Greco and Comcare
[2007] AATA 1557
•17 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1557
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200501105
GENERAL ADMINISTRATIVE DIVISION ) Re ANGELA GRECO Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr Egon Fice, Member
Dr Kerry Breen, MemberDate17 July 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Egon Fice
Member
COMPENSATION – injury to right shoulder and arm while applicant on leave from work ‑ whether injury caused, aggravated or exacerbated by employment – whether injury a continuation of previously accepted injury.
Safety, Rehabilitation and Compensation Act 1988 ss 5A,14(1), 16(1)
REASONS FOR DECISION
17 July 2007 Mr Egon Fice, Member
Dr Kerry Breen, Member1. Mrs Angela Greco has been employed as a Customer Services Officer by Centrelink since 1996, initially on a full‑time basis and then on a part‑time (three days per week) basis since 1999. Her work entails a mixture of interviewing and keyboard use. She experienced a work related injury in 2000 which was accepted by Comcare as representing tenosynovitis hand and wrist (right) and myalgia & myositis, unspecified (right). She received ongoing treatment the costs of which were met by Comcare until a review in 2003 led to the closure of that claim.
2. In June 2005, Mrs Greco sought medical assistance for an injury which occurred while on compassionate leave. The nature and cause of this injury is the subject of this hearing and will be described more fully below. Mrs Greco lodged a claim in regard to the 2005 injury. That claim was for weekly payments due to incapacity between 3 June 2005 and 17 August 2005, and for her medical expenses for that period and continuing.
THE ISSUES
3. The issues in this case are:
·Did Mrs Greco suffer an injury in 2005 which was caused, aggravated, accelerated or exacerbated by the nature of her employment?
·Is her current (2005) injury, and any resultant incapacity, a continuation of the previously accepted work injury experienced in 2000?
4. In considering these issues, it will be necessary to examine and understand the nature of the 2000 injury as well as the injury of 2005.
THE LEGISLATIVE SCHEME
5. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides that:
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.
6. Injury is defined in s 4 of the Act as:
…
(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…
7. Section 16(1) of the Act provides that where an employee suffers an injury, Comcare is liable to pay the cost of reasonable medical treatment obtained in relation to the injury being an amount that Comcare determines is appropriate to that medical treatment.
The 2000 Injury
8. On 29 June 2000, Mrs Greco lodged a Report of an Injury form with Centrelink. She reported a swollen middle finger of her right hand with severe pain and discomfort in her right arm which she felt was due to continuous use of a keyboard. She subsequently lodged a claim for rehabilitation and compensation. In the claim form dated 3 July 2000 she recorded that the parts of her body affected were the right middle finger, hand, arm and pain extending also toward right shoulder and neck. In response to a question as to how the injury now affects her she wrote: cannot use right hand or arm without pain and pain is increasing in shoulder and toward neck.
9. Her claim was accepted by Comcare as representing tenosynovitis hand and wrist (right) and myalgia & myositis, unspecified (right).
10. Mrs Greco’s care was coordinated by her general practitioner, Dr Kevin Parker, and she received treatment from Dr Terence Lim, a consultant in rehabilitation medicine. Her condition gradually improved and she returned to full duties in September 2001. Dr Parker emphasised to Mrs Greco that her condition could recur and that she needed to learn to manage her condition herself. She was taught stretching exercises to use regularly.
11. Mrs Greco was also provided with the assistance of an occupational therapist/ergonomist, Mr Kevan Walsh, who advised her in regard to her gradual return to full activities and in regard to work methods and work postures. He also advised the use of a Goldtouch ergonomic keyboard. In a report dated 25 June 2001, Mr Paul Marsh, occupational therapist, noted that the provision of a second Goldtouch keyboard had been approved for use at the reception counter where she was spending half her time and that he anticipated further improvement in her condition through the use of the keyboard. Mr Marsh also reported that Mrs Greco resumed full‑time unrestricted duties in September 2001.
