Goulthorpe and Comcare (Compensation)

[2019] AATA 550

Goulthorpe and Comcare (Compensation) [2019] AATA 550 (27 March 2019)

Division:GENERAL DIVISION

File Number(s):     2016/5240          

Re:Veronica Goulthorpe

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries AO

Date:27 March 2019

Place:Canberra

The Tribunal sets aside the reviewable decision of 22 September 2016 and instead determines that Comcare is liable to pay compensation to Ms Goulthorpe under ss 16, 21 and 29 of the Act for the condition of hand sprain (right).

........................................................................

Deputy President Gary Humphries AO

Catchwords

WORKER’S COMPENSATION – whether condition subject of claim is a ‘disease’ –– whether Ms Goulthorpe’s condition contributed to, to a significant degree, by her employment – inconsistent medical evidence leaving Tribunal in a state of indecision – decision under review set aside and substituted

Legislation

Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14, 16, 21, 29.

Cases
Comcare v Power [2015] FCA 1502

Telstra Corporation Limited v Hannaford [2006] FCAFA 87

REASONS FOR DECISION

Deputy President Gary Humphries AO

27 March 2019

INTRODUCTION

1. Ms Veronica Goulthorpe was a public servant, in the employ of the ACT and Commonwealth governments, for some 17 years. In 2005 she joined what is now styled the Department of Home Affairs (the Department). She was deployed to several places around Australia in order to interview people who had made unauthorised arrivals by boat into Australian territory. This included Christmas Island.

2. In September 2013 Ms Goulthorpe submitted a claim for workers compensation arising out of an incident alleged to have occurred while she was typing at work on Christmas Island. The claim related to pain in her right hand and wrist. On 15 November 2013 Comcare, by determination, accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for an injury it described as hand sprain (right).[1] Ms Goulthorpe resigned from the Department in January 2015.

   [1] In this decision, italicised text is generally used to indicate direct quotations.

3. On 18 March 2016 Comcare issued a determination denying further liability for the hand sprain (right) injury. On reconsideration it affirmed that decision, declining thereby liability to pay compensation under ss 16, 21 and 29 of the Act for that condition. This reviewable decision was made on 22 September 2016. At the hearing, Comcare described this decision as a Hannaford-type decision (following Telstra Corporation Limited v Hannaford [2006] FCAFA 87, where it was held that the employer could make findings of fact that effectively undercut an original decision accepting liability for a condition, on the basis of new evidence). Ms Goulthorpe lodged an application for merits review by this Tribunal on 30 September 2016. Other decisions of Comcare in relation to her have also been challenged in the Tribunal, but were not the subject of these proceedings.

   MS GOULTHORPE’S CLAIM

4. Ms Goulthorpe is 61 years of age.

5. Her evidence was that she was a member of a team within the Department which fluctuated in size between four and 20 people. The team’s primary role was to interview people described as Illegal Maritime Arrivals (or IMAs). The team was headquartered in Canberra but deployed to places such as Christmas Island, Weipa, Adelaide, Derby and Broome. Deployments ranged between a two week minimum and a 3 month maximum. In the financial year ending 30 June 2013, the majority of Ms Goulthorpe’s deployments were of two weeks duration and alternated with two-week relocations back to Canberra.

6. She told the Tribunal that she would interview IMAs in a variety of settings. On Christmas Island this was sometimes done in the main detention centre, and sometimes in long narrow demountables, which were sometimes not air-conditioned. It was hot on Christmas Island. The average interview length for an IMA was 2-2½ hours, conducted with the assistance of interpreters. All interview questions and answers were typed using a template document. Much of the typing was done as each IMA was interviewed, but further typing was necessary at other times, she said. What she called referrals required further typing in the evenings after interviews were finished. In 2013 the amount of typing she was doing increased significantly, because the boats were just pouring in. Hours were long, breaks were not always available and sometimes her team would work seven days a week.

7. One day while, as she was typing during an interview, her right hand started to stiffen up. She told the Tribunal I couldn’t get it to work properly. The problem occurred in her index, middle and ring fingers, and the space between them, and extended up to her wrist. It also extended up her arm into her shoulder and neck.

8. This occurred, she said, in about the middle of a two-week deployment to Christmas Island. In the second week of the deployment, the condition got worse. She had a month of planned leave, after which she returned to the island. The pain in her hand returned soon after she recommenced typing at work there. Indeed, it got worse, becoming at times unbearable. It was very tender to touch.

9. On 26 September 2013 Ms Goulthorpe submitted a workers compensation claim form to the Department. The particulars of the claimed injury incident she provided were typing during IMA interviews. Particulars of the injury or illness she described included pain shooting between the interdigital spaces between index, middle and ring fingers radiating to the level of the wrist on right hand. She explained to the Tribunal that she had not mentioned pain in her arm, shoulder or neck in the claim because the hand pain was the one that got me.

10. Ms Goulthorpe’s GP, Dr Ray Burn, in a report dated 23 October 2013, provided a recommendation for an ultrasound to be conducted. He opined that the cause of the injury was prolonged typing required to be done for what was an excessive number of hours. He recorded there was no pre-existing condition which is relevant.

11. An Initial Assessment Report was carried out on Ms Goulthorpe’s condition by Konekt Australia, bearing the date 1 November 2013. In it was noted that she reported sharp electric ‘shock type’ symptoms in her right hand, with reduced grip strength and ability to grasp and turn objects. A report by rehabilitation specialists Fit-to-Manage dated 3 December 2013 recorded that she was quite restricted in her range of movement through her shoulder girdle region, neck and in particular her pectoral muscle groups.

