of this degeneration is minor and consistent with her age. No significant neurological compromise has been demonstrated in either the cervical or lumbar spines which would account for radicular pain in the upper or lower extremities.
60. The cervical and lumbar degeneration has not been predisposed to by any inflammatory or septic disorder and interarticular fracture, malalignment or ligamentous instability nor any deposit within the joints. Since the initial radiological studies do not demonstrate any significant abnormality, it would be unreasonable to accept that the work caused aggravation of any pre-existing degeneration. In the absence of any discrete injury, this leaves only the possibility that repeated physical activities of the upper limb have caused the neck to degenerate.
61. In general, there is a relationship between physical and mental tensions during the work day and neck and shoulder pain. Where this forms the basis of her symptoms then removal from the stresses and strains of the workplace should relieve the neck and shoulder symptoms. For Ms Findlay this is not the case. That her chronic pain syndrome is due to hypothetical conduction changes in the spinal cord and brain might explain the continuation of her neck and shoulder pain despite not having worked for the past ten years.
62. Many of the responses to examination were uncharacteristic of organic spinal disease. She appeared to have an exaggerated response to pain which did not have an organic basis. Psychological and social issues will only serve to reinforce invalidity. Psychological issues include inappropriate fear avoidance beliefs, anxiety, depression and an inability to cope. Social issues include a divorce ten years ago, financial worries and an unhealthy and inappropriate dependence on her children. Ms Findley would now appear to have adopted a chronic sick role. I strongly suspect that these psycho-social factors are playing a role in intensifying and perpetuating Ms Findley’s symptoms and disability. This response is at a subconscious level and now has become part of her way of life.
63. Much of Ms Findley’s case is hypothetical. There are obvious non-organic confounding factors contributing to her present level of incapacity. A precise diagnosis cannot be made. Any relationship between her present symptoms and disability and her previous employment is highly speculative. While it might be reasonable to accept that the tensions of repetitive manual work of using an adding machine and keyboard may have caused aggravation, there was no underlying condition to aggravate and any aggravation should have ceased when she ceased work with the bank.
Discussion of the Medical Evidence
64. Two of the medical witnesses, namely Dr Persley and Dr Redden, gave evidence from a psychiatric standpoint. Dr Persley discounted any somatisation disorder, and rested on his diagnosis of chronic pain disorder with both psychological factors and a medical condition. On the other hand, Dr Redden in a comprehensive, thorough and wide-ranging report made a diagnosis of somatisation disorder, even though it was not possible to pinpoint the precise aetiology of this condition in relation to the applicant. It appeared to the Tribunal that these two medical experts "talked past each other". The cross-examination of Dr Redden did not elicit any information or evidence of particular assistance to the Tribunal. The Tribunal noted that Dr Redden had access to a much greater content and a range of the applicant's longitudinal medical history than Dr Persley did, and this may account for the more fulsome report Dr Redden provided. In the opinion of the Tribunal, Dr Redden’s evidence is to be preferred to that of Dr Persley because of the features just noted. The Tribunal inclines to the view that the applicant presents with a somatisation disorder. This still leaves the issue whether the applicant's somatisation disorder is work-related in terms of the scheme contemplated by the Act.
65. Dr Cooke, Orthopaedic Surgeon, noted that when he reviewed the applicant on 29 March 2001, her bilateral carpal tunnel syndrome had resolved, although the conditions associated with her cervical spine continued to be active.
66. Dr Cooke opined that the applicant's traumatic/degenerative changes at C4/5 and C5/6 spondylosis/osteoarthrosis were initiated by the repetitive abnormal stresses placed on the applicant's cervical spine in the course of her employment in the mid-1980s. Dr Cooke further opined that the applicant's symptom complex of neck pain, stiffness and bilateral brachalgia is directly attributable to her workplace injury. Dr Cooke has been a longstanding treating medical specialist of the applicant, even if there was a considerable break of time between some of those consultations. Dr McPhee discounted any connection between the employment of the applicant and her present symptoms and disability because, in his opinion, there was no underlying condition to aggravate and that any aggravation should have ceased when she ceased work. The Tribunal preferred the evidence of Dr Cooke to that of Dr McPhee concerning the applicant's C4/5 and C5/6 spondylosis/osteoarthrosis because he provided a precise diagnosis of the applicant's spinal condition and indicated its probable cause, namely the nature of the tasks undertaken by the applicant in the 1980s.
