George and Comcare

[2004] AATA 1069

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1069

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/473
  )          No N2003/1890

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARGARET GEORGE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date13 October 2004

PlaceSydney

Decision

As to application N2003/473, the decision under review is set aside and in substitution therefor the Tribunal decides:

a) The Respondent is liable to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of tenosynovitis and synovitis (bilateral);

b)    In the period 19 August 2002 to the present date, the Applicant has no entitlement to compensation for tenosynovitis and synovitis (bilateral) under sections 16 or 19 of the Act.

As to application N2003/1890, the decision under review is affirmed.

.......[sgd]..........................

Ms N Bell  Senior Member

COMPENSATION – Whether Liability Should Have Been Accepted In the First Instance – Whether Liability Ceased as at 23 October 2002 - Synovitis and Tenosynovitis (Bilateral)

Safety, Rehabilitation and Compensation Act 1988

Dennison Smith v Comcare 2000 AATA553

Douglas v Comcare 2004 AATA 256

Holmes v Comcare 2001 AATA

Gonzales v Comcare  1998 AATA 13151

Australian Postal Corporation v Oudyn [2003] FCA 318

REASONS FOR DECISION

13 October 2004 Ms N Bell, Senior Member

1.      Mrs George was employed, on a contract basis, by the Australian Bureau of Statistics (“the ABS”) from 18 April 2001 until 12 July 2002 as a Computer Operator and Clerk.  Her duties included data entry and scanning.  Her employment ceased on 12 July 2002 because her contract expired.  She contends that she suffers from tenosynovitis and synovitis (bilateral) and that this condition was caused by her employment with the ABS.

2.      Mrs George has made two applications to the Tribunal.  The first concerns a decision by Comcare that its liability for the condition of tenosynovitis and synovitis (bilateral) “ceased” on 23 October 2002.  The second concerns a decision by Comcare that it is not liable to compensate Mrs George for a permanent impairment.

3.      At the heart of these applications is the question of whether Mrs George suffers from tenosynovitis and synovitis (bilateral) and, if so, whether the condition was caused, or materially contributed to, by her employment.  Mrs George is firmly of the view that these questions should be answered in the positive.  Comcare maintains that its initial acceptance of liability was in error and that I should find that it was never liable.  In the alternative, Comcare urges me to conclude that the effects of any condition suffered by Mrs George had ceased by 23 October 2002.

Mrs George’s Initial Claim

4.      On 11 July 2002, Mrs George lodged a claim for “painful hands” with the date of injury being 12 June 2002. The claim form submitted by Mrs George described the injury as “a tremor in my middle left finger and numb tingling feeling in the fingers, pain in hand, wrist and lower arm and an involuntary flexing in right wrist inside. Also a bit of right shoulder pain and weak feeling in left wrist”.  She said on the claim form that her injury causes “occasional pain while using keyboard at work in left hand, right hand currently OK”.  She said her injury arose whilst she was sitting at a desk doing data entry.

5.      Her claim was supported by a medical certificate from Dr Therese Tsung dated 10 July 2002, which said she is suffering from “painful wrists and numbness of hands”, the cause of which was “related to work”.  Dr Tsung certified Mrs George unfit for work from 2 July 2002 to 3 July 2002.  There also appears in the T documents a letter from Ms Gardner of Ergonomics in Action dated 10 July 2002, noting Mrs George’s symptoms of “intermittent tingling and a jumpy feeling in the middle finger of her left hand and the right wrist” and reporting that the symptoms ease or completely resolve over the weekend when she is not keying.  Ms Gardner recommended that Mrs George consult her treating doctor regarding the symptoms, that she be referred to physiotherapy and that her work practices and symptoms be monitored.

6.      Comcare wrote to Dr Tsung on 24 July 2002, asking for a classifiable diagnosis of Mrs George’s condition.  Dr Tsung gave a diagnosis by telephone on 30 July 2002 of tenosynovitis.  On 1 August 2002 Comcare determined to accept liability for synovitis and tenosynovitis (bilateral).