12. It was difficult to find work for Ms Goulthorpe from the latter part of 2013, due to a reduction in the number of boats arriving and to the limitations on her capacity to type specified in the medical certificates issued by Dr Burn. She gave evidence regarding her frustration at the lack of work she had to do.

13. In an ultrasound report dated 5 December 2013, Dr Raymond Kuan opined the ultrasound had established no definite cause for Ms Goulthorpe’s symptoms. It was recommended that an MRI be conducted.

14. A referral by her GP, Dr Ray Burn, dated 19 February 2014 noted that she had:

    … developed a right arm overuse injury which is improving with rest. However, there have been episodes of nocturnal loss of sensation down the whole of the right arm… she gets pain and paraesthesia…

15. A further report by Fit-to-Manage dated 6 June 2014 documented an eight week physical rehabilitation program Ms Goulthorpe had undertaken with the aim of addressing her ongoing right hand/wrist/forearm symptoms that have been problematic since she was involved in a IMA interview process in September 2013[sic]…. In an application for household or attendant care services dated 19 September 2014 Dr Burn referred to Pain in the arms on activity. In a further such application dated 1 October 2015 Dr Burn noted:

    Patient’s ability is limited by a work related injury to right hand & arm

16. A report of Dr Marcus Navin, occupational physician, dated 12 June 2014 was tendered. Having examined Ms Goulthorpe on 2 June 2014 at the request of the Department, he identified abnormality of function of the interdigital nerve supplying the cutaneous sensation of the dorsum of the hand and the interosseous muscles in this segment, suggesting a more proximal lesion. He said that there was no evidence of a [pathological] abnormality. He opined that the condition was transitory and the prognosis likely to be good. In her evidence, Ms Goulthorpe said that Dr Navin had correctly identified swelling around the joints of the middle and index fingers at the top of her palm in his examination.

17. Ms Goulthorpe resigned from her employment at the Department in January 2015.

18. A physiotherapy treatment plan dated 8 October 2015 described:

    Right Thumb + Wrist Pains – C5 Nerve [illegible] impingement from 2013 Headaches almost constant Past few months.

19. Ms Goulthorpe lodged a claim for permanent impairment and noneconomic loss dated 14 December 2015. In the part of the form completed by her GP, Dr Burn diagnosed OVERUSE INJURY RIGHT HAND & FOREARM, and went on to describe her impairments as PAIN & LOSS OF SENSATION IN RIGHT ARM. In a referral dated 12 January 2016 Dr Burn recorded that her arm is if anything more swollen at the distal forearm.

20. She made various claims to Comcare for household and attendant care services, for activities such as mowing and cleaning. A number of these claims were paid by Comcare.

21. Ms Goulthorpe told the Tribunal that, although the intensity of her pain had diminished since 2013, the condition had never gone away. Certain activities, such as washing a doona in the bath, cleaning the blinds, unscrewing jars or cooking could still bring on pain in her upper arm and shoulder. She had been painting a chair a few weeks before the hearing and had to stop because of the pain. She sometimes also gets headaches. She told the Tribunal that she had swelling from time to time.

22. Ms Goulthorpe said that she had experienced psoriasis behind her left ear in March 2017 for just a few days, and a similar condition on her right elbow.

23. Under cross-examination, Ms Goulthorpe said that she had first consulted Dr Burn in relation to her injury on 9 September 2013. She conceded that she had told him that her injury had come on in June of that year. This is consistent with a medical certificate provided on that day by Dr Burn, in which he notes the Patient stated date of injury as June 2013, and with her claim form for workers compensation which noted injury in Late June 2013. However, she told the Tribunal that she was sure now that the injury had first manifested itself in April 2013.

24. Ms Goulthorpe’s attention was drawn to parts of the Konekt Australia report of 1 November 2013 which record that she denied any issues other than the pain in her right hand or other musculoskeletal symptoms. She said she would not have told the Konekt consultant that.

25. A medicolegal report of Dr Sean Low, occupational physician, dated 20 November 2015 was tendered. In it he diagnosed non-specific right upper limb pain. He opined that her typing on the basis of medical probability caused [her] to become symptomatic. He noted that Ms Goulthorpe described to him ongoing pain in her hand, which she described as a tingling sensation, but that she denies pain in other anatomical locations, specifically no pain affecting her wrists, elbows or other joints. She told the Tribunal she had not told Dr Low that, and denied that pain in her forearm had ceased by this time. In her reconsideration request to Comcare, Ms Goulthorpe responded to Dr Low’s report by saying I do have pain and swelling in my right hand and my right arm swells if I use it repetitively…

26. Ms Goulthorpe attended a medical examination with occupational physician Dr Evan Dryson. In his report of 19 January 2017 (one of two by him bearing that date), Dr Dryson diagnosed Ms Goulthorpe as having Chronic pain syndrome, right hand.

    THE MEDICAL WITNESSES

27. Associate Prof David Champion, a specialist (and researcher) in pain medicine, examined Ms Goulthorpe on 2 May 2018, and produced a report dated 14 May 2018. He diagnosed Chronic Regional Pain Disorder (CRPD). He referred to the first symptoms of her right hand pain occurring in about April-May 2013 in the context of highly repetitive work under duress. He opined:

    It has been shown that highly repetitive musculoskeletal tasks can induce central sensitisation through the cumulative effect of multiple low-grade sensory inputs into the dorsal horn of the spinal cord through slow conducting C fibre impulses.

