Hellwig and Comcare
[2009] AATA 568
•31 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 568
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2972
GENERAL ADMINISTRATIVE DIVISION ) Re KAY SUSAN HELLWIG Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date31 July 2009
PlaceBrisbane (heard in Ballina)
Decision The Tribunal:
1. sets aside the decision under review.
2. remits the matter to the respondent for reconsideration of any claim by the applicant for compensation under either or both of ss 16 or 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in accordance with a direction that the applicant continues to suffer pain and discomfort as a consequence of the accepted condition of lateral epicondylitis (right).
3. gives the parties liberty to lodge and serve further submissions on the question of costs within 14 days of the date hereof.
..............Signed.................
Deputy President
CATCHWORDS
WORKER’S COMPENSATION – injury to right arm in course of employment – pain from injury is ongoing – pain is a consequence of an original injury and attributable to scar tissue – continuation of pain warrants consideration of entitlement to compensation – decision under review set aside – matter remitted to respondent for reconsideration with direction that applicant continues to suffer pain and discomfort as a consequence of the accepted condition.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19
REASONS FOR DECISION
31 July 2009 Deputy President P E Hack SC Introduction
1.The applicant, Ms Kay Susan Hellwig, is a long-term employee of Centrelink. In July 2002, and in the course of that employment, Ms Hellwig injured her right arm. The respondent, Comcare, accepted liability to pay compensation to Ms Hellwig in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) in relation to that injury. In May 2006 the view was taken within Comcare that Ms Hellwig no longer suffered from the effects of that injury. It was determined that Ms Hellwig was not then entitled to compensation for medical expenses pursuant to s 16 of the Act nor to incapacity payments pursuant to s 19 of the Act.
2.The issue that falls for determination in these proceedings is whether Ms Hellwig continues to suffer from the effects of the accepted injury.
Factual background
3.The background to the matter is not in issue. In July 2002 Ms Hellwig was “pushing paperwork into a file folder” when she felt a sudden pain to the lateral aspect of her right elbow. She consulted her local general practitioner Dr Bose who diagnosed a right lateral epicondylitis. He commenced a program of conservative management which included analgesics and physiotherapy.
4.Ms Hellwig made a claim for compensation in August 2002 and on 21 August 2002 Comcare accepted liability pursuant to s 14 of the Act for an injury described as “lateral epicondylitis (right)”.
5.Ms Hellwig’s condition did not improve as might have been expected. In November 2002 she consulted Dr David Stabler, an orthopaedic surgeon who specialises in upper limb injuries. Initially Dr Stabler treated Ms Hellwig with the injection of a corticosteroid and continued physiotherapy. In March 2003 Dr Stabler undertook exploratory surgery on the right elbow and found a tear in the extensor carpi-radialas brevis tendon consistent with the injury suffered in July 2002. Dr Stabler excised the edges of the torn tendon and excised the lateral epicondyle.
6.Ms Hellwig continued to experience pain in her right elbow. She saw Dr Bose frequently and Dr Stabler occasionally. In December 2005, in connection with a claim by Ms Hellwig for compensation for permanent impairment, she was seen by Dr John Morris, a consultant orthopaedic surgeon. Dr Morris concluded that Ms Hellwig did not demonstrate the clinical signs of a lateral epicondylitis and that her diagnosis was of “a pain syndrome relating to her right elbow” unrelated to the original pathology.
7.On the basis of the report of Dr Morris, Comcare made the determination of 10 May 2006 that Ms Hellwig then had no entitlement to compensation pursuant to ss 16 or 19 of the Act. In light of the argument presented by Comcare at the hearing two matters ought be noted about this determination. First, it was predicated upon the delegate’s conclusion that “you do not presently suffer from the effects of your compensable injury on 16 July 2002”. Additionally, there was not at that time any extant claim for compensation for medical expenses or for incapacity payments. The determination was affirmed on reconsideration on 26 March 2007 on the basis that Ms Hellwig did not meet “the requisite criteria of the Act to receive benefits pursuant to either sections 16 or 19 of the Act at this present time”.
8.Ms Hellwig seeks a review of this decision.