12. In July 2002, Ms Sandra Liker, Claims Manager with Comcare, initiated a review of Mrs Greco’s 2000 claim and requested a report from Dr Parker. Ms Liker then referred Mrs Greco to see a rheumatologist, Dr John Webb. Dr Webb examined Mrs Greco on 17 March 2003 and concluded that she suffered from a chronic pain syndrome, involving her right upper limb. Dr Webb stated that the nature of the work which Mrs Greco undertakes, and the stresses which it seems to cause her, could well be the precipitating factor of her chronic pain syndrome. He felt that it would be appropriate for her to have physiotherapy from time to time. Dr Webb concluded his report thus:
…
In summary, it seems to me that this lady has a chronic pain syndrome, which is undoubtedly related to the stresses and so on of her work. She has some physiotherapy from time to time in order to make the problem tolerable, and in this way she continues to work. This seems to me to be a reasonable ‘trade off’, in that she is working her usual hours and doing her usual job, but requiring some treatment from time to time.
13. In response to questions from Ms Liker, Dr Webb provided a supplementary report dated 7 April 2003. In this report he stated:
…
As I also pointed out, Mrs Greco’s symptoms are likely to subside completely when she no longer carries out the type of work she currently performs…
It seems to me, then, that, on the balance of probabilities, Mrs Greco has these problems because of her employment with Centrelink, not regardless of her employment with Centrelink.
14. Comcare then arranged for Mrs Greco to see a psychiatrist, Dr Victor Botvinik. In his report dated 20 May 2003, Dr Botvinik said he could find no evidence of any identifiable mental disorder and disagreed with Dr Webb’s views in the following terms:
…
I tend to disagree with Dr John Webb’s opinion that the worker has developed a chronic pain disorder which is a psychiatric identity characterised by significant distress or impairment in social, occupational or other important areas of functioning and in chronic pain disorder psychological factors are judged to have an important role in the onset, severity, acerbation(sic) or maintenance of the pain. In this particular case we have a physical manifestation and a physical cause of pain which her treating doctor had mentioned and I totally agreed with his opinion that it was a physical problem which caused the physical pain.
Earlier in his report, Dr Botvinik had stated:
… I believe that treatment with the occasional physiotherapy session is adequate and appropriate and needed to keep this worker in a good physical working order.
15. Based on the two reports, and despite the fact that both Dr Webb and Dr Botvinik had recommended ongoing physiotherapy sessions, Ms Liker wrote to Mrs Greco on 27 June 2003 stating, among other things:
…Therefore, as Dr Webb could not find a physical cause for your symptoms, and Dr Botvinik refuted a psychological cause for your symptoms, I consider that you do not suffer from any compensable injury and are therefore not entitled to further compensation under the SRC Act. Mrs Greco’s claim was to cease as from 31 July 2003.
16. Mrs Greco wrote to Ms Liker on 21 July 2003 to disagree with that decision and stated that: …Because it is an injury that flares from time to time I feel that you are incorrect in stating that I no longer have an injury. She was supported by Dr Parker who wrote to Ms Liker on 19 July 2003, outlining his role in treatment over three years and stated …there are definite exascerbations (sic) when she is put under extreme stress due to the effect of increase in muscle tension.
17. Ms Liker wrote again to Mrs Greco on 6 August 2003 reaffirming her previous decision. In this letter Ms Liker stated that:
…The only opinion from a specialist who deals with physical injuries is that of Dr Webb, who was unable to identify a physical cause for your symptoms. In turns (sic), Dr Botvinik refuted a psychological cause.
Mrs Greco did not appeal this decision.
The 2005 Injury
18. Mrs Greco took leave from her work on 24 May 2005 when her mother died. In her medical records, Dr Parker, recorded that Mrs Greco attended on 30 May 2005 …stressed +++ over her mother’s death and that he provided her with a medical certificate for two weeks’ absence from work.
19. Mrs Greco experienced sudden severe pain in her right shoulder on around 3 June 2005 and attended Dr Parker again on 6 June 2005. Dr Parker arranged an ultrasound examination of the shoulder and referred her to a physiotherapist. Mrs Greco’s condition improved such that she was able to return to work on shorter hours with modified duties on 21 June 2005. She has since resumed her full part‑time hours and unrestricted duties other than working at the reception desk.