    He went on to note that the chronic regional (right hand) pain disorder was subsequently aggravated by periods of relatively arduous and repetitive work. He also noted that the somatosensory tests he conducted in his examination are entirely consistent with a chronic regional pain disorder having features of central sensitisation…

28. Referring to other medical reports, Prof Champion expressed:

    …my surprise, felt almost to the point of incredulity, that my experienced rheumatologist colleagues Drs Youssef and Browne had suggested psoriatic arthritis. Not only does she not have inflammatory arthritis, there is no way that arthritis can account for the symptoms and observed signs.

29. Prof Champion appeared in person to give evidence to the Tribunal. He said that CRPD is characterised, being a disorder, by abnormal patho-physiology. Repetitive use of a limb can produce characteristics of CRPD within a few days, particularly where it is associated with long hours and pressure to perform. He explained that such disorders tend initially to be localised, but with repetitive usage over periods of work pain tends to be distributed more widely. This pattern involves central sensitisation, which he referred to as the first clue to the existence of the disorder. Pain originating in keyboard use might not be bilateral, but confined to one limb only.

30. Prof Champion said that swelling is not characteristic of CRPD, but a feeling of swelling is common because of the hyper-excitability of the nerves involved. He said that the medical records disclosed no imaging evidence of swelling in Ms Goulthorpe’s case, evidence which would normally be associated with other conditions, such as psoriatic arthritis. This assisted him to discount psoriatic arthritis as a condition from which she suffered. He added that psoriatic arthritis would not explain a tingling sensation or pins and needles. He agreed, however, that such a condition, if it existed, could be aggravated by repetitive work activity.

31. Prof Champion agreed that there was some intellectual contestability around the concept of central sensitisation. He agreed under cross-examination that it might be true that this particular theory concerning the incidence of pain as it applied to Ms Goulthorpe has not been embraced by a majority of his colleagues in rheumatology. He agreed that the same could be said of occupational physicians. He said however that the rheumatology fraternity is not much involved in pain medicine or the research going on in that area.

32. Dr Chris Browne, rheumatologist, examined Ms Goulthorpe and prepared an initial report dated 7 June 2017. In it he considered that Her condition is an inflammatory arthritis, which may have been precipitated by the nature and condition of her work. There has been impaired of her capacity [sic] to maintain highly repetitive and sustained use of her right hand.

33. In a supplementary report of 10 July 2017, Dr Browne noted that:

    There is a body of evidence that implicates trauma as a potential triggering factor in psoriatic arthritis and while it is not common Ms Goulthorpe did describe a heavy typing load working sometimes for twelve to fourteen hours a day during her times on Christmas Island.

    As far as I can determine there were no external factors that may have contributed to the development of her condition such as sport or exercise or external trauma…

34. Dr Browne examined Ms Goulthorpe again on 22 January 2019 and provided a further report bearing the same date. He recorded there that swelling and pain have lessened markedly since she discontinued typing, and he noted that she had no neck, shoulder or elbow pain in her right limb.

35. Dr Browne gave evidence during the hearing. He confirmed that, in his first report of 7 June 2017, he had reached the conclusion that her pain in 2013 was work-related. He said that the onset of pain, stiffness and swelling in her hand temporally with intensive typing suggested, in the absence of any other apparently-causative factors, that the symptoms were work-related. He opined that her symptomology at his examination in 2017 continued to be work-related. He also confirmed that he diagnosed psoriatic arthritis, based partly on her having psoriasis behind her ear when he examined her. The fact that this psoriasis had resolved when he examined her in January 2019 had no bearing on the diagnosis of psoriatic arthritis, since symptoms of psoriasis may come and go while the related arthritic condition persists.

36. During examination in chief Dr Browne told the Tribunal that Ms Goulthorpe still experienced symptoms of an overuse condition, independent of, but coexisting with, the psoriatic arthritis. However, he agreed that, because of a lack of symptomology, the psoriatic arthritis condition may have resolved, leaving her pain symptomology to be accounted for by the overuse condition.

37. During cross-examination he agreed that he had not made reference in his June 2017 report to an overuse condition, as he regarded the psoriatic arthritis then as the dominant process causing her symptoms. He said that the overuse component is probably a bit tenuous subsequent to that.

38. Dr Browne confirmed his agreement with a rheumatologist, Prof Peter Youssef, as to the diagnosis of psoriatic arthritis, but his disagreement with Prof Youssef as to its relationship with work. He reiterated a possible connection between her work and the onset of the arthritis, saying that there was a body of evidence implicating trauma (which could include repetitive typing) as a causative factor. He said we couldn’t rule it out. He agreed, however, with Counsel for Comcare’s assertion that a majority of the studies suggesting trauma can precipitate psoriatic arthritis are more in the nature of population studies, rather than rigorous double-blind studies from which firm conclusions can be drawn. He also said he was unaware of any study explicitly establishing a link between typing and psoriatic arthritis. He nonetheless described the link between Ms Goulthorpe’s typing and her arthritis as a reasonable probability.

