Forrest and Comcare
[2004] AATA 1145
•3 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1145
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/380
GENERAL ADMINISTRATIVE DIVISION ) Re EVA FORREST Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date3 November 2004
PlaceCanberra
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that the effects of Ms Forrest’s previously accepted compensable injury did not cease on 3 June 2003, she was then and is now incapacitated for work as a result of her previously accepted work-related injury and is entitled to payment of compensation for incapacity and medical treatment expenses pursuant to s.131 of the Safety, Rehabilitation and Compensation Act 1988.
The matter is remitted to Comcare to determine the amount of compensation that is payable to Ms Forrest in accordance with these reasons.
Comcare is to pay Ms Forrest’s reasonable costs in these proceedings as agreed or taxed.
..............................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION – incapacity and medical treatment expenses – repetitive strain injury - liability accepted for work related injury - tenosynovitis – difficulty of diagnosis - pain syndrome - retirement from employment on invalidity grounds – schizophrenia – possibility of somatization - effects of compensable condition not ceased - decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 67, 124, 131
Compensation (Commonwealth Employees) Act 1971 ss 27, 29, 37, 45, 46
Power v Comcare (1998) 89 FCR 514
Lees v Comcare (1999) 29 AAR 350
Re Liu and Comcare [2004] AATA 617
Re Sadek and Commonwealth (1988) 14 ALD 769
Re Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797
Re Freak and Comcare (1997) AATA 12491
Australian Postal Corporation v Lucas (1991) 33 FCR 101
Australian Postal Corporation v Nadge (1994) FCA 463 (21 June 1994; Lee J)
REASONS FOR DECISION
October 2004 Mr S. Webb, Member 1. By this application Eva Forrest (previously Debovski, nee Urbaszek) is seeking relief from a primary determination by Comcare dated 3 June 2003 (T107) to cease payment of compensation for incapacity and medical treatment expenses in relation to a previously accepted injury. That primary determination was affirmed in a reviewable decision dated 29 August 2003 (T116).
2. The matter came on for hearing in Canberra on 13 and 14 October 2004. Ms Forrest was represented by Mr S. Pilkington, counsel, and Comcare was represented by Ms A. McMahon, counsel. Ms Forrest gave oral evidence at the hearing as did her mother, Mrs E. Urbaszek, and Dr A. Brook, rheumatologist. Materials were tendered and labelled as exhibits at the hearing.
factual context
3. Ms Forrest (date of birth: 15 February 1962) commenced employment by the Commonwealth Department of Defence on 27 July 1981. She was transferred to the Department of Territories and Local Government (“the Department”) in 1984, where she was employed as a Typist grade 1.
4. Ms Forrest was married in 1984. The marriage broke down and her husband left in or about August 1985, when she was seven months pregnant. She gave birth to a son on 27 October 1985. Thereafter she and the child moved into a town house adjoining that of her parents, who cared for her and the child. Her father died in or about 1997, whereafter she and the child moved into her mother’s house.
5. On 16 November 1984 Dr X. Fedoroff, general practitioner, certified that Ms Forrest was suffering from “W/C tenosynovitis” and was unfit for work from the afternoon of 15 November 1984 (T3). Subsequent certificates by Dr Fedoroff confirming her diagnosis of “tenosynovitis” in relation to “repetitive typing work” (T3) are before the Tribunal.
6. On 20 November 1984 Ms Forrest lodged a claim for compensation in relation to “RSI (pain in arms, wrists and hands)” as a result of “typing too many forms in one day”, claiming she had previously suffered from the condition in “1983 – end of year” (T5).
7. On 15 January 1985 a Delegate of the Commissioner for Employees’ Compensation determined to accept liability to pay compensation in relation to tenosynovitis (T10).
8. Ms Forrest’s sick leave records indicate that she was off work as a result of her compensable condition from 15 November 1984 to 15 March 1985, from 22 March to 29 March 1985 and from 22 November 1985 ongoing (Exhibit R16). In or about March 1985 Dr Brook reported that Ms Forrest “stopped work three months ago and the pains have gradually improved. The situation is now that she is quite comfortable if she is not doing very much but working around the house particularly some tasks which are too prolonged, produce her symptoms again.” (T81).
9. In the period from 15 February 1985 to 3 July 1985 the Commonwealth Medical Officer (“CMO”) examined Ms Forrest on three occasions. On 3 July 1985 the CMO reported “Pain in arms has improved. Little if any wrist pain now. Some elbow pain at times. Shoulder and neck satisfactory…” and concluded that Ms Forrest was “unfit for continued employment in the nature of duties of the position presently occupied and should be re-deployed on… clerical duties doing at present. Increase hours worked gradually… Review 10.12.85” (T16).
10. Ms Forrest took maternity leave from 2 September to 11 November 1985 (Exhibit R16).
11. On 12 December 1985 the CMO reported that Ms Forrest’s “…symptoms have increased since October” and concluded that she was “unfit for continued employment and should be granted further sick leave until 3/3/86” (T18).
12. On 16 December 1985 Dr Brook certified that Ms Forrest was “unfit for work from 16.12.85 to 16.3.86” as a result of “repetition strain injury” (T19). Ms Forrest’s symptoms persisted and she did not return to work. She was certified unfit for work by Dr G. Kelly, general practitioner, and by Dr Brook in the period to June 1987. On 12 June 1987 Ms Forrest was examined by the CMO who concluded that she was “…unfit for continued employment and should be retired on the grounds of invalidity…but may, in due course, partially or completely, recover and become fit for some form of Commonwealth employment” (T30).
13. On 11 September 1987 Ms Forrest was retired on the grounds of invalidity, effective from 18 June 1987 (T31). Thereafter Ms Forrest was paid a superannuation pension and “top-up” compensation payments for incapacity (see T33 for example). Compensation payments continued until 3 June 2003.