20. Dr Parker’s records for the attendance on 6 June 2005 show:
…2 weeks of R shoulder pain no obvious precipitant but PHx of regional pain syndrome and bereavement Mother died tender in R coracoid area ROM seem OK but painful tender muscle trigger points regional pain flare ?rotator cuff injury boney(sic) problem needs US Xray…
That entry concludes Dx: Rotator cuff syndrome (L92003).
21. Dr Parker reviewed Mrs Greco two days later and his entry reads still significant pain R arm c/w myofascial pain syndrome. He noted that he issued a W/cover Cert 6/6/2005 – 20/6/2005 and referred her to a myofascial therapist. Dr Parker’s records do not mention an acute injury to Mrs Greco. When questioned about this at the hearing, Dr Parker could not recall Mrs Greco telling him of such an event.
22. Mrs Greco consulted Dr Lim for a review in August 2006. In a letter to Dr Parker dated 3 August 2006, Dr Lim recorded:
…
The story goes that Angela was reaching around her back to undo her bra when she experienced sudden, severe attack of pain radiating from the upper trapezius region down her arm. It did not radiate into her forearm, hand or wrist.
Dr Lim added:
…
Clearly, this is most likely myofascial pain syndrome caused by muscle strain resulting in a chronic right upper limb pain condition, her dominate (sic) side.
Dr Lim’s letter does not address the existence of a link, if any, with the injury for which he had treated Mrs Greco in 2000.
23. In her oral evidence to the Tribunal, Mrs Greco described the onset of severe pain in early June 2006 as follows: …I had just put my arm towards my back to undo my brassiere and the pain actually became more servere.
24. In the claim that she lodged with Comcare dated 27 June 2005, in response to the question: What started the chain of events that led to your injury or illness? Mrs Greco wrote:
A muscle tear in right shoulder which slowly increased to acute pain in right upper arm and down the arm into hand as well aggravating a pre–existing injury sustained in 2000.
25. In her claim form, Mrs Greco also stated that she had increasingly found that her right arm and shoulder were becoming painful and restricted in their use.
26. Mrs Greco provided the Tribunal with a five page written witness statement dated 27 October 2006. This statement does not refer to any acute injury suffered at home and in particular does not refer to the onset of pain while trying to undo her brassiere.
27. Dr Peter Stevenson, a consultant physician who saw Mrs Greco for Centrelink on 28 August 2006, did not elicit a story of acute pain relating to the brassiere; while Dr Kevin Fraser, a rheumatologist, who saw Mrs Greco for Comcare on 14 September 2006, reported that she described the onset of “a major flare up” with more severe pain in her right shoulder/arm as she was undoing her bra.
28. In her report of her injury to Centrelink on 27 July 2006, Mrs Greco wrote that on 1 June 2006 she aggravated pre existing myofacail (sic) pain syndrome and that this affected her right shoulder and arm. There is no mention of an acute injury involving trying to undo her brassiere.
Consideration of the June 2005 Injury
29. We are satisfied that Mrs Greco suffered an acute injury to the region of her right shoulder on or about 3 June 2005 which occurred while she was attempting to undo her bra and that this injury caused continuing pain for several weeks. If that were the only question, we would be satisfied that this event/injury was not work related. However, Mrs Greco claimed that the acute injury aggravated a pre-existing work related injury and also claimed that the aggravation was in effect building up progressively in the three months before her mother died. It is therefore necessary to examine in close detail any evidence which supports these claims.
30. We note that this is not a case about the existence or not of clinical entities variously referred to as occupational over-use injury, repetitive strain injury or myofascial pain syndrome. Neither is it a case about psychosomatic contributors to chronic pain. It is about whether Mrs Greco’s original work related injury of 2000 was a continuing condition from which she was liable to suffer aggravations; whether she was experiencing such an aggravation due to altered working conditions between February and May 2005; and therefore whether the additional injury experienced at her home while on compassionate leave in June 2005 was a further aggravation of the 2000 injury.
31. Mrs Greco stated that in February 2005 her work was altered and she began working for a period of time at the reception desk. She stated that because of the height of the desk and the lack of access to a split keyboard, her right arm and shoulder began to trouble her. Mrs Greco stated that she did not report this to her supervisor but simply put up with the discomfort and continued to do her work as requested.