7.      On 25 September 2002 Comcare wrote to Mrs George indicating an intention to “cease liability” in relation to Mrs George’s claim on and from 23 October 2002.  In doing so Comcare relied on the reports of Dr Conolly, Associate Professor, Hand Surgery, dated 19 August 2002 to the effect that he found no physical abnormality and that Mrs George did not suffer from tendinitis or any related condition.  Comcare also relied on the report of Dr Minogue, Occupational Physician, dated 6 September 2002, who also found no physical abnormality and provided no diagnosis.  Mrs George had been referred to both doctors by her General Practitioner, Dr Tsung.

8.      On 25 October 2002, the foreshadowed determination was made.  On 31 October 2002, Mrs George requested reconsideration of determination and on 22 January 2003, the determination was affirmed. The Tribunal reviewed that affirmed decision.

Mrs George’s claim for Permanent impairment

9.      Mrs George later lodged a claim for permanent impairment on 28 July 2003, which was rejected by Comcare on 18 August 2003.  On 25 August 2003 Mrs George requested reconsideration of that decision and on 11 November 2003, the determination was affirmed on the basis of the decision in Dennison Smith v Comcare 2000 AATA 553 and the absence of a favourable decision under section 14 of the Safety, Rehabilitation and Compensation Act 1988. In addition the decision to affirm was made on a basis of the reports of Drs Connolly and Minogue. The reconsideration officer also considered a report of Dr Weisz, Orthopaedic Surgeon, dated 19 May 2003. Dr Weisz said Mrs George had suffered an overuse syndrome which was substantially contributed to by her employment, that her symptoms were likely to persist and he assessed her as suffering from 10 per cent impairment under Table 9.4 of the Comcare Guide.

10.     Comcare noted that Dr Weisz indicated that active treatment had not been completed even though he had advised that the impairment had stabilised indefinitely.  On this basis Comcare formed the view that the condition had not yet stabilised or become permanent.

11.     Comcare also noted the reports of Dr F Harvey, Orthopaedic Surgeon, dated 3 October 2003 which concluded that Mrs George suffered no musculoskeletal disability and had been left with no permanent impairment or objective clinical signs to support an assessment of permanent impairment.

Mrs George’s evidence

12.     The above summarises the main medical evidence in these applications.  There remains, however, a large body of evidence tendered by Mrs George, who appeared in person at the hearing.  Mrs George is a prolific correspondent and a fastidious recorder of her subjective symptoms.

13.     In very brief summary, that correspondence, exhibited to the Tribunal as Exhibits A7, A8 and A10 to A18 raises the following main issues and arguments:

·Mrs George experienced vibration at her desk and considers this contributed to her pain (see Exhibits A7 and A12);

·She considers that her examination by Dr F Harvey was preceded by an earlier examination by Dr P Harvey and that some statements were made by Dr F Harvey which concerned her as did his use of a dictaphone.  Mrs George also took issue with a number of details in Dr Harvey’s report (see Exhibit A11);

·She noted what she referred to as “unfair work practices” including de-activation of her password, invasions of privacy, and slow processing of her leave applications (see Exhibit A12);

·She considered that the compulsory exercises required to be done hourly at the ABS Data Processing Centre contributed to her right shoulder problem (see Exhibit A12).

14.     Mrs George also raised a number of other matters not relevant to the central issues in her application.  I note, however, that Mrs George conducted her application without the benefit of legal advice or representation.

15.     In addition, Mrs George provided an extremely detailed list of her symptoms covering the period from July 2002 to August 2004 and dealing with most individual days in that period.  The particularity with which Mrs George reported her symptoms in this list is remarkable.

