Higgins and Comcare

Case •

[2005] AATA 852

•

2 September 2005

No judgment structure available for this case.

Administrative

Appeals

Tribunal
 

DECISION AND REASONS FOR DECISION [2005] AATA 852

ADMINISTRATIVE APPEALS TRIBUNAL      )

)N2004/1123 & N2005/288

GENERAL ADMINISTRATIVE  DIVISION )
Re Mrs Wendy Higgins

Applicant

And

Comcare

Respondent

DECISION

Tribunal Ms N Bell, Senior Member; Dr M Thorpe, Member

Date2 September 2005

PlaceSydney

Decision

The decisions under review are affirmed

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

Ms N Bell
  Senior Member

(presiding)

COMPENSATION – Wide Range of Diagnoses Suggested – Most Suitable Diagnosis Found to be Myofascial Pain of Uncertain Aetiology – Applicant Not Considered to be Suffering Effects of Injury Since January 2005 – No Entitlement to Compensation for Permanent Impairment – Decision Under Review Affirmed

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

2 September 2005 Ms N Bell, Senior Member; Dr M Thorpe, Member
  1. Mrs Higgins is a 48 year old woman who works as an Administrative Officer (Grade 2) with the Health Insurance Commission.
  2. On 3 May 2002 Mrs Higgins made a claim in respect of repetitive strain injury (bilateral). On 31 May 2002 Comcare accepted the claim for synovitis and tenosynovitis (bilateral). Payments for incapacity and medical treatment expenses (pursuant to sections 19 and 16 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)) were made to Mrs Higgins.
  3. On 15 August 2003 Comcare purported to “cease liability” for Mrs Higgins’ claim.  On 12 November 2003 Mrs Higgins lodged a claim for permanent impairment of her right upper limb.  That claim was refused by Comcare on 13 May 2004.
  4. In a reviewable decision dated 28 July 2004, Comcare decided Mrs Higgins’ condition was not permanent, and affirmed its earlier rejection of the claim for permanent impairment. In a reviewable decision dated 27 January 2005, Comcare decided that Mrs Higgins was entitled to compensation, pursuant to sections 16 and 19 of the Act. The stated period of entitlement was from 15 August 2003, to 26 January 2005, but went further to say Mrs Higgins had ceased to suffer from the effects of her injury of synovitis and tenosynovitis (bilateral), as of 27 January 2005, and therefore had no entitlement to compensation under those sections from that date.

issues

5.The issue to be considered by us is whether, beyond 26 January 2005, Mrs Higgins suffered the effects of an injury to her arms. The answer to this will determine whether she is entitled, under section 24 of the Act, to be paid a lump sum for permanent impairment.

6.There is a great divergence of medical opinion in this application.  Various diagnoses have been made by treating and non-treating doctors including bilateral forearm tenosynovitis; chronic bilateral upper limb repetitive strain disorder; repetitive strain injury of right arm, forearm and wrist; regional pain syndrome affecting wrist, forearm, elbows, right shoulder and neck; bilateral upper limb tendonitis; complex regional pain syndrome; De Quervain’s tenosynovitis; epicondylitis; myofascial pain in right forearm and wrist of uncertain aetiology, and no condition at all.

7.The symptoms described by Mrs Higgins in her evidence to the Tribunal were very severe.  She gave evidence of a wide range of limitations.

8.Resolution of the issue will require an evaluation of the medical evidence and Mrs Higgins’ evidence of her condition since January 2005.

mrs higgins’ evidence

9.Mrs Higgins said she began work at the Parramatta office of the Health Insurance commission in 1999, having begun work with the Commission in 1995.  On moving to the Parramatta premises, Mrs Higgins took on “PBS transmission” work which concerned the collection of prescriptions from chemists.

10.Approximately 40 shoebox sized boxes, containing prescription medication and weighing approximately 4 kilos each, would be loaded by Mrs Higgins onto a 2 metre trolley long, which she described as unsteady.  The trolley would then be pushed up a narrow ramp and taken by lift to another floor in the building.  Mrs Higgins said the ramp had a “lip”, making it necessary to “run and jump” the trolley up it.  She said the ramp was broken as well and she complained about it numerous times.  Mrs Higgins initially said she did this work 4 times per day, and then said the work was originally shared between 18 people and that she did it once per week.  She then said she would do the trolley work all week every 4 or 5 weeks and that increased by 2001 to Mrs Higgins doing the trolley work 4 or 5 times per day, all week for 3 out of 4 weeks per month.