67. Dr Cooke discounted fibromyalgia, while Dr William Cameron rested on this as his principal diagnosis of the applicant's medical conditions. Dr Cameron said that the fibromyalgia is not work-related.
68. Dr McPhee was not able to reach a conclusion in terms of diagnosis. The clear gist of his evidence was that from the viewpoint of a spinal surgeon, the applicant did not present with a condition corresponding to his specialty. As much as he was able to express an opinion on the matter, Dr McPhee was sceptical that the applicant had any medical condition and that the background investigations (x-rays, CT scans and MRI scans) did not indicate conditions associated with the cervical spine of the applicant that were other than degenerative and age-related and which were not work-related. The evidence of this medical witness was of less assistance to the Tribunal because of his failure to advance and justify any diagnosis.
Issues
69. There are two principal issues to be determined. First, whether if the applicant suffers from a condition that was materially contributed to by her employment. In essence this issue arises because there is a dispute as to the correct diagnosis of the applicant's current condition and whether it is constitutional in nature.
70. Secondly, if the applicant's condition was materially contributed to by her employment whether this condition causes or has caused in the past any incapacity for work.
Applicant’s Submissions
71. The representative for the applicant (her daughter, Ms Melissa Findlay) provided her submissions in writing which the Tribunal has read carefully. Much of these submissions recite the family and medical history of the applicant, interpolated with personal observations of the representative concerning the compensation process, the attitude of the respondent and of her former employer and, on occasions, polemical and rhetorical devices. It does not advance an understanding of the issues in these appeals to repeat those submissions and observations.
72. In terms corresponding to or dealing with the issues as formulated above, the submissions of the applicant were as follows:
A.The applicant's neck condition, back condition and psychiatric condition were caused by her employment with the bank. In particular, the report of Dr Cooke provides evidence that the applicant's neck condition is work-related.
B.The Tribunal should prefer the evidence of Dr Persley to that of Dr Redden because there is evidence that the applicant was stressed by work.
C.The applicant submitted that she continued to be troubled by carpal tunnel syndrome.
D.The applicant submitted that the diagnosis of somatisation disorder was inconsistent with that of fibromyalgia, and that the Tribunal should prefer the diagnosis of fibromyalgia and not somatisation disorder.
E.The applicant pointed to the long-term relationship between the applicant and her treating doctors and specialists such as Dr Cooke, and contrasted this with the brief medical attendances by the applicant on medical specialists engaged by the respondent for the purpose of these proceedings only. In consequence, the applicant urged the Tribunal to prefer the medical evidence adduced on behalf of the applicant.
Respondent’s Submissions
73.The respondent made the following contentions in these appeals:
Application No (Q2000/629)
A. The respondent contends that the applicant is not entitled to an upgrade of a computer pursuant to section 39 of the SRCA.
B. The applicant does not suffer from a compensable injury that results in an impairment.
C. There is no evidence that the applicant is “undertaking, or has completed, a rehabilitation program or has been assessed as not capable or undertaking such a program” for the purposes of section 39 of the SRCA.
D. The payment for an upgrade of a computer is not reasonable.
E. That the reviewable decision dated 26 June 2000 should be affirmed.
Application No (Q2001/1110)
A. The respondent contends that the applicant is not entitled to compensation under Section 14 of the SRCA in respect of her bilateral carpal tunnel syndrome condition.
B. There is agreement among the medical specialists that the applicant does not suffer from bilateral carpal tunnel syndrome.
C. In any event, there is no evidence that the applicant complained of any wrist pain or saw any medical practitioners in respect of wrist pain for the period from 1987 to 1998 (a period of approximately eleven years).
D. The applicant’s bilateral carpal tunnel syndrome condition has not been caused and, or, materially contributed to by her former employment.