39. Dr Browne affirmed that a number of activities undertaken by a person suffering psoriatic arthritis may produce pain which a non-sufferer would be unlikely to experience. He said that inflamed joints react in a painful way with certain activities which a normal joint would cope with without discomfort. In this respect he agreed with an opinion expressed by Prof Youssef in his report dated 12 September 2018 (quoted in paragraph 42 below) regarding the connection between psoriatic arthritis and pain sensitisation.

40. Ms Goulthorpe was examined by Prof Youssef, for Comcare, on 7 March 2017. In a report dated the same day, he opined that Ms Goulthorpe’s condition is an autoimmune disorder the cause is unknown in the great majority of patients. He further noted It is my opinion that she has psoriatic arthritis and that her workplace did not contribute to this condition. Prof Youssef recorded a history that Ms Goulthorpe began to suffer psoriasis 7 years earlier. On examination he noted psoriasis on her right elbow and behind her left ear.

41. Prof Youssef considered that she had developed psoriatic arthritis in approximately June 2013. He noted:

    The pathology underlying that condition is synovitis and tenosynovitis. This is not aggravated by typing. Patients with this condition may experience discomfort while typing in the same way that they experience discomfort with non-work activities such as gardening.

1. In a further report dated 12 September 2018 Prof Youssef concluded:

   Dr Champion provides a paper by Arendt-Nielsen and Graven-Nielsen looking at the translation musculoskeletal pain research. This paper reviews treatment for arthritic pain and documents that central sensitisation may complicate what are primarily musculoskeletal problems, particularly referring to rheumatoid and osteoarthritis. The primary process in these inflammatory conditions is joint inflammation. In Ms Goulthorpe’s case, the primary process is psoriatic arthritis and, if there is pain sensitisation, it is secondary to this initial process.

2. Prof Youssef gave evidence by telephone. He was asked to comment on an MRI scan in June 2014 showing no abnormality in Ms Goulthorpe’s right hand; he observed that with a significant overuse injury he would expect such a scan to show some abnormality. He also noted that the finding by Dr Navin on 12 June 2014 of persistent swelling and congestion around the index and middle metacarpophalangeal joints with significant thick swelling in between the joints was consistent with a diagnosis of psoriatic arthritis. With respect to Prof Champion’s diagnosis of an overuse condition with central sensitisation, Prof Youssef said he would have expected someone with this condition to have recovered over time; he himself found no evidence of central sensitisation. This was further reinforced by the fact that Ms Goulthorpe had told him she had obtained relief from anti-inflammatory drugs; he said that such drugs were generally ineffective with respect to central sensitisation. In this respect too he disagreed with Prof Champion, who thought that such drugs might have an analgesic effect on a central sensitisation condition. He later added that such drugs could assist with inflammation associated with an overuse condition.

3. Prof Youssef agreed under cross-examination that it would most likely be the case that an inflammatory condition such as arthritis would show up an abnormality in an MRI scan or ultrasound. He agreed that her experience of numbness and pins and needles was difficult to explain against a diagnosis of arthritis. He also agreed that Dr Navin’s documenting of numbness in the web between Ms Goulthorpe’s index and middle fingers could not have been explained by psoriatic arthritis. Nor could he explain Dr Low’s recording of a tingling sensation and an altered sensation over the hand in his report of 20 November 2015. He agreed that such evidence was consistent with a condition other than arthritis operating on Ms Goulthorpe at those times.

4. Prof Youssef was taken to an article in the 9 March 2017 edition of the New England Journal of Medicine, entitled Psoriatic Arthritis. The article discusses the incidence of certain features and characteristics of psoriatic arthritis in the sufferer population. It was put to him and he agreed that, with respect to some of the symptoms of psoriatic arthritis, Ms Goulthorpe fell into categories where the symptoms were atypical of sufferers. However, he denied that this suggested that Ms Goulthorpe did not suffer from the condition.

5. Prof Youssef agreed that if Ms Goulthorpe’s evidence – that the pain in her right hand was relatively constant, that repetitive activity such as painting or washing a doona in the bath brought on pain in her hand, arm, shoulder and neck – was accepted, this evidence would not accord with psoriatic arthritis. However, he said that the symptomology may not be due to a hand injury either.

   RELEVANT LEGISLATION

6. Section 14 of the Act provides:

   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.

7. Section 5A provides:

   Definition of injury

   (1)In this Act:

   "injury" means:

   (a)a disease suffered by an employee; or

   (b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

8. Section 5B, in turn, provides:

   “disease" means:

   (a)an ailment suffered by an employee; or

   (b)an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

9. Sections 16, 21 and 29 set out specific forms of compensation to which a worker with an injury pursuant to s 14 may be entitled. Section 16 provides for compensation for medical treatment, s 21 provides for incapacity payments for workers retired from employment and s 29 makes provision for household services.

   ISSUE

10. The issue before the Tribunal may be summarised as follows: did Ms Goulthorpe suffer, or did she continue to suffer from 18 March 2016, an ailment affecting her right hand, to which her employment was a significant contributing factor by way of cause or aggravation, so as to constitute a disease within the meaning of s 5B of the Act?