11.Mrs Higgins said she complained about the trolley work in 1999 and was told nothing could be done about it.  She said she began to complain again in 2001 and was given the assistance of another person in getting the trolley to the ramp and pushing it up the ramp.

12.Mrs Higgins is left handed.  She said she began to develop pain in her right elbow, wrist and hand in 2001.  In early 2002 the help she had been given was no longer available and she found she was unable to do the trolley work because of the pain it caused her.

13.Mrs Higgins saw her general practitioner Dr Gilbertson and was given a certificate to take time off work.  He referred her for physiotherapy, which she said only aggravated her condition and for remedial massage but she found this caused her bruising and swelling.

14.After approximately 2 months off work Mrs Higgins returned to work part-time and after about 12 months she was working full-time again, but doing light duties.  Her current duties do not include work with the trolley or any work involving external mail.  The significance of this is that she is not required to stand by a computer, operating a mouse or to weigh boxes and packages.  Unlike other employees of the same grade, she only deals with light incoming mail and that mail is opened and unfolded for her.  Nor does she bundle mail together with rubber bands or do any lifting at all.  Mrs Higgins also takes rest periods every hour and works at her own pace.

15.Mrs Higgins said that notwithstanding these light duties she still has bad days and has to take some pain relief medication, such as Panadol or Nurofen and becomes very tired.

16.Mrs Higgins said her pain is constant.  She said the pain goes up from her wrist to her shoulder and neck, throbbing and burning, and her hand becomes cold and changes colour to purple.  Mrs Higgins said her neck pain began in 2003, about 12 months after she began light duties.

17.Mrs Higgins said she does no housework because it causes her pain.  In the kitchen she is unable to lift saucepans or cups when full, unscrew jars or cut up meat.  She does no grocery shopping.  Mrs Higgins requires help in washing and combing her hair, doing up and undoing her bra, putting on jewellery and tying shoelaces.   She no longer drives.  She also said she cannot sit for long.  Mrs Higgins used to go fishing and bowling and used to sew but no longer does so because of the pain.  She is unable to lift her 2 year old grandson.  Her sleep is broken and restless and for the last 6 months has slept separate from her husband in another room.

18.Mrs Higgins described discolouration in her arm occurring 5 days out of 7, varying with the pain and pins and needles in her hands 4 days out of 5 lasting 15 minutes each time.

19.In cross examination, when asked about the “bilateral” condition noted in certificates provided by her general practitioners and by her in her claim form together with mention of “forearms and wrists” in that form, Mrs Higgins said she had never complained of pain in both limbs and sought to explain it as a mistake by her doctors and a spelling error by her.

20.Mrs Higgins also agreed that she had begun to complain about the trolley work about 3 months prior to developing pain in her arm.  She agreed that nothing was done about the trolley work and this made her angry.  In addition, she agreed that she made complaints of harassment because she was being rostered on those duties more often than her colleagues.

medical evidence

  1. Mrs Higgins first consulted Dr Gilbertson, her treating General Practitioner, in 2002.  In a report dated 12 September 2003, Dr Gilbertson noted that on 18 April 2002:

“Wendy presented with florid classical symptoms and signs of bilateral forearm tenosynovitis – more markedly affecting the right forearm and wrist – and evidence of both medial and lateral epicondylitis affecting the right elbow. Her right forearm was particularly swollen and there was acute tenderness and skin discoloration over the extensor muscle group. There was florid crepitus on movement of the right wrist joint and grip strength was markedly decreased Finklestein test (for De Quervain’s tenosynovitis) was positive“