E. There is no evidence that the applicant suffers from a whole person impairment under section 24 attributable to a compensable bilateral carpal tunnel condition.
F. That the reviewable decision dated 26 September 2001 should be affirmed.
G. The respondent contends that the applicant is not entitled to compensation under Section 14 of the SRCA in respect of her neck, back and psychiatric conditions.
H. The applicant’s neck and back and psychiatric conditions are unrelated to her former employment with the Commonwealth Bank.
I. That the reviewable decision dated 26 August 2003 should be affirmed.
74. In his closing address, counsel for the respondent pointed to the divergences between the medical histories available to each of the medical specialists who gave evidence on behalf of the respondent as opposed to the applicant. Counsel stressed that the contemporaneous nature of the reports made by the applicant to her employer should be given more weight than later reconstructions or versions of the applicant concerning those same events.
Findings of Fact
75. Ms Sherrill Findlay (the applicant) was employed by the Commonwealth Bank of Australia from 1974 to 15 October 1993.
76. The applicant’s degenerative changes at C4/5 and C5/6 spondylosis/osteoarthrosis were initiated by the abnormal stresses placed on the applicant’s cervical spine in the course of her employment in the mid 1980s.
77. The applicant suffers from somatisation disorder which is not work-related.
78. The applicant has not undertaken, or completed, a rehabilitation program or been assessed as not capable of undertaking such a program.
79.The applicant does not suffer from carpal tunnel syndrome.
80. The applicant suffers from degenerative LS/S1 spondylosis and osteoarthrosis causing irritation of the S1 nerve root which is not work-related.
The Legislation
81.The relevant provisions of the Act are as follows
"4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
"household services", in relation to an employee, means services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee's household.
"impairment" means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
"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.
…
"rehabilitation program" includes medical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.
…
(9) 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 engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…"
"14 Compensation for injuries
(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.
…"
"19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
…"
" 39 Compensation payable in respect of certain alterations etc.
(1) Where:
(a)an employee suffers an injury resulting in an impairment; and
(b)the employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program;
the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee, of:
(c)any alteration of the employee's place of residence or place of work;
(d)any modifications of a vehicle or article used by the employee; or
(e)any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances;
being alterations, modifications or aids or appliances reasonably required by the employee, having regard to the nature of the employee's impairment and, where appropriate, the requirements of the rehabilitation program.
(2) The matters to which the relevant authority shall have regard in determining the amount of compensation payable in a particular case under subsection (1) include such of the following matters as are relevant in that case:
(a)the likely period during which the alteration, modification, aid or appliance will be required;
(b)any difficulties faced by the employee in gaining access to, or enjoying reasonable freedom of movement in, his or her place of residence or work;
(c)any difficulties faced by the employee in gaining access to, driving or enjoying freedom and safety of movement in, a vehicle used by the employee;
(d)any alternative means of transport available to the employee;
(e)whether arrangements can be made for hiring the relevant aid or appliance;
(f)when the employee has previously received compensation under this section in respect of an alteration of his or her place of residence or a modification of a vehicle and has later disposed of that place of residence or vehicle—whether the value of that place of residence or vehicle was increased as a result of the alteration or modification.
…"
Tribunal’s Reasons
82. This matter involves three separate appeals. The Tribunal considered each appeal in turn.
General Considerations
83. First, in relation to claims to establish liability for an injury or incapacity flowing from that injury, the Tribunal must be satisfied on the balance of probabilities of the existence of the injury or the incapacity and that they were work related: see Robertson and Comcare [2002] AATA 1259 at [124]. A succinct statement of this is found in Comcare v Nichols [1999] FCA 209 where Justice Heerey said at [23]
"However Mrs Nichols also contended that (i) she had a cervical spondylosis (ii) which was work-related and (iii) which contributed to her present incapacity. If all three elements were established she would have an entitlement to compensation. The Tribunal had to be satisfied of the existence of each element."
Appeal No Q2000/629
84. The first appeal is Q2000/629 (instituted by an application dated 4 July 2000 to this Tribunal), which is a claim by the applicant for the cost of a computer upgrade to be met by the respondent pursuant to section 39 of the Safety, Rehabilitation and Compensation Act 1988. This was denied by a determination dated 3 April 2000. A reconsideration of 26 June 2000 affirmed the earlier decision.