11. The parties made various submissions regarding how the Tribunal should regard the evidence of pain in Ms Goulthorpe’s right forearm, upper arm, shoulder and neck. Without reciting those submissions, it is sufficient to observe that, if the pain in those regions can be properly described as a separate condition to the condition in her hand, such a condition has not been considered pursuant to the processes set down in Part VI of the Act and is therefore not presently before the Tribunal. To the extent that the condition may be a manifestation of the accepted hand condition, the Tribunal has considered whether the evidence in relation to those regions sheds any light on the origins and persistence of the hand condition. Ms Goulthorpe often described to the Tribunal pain in her upper limb, shoulder and/or neck as accompanying, or being preceded by, pain in her hand. However, the findings reached below in relation to her hand condition are not dependent on any particular view of the nature or role of pain in other parts of her right limb. In other words, evidence of pain in other parts of her right limb is largely irrelevant, in the Tribunal’s view. Evidence of that pain is relevant only to the extent that it demonstrates inconsistency, if any, in Ms Goulthorpe’s reporting of that pain to medical examiners and to Comcare.

12. Comcare accepted during the hearing that it carried the burden of establishing that Ms Goulthorpe had ceased to suffer the effects of her accepted right hand condition. That is, in determining whether to terminate her compensation entitlements for this condition, if the Tribunal is left in a state of indecision it should resolve the matter in Ms Goulthorpe’s favour: per Katzmann J in Comcare v Power [2015] FCA 1502 at [63].

    CONTENTIONS

    Ms Goulthorpe

13. Ms Goulthorpe’s case was that she continues to suffer pain in her right hand, which sometimes spreads up her arm to her shoulder and neck, and that this pain is referable to the compensable right hand injury already accepted under s 14. Counsel for Ms Goulthorpe put it to the Tribunal that the evidence weighs against the view that she ever suffered, or presently suffers, from psoriatic arthritis. However, even if she did or does suffer from psoriatic arthritis, there is another condition – a pain condition based in or emanating from her right hand – which is causative of her pain and which is attributable to her former employment. This is the condition for which Comcare has accepted liability under s 14, albeit in diagnostic terms no longer applicable to her. That condition has not ceased to result in incapacity for work or the need for medical treatment or other compensation available under the Act.

14. Ms Goulthorpe is entitled to compensation under ss 16, 19 and 29 of the Act in respect of that condition, the Tribunal was told.

    Comcare

15. Comcare contended that, notwithstanding that it accepted a right-hand overuse condition as a compensable injury in 2013, Ms Goulthorpe in fact suffered a different condition at that time, being psoriatic arthritis. This condition is of idiopathic origin and was wholly responsible for the symptoms for which she now seeks, and has previously been paid, compensation by Comcare. It claimed that the condition resulted in predictable limitations upon her capacity to engage in her employment, but was not caused, or contributed to, by her employment.

16. Comcare did not attack Ms Goulthorpe’s credit as a witness, though it suggested that there were inconsistencies between her evidence and the medical record which warranted the Tribunal exercising caution in accepting her account of the condition’s genesis and course. It pointed, for example, to the medical records in 2013 and 2014 showing that she told her employer and her GP that the condition first manifested no earlier than June or July 2013, whereas later accounts, and her evidence to the Tribunal, was that it first occurred in April 2013. Comcare also observed that she gave evidence that she only briefly suffered from psoriasis behind the left ear at the time she was examined by Prof Youssef in March 2017, yet both Dr Browne and Prof Champion observed psoriasis in May 2017 and May 2018 respectively. Comcare also pointed to some inconsistencies in the medical evidence relating to Ms Goulthorpe’s use of, and benefit from, the use of Lyrica in the treatment of her pain.

17. More significantly, according to Comcare, Ms Goulthorpe’s evidence at the hearing regarding the present level of pain and impairment she suffered was inconsistent with Dr Browne’s report of those matters on 22 January 2019, just a few days before the hearing. He reported that she told him that there was now no neck, shoulder or elbow pain and that pain and swelling of the right hand have lessened markedly since his May 2017 examination.

18. Comcare also dwelt on what it contended were inconsistencies in her accounts to her GP regarding the incidence of pain in her arm, shoulder and neck. It noted that there was no reference to such pain in her workers compensation claim form, and only occasional references in the clinical notes of Dr Burn over the subsequent five years. Moreover, she denied pain in her wrists elbows or other joints when examined by Dr Low on 11 November 2015. When examined by rehabilitation specialists Fit-to-Manage in December 2013 a restricted range of movement in her shoulder girdle region and neck was noted, though Comcare observed that this did not demonstrate that she had reported pain in those areas. Comcare then suggested that her denial to Dr Low of pain beyond her hand was inconsistent with Fit-to-Manage’s report of 6 June 2014 which referred to her ongoing right hand/wrist/forearm symptoms that have been problematic since… September 2013, a reference which in any case did not make mention of pain above the forearm.

19. Comcare submitted that little reliance should be placed on the diagnosis of Ms Goulthorpe’s GP, Dr Burn. Counsel for Comcare observed that his diagnosis of an overuse condition was, to some extent, at odds with the evidence of professors Champion and Youssef and Dr Browne, and with the report of Ms Donaleen Shiell, nurse consultant for Konekt, dated 1 November 2013. According to Ms Shiell, Dr Burn prescribed immobility as the only treatment for an overuse condition, a position which would put him at odds with the other doctors who testified. Counsel noted that there was no reference in Dr Burn’s clinical notes to tingles or tingling in the right hand prior to December 2013; in a referral letter dated 19 February 2014 he noted nocturnal loss of sensation down the whole of the right arm accompanied later by pain and paraesthesia. The inference, as I understand it, is that the failure to record tingling before December 2013 discounts the suggestion of an overuse injury.