The medical evidence
9.There is a considerable volume of medical evidence relied on by the parties. At the outset, I note a report of Dr Gary Persley, a psychiatrist, that Ms Hellwig “does not have a primary diagnosable psychiatric condition to explain her symptoms”. Mr Vincent, counsel for Ms Hellwig, clarified that Dr Persley’s reference in his earlier report to “Chronic Pain Syndrome” was not intended to convey a diagnosis of a condition by that name but rather to convey a diagnosis of continuing pain. There is a suggestion in some of the other medical reports that Ms Hellwig’s complaints might be explicable on the basis of psychological condition and reliance was placed on Dr Persley’s opinions to exclude that suggestion.
10.I should start with reference to Ms Hellwig’s evidence of her continuing symptoms. She referred to an initial improvement in her condition after the surgery in March 2003 but a significant increase in the level of pain and restriction of movement since that time. Mr Clark, counsel for Comcare, accepted that Ms Hellwig continued to experience pain although there is a considerable body of evidence to suggest that Ms Hellwig’s subjective reports of pain exceed the objective criteria. On the view I take of the matter it is unnecessary for me to reach any concluded view of the level of Ms Hellwig’s pain; it is sufficient to determine whether the pain which is accepted as being experienced is causally related to the accepted injury of July 2002.
11.To consider that question I have reports and evidence from four orthopaedic surgeons – Dr Noel Langley, Dr Allen Hopcroft, Dr Morris and Dr Stabler – and an occupational physician, Dr David Douglas.
12.I have two reports from Dr Langley, one of 28 September 2006 and the other of 2 July 2008. Both reports, it must be said, are short on reasoning. But I have a further difficulty in accepting the opinions of Dr Langley. In the first report Dr Langley reached the conclusion that Ms Hellwig had a degree of permanent impairment of 20%, assessed by reference to Table 9.14 of the Guide to the Assessment of the Degree of Permanent Impairment, Second Edition. His report contains explicit reference to one of the descriptors used in that Table of the Guide for that level of impairment. His later report refers to an assessment of permanent impairment “unchanged from that stated in my previous report” but assesses that at 10%, plainly not unchanged. When this change was raised with him Dr Langley sought to pass it off as a typographical error. Whilst the level of whole person impairment is not relevant to the present proceedings I am led to conclude from this inconsistency, and his explanation for it, that Dr Langley simply did not pay sufficient attention to detail. In the face of this and the almost perfunctory way in which Dr Langley’s conclusions were expressed, both orally and in his reports, I place no reliance upon Dr Langley’s opinions.
13.Dr Hopcroft’s report of 17 July 2006 is well-reasoned however it suffers from the difficulty that he has assumed, wrongly according to the evidence of Dr Stabler who performed the procedure, that the March 2003 procedure involved “partial excision of the muscle belly of the extensor carpi radialis brevis muscle”. His oral evidence confirmed that this assumption was a key part of his conclusions. In those circumstances it seems preferable that I ought place no reliance upon the views of Dr Hopcroft.
14.Dr Douglas saw Ms Hellwig in December 2007, primarily for the purposes of informing Centrelink of Ms Hellwig’s work capacity. His opinion was that Ms Hellwig,
“suffers from a longstanding weakness of the muscles of her right arm, particularly her forearm, since a rupture of an extensor tendon at the common extensor insertion at her right elbow following a work related injury on 16 July 2002. This was subsequently repaired successfully in March 2003 but the strength has not returned to her right arm and the persistent weakness relative to the right arm has led, in a right handed woman, to ongoing symptoms of pain and discomfort.”
Dr Douglas noted, as well, intermittent pain and discomfort experienced by Ms Hellwig as a consequence of degenerative changes to the cervical and lumbosacral spine and the complications of lengthy use of steroid therapy for asthma treatment.
15.Dr Morris was of the view that whatever ailed Ms Hellwig bore no relationship to the original injury of July 2002. In his report of 1 December 2005 following his examination of Ms Hellwig in late November 2005 he noted that he was unable to demonstrate any of the clinical signs of a lateral epicondylitis. Moreover, he noted that Ms Hellwig’s reporting of sensitivity of her fingers did not follow any organic orthopaedic pattern. Dr Morris said:
“Ms Hellwig initially sustained a tear to the extensor carpi-radialas brevis. The edges of this were excised. Normally this is a self limiting condition, which would improve after approximately 6 to 12 months. It is usually treatable with hydrocortisone or surgery.
The clinical signs of the lateral epicondylitis are pain on extension of the middle finger against the resistance, pain on extension of the wrist against resistance and pain on external rotation against resistance she demonstrated none of those signs today.