14. Ms Forrest continued to consult Dr Brook (see reports by Dr Brook in Exhibits A1, A2, A3, A4, A6, and at T38, T48, T54, T64, T81, T96) and other medical practitioners (see reports by Dr Tait at T34; Dr Chan at T36; Dr Craft at T46, T52 and T65; Dr Hillman at Exhibit R10; Ms Carrera at T79; Dr Cassar at Exhibit R6; Dr Petroni at Exhibit R5; Dr Corry at Exhibit A5; Dr Pryor at T82, T88, T101 and T108; Dr C. Lee at Exhibit R8; Dr Lowden at Exhibit R3; Dr Tuck at Exhibit R4 and Dr Clarke at Exhibit R9) in relation to her continuing complaints of pain in her arms and other parts of her body over ensuing years.
15. Ms Forrest was examined by medical practitioners at Comcare’s request during this period. On 4 February 1994 Dr G. Maynard, Australian Government Health Service, reported there was “a huge negative psychological effect which continues the [compensable] condition” and noted that “physically she has the capacity to undertake work which requires no typing, no lifting and minimal writing but I suspect the psychological component not to be able to do anything is overpowering.” (T40). On 29 November 1995 Dr J. Joubert, consultant neurologist, reported that “Ms Forrest does not suffer from any organic condition” and found her to be fit for employment without restriction (T44). On 2 July 1998 Dr L. Lee, consultant psychiatrist, reported that Ms Forrest was suffering from schizophrenia and “I would see her chronic pain as a somatization of her inherent psychiatric disorder” (T70; also see T98 and Exhibit R2). On 31 July 1998 Dr I. Manton, clinical psychologist, diagnosed (T72)
“Major Depressive Disorder, Chronic, in the absence of assessable neurological factors… The causes of such a diagnosis would be some combination of unresolved grief at loss of marriage and/or career, social ineptitude, pain from work injury and excessive dependence on family.”
On 14 November 1999 Dr M. Bennett, consultant psychiatrist, reported (T77)
“Ms Forrest shows unequivocal features of chronic schizophrenia… I accept the 1986 and 1989 diagnoses of her physical impairments…Her development of schizophrenia in the 1990s cannot be separated from the preceding changes in her agency, lifestyle and self-concept due to her physical impairments(s) and loss of occupation…she is incapacitated for all employment, owing to both parameters of impairment.”
On 14 February 2003 Dr P. Youssef, consultant rheumatologist, reported (T99; also see Exhibit R1)
“There is no underlying physical disorder…Ms Forrest may have experienced musculoligamentous strain in her upper limbs after the birth of her son related to carrying and nursing a baby. This is not an uncommon experience for mothers when nursing babies… I am of the opinion that her incapacity is totally unrelated to the typing performed on 15 November, 1984. If in fact she did have some mild musculoligamentous strain at that time, I would have expected it to have completely settle [sic] within two weeks of ceasing work. I am unable to find any evidence of a chronic musculoskeletal condition… I am unable to find any physical cause for her musculoskeletal symptoms.”
16. On 29 April 2003 a Comcare delegate wrote to Ms Forrest and informed her (T103)
“I am satisfied that Comcare is no longer liable to pay any compensation in respect of the condition tenosynovitis and that ongoing complaints of musculoskeletal pain appears [sic] to be related to the non-work related condition schizophrenia, and as such I intend to cease all liability.”
17. On 3 June 2003 Comcare determined (T107):
“…Comcare is no longer liable to pay weekly incapacity compensation under the provisions of sub-section 131(3) of the Act, or medical expenses compensation under the provisions of sub-section 16(1) of the Act, effective on and from 3 June 2003.
…
Comcare is not liable to pay any compensation under any section of the Act in respect of the condition Schizophrenia.
…
Comcare is not liable to pay any compensation under any section of the Act in respect of the claimant’s perception of musculoskeletal pain, secondary to Schizophrenia.”
18. That determination was affirmed in a reviewable decision dated 29 August 2003 (T116). Ms Forrest made application for review of that reviewable decision by the Administrative Appeals Tribunal ( the Tribunal) on 25 September 2003 (T1).
issues
19. A preliminary matter was raised concerning the “on and from” wording of the reviewable decision and the issue of costs. I note that the decision under review in this case does not purport to cease all liability in Comcare in relation to Ms Forrest’s previously accepted injury and relates specifically to heads of compensation concerning incapacity for work and medical treatment expenses. Nonetheless, to the extent that the reviewable decision purported to cease Comcare’s liability in relation to compensation for incapacity to work and medical treatment expenses in the future it must be set aside. In the circumstances it is not necessary for me to deal further with the specific issue of costs that was raised as the decision in this matter is favourable to Ms Forrest.
20. It is not in dispute that the Commonwealth accepted liability for a work-related injury, “tenosynovitis”, that Ms Forrest suffered in 1984 in relation to which she was paid compensation for total incapacity for work and medical treatment expenses until 3 June 2003. The original determination of liability is not before the Tribunal in these proceedings (Power v Comcare (1998) 89 FCR 514; Lees v Comcare (1999) 29 AAR 350). The issue for determination in this matter is whether Comcare has a continuing liability from 3 June 2003 to pay Ms Forrest compensation for incapacity and medical treatment expenses in relation to her 1984 injury.
legal principles
21. Ms Forrest’s application rises for consideration under the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”). As Ms Forrest’s injury occurred in 1984 Part X of the 1988 Act applies. Section 124 of the 1988 Act entitles Ms Forrest to compensation if it was payable under the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”).