20. Reference was also made to a physiotherapy treatment plan by Mark Ritchard dated 8 October 2015, which referred to right thumb pain, osteoarthritis and C5 nerve impingement. Comcare noted that there was virtually no other reference in the medical record to these problems.

21. Comcare took issue with Dr Dryson’s January 2017 diagnosis of chronic pain syndrome. It observed that the diagnosis isn’t further explained by the occupational physician, and that it is not capable of being equated with the chronic regional pain disorder identified by Prof Champion. Comcare noted that Dr Dryson did not make a finding that the chronic pain syndrome he identified in Ms Goulthorpe was work-related.

22. With respect to the report of Dr Navin of 12 June 2014, Comcare noted his identification of pain extending up the hand towards the forearm, but noted that he had made no reference to pain further up the limb or in the shoulder or neck. He had found tightness in the tendons of the upper right arm, whereas Prof Champion had found no abnormality there.

23. Comcare submitted that even if Ms Goulthorpe’s original pain condition was caused by her employment, either through a primary injury or through triggering psoriatic arthritis, her former employment no longer makes a significant contribution to her present experience of pain. Counsel observed that she had not done any significant typing since September 2013, making an ongoing contribution very unlikely.

    CONSIDERATION

24. The Tribunal’s deliberations on the issue it faced in this hearing were not assisted by a frustrating lack of alignment or convergence in the medical evidence. For almost every opinion held by one doctor there was a contradicting opinion by another. In the hearing I described the evidence being a dog’s breakfast, and my opinion has not been much upgraded by careful review of that evidence subsequently.

25. As a reference point for its consideration, the Tribunal can repose some confidence in the conclusion that Ms Goulthorpe at the time of the hearing felt significant pain in her right upper limb, and that this pain presented itself to her mind as qualitatively – if not quantitatively – similar to the pain she first felt in 2013. She described this as being the same condition she had experienced since 2013, though it was now overall less painful. She said that the most severe pain was in the hand and wrist, and that it never goes away. She said the pain was brought on by domestic activities such as washing a doona in the bath, cooking, unscrewing jars and painting furniture. My hand gets worse first, she said, and the pain then radiates up her arm. Significantly, this evidence was not directly challenged by Comcare. Dr Browne, the doctor who conducted the most recent examination of her, opined that she still suffered from a pain condition.

26. Ms Goulthorpe struck the Tribunal as being a truthful, if occasionally inconsistent, witness. I am satisfied that she does experience the pain she related in her testimony. Logically, the next question is: what is the cause of her pain? The parties chose to focus on two candidate conditions, and only two. Ms Goulthorpe contended that she continues to suffer from an overuse condition of her right hand, one that is no longer well described as a sprain. The better description, based on the evidence of Prof Champion, is Chronic Regional Pain Disorder, she argued. Comcare submitted, conversely, that she suffers from psoriatic arthritis, though it also suggested that the pain condition, however described, has actually resolved – a proposition with which, as already indicated, I do not agree. Other possible candidate conditions, such as De Quervain’s disease and nerve impingement, were touched on in passing but not seriously explored.

27. In assessing the relative merits of the two candidate conditions through the prism of the medical testimony, it must be said that no doctor’s evidence was wholly unproblematic. Each of Dr Burn (GP), Drs Low and Dryson (occupational physicians) and Prof Champion (pain medicine specialist) examined her and diagnosed a pain condition or disorder, with the reports ranging from October 2013 to May 2018. Each attributed the pain condition explicitly (or in the case of Dr Dryson, implicitly; he was not asked to comment on causation) to work-related activity undertaken by Ms Goulthorpe in 2013. The reports, however, do not explain the persistence of the pain condition over such a long period of time, noting that she ceased intensive typing some time before her resignation from the Department in January 2015.

28. Alone among the reports, Prof Champion does address this issue. He conducted somatosensory testing to find a chronic regional pain disorder with features of central sensitisation. In his report he regretted a lack of understanding [among his peers] of how such a pain disorder can persist for such a protracted period. However, he acknowledged that the evidentiary paradigm under which this diagnosis was framed was controversial, and that a majority of rheumatologists and occupational physicians may not subscribe to his approach.

29. It might be said that Prof Youssef’s report reflects a more “mainstream” approach to the incidence of nociceptive pain. He considered that someone with an overuse condition such as Ms Goulthorpe’s should have recovered over time; moreover, he found no evidence of central sensitisation. He was reinforced in this conclusion, he said, by the fact that Ms Goulthorpe had obtained relief from anti-inflammatory drugs, something unlikely to occur in relation to central sensitisation. He identified psoriatic arthritis is the source of her pain, and was emphatic in saying that intensive typing could not have caused this condition, though it may have made the affected limb more painful at that time.

30. This diagnosis finds a measure of support in the evidence of Dr Browne (rheumatologist). He identified psoriasis behind Ms Goulthorpe’s left ear and reached the conclusion that she suffered from an inflammatory arthritis.

31. On balance, I consider that the evidence does support the conclusion that Ms Goulthorpe suffers, or at least suffered, from psoriatic arthritis. Prof Champion was adamant that her condition was not psoriatic arthritis, asserting that there was no demonstrable pathology to that effect. However, this view seems to have been educated by a finding that there was no evidence of inflammation (as distinct from a subjective feeling of inflammation) in the limb; whereas Drs Burn, Navin, Dryson and Browne all observed swelling in some part or other of the limb – as, indeed, did Ms Goulthorpe herself. The doctors who provided earlier reports do not appear to have considered the question of psoriatic arthritis, possibly on the basis that none observed any psoriasis.