32. We have looked for any contemporaneous records to support Mrs Greco’s contention. Between February and May 2005, she attended Dr Parker on 24 February, 23 May and 30 May. There is no record by Dr Parker of any complaint regarding her right hand, arm or shoulder during that period. This contrasts (in our view) with the presence of records of attendance with flares of symptoms requiring physiotherapy in 2002 and 2003. Between 4 February 2005 and 17 May 2005, as recorded in the notes of the Moreland Road Chiropractic Clinic, Mrs Greco attended there on 16 occasions. In her oral evidence, Mrs Greco thought she had only attended the chiropractor for one or two treatments. There is an entry in the chiropractor’s record for 11 March 2005 which mentions the arm/shoulder and four days later a note of R arm better, but in none of the other 14 attendances is there any mention of complaints or offers of treatment for the right hand, arm or shoulder.
33. In a written statement dated 10 January, Ms Daphne Heldt, Mrs Greco’s supervisor at Centrelink, confirmed that in February 2005 she had asked Mrs Greco to undertake two to two and a half hours working on reception duties each Monday. Ms Heldt stated that she could not recall Mrs Greco complaining about any problems or pain during her work from that time.
34. In addition, we have examined closely the statements made, claim form completed and histories recorded by others in regard to the nature of the injury which occurred in early June 2005, and any relationship that injury may have had with the previous injury in 2000. The report dated 21 June 2005 of Ms Lita Britton, an Injury Management Consultant for Recovre, makes mention of acute pain towards the end of May 2005 but there is no reference to pain prior to that time. Dr Parker’s medical records have already been referred to above. Dr Parker’s letter of 9 July 2006 has little to say about the 2005 injury and is focussed on the 2000 injury.
35. Mrs Greco, when cross examined regarding the claim form dated 27 June 2005 which mentions a muscle tear, said that she did not obtain this information from Dr Parker. She also told the Tribunal that she had reported to Dr Parker that she had been experiencing pain since February, while Dr Parker’s written record is of two weeks of pain. Under cross examination, Mrs Greco told the Tribunal that she may have told my team members… my team leader. Ms Heldt, in an email to Ms Louisa Herbert dated 10 February 2006, stated:
I cannot recall any particular incident occurring in the work place leading up to Nancy’s absence due to her medical condition…
36. Dr Stevenson, who saw Mrs Greco on 28 August 2006 as part of an assessment of fitness for duty (an examination which took place well after Mrs Greco had lodged her claim for compensation), recorded a history of perhaps a slight increase in her pain following her altered work duties in February 2005. His report goes on to state:
…
Then in the middle of the year around June 2005, she said she had a sudden, very severe exacerbation with severe, in fact, overwhelming, pain in the right shoulder. The pain she described as massive.
37. Dr Fraser, who was asked by Comcare to assess Mrs Greco, saw her on 14 September 2006. He recorded her account of again experiencing pain in the right shoulder/upper arm by the end of the day in the time after her duties were altered in February 2005 and that she managed this herself with stretching exercises.
38. Dr Lim’s report, albeit prepared 12 months after the injury, is very clear in regard to Mrs Greco’s account of an acute pain while trying to undo her brassiere and also clear that her pain in June 2005 did not radiate to her forearm, hand or wrist.
39. In a letter dated 6 July 2005, Ms Anna Bender of Centrelink’s People Advisory Team wrote:
…there is no incidence of work place injury recorded in the Centrelink database. A rehabilitation case manager attends the Broadmeadows office regularly and Ms Greco has failed to inform either her team leader or the Rehabilitation Case Manager, the alleged progression of pain.
40. We have also returned to the records of the June 2000 injury to see if at any time that injury was documented to involve Mrs Greco’s shoulder. In her original claim form Mrs Greco stated cannot use right hand or arm without pain and pain is increasing in shoulder and toward neck. However, when Dr Parker wrote to Ms Liker of Comcare on 6 August 2002, there is no mention of pain extending to the right shoulder. When assessed by rheumatologist Dr Webb in March 2003, he records that the pain extended just to the upper arm.