22. Under the 1971 Act compensation was payable “[i]f personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee” (s.27). If the claimant’s employment contributed to cause, aggravate or accelerate a disease suffered by the employee resulting in total or partial incapacity for work, that disease, aggravation or acceleration is deemed to be a personal injury under the 1971 Act (s.29). Compensation for medical treatment expenses in relation to a compensable injury is payable pursuant to s.37 of the 1971 Act. Where an injury results in total or partial incapacity for work compensation is to be calculated under s.45 or s.46 of the 1971 Act, respectively.
23. As Ms Forrest retired from employment by the Commonwealth on invalidity grounds and thereafter was paid a superannuation pension, her claim for incapacity compensation payments must be considered under s.131 of the 1988 Act.
summary findings
24. Ms Forrest suffered a compensable injury in the course of her employment by the Commonwealth in 1984 as a result of repetitive typing duties. The date of injury was 15 November 1984.
25. Ms Forrest’s compensable injury was initially described as “tenosynovitis” and on 15 January 1985 liability was accepted for that disease pursuant to s.29 of the 1971 Act.
26. I accept that Ms Forrest has suffered from symptoms of incapacitating pain in varying degrees of intensity from 15 November 1984 to the present day. The distribution of her pain symptomatology and tenderness on clinical examination is consistent with a repetitive strain injury that disturbed the normal functions of her upper limbs, hands and neck and caused incapacitating pain. However, apart from Dr Fedoroff’s medical certificates, there is no evidence of established musculoskeletal disease at that time or subsequently. The possibility of somatization of pain as a result of psychiatric disturbance cannot be ruled out. However, on the evidence before me, I am not persuaded to conclude that Ms Forrest’s incapacitating pain was then or is now the result of psychiatric disturbance alone.
27. On the evidence before me it is not possible to determine with accuracy or certainty the correct diagnosis of Ms Forrest’s presenting symptoms in 1984. I am satisfied that she did in fact suffer from the symptoms about which she complained and that those symptoms were contributed to, in part at least, by her repetitive typing duties. I accept that those initial presenting symptoms, however labelled, persisted without evidence of physical pathology and were subsequently labelled as a “repetitive strain injury”, a “regional pain syndrome” and a “cervicobrachial pain syndrome”. The precise mechanisms and processes by which such pain syndromes occur or are perpetuated in those so afflicted are not yet fully understood by medical science and remain controversial. Nonetheless, on the basis of probability, in this case there is a chain of causation between Ms Forrest’s accepted work injury and the incapacitating pain from which she has suffered from then until the present day. I so find.
28. I acknowledge that, while Ms Forrest’s case is not unique insofar as her claims in relation to incapacitating pain are concerned, it is complicated by the emergence of a chronic incapacitating psychiatric disorder. Ms Forrest was diagnosed with a schizo-affective disorder in 1997 and with schizophrenia in 1998. From 1997, and possibly earlier, Ms Forrest has suffered incapacity as a result of her psychiatric disorder.
29. However, there is scant evidence before me to indicate that the incapacity Ms Forrest suffered as a result of her injury in employment ceased prior to the frank presentation of schizophrenia in 1997 or 1998, or thereafter to the present day. On the contrary, the evidence is the incapacitating cervicobrachial pain Ms Forrest experienced as a result of her work-related injury continues to afflict her. I find, on the balance of probabilities, that Ms Forrest continues to suffer the effects of her work-related injury, which continues as an operative cause of her total incapacity despite the presentation of incapacitating schizophrenia.
30. That being so, I am satisfied that Ms Forrest is entitled to payment of compensation for incapacity on the same basis that pertained prior to 3 June 2003.
31. Ms Forrest is entitled to make claim for payment of compensation for medical treatment expenses in relation to her compensable injury. Comcare’s liability in that respect has not ceased. However, there are no such claims before me. If any such claims are made in the future, they must be determined on the merits at that time.
decision
32. The decision under review is set aside and in substitution thereof the Tribunal decides that the effects of Ms Forrest’s previously accepted compensable injury did not cease on 3 June 2003, she was then and is now incapacitated for work as a result of her previously accepted work injury and she is entitled to payment of compensation for incapacity and medical treatment expenses pursuant to s.131 of the 1988 Act.
33. The matter is remitted to Comcare to determine the amount of compensation that is payable to Ms Forrest in accordance with these reasons.
34. Comcare is to pay Ms Forrest’s reasonable costs in these proceedings as agreed or taxed.
reasons for the decision
35. Making this decision I have carefully considered all of the evidence before me, the submissions of the parties, the relevant caselaw and legislation.
evidence
36. Having the benefit of observing Ms Forrest during the hearing, it is clear that her oral evidence must be treated with caution. The effects of her psychiatric condition were such that she had difficulty recalling and placing events in time. She was vague and reserved. No evidence in chief was adduced and I cannot be certain that her responses to questions put to her by counsel for Comcare were properly considered or reliable. That said, even though I am satisfied that Ms Forrest was competent to proceed with her application and honest in her attempt to give evidence, her evidence concerning crucial elements in this case will not carry significant weight without corroboration.
37. Ms Forrest’s mother, Mrs Urbaszek, gave oral evidence. Her reliability as a witness was not seriously challenged. Nonetheless, I note that Mrs Urbaszek had some difficulty accurately placing events that occurred more than ten years ago in time and had difficulty recalling information she had purportedly provided to medical practitioners in relation to Ms Forrest. Her testimony was, in some respects, contradictory. To that extent her evidence may be unreliable and will be treated with caution.
scope of reviewable decision
38. I pause to note that the reviewable decision in this matter is not concerned with the original determination of liability but is concerned with the issue of continuing liability. I do not comprehend Comcare’s submissions to be concerned with disturbing that original determination. Were that to be the case, I would be compelled by established authority to disagree (see Power v Comcare (supra) at 526-527).