32. However, a finding that Ms Goulthorpe suffered from psoriatic arthritis is not dispositive of the question before the Tribunal. That question is: does Ms Goulthorpe presently suffer from an ailment affecting her right hand, to which her employment was a significant contributing factor? Such a finding only disposes of that question if it can be concluded, on the balance of probabilities, that psoriatic arthritis now accounts for Ms Goulthorpe’s experience of pain, so that an overuse condition or something akin to it can be dismissed as a significantly contributing factor. In addition, the Tribunal must also find, to make a decision in favour of Comcare, that her employment did not contribute significantly to the onset and/or persistence of the psoriatic arthritis itself. In my opinion, the evidence does not rise to this level of satisfaction on either count.

33. I have trouble accepting that psoriatic arthritis now substantially accounts for Ms Goulthorpe’s experience of pain. Prof Youssef had difficulty explaining a fairly consistent reporting of numbness and pins and needles by Ms Goulthorpe. He agreed that Dr Navin’s documenting of numbness in the web between Ms Goulthorpe’s index and middle fingers could not readily have been explained by psoriatic arthritis. Nor could he explain Dr Low’s recording of a tingling sensation and an altered sensation over the hand in the latter’s report of 20 November 2015. He agreed that such evidence was consistent with a condition other than arthritis operating on Ms Goulthorpe at those times. This is consistent with Prof Champion’s evidence. Prof Youssef agreed that if Ms Goulthorpe’s evidence – that the pain in her right hand was relatively constant, that repetitive activity such as painting or washing a doona in the bath brought on pain in her hand, arm, shoulder and neck – was accepted, that evidence would not accord with psoriatic arthritis.

1. The other obstacle – a significant one, in my view – in accepting that psoriatic arthritis now accounts for her pain is that Dr Browne, the only other medical expert subscribing to the psoriatic arthritis diagnosis, found on his examination on 22 January 2019 that the signs of inflammatory arthritis of the right hand have resolved on today’s examination and there has been accompanied reduction of symptoms. He nonetheless identified minimal swelling of the hand, and recorded Ms Goulthorpe as telling him that swelling and pain persisted, though they had lessened markedly since his last examination.

2. Even if psoriatic arthritis could be said to substantially account for Ms Goulthorpe’s present experience of pain, I must contend with the evidence of Dr Browne that her employment contributed to the onset of this condition. His report of 10 July 2017 asserted that There is a body of evidence that implicates trauma as a potential triggering factor in psoriatic arthritis, evidence he repeated before the Tribunal. He conceded that the research evidence linking trauma with psoriatic arthritis was more of the quality of population studies than rigorous double-blind studies, and that there was no work specifically implicating typing as a trigger for psoriatic arthritis. He nonetheless described the link between Ms Goulthorpe’s typing and her arthritis as a reasonable probability.

3. Prof Youssef, in contrast, was firm in the view that typing could not have brought on the condition. Although there is the temptation to accept Prof Youssef’s view as the more authoritative, the net effect of the testimony of the two doctors who diagnose psoriatic arthritis is to somewhat muddy the water. In any case, it is not clear that psoriatic arthritis, whatever its origin, continues to be a cause of Ms Goulthorpe’s pain.

4. Having outlined the difficulties in coming to a firm view about the contribution of psoriatic arthritis, it must be conceded that similar doubts beset the alternative candidate condition. Dr Browne, who conducted the most recent examination of Ms Goulthorpe, told the Tribunal that she still experienced symptoms of an overuse condition in January 2019. He said that this condition was independent of, but coexisting with, the psoriatic arthritis. However, he agreed that, because of a lack of symptomology, the psoriatic arthritis condition may have resolved, leaving her pain symptomology to be accounted for by the overuse condition. This evidence is somewhat complicated by the fact that, as he conceded, Dr Browne had made no reference in his June 2017 report to an overuse condition. He also conceded, under cross-examination, that inflammatory arthritis was the dominant situation causing her symptoms when he examined her in May 2017, but that the overuse component is probably a bit tenuous subsequent to that.

5. In support of the argument that an overuse or chronic pain condition cannot be viewed as a reliable label of Ms Goulthorpe’s condition, Comcare pointed to inconsistencies in the evidence, particularly in the medical records and in Ms Goulthorpe’s own account of her condition. Those contentions are summarised above. While I accept that those inconsistencies are often apparent and occasionally troubling, I do not accept that they demonstrate, on the balance of probabilities, that a work-related right hand pain condition no longer subsists.

6. It was contended that the clinical notes of Dr Burn do not make consistent reference to Ms Goulthorpe’s report of pain in her arm, shoulder and neck in the five years following 2013. That fact is curious, but is offset by the fact that Dr Burn made repeated references to her arm condition in applications to Comcare on her behalf over that time. Although references to pain in her arm, shoulder and neck in other medical reports over this time are sometimes missing (and indeed sometimes recorded as being explicitly denied by Ms Goulthorpe), such references do appear periodically over this time. Intermittent recording of arm pain occurs from February 2014 until today. The assertion of upper limb pain cannot, by any stretch of the imagination, be described as a recent invention, and it is hard to comprehend why Ms Goulthorpe would deliberately claim the condition on certain occasions and not on others.