  1. Dr Gilbertson reported however, that X-rays and ultrasounds of the right and left forearms and elbows taken on 24 April 2002, revealed no obvious abnormality.  When Dr Gilbertson returned to the UK, Dr Elizabeth Torrance became Mrs Higgins’ General Practitioner.  Dr Torrance, apart from diagnosing bilateral upper limb tendinitis, said Mrs Higgins had aggravated a normal degenerative cervical spine resulting in bilateral upper arm pain, neck pain and stiffness.  Dr Torrance has continued to care for Mrs Higgins for what she considers a chronic condition for which she should remain on permanently restricted duties.
  2. Mrs Higgins consulted Dr Dilley, Hand Surgeon, on 16 August 2002 who noted that when asked to indicate the site of maximal pain, Mrs Higgins pointed out several varied spots at different times, mainly located around her wrist with no one consistent area.  He also noted that resistant wrist extension caused her some discomfort but middle finger extension tested negative and as did two other provocative tests and that grip strength testing produced a haphazard curve and a positive rapid exchange grip that was not consistent with full cooperation and effort on her part.  Dr Dilley considered her to have some muscle soreness, and possibly an element of lateral epicondylitis.  He recommended a strengthening and stretching program and no further follow up.  He expected the condition to settle over the next 6 to 8 months.  
  3. Mrs Higgins was seen by Dr Sam Perla, following referral by a Workplace Safety Officer for the HIC, on 29 November 2002 for the purposes of examination and injury management in relation to her forearm problems.  His clinical examination was consistent with some mild right sided tennis elbow and right wrist tendinitis.  He said Finklestein’s test was mildly positive on the right.  He noted that she had been at home for the previous 4 weeks but her symptoms had only marginally improved.  He said:

“…the overwhelming message that came from today’s consultation was that Ms Wendy Higgins is exceptionally angry with her supervisor and with her employer generally”.

  1. He considered this to be “a significant psychosocial barrier to her return to work”.  He also noted there had been no specific treatment apart from physiotherapy which Mrs Higgins said had been of no use.  He recommended a return to work with restrictions.  Dr Perla reviewed her again on 27 May 2003, and on this occasion, diagnosed resolving mild tendinitis of the right forearm and considered her fit to upgrade her current hours to 6 hours and then normal hours with restrictions.
  2. Dr Hession saw Mrs Higgins for Comcare Australia on 4 June 2003, and considered her to be suffering from myofascial pain in her right forearm and wrist of uncertain aetiology.  He could find no evidence of lateral epicondylitis or tenosynovitis.  He said, in his report of the same date:

“Her duties at work prior to the onset of her symptoms were not strenuous.  I have difficulty in accepting that her present condition is work-related to her employment with HIC.  In other words, I am not satisfied that a relationship exists although I concede that, assuming her symptoms are psychosomatic, which I believe to be likely, a relationship to work may be accepted.”

  1. Dr Marnie, Orthopaedic Surgeon, saw Mrs Higgins on 2 October 2003.  Dr Marnie reported tenderness around the lateral and medial epicondyles of the right elbow and also over the flexor origin at the elbow.  He recorded that flexion of the right elbow was to 140 degrees (150 degrees on the left) and painful and total range of left wrist movement was 155 degrees compared to 75 degrees on the affected right side.  Dr Marnie also recorded some evidence of carpal tunnel syndrome and suggestive symptoms of a de Quervain’s tenosynovitis.  Upon viewing X-rays of the right and left forearms and the ultrasound of the right and left forearms he agreed with the report that there was no significant abnormality to be seen. Dr Marnie’s diagnosis was of repetitive strain injury and using Table 9.4 assessed 30% whole person impairment for the right upper limb.  In evidence Dr Marnie said he considered repetitive strain injury and chronic overuse syndrome to by synonymous and that tenosynovitis was part of the condition.  He said discolouration of Mrs Higgins hand was not a symptom she had when he saw her in October 2003 but it is consistent with regional pain syndrome.  On the question of whether Mrs Higgins’ more recent light duties could give rise to a worsening of her condition, he agreed that they could.
  2. In cross examination, Dr Marnie explained the normal ultrasound on the basis that ultrasound examinations are not entirely reliable.  He initially allowed it was slightly unusual that the non dominant arm was the arm affected but then stated that this would happen in only 30 or 40 percent of cases.  He conceded that he considered Mrs Higgins’ symptoms to be not severe enough to warrant nerve conduction studies or surgery.  He also allowed for the possibility of a somatised disorder.
  3. Dr Adler, Specialist in Rehabilitation Medicine, had seen Mrs Higgins in March 2005.  He diagnosed a residual De Quervain’s tenosynovitis in a chronic phase causing right wrist pain.  He noted positive Finklestein’s test signs.  He also diagnosed right lower cervical facet joint arthrosis, probably due to a tendency for her to shrug her shoulder when working to reduce the need for forceful gripping.  Using Table 9.4 he considered there was difficulty grasping and holding which amounted to 20% upper limb impairment.  He also proffered 5% neck impairment.
  4. Dr Adler was firm in his rejection of a diagnosis of reflex sympathetic dystrophy and noted that Mrs Higgins’ purpose in consulting him had been to determine whether she suffered from that condition.
  5. Dr Bencsik, who was not available for examination, reported that Mrs Higgins had the following parameters to suggest a diagnosis of complex regional pain syndrome, also known as causalgia:

(i)Violaceous discoloration of the right hand and wrist

(ii)Decreased temperature and increased moisture of the hand and wrist

(iii)Muscle wasting of the right forearm

(iv)Gross weakness of the right hand compared to the left.

(v)She has the personality profile which frequently goes hand in hand with the development of this strange condition

  1. Dr Rea, Hand Surgeon, in October 2004, diagnosed regional pain syndrome affecting Mrs Higgins’ right upper extremity originally but now affecting her neck.  He also found positive provocative tests for epicondylitis and for Finklestein’s test.  He related the condition to her work and was not surprised it affected her non dominant arm as the dominant arm being stronger is protected.  He assessed Mrs Higgins as having 20% whole person impairment under the Comcare Guidelines.  Dr Rea considered her fit for the work that she was currently carrying out.
  2. In cross examination, Dr Rea conceded it was difficult to explain the worsening and progression of Mrs Higgins’ symptoms 1 year after doing light duties. 
  3. Dr McGill, consultant Rheumatologist, in response to the various diagnoses proffered, said he did not consider repetitive strain injury & occupational overuse syndrome as valid diagnoses – rather, they referred to causation.  In his summary of his initial report of 2 December 2004, Dr McGill said it was his opinion that Mrs Higgins demonstrated false behaviour during the physical examination and there was no objective evidence of any abnormality in the upper limb.  He reported that Mrs Higgins’ behaviour during the formal examination was inconsistent with her behaviour at other times during her attendance and the pattern of discomfort she reported was not logical based on the movements she then performed.  He also said the profound muscle weakness exhibited by her when gripping and extending her fingers was so exaggerated that it should have given rise to significant muscle wasting.  He found no muscle wasting.  He also reported that the pattern of symptoms was not suggestive of epicondylitis, De Quervain’s tenosynovitis or any physical disorder of the upper limbs.
  4. Dr McGill noted that Mrs Higgins had reported pain in her lower neck on standing and said standing is not usually a posture associated with that pain.  He also noted that she reported lumps in her arm.  We note that Mrs Higgins denied having done so in her evidence, but Dr McGill referred to his notes and was firm in his recollection that she had done so.
  5. Dr McGill gave evidence of having administered Finklestein’s test by first doing, as a control test, the reverse manoeuvre which would not be expected to cause pain.  He said Mrs Higgins reported more pain on the reverse manoeuvre than on the positive test.  He also noted, in cross examination, that Finklestein’s test if often done inappropriately and can sometimes be of only limited use.
  6. Dr McGill said that given Mrs Higgins’ report of widespread pain throughout the whole limb, no more marked over the epicondyles or the wrist, a diagnosis of epicondylitis could not be made.  He also said ultrasound is approximately 80% accurate and both De Quervain’s tenosynovitis would be likely to show up on an ultrasound.
  7. Concerning Dr Bencsik’s report, Dr McGill did not consider her behaviour and presentation to be that of reflex sympathetic dystrophy.  When Dr McGill saw Mrs Higgins he noted no abnormality of colour, temperature or sweating in either upper limb.  He did say colour and temperature changes in a limb can be produced relatively quickly by immobilisation of the limb so it was possible they were present when she saw Dr Bencsik.  Dr McGill opined, however, that it was very unlikely muscle bulk would change in the very short interval between when he saw Mrs Higgins (2 December 2004) and when Dr Bencsik saw her (4 February 2005).
  8. In relation to Dr Adler’s view that Mrs Higgins’ reported neck pain was brought on by shrugging, Dr McGill dismissed that theory as fanciful and simply wrong.
  9. In relation to Dr Rea’s report, Dr McGill noted that while he said Mrs Higgins appeared to have positive tests for a range of physical disorders, the diagnosis he made was of regional pain syndrome and did not diagnose any of those disorders for which she tested.
  10. In cross examination, Dr McGill said the action that Mrs Higgins said gave rise to her pain, pushing the trolley, was not the type of action, even on a repetitive basis, that would give rise to epicondylitis or tenosynovitis and would only, in the absence of a fall, give rise to muscle soreness.
  11. Dr McGill said he has never seen anyone who has had De Quervain’s tenosynovitis, medial epicondylitis and lateral epicondylitis simultaneously.