39. The reviewable decision in this matter only operates from 3 June 2003 and does not affect compensation payments made prior to that date. It is necessary, therefore, to ascertain whether Ms Forrest suffered any incapacity as a result of her compensable injury in the period from 3 June 2003. I note, following Re Liu and Comcare [2004] AATA 617, that Comcare’s underlying liability for Ms Forrest’s compensable injury is not extinguished.
does ms forrest’s incapacity for work from 3 june 2003 result from a compensable injury?
40. Substantially, this issue turns on the medical evidence to which I have already referred.
41. Both Ms Forrest and Mrs Urbaszek were adamant that Ms Forrest suffered from incapacitating pains in her arms in 1984 and that those pains have persisted in varying intensity, but as the main complaint in Ms Forrest’s pain symptomatology, from then until the present day. That evidence is supported by Ms Forrest’s treating doctors and I accept it.
42. As will appear I am satisfied, on the balance of probabilities, that Ms Forrest’s repetitive typing duties in 1983 and 1984 caused her to suffer incapacitating bilateral arm, hand and neck pain, especially in her right arm and elbow. I am satisfied that those repetitive activities interfered with the normal functions of Ms Forrest’s body and caused incapacitating pain that persists to this day by processes that are not yet fully understood by medical science.
43. It is not in dispute that Ms Forrest currently suffers a total incapacity for any work. That conclusion is supported by the preponderance of the medical evidence and I so find.
44. In Comcare’s submission Ms Forrest’s incapacity is the product of schizophrenia or a pain syndrome that is unrelated to her previous employment or the compensable injury that she suffered in 1984. If that submission is to be accepted it must be shown, to the civil standard of proof, that any incapacity that was the result of her compensable injury ceased and any subsequent incapacity was the result of a new and unrelated cause. In Re Sadek and The Commonwealth of Australia (1988) 14 ALD 769 at 771-771 Deputy President Burns said:
“It was pointed out in Migge v Wormald Bros Industries Ltd (1972) 2 NSWLR 29 that the concept of an entirely new cause intervening to produce ensuing incapacity involves the idea of the replacement of the injury as the cause of the incapacity by a second incident again causing incapacity. Before the novus actus will be regarded as the only cause of the incapacity, it must be shown that the incapacity which would have resulted from the injury has ceased to exist and that the incapacity which does exist has resulted from the new cause as the sole cause.”
45. I note that the position contended for by Comcare concerns total incapacity, whereby, it is asserted, either Ms Forrest’s originally accepted injury was misdiagnosed and erroneously accepted as work-caused or a novus actus interveniens (schizophrenia) completely displaced the compensable injury as the cause of Ms Forrest’s total incapacity, with the effect that s.45 of the 1971 Act would have no operation and compensation for incapacity would not be payable from 3 June 2003. Of course, the possibility that the alleged novus actus did not completely displace the prior cause of total incapacity, whereby the prior cause may continue to operate to cause a partial incapacity with the effect that s.46 of the 1971 may be appropriately applied, must also be considered.
46. In Ms Forrest’s submission the total incapacity that resulted from her compensable injury did not cease on or before 3 June 2003 and is ongoing.
47. In Comcare’s submission while liability was accepted for “tenosynovitis” there is no evidence of physical pathology to support that diagnosis and, furthermore, there is no evidence of a causal relationship between any claimed regional pain syndrome, fibromyalgia or cervicobrachial pain syndrome and Ms Forrest’s previous employment. I note that Dr Fedoroff was not called to give evidence, in consequence of which the reasons for her original diagnosis and certification of “tenosynovitis” in 1984 remain unclear and untested.
48. The evidence is that Dr Fedoroff certified that Ms Forrest was unfit for work from 15 November 1984 to 29 March 1985 and during various periods from 22 November 1985 to 10 July 1986 as a result of “tenosynovitis” (T3, T9, T11, T13, T14, T17, T20, T21 and T23). In February, March and July 1985 the CMO recorded her condition as “RSI” (T12, T15 and T16). On 13 May 1986 Dr Fedoroff wrote to the Department stating that “[Ms Forrest] is suffering from R.S.I. (as diagnosed by Dr. A. Brook 20.3.85)” (T23). Dr Brook initially described Ms Forrest’s symptoms as “repetitive strain injury” (T19) and reported on 15 July 1986 that Ms Forrest suffered from “that form of regional pain syndrome that has come to be called repetition strain injury” (Exhibit A1, p2). In his opinion her symptoms were in a characteristic distribution for repetitive strain injury. On 25 July 2001 Br Brook reported that “The original problem was that of cervicobrachial pain syndrome…” (Exhibit A6). Dr Brook certified that Ms Forrest was unfit for work from 16 December 1985 to 16 March 1986 and from 9 July 1986 to 9 September 1986 (T19 and T24). Dr Kelly certified in 1986 that Ms Forrest was unfit for work as a result of, variously, “regional pain syndrome” and “RSI” (T25 to T28 inclusive). In his reports Dr Pryor refers to the existence of a “chronic regional pain syndrome” and “chronic tenosynovitis” (see T108 for example) and discounts “fibromyalgia” (T82, p2). Dr Craft reported that Ms Forrest suffered from a “regional pain syndrome” that was “a continuum of the previous injury in 1984” (T65; also see T46 and T52). Dr Youseff failed to find evidence of physical pathology consistent with a diagnosis of tenosynovitis, being an inflammation of the tendons, but had no explanation for Ms Forrest’s pain symptomatology (Exhibit R1, p5). Dr L. Lee and Dr Lowdin suggest that Ms Forrest’s symptoms may be the somatic product of schizophrenia, to which I will return in due course.