7. Too much can be read into the approaches taken by health professionals who examined her. Dr Burn’s view that immobility is the best cure for an overuse condition may put him at odds with other doctors but does not establish that he was mistaken in identifying a pain condition in his patient. It is similarly immaterial to observe that the physiotherapist, Mr Ritchard, identified possible conditions which no doctor diagnosed. And it is true that Dr Dryson did not make a finding that the chronic pain syndrome he identified was related to Ms Goulthorpe’s work, but that was no doubt because he was not asked to identify a cause.

8. There were inconsistencies in Ms Goulthorpe’s evidence. It seems strange that she should be so sure that her pain first arose in April 2013 when the medical reports later that year record it as having arisen no earlier than June. The weight of the evidence, in any case, is that she did experience pain in connection with typing at work, and so her recollection of the date on which this arose is of marginal significance. Moreover, I do not accept the submission there was any marked inconsistency between how she described her pain to Dr Browne in January 2019 and how she described it to the Tribunal the following month. Ms Goulthorpe struck the Tribunal as being a witness of truth, though her evidence was sometimes a little discombobulated. In this respect I note that a claim for a mental health condition arising from employment is still before the Tribunal in other proceedings; it is possible that some allowance must be made for her as a witness on this account.  However, there was no evidence before the Tribunal in the present proceedings to reach a view about her state of mental health, and I therefore put no weight on this possibility. Certainly, however, I gained no impression whatsoever that her evidence was manipulated in order to achieve a desired outcome.

9. On the other hand, Comcare appears to have misinterpreted some of the evidence before the Tribunal to her disadvantage. It was submitted to me that Prof Champion had delineated tingling in the regions of the index and middle metacarpophalangeal joints as evidence of radial nerve hyperexcitability. In this respect he said that Ms Goulthorpe’s skin was hypersensitive. It was then submitted that Dr Navin had identified a lack of sensitivity on his examination, purportedly challenging Prof Champion’s hypothesis. However, Dr Navin identified tightness in her tendons associated with sensitivity in the upper limb, and that there was diffuse tenderness without a particular point of tenderness in the interdigital space. There is a convergence, not a divergence, in this aspect of the doctors’ evidence.

10. Similarly, counsel for Comcare contended that Dr Browne had testified that Ms Goulthorpe’s typing was no more than a possible trigger for the onset of her arthritis, meaning that on the balance of probabilities the Tribunal could not be satisfied that the condition was work-related. However, Dr Browne’s evidence was as follows:

    Mr Kelly: So that the most that you can say on the evidence in this case is that there is a possibility that the typing contributed to the development of the condition but the evidence doesn’t allow you to say that it’s more probable than not that it did, is that correct?

    Dr Browne: Yes, it’s not absolute, but I think it’s a reasonable probability because of the nature of the work, the absence of external factors, the potential association, but it’s certainly not rock solid, it would be an impression that can’t be refuted.

    (Emphasis added.)

    Though a little ambiguous, this evidence is best understood as Dr Browne affirming his earlier opinion that, on balance, a work-related connection to the arthritis existed. Moreover, he gave this evidence after conceding that there was an absence of empirical evidence specifically linking excessive typing with psoriatic arthritis.

    CONCLUSION

11. From the foregoing, it can be reasonably observed that the evidence is in far too unsatisfactory a state to draw clear and cohesive conclusions as to the nature and status of Ms Goulthorpe’s condition.

12. In some respects, the path of least resistance – one for which a respectable argument can certainly be mounted – is to conclude that the basis on which a right-hand sprain condition was allowed by Comcare in November 2013 has been eroded irretrievably by the passage of time and the accumulation of countervailing evidence. In its place, whatever pain Ms Goulthorpe now experiences can be placed at the feet of a previously-undiagnosed condition of psoriatic arthritis, a congenital condition with no or little appreciable connection with her now-discontinued employment.

13. Being the least improbable hypothesis is, however, not the same as saying that it provides reasonable satisfaction of its truth. The hypothesis does not take account of all of the evidence, and the Tribunal should be wary of a finding that suffers this deficiency. In particular, I am conscious that a finding that Ms Goulthorpe’s pain is unrelated to her former employment is at odds with the evidence of every doctor who addressed the question of causation, with the exception of Prof Youssef. It is possible nonetheless that Prof Youssef is correct and the other medical experts are not, but such an assertion is advanced with no great conviction.

14. Comcare has not discharged its burden of establishing that Ms Goulthorpe had ceased to suffer the effects of her accepted right hand condition. On the basis that the evidence leaves the Tribunal in a state of indecision, pursuant to Comcare v Power Ms Goulthorpe’s entitlement to compensation under s 14 should continue.

15. The Tribunal sets aside the reviewable decision of 22 September 2016 and instead determines that Comcare is liable to pay compensation to Ms Goulthorpe under ss 16, 21 and 29 of the Act for the condition of hand sprain (right).

16. In addition, the Tribunal orders that Comcare pay Ms Goulthorpe’s costs, as taxed or agreed.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO.

........................................................................

Associate

Dated: 27 March 2019

Date(s) of hearing:	29 January 2019 - 1 February 2019
Date final submissions received:	1 February 2019
Counsel for Ms Goulthorpe:	Mr Ian Bradfield
Solicitors for Ms Goulthorpe:	Mr Michael Hyland, LHD Lawyers
Counsel for Comcare:	Mr Brendan Kelly
Solicitors for Comcare:	Ms Kate Watson, Lehmann Snell Lawyers