16.     Mrs George’s oral evidence to the Tribunal was that in about June 2002 she developed a “nervy, jumpy” feeling in her left middle finger and on 2 July 2002, at work, she felt a pain in her left hand and “jumpy” feeling in her right wrist.  She saw Dr Tsung and had two days off and then saw Dr Tsung again on 10 October 2002.  She said her symptoms had increased after 2 July with pressure at work to finish her tasks by the last day of her period of employment.  She noted she had had a mouse attachment to her computer that did not work properly for the last few months of her employment with the ABS and ventured the opinion that this had contributed to her difficulty.

17.     After the ABS, Mrs George worked as a Note-taker at TAFE for twelve hours per week until the end of November 2002.  Since then she has only done three or four days of paid work.  Mrs George considered that the preparation she undertook for this application amounted to something like a part-time job and she sometimes spent a whole morning typing for that purpose.

18.     Mrs George said that her hands, wrists and arms hurt when she is hand washing; hanging clothes on the line; sweeping; dressing; preparing food; vacuuming; doing housework and gardening.  She said her pain can affect nearly everything she does because she never knows when she will get a pain.  She considered that she has generally improved over time but that the pain sometimes flares up.

19.     It was Mrs George’s view that she could not do the ABS work to the extent that she could before her injury because it would aggravate her pain and her symptoms would begin again.  She said she was unsure as to whether she could work on a part time basis.

20.     She currently takes no medication for her pain but undertakes Tai Chi and Yoga.

21.     In cross examination Mrs George conceded that she had not taken advantage of massage sessions that were offered at the ABS and that her attendance at Yoga sessions at the ABS were simply for enjoyment.

22.     Mrs George had made mention of harassment by other staff and agreed that, as a result of her relations with other staff, she had been placed on a one month contract with no increment in order to see if she was suitable to be a section leader.  She denied that this was done because there were concerns about her performance.  She agreed that her supervisor had said that she escalated issues but considered herself to be a “scape goat”.  She agreed that she had made complaints about her colleagues.

Dr Weisz’ Evidence

23.     In oral evidence to the Tribunal Dr Weisz, Orthopaedic Surgeon, said he had seen Mrs George on four or five occasions and had made a clinical assessment of overuse condition.  He said this condition is observed on examination where pain and tenderness are found and that usually there are no visible signs of the condition.  He said the syndrome is not necessarily related to the duration of use but rather to intensity, but conceded it is possible there is no connection between the condition and work.  

24.     Dr Weisz said when there is tenderness an examiner will see a patient’s reaction to palpation but conceded this will be partly subjective.  He also conceded there is no specific test used to determine overuse of muscles but the pathology is tiredness and tenderness.  In Mrs George’s case the only pathology was tenderness on the wrists and he agreed that this constitutes only a description of symptoms and not a diagnosis.  In conclusion Dr Weisz said that even though there were no visible signs he brought to bear his experience and that his conclusion was essentially an impression, notwithstanding the available results of x-rays and ultrasounds.  He said it comes down to him simply believing Mrs George.

Dr Harvey’s Evidence

25.     The oral evidence of Dr Harvey was generally limited to clarification of the question of the manner in which Dr P Harvey and Dr F Harvey undertook the examination of Mrs George and whether Mrs George’s voice was recorded during the examination.  His evidence established that it was Dr F Harvey who examined and reported on Mrs George and that he did not record her voice

Other Evidence

26.     A number of Clinical Notes were exhibited.  The Clinical Notes of Dr Tsung indicate that she did not see Mrs George at all between 10 October 2003 and May 2004 and that attendances after May 2004 did not concern Mrs George’s hands.

27.     A letter from Dr Kenneth Hume, General Surgeon, to Dr Tsung indicates that in his opinion Mrs George has little hope of success with her claim.

28.     An entry in the Clinical Notes of Dr Thomas, General Practitioner, dated 28 January 2003, indicates that Mrs George requested a medico legal report in relation to her pain but that report was refused on the basis that her condition has gone away with her cessation of work.