85. As this Tribunal said in Houston and Comcare [2005] AATA 1999 at [18], the scheme of section 39 is as follows. Section 39(1) imposes liability on a relevant authority such as the Respondent to pay compensation for the reasonable costs of certain items listed in section 39(1)(c) – (e) (certain alterations, modifications and aids or appliances) the cost of which an employee is otherwise liable to pay, so long as they are reasonably required having regard to the nature of the employee’s impairment. Section 39(1) is supported by the signposts contained in section 39(2) that sets out the matters to which the Respondent must have regard in determining the amount of compensation payable under section 39(1). Section 39(2) does not enlarge or extend the type of payments for which compensation is payable under section 39(1). Put another way, section 39(2) is directed only towards the quantum of compensation; this provision cannot subvert section 39(1) by sweeping up additional heads of expenditure that are not contemplated by the clear words of section 39(1) or indeed any other provision of the Act. Section 39(3) sets out machinery concerning the methods by which section 39 compensation is payable. Section 39(4) concludes section 39 with a mechanism of substituted satisfaction of liability, so that if a relevant authority makes a section 39(3) payment to the relevant supplier of the relevant goods or services (alterations, modifications, aids or appliances), then this discharges pro tanto the liability of the person to whom or for whose benefit these goods or services are supplied (normally the employee but sometimes a third party who may be but is not necessarily related to or connected to the employee).
86. The respondent contested its liability to pay the cost of the computer upgrade on the basis that (1) the applicant does not suffer from a compensable injury that results in an impairment, and (2) even if she did, then there is no evidence that the applicant has undertaken, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program.
87. The Tribunal agrees with the contention of the respondent to the effect that there is no evidence that the applicant has undertaken, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program. The claim of the applicant for the cost of a computer upgrade to be met by the respondent pursuant to section 39 fails on the basis that one of the essential elements of section 39 has not been satisfied.
Appeal No Q2001/1110
88. The second appeal is Q2001/1110 (instituted by an application dated 30 November 2001 to this Tribunal), where the applicant seeks to have the respondent accept liability for bilateral carpal tunnel syndrome pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988.
89. In Lees v Comcare (1999) 29 AAR 350; (1999) 56 ALD 84, the Full Court of the Federal Court explained how section 14 determinations should operate:
“[35] This is not to say that a determination under section 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by section 53 of the Act; secondly, that a claim for compensation has been made as required by section 55 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an ‘employee’ at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.”
90. The Tribunal approached this matter through the prism of the Comcare v Nichols template (a trimmed down version of the Lees v Comcare template), namely: (1) does the applicant have a medical condition (2) which is work-related and (3) which contributes to her present incapacity. The Tribunal noted that this is essentially a request to reopen the 1987 compensation claim of the applicant.
91. The medical evidence before the Tribunal, including the evidence of Dr Cooke (called by the applicant) is to the effect of that the applicant does not presently suffer from bilateral carpal tunnel syndrome. The medical evidence is to the effect that the applicant does not have a present medical condition in the nature of bilateral carpal tunnel syndrome which is work-related and which contributes to her present incapacity. In particular, there is no evidence that suggests the applicant has a present incapacity under the label bilateral carpal tunnel syndrome. Accordingly, the respondent was correct to make a determination of its own motion on 26 September 2001 to revoke liability for any claim for compensation arising out of bilateral carpal tunnel syndrome (made on 30 March 1999).
Appeal No Q2003/765
92. The third appeal is Q2003/765 (instituted by an application dated 3 September 2003 to this Tribunal), where the applicant seeks to have the respondent accept liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of her neck, back and psychiatric conditions.