49. Plainly, there is a divergence of medical opinion concerning the correct diagnosis of the condition or psycho-physiological processes that have been the cause of Ms Forrest’s persistent pain symptomatology. It also appears, as Dr Corry observed, that there is some inconsistency in the nomenclature used to describe the suite of symptoms that Ms Forrest suffered. I note Dr Corry’s observations that work-related tenosynovitis is “also known as RSI, occupational overuse disorder, regional pain disorder and cervicobrachial pain syndrome” (Exhibit A5, p5). I further note that Ms Forrest claimed compensation in relation to “RSI (pain in arms, wrists and hands)” (T5). Perhaps this inconsistency is an indication of the difficulty facing those doctors charged with forming a diagnosis and recommending treatment on the basis of Ms Forrest’s clinical signs and symptoms, which were accepted at the time as work-related and the cause of compensable incapacity. I accept that there have been advances in medical science in relation to the understanding of pain and the description of pain syndromes since 1984, even though the aetiology and diagnosis of pain syndromes remains controversial in some quarters (see Dr Youseff’s comments at Exhibit R1 p6).
50. The medical difficulty diagnosing the condition that was the cause of Ms Forrest’s incapacitating pain, and the use of inconsistent nomenclature overtime, does not necessarily defeat her claim. Consistent with the approach adopted in Re Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797 and Re Freak and Comcare (1997) AATA 12491, being mindful of Burchett J’s comments in Australian Postal Corporation v Lucas (1991) 33 FCR 101 at 108, I am satisfied that Ms Forrest has, in fact, suffered from incapacitating pain that is the result of interference in the normal functions of her body by the repetitive activities that she was required to perform in the course of her previous employment by the Commonwealth. That conclusion is supported by the contemporaneous medical evidence of her treating doctors and the CMO and is not disturbed, as will appear, by the opinions of Dr L. Lee and Dr Lowdin in 1998 that Ms Forrest’s cervicobrachial pain symptoms were the product of psychiatric illness.
51. In these circumstances, I am satisfied that the distinction Comcare attempted to draw between “tenosynovitis” and “regional pain syndrome” or “cervicobrachial pain syndrome” in order to limit the extent of liability is without merit. Those and other terms that appear in the medical evidence are used to describe Ms Forrest’s ongoing complaints of cervicobrachial pain, including her bilateral arm pain, which commenced in 1983 or 1984, in relation to which she was paid compensation until 3 June 2003.
52. I accept Dr Brook’s assessment that Ms Forrest suffers from a cervicobrachial pain syndrome and that she has suffered incapacitating pain, described by that syndrome, since 1984. I also accept his evidence and the evidence of Dr Fedoroff, the CMO, Dr Craft, Dr Corry and Dr Pryor that Ms Forrest’s incapacitating pain was the result of her work injury. Whether Ms Forrest’s cervicobrachial pain syndrome was a sequela to “tenosynovitis” or whether the originally diagnosed “tenosynovitis” was synonymous with what is now referred to as a “cervicobrachial pain syndrome” is unclear on the evidence. Nonetheless, in either case, the contemporaneous medical evidence satisfies me that Ms Forrest’s repetitive typing duties in her previous Commonwealth employment were operative in the causation of her incapacitating condition and I so find.
53. I note in passing that the “cervicobrachial” descriptor includes the cervical region. There is scant evidence that Ms Forrest suffered from cervical symptomatology at the time of her injury. I note, however, that on 3 July 1985 the CMO reported improvement in Ms Forrest’s symptoms and noted “Shoulder and neck satisfactory” (T16). Whether that notation indicates an improvement in symptomatology in her shoulder and neck or a continuing absence of such symptoms is an open question. Subsequently on 8 September 1986 Dr Kelly certified that Ms Forrest was unfit for work because of “RSI neck and arms” (T25). On balance, it is open to infer from that evidence that Ms Forrest experienced pain symptomatology in her shoulder and neck at the time of her injury or soon thereafter, even though her primary complaint was in relation to bilateral arm pain.
54. Whether Ms Forrest’s condition in 1984 was correctly diagnosed as tenosynovitis, or whether her symptomatology was psychosomatic and related to schizophrenia is an open question. However, as will appear, I am satisfied as a matter of probability that Ms Forrest’s cervicobrachial pain condition was not caused by schizophrenia in 1984. Various theories were posited in relation to the onset or emergence of schizophrenia in Ms Forrest before, during or after her employment by the Commonwealth. On the medical evidence, I accept that it is more likely than not that the presentation of Ms Forrest’s schizophrenia was insidious. It is possible that Ms Forrest exhibited “schizoid tendencies” from an early age, as contemplated by Dr L. Lee. It is possible that she experienced some indicative symptoms during her pregnancy in 1985. It is possible that her behaviour during the examination by Dr Hillman in 1988, which prompted Dr Hillman to comment that “her attitude was quite strange”, was related to schizophrenia. It is also possible that the “difficult interview” Dr Maynard reported in 1994 and the “impression of vagueness” Dr Joubert reported in 1996 were related to schizophrenia. In submissions for Ms Forrest these possibilities may point to eccentricity in her behaviour from time to time, but are not determinative of an early diagnosis of schizophrenia. There is evidence that Ms Forrest’s performance in employment was satisfactory prior to her injury and schizophrenia was not diagnosed until 1998 (Dr L. Lee, T70) and 1999 (Dr Bennett, T77). The weight of medical opinion indicates that, in all likelihood, schizophrenia was present in the mid 1990s and subsequently became chronic. I so find. Ms Forrest’s accounts of her medical history became less reliable and the degree of difficulty measuring her injury related incapacity increased thereafter.