29.     Dr Minogue, in his clinical notes, indicates on 29 September 2002 that on examination no objective abnormality was identified and there was no evidence of synovitis and tenosynovitis (bilateral).  In addition there was no evidence of carpal tunnel syndrome.  An entry for 18 October 2002 indicates his opinion that Mrs George’s complaints lack credibility.  Dr Minogue also noted the result of a nerve conduction study which was normal.

30.     Mr George’s evidence to the Tribunal was that he has observed that Mrs George experiences pain and tenderness through the day when she picks things up.  He noted that shopping is a problem and he has to load the car for her.  When pressed, he said that he has observed this pain and tenderness by seeing her reaction.  Mr George also noted his observation that his wife experiences tenderness and pain at night and wakes and notes down the details of her pain a number of times each night.

Consideration

31.     My attention was drawn by Mrs George to a number of decisions of the Tribunal.  In Douglas v Comcare (2004 AATA 256) the Tribunal concluded that the Applicant was incapacitated for her work by a work related ailment known variously as occupational overuse syndrome or chronic regional pain syndrome.  That conclusion was reached on the basis of supportive evidence from a consultant rheumatologist and a specialist in occupational medicine.  In Holmes v Comcare (2001 AATA 290) the Applicant’s case was also supported by unequivocal expert opinion.  In Gonzales v Comcare (1998 AATA 13151) the Applicant’s case was supported by evidence from a rheumatologist, an occupational physician, a consultant physician and specialist in musculoskeletal medicine and pain management.

32.     Mrs George’s application is supported only by scant evidence and opinion from her General Practitioner, Dr Tsung and evidence and opinion from Dr Weisz.  Dr Weisz conceded that his opinion of the Applicant‘s condition is based essentially on her own reports to him.  He agreed that there were no visible signs of the condition and also agreed that his diagnosis is essentially an impression.

33.     I prefer the evidence of Dr Conolly, Dr Minogue and Dr Harvey.  I also note the results of x-ray examinations, the ultrasounds and nerve conduction studies which all show no abnormality.  I also note the clinical notes referred to above.  I am mindful of Mrs George’s extensive recording of her symptoms, but I can find no persuasive expert medical support for her contentions.  I find that, from the time of her examination by Dr Connolly on 19 August 2002, and to date, Mrs George did not suffer from synovitis or tenosynovitis.

34.     Comcare has asked me to set aside its decision under review and to conclude that it was never liable.  The Respondent’s evidence is, however, that Mrs George did not at the time of examination by Drs Conolly and Minogue or thereafter suffer from synovitis or tenosynovitis.  Their evidence does not address the period from the date of injury to the date of examination.  There is evidence, albeit scant, from Dr Tsung that Mrs George did suffer the condition as at 2 July 2002. In the absence of direct evidence to the contrary I conclude that the initial acceptance of liability was correct but Mrs George has no entitlement to compensation from 19 August 2002 to date and the decision under review concerning liability should be set aside and a new decision substituted accordingly.   It also follows that the reviewable decision in relation to Mrs George’s claim for permanent impairment should be affirmed.

35.     I also note that the decision under review concerning liability purports to “cease liability” from 23 October 2002 and in so doing offends the principles enunciated in by the Federal Court in Australian Postal Corporation v Oudyn [2003] FCA 318 by purporting to bind Comcare in respect of any future application for compensation for medical expenses, incapacity or impairment.

Decision

36.As to application N2003/473, the decision under review is set aside and in substitution therefor the Tribunal decides:

a) The Respondent is liable to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of tenosynovitis and synovitis (bilateral);

b)    In the period 19 August 2002 to the present date, the Applicant has no entitlement to compensation for tenosynovitis and synovitis (bilateral) under sections 16 or 19 of the Act.

37.As to application N2003/1890, the decision under review is affirmed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         .[Linda Blue}......................................................
  Associate

Dates of Hearing  9 and 10 September 2004
Date of Decision  13 October 2004
Counsel for the Respondent     Mr Brendon Kelly
Solicitor for the Respondent     Mr Blake Solly