I consider her diagnosis now as a pain syndrome relating to her right elbow. Unfortunately some people just develop pain syndrome. It is not known exactly why. It is not related to the original pathology.
…
I do not consider that her pain syndrome in the right elbow relate to employment with Centrelink. … I consider it is related to factors unrelated to her work and as mentioned above, it is obviously some psychological problem that she has that manifests itself in a pain around the right elbow.”
16.Dr Stabler’s report of 20 November 2007 contains a helpful summary of his dealings with Ms Hellwig over the years. Importantly he confirms that “tennis elbow” tests on Ms Hellwig were negative one month after the operation and that that continued to be the case up until he last saw her in September 2007. Dr Stabler noted minor muscle wasting to the right forearm however he attributed that to “voluntary inhibition of the right upper limb, which may be due to discomfort but which is not due to any objective evidence of incapacity.”
17.It is worthwhile setting out some detail of the opinion of Dr Stabler. He said:
“The abovenamed claimant has developed lateral epicondylitis of the right elbow following an injury which occurred at work on 16.7.2002.
I must emphasise that this injury was a relatively minor injury, of unusual type, where the claimant was simply pushing a file into an area containing other files and she felt sudden pain in the right elbow.
Despite the relatively minor nature of that injury the claimant appears to have sustained a partial tear of the extensor carpi-radialis brevis tendon. She failed to improve with conservative therapy, and required operative intervention, which was carried out on the 4.03.2003 at Allamanda Private Hospital.
Thereafter the claimant appeared to progress well initially, and was able to return to work at less than six weeks from surgery.
By six weeks after operation the claimant had almost full range of motion in the right elbow with excellent powergrip of 36kgs in the right hand and pinchgrip of 9.2 kgs in the right hand.
Subsequently over time her range of movement has returned to normal but her pinchgrip and powergrip have been reduced for reasons which are not consistent with any known musculo-skeletal condition.
The claimant has found it difficult to return to normal duties, despite assistance from her employer in relation to her workplace. She has been given additional aids such as a left handed mouse, a roller ball mouse for her right hand, and Dragon Voice Activated Softwear, and a headset.
The claimant remains significantly symptomatic, despite the fact that there is no significant abnormality found on clinical examination.
Examination only revealed a very tiny decrease in the girth of the right forearm, and pinchgrip and powergrip are less than in the unaffected hand.
The figures for pinchgrip and powergrip however are significantly less than the pinchgrip and powergrip at six weeks after surgery (on 14.04.2003), and therefore I consider that the figures obtained subsequent to the review of 14.04.2003 are due to voluntary inhibition of pinchgrip and powergrip, for reasons I do not consider have a physical basis.
I note that Dr Jonathan Lichter has indicated in his report of 27.02.2006 that there is no underlying psychiatric condition, or other evidence of psycho-social factors which could be adversely affecting the current claim.
I consider however that the claimant’s subjective incapacity is greatly in excess of the objective incapacity.
The claimant therefore does appear to have excessive subjective incapacity which is more likely than not to be due to a heightened illness concern, rather than any severe incapacity of the right upper limb due to the known work-related injury of 16.07.2002 and the subsequent surgery of 4.03.2003.
I consider that it is reasonable to assume that the claimant may have some minor discomfort in the right elbow due to the scarring from the previous surgery. An MRI scan of 15.12.2003 was unable to determine whether there was any tear in the common extensor origin, but there is certainly no clinical evidence of a tear, and it is important to note that the MRI scan was only able to show evidence of the previous surgery.
I do not consider that there is any physical reason why the claimant should have the relatively severe incapacity of which she complains.
…
I consider that any restriction in the claimant’s hours of work are [sic] due to subjective incapacity and not due to objective incapacity.
I consider that in terms of purely objective assessment there is no reason why the claimant cannot work full hours and full duties. Similarly, I do not consider that there is any leisure, hobby, or sporting disability for the right upper limb.”
18.In his oral evidence Dr Stabler confirmed his opinion that Ms Hellwig’s complaints of pain were likely to be due to development of scar tissue. The pain he described as “fairly mild and controllable”. Nonetheless his view was that Ms Hellwig continued and continues to experience minor pain and discomfort in her right elbow as a consequence of the original injury.