55. The reports of Dr L. Lee and Dr Lowden, who examined Ms Forrest in 1998, lend some weight to Comcare’s submissions concerning the possibility of a somatic connection between schizophrenia and Ms Forrest’s complaints of chronic pain. On 2 July 1998 Dr L. Lee diagnosed schizophrenia in Ms Forrest and reported “I would see her chronic pain as a somatization of her inherent psychiatric disorder… I feel that her schizoid personality traits caused her anxiety and inability to function, and may have led her to somatize her distress with complaints of pain” (T70, p5). I note in passing Dr L. Lee’s observations “In relation to [Ms Forrest’s] chronic pain, it is frequent for patients who cannot cope with work situations to develop pain, probably as a means of escaping an overwhelming situation” (T70, p4) and “It is well known that schizophrenia can worsen after harsh criticism, such as may have occurred in 1984 as her husband left her in 1985 and also with childbirth” (Exhibit R2, p5). On 24 July 1998 Dr Lowden reported “…a seventeen year history of psychological problems including depression and anxiety, somatisation features, chronic pain and psychotic features…” (Exhibit R3, p2).
56. With respect, their evidence pertains to the examination and assessment of Ms Forrest in 1998, at a time of substantial psychiatric disturbance 14 years after the onset of her incapacitating pain. On their evidence there is a clear implication that Ms Forrest’s complaints of pain in 1984 were not the result of any repetitive strain injury but rather were the somatic result of a psychiatric disorder. These possibilities are not supported by the weight of the evidence. Dr Bennett accepted “the 1986 and 1989 diagnoses of [Ms Forrest’s] physical impairments” and reported that “Her development of schizophrenia in the 1990s cannot be separated from the preceding changes in her agency, lifestyle (e.g. dependency and autonomy) and self-concept due to her physical impairments(s) and loss of occupation”. Dr Bennett concluded that Ms Forrest “is incapacitated for all employment, owing to both parameters of impairment” (T77, p2). I prefer the evidence of Dr Bennett and the contemporaneous evidence of Ms Forrest’s treating doctors.
57. It is not necessary for me to make findings concerning the possibility that Ms Forrest’s schizophrenia was materially caused or aggravated by her previous employment. That issue was not agitated in these proceedings.
58. The essential question remaining that must be addressed is whether there is an unbroken chain of causation between Ms Forrest’s incapacitating symptoms from 3 June 2003 to the present day and her previous injury in employment.
59. As I comprehend Comcare’s submission, the deterioration in Ms Forrest’s condition in the period from July 1985 to December 1985, as reported by the CMO, was as a result of stresses in her life that were unrelated to her Commonwealth employment. There is no dispute and I accept that Ms Forrest did in fact suffer traumatic psychological stresses in her personal life during that period in 1985. Her marriage broke down and her husband departed when she was seven months pregnant in or about August 1985, and she gave birth to her first (and only) child in October 1985 at a time when she was partially incapacitated by work-caused cervicobrachial pain.
60. It is more likely than not that those stresses acted upon her psychological state and her ability to cope. However, it is far from clear whether, as a matter of probability, the psychological stress she experienced at that time acted upon her compensable condition to cause an increase in her symptoms or incapacity. The essential cause of her incapacity for work was the incapacitating pain that she suffered as a result of her work injury. Plainly, that was the assessment of the CMO in July and December 1985. It was also the assessment of Dr Fedoroff and Dr Brook at that time, and was subsequently confirmed by Dr Kelly and Dr Craft who commenced treating her in 1988.
61. I accept that the breakdown of Ms Forrest’s marriage caused psychological stress and increased her difficulty coping as a new mother. However, as will appear, I am not persuaded that Ms Forrest’s symptoms of pain and her related incapacity were the product of such psychological stress. Nor am I satisfied on the evidence before me that any psychological stress she may have suffered between July and December 1985 was the cause of any incapacity for work. I accept the evidence of the CMO, Dr Fedoroff, Dr Brook, Dr Kelly and Dr Craft. The fact that Ms Forrest was in the low weight range on her presentation to hospital at term for delivery in October 1985 and that she was apparently depressed thereafter does not persuade me to a conclusion that is fatal to Ms Forrest’s claim. If, in fact, her psychological condition after October 1985 was the cause of incapacity for work, such incapacity was not reported by the CMO in December 1985. Dr Brook’s comments regarding Ms Forrest’s difficulty coping in December 1985 reflect his appraisal of her circumstances at that time, whereby she was experiencing ongoing incapacitating pain as a result of her work injury as well as the challenges of single motherhood following the breakdown of her marriage and the birth of her first child.
62. The evidence is that Ms Forrest’s symptoms were and are susceptible to aggravation by activity. That is Dr Brook’s evidence and is supported by the evidence of Ms Forrest’s treating doctors and Mrs Urbaszek. That being so, I accept that Ms Forrest may have suffered increased symptoms of pain in the period after the birth of her child in October 1985. However, the activities involved in caring for a new-born infant, including lifting and carrying that child, are within the ambit of activities of normal life for a woman of Ms Forrest’s age at that time. The fact is that prior to the birth of her child Ms Forrest was partially incapacitated for work as a result of her injury and had a capacity for work within restrictions that included “no repetitive tasks with hand…no heavy lifting” (T15). The evidence is that when she was working within those restrictions prior to the breakdown of her marriage and the departure of her husband her symptoms improved. It is perhaps not surprising that they deteriorated again after the birth of her child, despite the assistance she was provided by her parents thereafter. I am satisfied that her activities as a new mother, and any related increase in her symptoms or incapacity, do not constitute a novus actus and did not cause an aggravation of her work-related condition that is not compensable. Nor am I satisfied that any change in her psychological condition at that time increased her cervicobrachial pain or any related incapacity. On the contrary, on the evidence before me I find that Ms Forrest did not suffer an injury in the period from July to December 1985 that intervened to break the chain of causation between her compensable injury and the symptoms she suffered in December 1985 (see Australian Postal Corporation v Nadge (1994) FCA 463 (21 June 1994; Lee J)). The evidence is that she was rendered less able to cope with the tasks of caring for herself and her son as a result of her work-caused cervicobrachial pain following the departure of her husband than she would otherwise have been. Her incapacity before the birth of her son was the result of work injury and it remained so thereafter.