41. In addition to considerable detail regarding Mrs Greco’s injury of 2000 and its treatment, the Tribunal was also provided with documentation of a claim for repetitive strain injury that Mrs Greco lodged with Workcover in 1985. Given her previous employment with the Motor Accidents Board and her many years of working for Centrelink, as well as her above experience of lodging two previous claims, Mrs Greco should have been well aware of the need to document any work place injury at the time of its appearance.
42. We accept that Mrs Greco may have been experiencing some minor recurrence of symptoms in her right hand and arm in the months after her duties were altered and that she chose not to report such symptoms. However, we are not persuaded that the events which occurred in June 2005 were related to her work. This injury is best described as an acute muscle tear directly related to her taking off her brassiere.
43. We do not accept the evidence of Dr Parker who depicted the pain syndrome of 2005 as being a direct continuation of the 2000 injury. The earlier injury clearly was related to her work and involved the hand with some pain felt also in the arm above the hand. In our view, that injury did not involve her shoulder.
44. Counsel for Mrs Greco, Mr Wicks, in his final submission contended that the case hinged on the credibility of Mrs Greco. He drew attention to the evidence of Drs Webb, Botvinik, Fraser and Stevenson that Mrs Greco had presented as an honest person not given to exaggeration. We were therefore asked to accept that her description of increasing symptoms in her right arm from February was an accurate account and that her additional injury at home was a part of the underlying condition.
45. Counsel for Comcare, Mr Lenczner, contended that the evidence supported the conclusion that Mrs Greco had continued to work without any reported difficulty up until the death of her mother in May 2005 and that her painful shoulder was the result of a new injury which occurred while she was at home. He pointed out that all the medical evidence supported this conclusion with the exception of the evidence of Dr Parker. Mr Lenczner urged us to attach little weight to Dr Parker’s medical opinion as Dr Parker had made it clear to the Tribunal that he was not an expert and that he relied heavily on the advice of specialists such as Dr Lim.
46. Mr Lenczner drew our attention to the absence of any record of Mrs Greco having notified her work place of any worsening pain during February and May 2005 and contrasted this with the record of her having informed Ms Herbert of a painful hip.
47. It is not necessary for us to make any findings as to the nature of the 2000 injury. Nevertheless, we are convinced that this was a physical injury which was work related and which continued to bother Mrs Greco from time to time, not surprisingly as she continued to perform similar work including using a keyboard quite extensively. Mrs Greco was, in our view, entitled to be very disappointed by the decision made by Comcare to terminate her claim in 2003. To her credit, Mrs Greco did not appeal that decision and continued to be a reliable worker for Centrelink.
48. We find, on the balance of probabilities, that Mrs Greco was experiencing some discomfort from her right hand and arm in the months between February and May 2005, and that this discomfort was related to her injury of 2000. The lack of contemporaneous reporting of such discomfort to others (colleagues, supervisors and health practitioners) is consistent with the level of discomfort being manageable and consistent with Mrs Greco’s determination to learn to live with and self manage this condition.
49. We find that the new acute injury she experienced at home in early June 2005 was not work related. We also find that the new injury did not represent an aggravation, acceleration or exacerbation of Mrs Greco’s 2000 injury. These findings are based on the evidence of little ongoing discomfort from her previous injury; a sudden severe pain in the right shoulder while trying to undo her brassiere while on leave at home; Dr Parker’s initial focus on the likelihood of a rotator cuff injury, including referral for x-rays and ultrasound examination; and the absence of clinical evidence of involvement of Mrs Greco’s right shoulder when she suffered the first injury to her right hand and arm in 2000.
50. Therefore, the reviewable decision dated 15 November 2005 must be affirmed.
I certify that the fifty [50] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
Dr Kerry Breen, Member
(sgd): Olympia Sarrinikolaou
Clerk
Dates of Hearing 23 January 2007, 16‑17 May 2007 and 15 June 2007
Date of Decision 17 July 2007
Counsel for the applicant Mr I. Fehring and Mr G. Wicks
Solicitor for the applicant: Clark and Toop Lawyers
Counsel for the respondent: Mr J. Lenczner
Solicitor for the respondent Sparke Helmore Lawyers
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