The medical evidence - conclusions
19.It is accepted that Ms Hellwig continues to experience pain. Dr Morris, Dr Douglas and Dr Stabler are all of that view. The point of difference between the two orthopaedic surgeons, Dr Morris and Dr Stabler, is over the cause of the continuing pain. Dr Morris did not consider that the continuing pain was related to Ms Hellwig’s employment. Dr Stabler was of the view that the pain was occasioned by the development of scar tissue from the operation in March 2003. Dr Stabler, as I have said, specialises in upper limbs, he performed the surgical procedure in March 2003 and he has treated Ms Hellwig for a considerable period of time. For all of those reasons his opinions warrant considerable weight and, in my view, ought be preferred to those of Dr Morris.
20.Thus I am satisfied by the evidence of Dr Stabler, and to a lesser extent, that of Dr Douglas, that that pain and discomfort is a consequence of the original injury and is attributable to scar tissue from the March 2003 surgery. There is real controversy about the extent of the pain and discomfort and its effect on Ms Hellwig’s life but, as will appear, I do not find it necessary to determine that controversy in these proceedings.
The decision to be made
21.Mr Clark submitted that even if I reached the conclusion that Ms Hellwig continued to experience pain as a consequence of the original injury I ought affirm the decision under review. That course ought be adopted, he submitted, because Dr Stabler, whose opinions I accept, was of the view that Ms Hellwig’s present pain and discomfort did not warrant continuing medical treatment and of the view (extracted above) that there was objectively no reason why Ms Hellwig could not work full hours and full duties.
22.I am unable to accept that submission.
23.Whilst the decision in issue was put in terms of eligibility for compensation under ss 16 and 19 of the Act the decision was not made in the context of any claim for such compensation. The decision flowed from an antecedent conclusion, informed by the opinion of Dr Morris, that in May 2006 Ms Hellwig was no longer suffering from the effects of her compensable injury of July 2002. For the reasons that I have explained I am of the opinion that that conclusion is wrong and that as at May 2006, Ms Hellwig continued to suffer from the effects of that injury in the form of pain and discomfort. It may be that the continuation of pain warranted compensation for “medical treatment”. The term is defined widely in the Act and I could not regard Dr Stabler’s answer as having been informed by any knowledge of the statutory definition. Moreover his answer was directed to the present and not the whole of the period from May 2006 onwards.
24.Similarly, Dr Stabler’s views on the issue of Ms Hellwig’s capacity to work are directed to the situation in November 2007. They certainly suggest that a claim of incapacity for work as a consequence of residual pain is distinctly unpromising however because the claims, if any, that Ms Hellwig makes were not explored before me I could not be satisfied that she had no entitlement in the period in question.
25.Given that conclusion the decision in issue ought be set aside however, for similar reasons, I would not propose to make a decision in substitution for it that Ms Hellwig has an entitlement to compensation under ss 16 or 19 of the Act. Because the decision was not made in answer to any particular claim for entitlement I simply do not know what claims, if any, that Ms Hellwig would seek to make for compensation under ss 16 or 19 of the Act.
26.In these circumstances the appropriate course to adopt seems to me to set aside the decision under review and remit the matter to Comcare for reconsideration of any claim by Ms Hellwig for compensation under either or both of ss 16 or 19 of the Act in accordance with a direction that Ms Hellwig continues to suffer pain and discomfort as a consequence of the accepted condition of lateral epicondylitis (right).
27.Whether, in fact, Ms Hellwig has any entitlement to be paid compensation is not a question that I can answer; all I am able to do is provide an affirmative answer to the first part of the question. If Ms Hellwig is dissatisfied with Comcare’s conclusions she will then have her right to challenge the resultant decision.
Costs
28.The parties have already made some submissions on the question of costs however Comcare sought to make further submissions in the event that I proposed to make a decision remitting the matter to Comcare for re-consideration. I am prepared to permit that to happen. My tentative view, having considered the submissions made to date, is that Ms Hellwig ought recover her costs of the proceedings but that I ought direct the attention of the taxing officer to the transcript of the proceedings on 24 June 2008 if Ms Hellwig seeks to recover costs occasioned by the adjournment granted that day.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC.
Signed: ..................Signed.............................................
Eleanor O’Gorman, AssociateDates of Hearing 14 & 15 July 2009
Date of last submissions 22 July 2009
Date of Decision 31 July 2009
Counsel for the applicant Mr M Vincent
Solicitors for the applicant Mark Flynn & Associates
Counsel for the respondent Mr C J Clark
Solicitors for the respondent Australian Government Solicitor
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