63. Did Ms Forrest’s work-caused cervicobrachial pain and related incapacity cease or diminish thereafter?
64. I am not persuaded by the evidence of Dr Joubert and Dr Youseff to conclude that Ms Forrest’s pain symptomatology as a result of her work injury ceased or diminished significantly at any time after December 1985. Their evidence is that no organic pathology could be found to support a diagnosis of “tenosynovitis” or to explain her pain symptomatology. In 2004 Dr Youseff reported that Ms Forrest “has not developed any objective abnormality in the musculoskeletal system” and “I could not find any objective evidence of tenosynovitis or any other physical condition”, observing “there does not appear to have been any objective evidence of tenosynovitis elicited at the time she first developed symptoms” (Exhibit R1, pp5 and 6). Dr Youseff agreed with Dr Brook that Ms Forrest complains of cervicobrachial pain but reported that he “cannot find a cause for such pain”. Dr Youseff’s evidence does not indicate that Ms Forrest ceased to suffer the cervicobrachial pain and total incapacity that was the result of her compensable injury. His reports indicate that he could not find a physical cause for those symptoms and raises doubts about the existence of physical pathology even at the time of first diagnosis in 1984. Dr Youseff concluded that “there is no physical reason as to why [Ms Forrest] cannot perform her every day tasks” (Exhibit R1, p5).
65. Dr Youseff’s opinions must be considered in relation to the evidence of Ms Forrest’s treating doctors. Dr Pryor reported on 24 October 2000 that Ms Forrest “continues to suffer from work related neck & arm pains which have not responded satisfactorily to current treatments” (T88). Subsequently, Dr Pryor reported that “Within the constraints of her chronic schizophrenia, Ms Forrest is motivated to obtain improvement in her chronic tenosynovitis and resulting chronic regional pain syndrome and is regularly frustrated by recrudescence of her symptoms with activity” (T108). Dr Brook reported (Exhibit A4, p2):
“In my opinion Ms Forrest suffers from cervicobrachial pain syndrome and I repeat my original opinion that the onset of this occurred with a busy typing job in the Department of Defence in 1983. There is an epidemiological association between certain forms of employment and a cervicobrachial pain syndrome and in my view the employment was the major cause of her disability.
…her cervicobrachial pain syndrome…has been stable over the time that I have seen her and is permanent…
I suspect there is a residual disability. However CBPS is a problem of painful fatigue of the upper limbs and how much work one can do is a matter of trial and error and of course requires motivation. I do not think she has any motivation.”
Nor am I persuaded by the evidence of Dr L. Lee and Dr Lowdin that schizophrenia either caused Ms Forrest’s pain from the outset or, subsequently, intervened to rupture the chain of causation between Ms Forrest’s work injury and her current symptomatology. Their evidence is that schizophrenia may cause somatic symptoms of pain. That is a possibility, but it does not displace the compelling evidence of her treating doctors that Ms Forrest suffered an injury as a result of repetitive typing duties and the resultant condition has been and continues to be susceptible to aggravation by activity. I prefer the evidence of her treating doctors since 1984. Neither Dr L. Lee nor Dr Lowdin provided compelling evidence that the incapacity caused by Ms Forrest’s work injury had, at some point in time, ceased.
66. As a matter of probability I have rejected the proposition that Ms Forrest’s symptoms and incapacity were the result of psychiatric disturbance from the outset.
67. Considering all of the evidence, I am satisfied that Ms Forrest’s compensable incapacity has not been displaced by a novus actus in the form of an unrelated pain syndrome or schizophrenia. I note that Dr Pryor made some comments in that regard in 2000 (T80) but his subsequent reports do not hold to that view (see T88, T101 and T108).
68. It is a fact that Ms Forrest was found to be suffering from schizophrenia in 1998 and complained of pain in her lower limbs soon thereafter (see A3 for example). However, those complaints do not diminish the significance of her consistent and continuing complaints of incapacitating pain in her cervicobrachial region. On the evidence before me I have not achieved the requisite state of satisfaction to find, as a matter of probability as opposed to mere possibility, that Ms Forrest’s ongoing symptoms of incapacitating cervicobrachial pain since 3 June 2003 are the result of her psychiatric disorder alone and not her work injury.
69. On balance I am satisfied that Ms Forrest continues to suffer from cervicobrachial pain symptomatology and related incapacity as a result of her previously accepted compensable injury and so find. The extent of Ms Forrest’s incapacity as a result of her work-related injury must now be considered.
what is the extent of ms forrest’s incapacity as a result of the work injury in the period from 3 june 2003 to the present?
70. Dr Brook gave oral evidence that the extent of Ms Forrest’s incapacity as a result of her compensable injury cannot accurately be measured or distinguished from incapacity that is the result of schizophrenia. In all likelihood these elements of injury and disease act upon each other to produce incapacity for any work.