consideration

  1. We are presented with a range of diagnoses and very little agreement between the medical witnesses.  The range of symptoms reported by them is equally diverse.
  2. Mrs Higgins’ evidence was, at times, confused and often changeable.  Her occasional defensiveness may have been due to nervousness about giving evidence before the Tribunal but at some points she appeared evasive.  This was particularly so in relation to the question of why she had claimed for both upper limbs rather than just her right limb which she said is the only one to give her trouble.  She also appeared, at times, to exaggerate the effect on her of her various symptoms.  An example of this was her statement that she cannot sit for long periods because of the pain in her arm.  It was difficult to avoid the conclusion that many of her reported physical limitations are self imposed.
  1. Given the inconsistency between the range of histories taken and medical opinions offered, we are particularly mindful of the absence of any demonstrable physiological or pathological abnormality.  In particular, we note the two normal ultrasound results and the unusual results obtained by Dr McGill on the Finklestein’s test administered by him.  We also consider that Dr McGill’s administering of that test, in the absence of any similar evidence from the other medical witnesses, was more thorough and reliable.
  2. We are also mindful of the reliance by a number of medical witnesses on Mrs Higgins’ symptom of discolouration of her hand, wrist and arm and Dr McGill’s explanation of the effect of keeping a limb stationary for even a short period of time.  In addition, we are mindful of the extreme weakness shown by the grip and spread strength tests administered by Dr McGill and his view that if such a degree of weakness is present there should also be significant muscle wasting.  He found none.
  3. We note the progression of Mrs Higgins’ symptoms, according to her evidence, notwithstanding the progressive lightening of her duties.  In this regard we also note the evidence of Dr Rea that this is inexplicable.
  4. It is also notable that Mrs Higgins undergoes no active treatment for her condition, having rejected physiotherapy and massage.  We note that Dr Marnie considered her condition, diagnosed by him as repetitive strain injury, not serious enough to warrant nerve conduction studies or surgery.  The evidence before us does not indicate that any recommendation for further investigation or treatment has been made.
  5. We also note that Dr Adler was alone in his view that Mrs Higgins has tenosynovitis in a chronic phase without any acute signs, and the likelihood of some peritenon adhesions reducing wrist tendon movement and give rise to pain.   We are persuaded by Dr McGill’s rejection of Dr Adler’s “shrugging” theory concerning Mrs Higgins’ neck pain.  We also note that Dr Bencsik is alone in his diagnosis of complex regional pain syndrome and we consider the symptom basis for his diagnosis, including discolouration, muscle wasting and gross weakness, to be dubious, for the reasons outlined by Dr McGill in his evidence.
  6. On balance, we consider the only available diagnosis of Mrs Higgins’ condition is that made by Dr Hession:  “myofascial pain in [Mrs Higgins’] right forearm and wrist of uncertain aetiology”. The uncertain aetiology of the condition prevents us from concluding it is due to her work. We note that it was Dr Hession’s opinion that gave rise to the decision to cease or to make no further payments to Mrs Higgins pursuant to sections 16 and 19 of the Act.
  7. It follows that Mrs Higgins no longer suffers from the effects of the condition for which liability was accepted by Comcare.  It further follows that that condition is not permanent and she is not entitled to compensation for permanent impairment.

decision

  1. The decisions under review are affirmed.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         ........[Linda Blue].................................
  Associate

Dates of Hearing  27 and 28 June 2005
Date of Decision  2 September 2005
Counsel for the Applicant         Ms L Beilby
Solicitor for the Applicant          Beilby, Poulden Costello
Counsel for the Respondent     Mr B Kelly
Solicitor for the Respondent     Sparke Helmore

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