93. The Tribunal considered the medical evidence relating to the applicants' neck and lumbar spine conditions. Dr Cooke opined that the applicant's traumatic/degenerative changes at C4/5 and C5/6 spondylosis/osteoarthrosis were initiated by the repetitive abnormal stresses placed on the applicant's cervical spine in the course of her employment in the mid-1980s. Dr Cooke further opined that the applicant's symptom complex of neck pain, stiffness and bilateral brachalgia is directly attributable to her workplace injury. The only other medical specialist who gave evidence concerning the neck and spinal conditions of the applicant corresponding to a medical specialty in which that medical witness is otherwise qualified to give evidence was Dr McPhee. Dr McPhee did not attribute the neck pain (and for that matter lumbar spine pain) of the applicant to an organic source, and said instead that there were degenerative changes in the mid-cervical and lower lumbar spine consistent with the age of the applicant. Dr McPhee made a grudging concession that the tensions of repetitive manual work of using an adding machine and keyboard may have caused aggravation. Dr McPhee discounted any connection between the employment of the applicant and her present symptoms and disability because, in his opinion, there was no underlying condition to aggravate and that any aggravation should have ceased when she ceased work.
94. The Tribunal prefers the evidence of Dr Cooke that the applicant's traumatic/degenerative changes at C4/5 and C5/6 spondylosis/osteoarthrosis were initiated by the repetitive abnormal stresses placed on the applicant's cervical spine in the course of her employment in the mid-1980s. The contemporaneous medical records corroborate complaints made by the applicant to Dr Cooke and also to her treating GPs to the effect that she had neck pain and that she attributed this to her working conditions and tasks in the bank.
95. In connection with the back complaints of the applicant leading to a claim, Dr Cooke diagnosed "degenerative L5/S1 spondylosis and osteoarthrosis causing irritation of the S1 nerve root – active.” Dr McPhee discounted any back condition for much the same reasons that he gave when discounting work-related neck symptoms. This condition is not attributable to the employment of the applicant. The respondent was correct to deny liability for any back condition on the basis that it is not work-related. The Tribunal affirms this aspect of the decision appealed to it.
96. In connection with any psychiatric condition the subject of the claim, the competing medical evidence has been recounted above. As stated previously, in the Tribunal prefers the evidence of Dr Redden to that of Dr Persley, and has found that the applicant suffers from a somatisation disorder. Dr Redden said that while the aetiology of the somatisation disorder suffered by the applicant was unknown, it was not work-related. There is no other medical evidence to gainsay this conclusion. In the circumstances, and on the basis of the evidence before it, the Tribunal concludes that the psychiatric condition of the applicant that is the subject of the claim for compensation is somatisation disorder that is not work-related. Put differently, the applicant has a somatisation disorder but there is nothing in her work history that demonstrates her work aggravated or contributed to the clinical onset of this condition. The somatisation disorder is a constitutional condition, not one brought on by the working conditions experienced by the applicant.
Tribunal’s Conclusions
97. Based upon the material before it, and for these Reasons, the Tribunal concludes that the correct and preferable decisions is that the decision of the respondent that is the subject of appeal number Q2003/765 insofar as it relates to a neck condition should be set aside and remitted to the respondent for reconsideration with a direction to give effect to the finding of the Tribunal that the neck condition is work-related. All of the other decisions challenged in appeal number Q2003/765 and in appeal number Q2001/1110 and in Q2000/629 should be affirmed.
Decision
98.The Tribunal decides to:
1.Affirm the decisions in appeal number Q2001/1110 and in Q2000/629 and in appeal number Q2003/765 (but only to the extent it relates to back and psychiatric conditions).
2.Set aside the decision in appeal number Q2003/765 to the extent it relates to neck condition and remits the matter to the respondent for reconsideration to give effect to the findings of the Tribunal as set out in its reasons for decision that the applicant’s traumatic/degenerative changes at C4/5 and C5/6 spondylosis/osteoarthrosis were initiated by the repetitive abnormal stresses placed on the applicant's cervical spine in the course of her employment in the mid-1980s and that this condition has been ongoing and continuous since 31 March 1986.
I certify that the 98 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member
Signed: Camille Banks
AssociateDate/s of Hearing 8, 9 November 2004
Date of Decision 11 March 2005
For the Applicant Ms M Findlay (the applicant’s daughter)
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Sparke Helmore
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