71. In the circumstances I accept that it is possible that Ms Forrest may have some physical capacity for work if she did not suffer from the psychological effects of her injury and schizophrenia, and was able to participate in a rehabilitation program. Dr Maynard reported in February 1994 that “there is a huge negative psychological effect which continues the condition” and “the psychological effect is so great that she is almost certainly incapable of returning to work” (T40, p2). Dr Brook observed in March 1994 that “One is frequently not a good judge of how much one can achieve until one tries. Miss Forrest is not exposing herself to any grave danger by undertaking a rehabilitation program and I am not against her trying. My clinical opinion is however that she will not cope.” (Exhibit A2, p2). The evidence of Dr Craft is that she did not (T41). On 21 March 1998 Dr Craft reported that “Pain is Ms Forrest’s main complaint and this causes her incapacity… The incapacity is related to the specific employment related condition… I feel it is unlikely Ms Forrest will ever be fit for duties…” (T65, p1). On 21 February 2003 Dr Pryor reported “Ms Forrest is unfit for any work. It is clear that her conditions of cervicobrachial pain syndrome, generalised fibromyalgia and schizophrenia all prevent her from employment” (T101, p2). On 13 October 2003 Dr Brook reported that Ms Forrest “is not fit for work because of her mental state… she is also not likely to be fit for work because of the painful fatigue in her upper limbs” and agreed with Dr Pryor that Ms Forrest “is unfit for work because of cervicobrachial regional pain syndrome” (Exhibit A4, p3). Dr Corry reported a similar conclusion on 27 May 2004 (Exhibit A5 p6):
“Presently Ms Forrest is completely unemployable. Her unfitness for employment dates from her employment with the Department of Defence when she developed bilateral tenosynovitis, which resulted in her medical treatment. Unemployability has been further compounded by the development of schizophrenia in about 1997. Her lack of employability relates most to her general loss of work skills and the secondary psycho-physical consequences of her injury… She was unemployable and had been rejected for rehabilitation before the onset of schizophrenia and became more unemployable after the onset of schizophrenia. The development of schizophrenia, confirmed to be present in 1999, is not the cause of her unemployability. If she had been in employment at the time that she developed and was diagnosed as suffering from schizophrenia it is likely that she would have remained in employment after that diagnosis.”
On that evidence, which I accept, I am satisfied that on 3 June 2003 Ms Forrest suffered a total incapacity to engage in any work as a result of her work-related injury and remains so incapacitated today.
72. Nonetheless, there are elements of this case, especially the evidence of Dr Brook and Dr Cassar, which suggest that Ms Forrest’s compensable condition may be amenable to improvement by further rehabilitative treatment. However, whether after 20 years, such an approach is viable for Ms Forrest is unclear.
73. Dr Brook reported in July 1986 that (Exhibit A1, p2):
“[Ms Forrest] is disabled [by her pain syndrome] without being very disabled… I would normally be in favour of an attempt to redeploy her to part time work on a slowly increasing regimen. However I suspect that at the moment this would fail. The reason being that her social support has been greatly reduced with the loss of her husband and her social committments [sic] are greatly increased with the birth of her child. From her description looking after the baby is about as much as she can cope with…”
Dr Brook returned to the same issue in 1989 and observed (T 38):
“…when one does less the level of comfort is greater but of course all such patients are capable of at least a certain amount of productive work as evidenced by every day life.”
In 1994 Dr Brook observed in relation to Ms Forrest’s capacity to participate in a rehabilitation program “My clinical opinion is however that she will not cope” (Exhibit A2, p2).
74. Dr Cassar observed in 1994 that Ms Forrest’s “symbiotic relationship with her mother will not be easy to break, mainly because of the mother’s continuing over-protective influences” (Exhibit R6) and “Further improvement and rehabilitation of Eva Forrest is being restricted by unmanageable interference from her mother” (Exhibit R7). Dr Cassar was clearly of the opinion that Ms Forrest may benefit from rehabilitation and the level of her incapacity for work as a result of her pain syndrome may be reduced thereby. Mrs Urbaszek denied preventing Ms Forrest from participating in rehabilitative treatment. I make no findings about that matter as there is insufficient evidence.
75. I accept, however, that Ms Forrest’s “tenosynovitis” or “cervicobrachial pain syndrome” may be amenable to improvement as a result of rehabilitative treatment and the extent of her total incapacity for work as a result of her injury may be reduced. However, on Dr Brook’s evidence such an outcome is far from certain but that should not prevent Ms Forrest from attempting to undertake rehabilitative treatment. I agree, but reiterate that it is far from clear whether after the passage of 20 years such an approach is a realistic or viable option in Ms Forrest’s current circumstances in 2004.
76. Nonetheless, that is not the situation that currently pertains. Ms Forrest has not undertaken further rehabilitative treatment during the period in question and remains totally incapacitated for work as a result of her work injury.
conclusion
77. The evidence is that Ms Forrest suffered total incapacity as a result of her compensable injury in the period from November 1984 to March 1985. Her condition improved in the period from July 1985 to the extent that she was only partially incapacitated and was capable of performing restricted duties. However, her condition deteriorated after October 1985 to the extent that she was again totally incapacitated for work in December 1985 and has remained so since that time. Plainly, Ms Forrest experienced significant stress as a result of the break down of her marriage and the birth of her son. It is possible, even likely, that she exhibited “schizoid tendencies” before and during the period of her previous employment. Plainly, her schizophrenia is a complicating factor overlaid on her previously existing injury and incapacity. Nonetheless, those matters do not displace Ms Forrest’s total incapacity as a result of her employment related injury.
78. Since 3 June 2003 Ms Forrest has suffered total incapacity for work as a result of her compensable injury. She also suffers incapacity as a result of her schizophrenia. Ms Forrest’s entitlement to compensation for incapacity is ongoing from 3 June 2003 to this day. Comcare’s liability in relation to Ms Forrest’s compensable injury has not ceased. It is open to Ms Forrest to claim compensation for medical treatment expenses in relation to that injury.
79. It follows that the decision under review to cease compensation payments for incapacity and medical treatment expenses must be set aside and a decision substituted that reinstates Ms Forrest’s entitlement to payment of compensation. The matter is remitted to Comcare to determine the correct amounts of compensation that are payable to Ms Forrest in accordance with these reasons.
80. With regard to the matter of costs, this decision is favourable to Ms Forrest and it is appropriate in the circumstances to order Comcare to pay her reasonable costs relating to these proceedings pursuant to s.67(8) of the 1988 Act.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Simon Webb, Member.
Signed: Z. Khan
AssociateDate/s of Hearing 13 and 14 October 2004
Date of Decision 3 November 2004
Representative for the Applicant Mr S. Pilkington
Representative for the Respondent Ms A. McMahon
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