Hopkins and Comcare (Compensation)

Hopkins and Comcare (Compensation) [2016] AATA 742 (23 September 2016)

Division

GENERAL DIVISION

File Number

2015/1177

Re

Joan Hopkins

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President Dr C Kendall

Date

23 September 2016

Place

Perth

The decision under review is set aside. In substitution it is decided that:

·     The applicant has suffered incapacity since 19 November 2014 (the date Comcare ceased liability payments).

·     Incapacity has been caused by an accepted condition defined as a diffuse pain syndrome of soft tissue origin, associated with cervical and thoracic spine symptoms with associated muscle contraction headache.

·     Any medical treatment the applicant has required since 19 November 2014 has been in relation to her accepted condition.

· Comcare is liable to continue paying compensation to the applicant for incapacity payments or medical treatment as of 19 November 2014 pursuant to section 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.

The Tribunal remits this matter to the respondent for reassessment of the applicant’s claims for compensation in accordance with the reasons outlined herein.

The Tribunal orders, pursuant to section 67(8) of the SRC Act, that the Respondent pay the Applicant’s reasonable legal costs and disbursements, as agreed, or, in the absence of agreement, as assessed, in accordance with Section 6.9 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.

.................[sgd]........................
Deputy President Dr C Kendall
CATCHWORDS
COMPENSATION – applicant made claim in 1992 for neck injury and associated headaches – applicant medically retired in 2002 – applicant received compensation payments from that date on – on basis of new medical report respondent determined in 2014 that applicant suffers from a constitutionally-based problem and that condition is no longer work related – whether accepted condition materially contributed to in a material degree by applicant’s employment with the Commonwealth – applicant found to have suffered an injury that has resulted in incapacity such that applicant is entitled to ongoing compensation – decision under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – sections 4(1), 14, 16 and 19
CASES
Cheung v Administrative Appeals Tribunal (2009) FCA 241

Comcare v Reardon [2015] FCA 1166
Military Rehabilitation & Compensation Commission v May [2016] HCA 19
Su v Comcare [2011] AATA 934;

Telstra Corporation Limited v Hannaford (2006) 90 ALD 263

REASONS FOR DECISION
Deputy President Dr C Kendall
23 September 2016
BACKGROUND

Joan Hopkins was born on 18 December 1951. She is 65 years of age.
Ms Hopkins worked as a clerk for the Department of Social Services (now known as Centrelink) until 20 August 2000, when she was medically retired.
On 3 April 1992, Ms Hopkins lodged a compensation claim in relation to an injury she claims she suffered to the ligaments in her neck. In her claim form, Ms Hopkins described her injury as “gradual onset over 1-2 years but probably sudden onset of unimaginable pain resulting from reaching over a desk to retrieve paper which had fallen behind it” (T4 at 7). Ms Hopkins’ claim form states that her injury/illness occurred, or Ms Hopkins first noticed it, on 20 March 1992 (T4 at 8) but that the injury/illness “did not result from a specific incident” (T4 at 8).
Ms Hopkins first consulted a doctor (General Practitioner, Dr K Norcott) on 24 March 1992 and was diagnosed at that time as suffering from “cervical strain injury” (T4 at 10). She claims she saw Dr Norcott at that time because the previous weekend had been particularly difficult in terms of headache pain, which she described as “a splitting headache over the weekend” (T6).
Shortly thereafter, Ms Hopkins returned to work on a part time basis. She claimed that her symptoms were not settling.
Ms Hopkins’ diagnosis was later amended to “occupational cervical brachial disorder” (T4 at 6 and T5 at 12).
On 23 April 1992, Comcare made a determination accepting liability for Ms Hopkins’ claimed injury of “cervical strain” sustained on 20 March 1992 (T235 at 390).
As outlined by Comcare in its Statement of Facts, Issues and Contentions dated 11 January 2016 (paragraph 7), in the years that followed, Ms Hopkins undertook numerous worksite assessments and rehabilitation programs. Between 1992 and 2002, the evidence shows that Ms Hopkins was occasionally able to work on a fulltime basis but that her absences from work increased over time. The Tribunal notes that concerted efforts were made by Centrelink to modify Ms Hopkins’ work station and work duties as and when this was deemed necessary.
In April 1999, Ms Hopkins’ husband died. In July of that year, she returned to work. From July 22 1999 she was certified fit for restricted duties of approximately 4 hours per day. She continued to work on a part time basis.
On 7 April 2000, Ms Hopkins was medically retired (T142 at 229 and T146 at 234). On the same day, she lodged a compensation claim for permanent injury.
By determination dated 9 May 2001, Comcare determined that there was no liability to pay compensation to Ms Hopkins in respect of any impairment under section 24 of the Safety, Rehabilitation and Compensation Act 1988 (the “SRC Act”) as Ms Hopkins had not undertaken a coordinated treatment program (T235 at 390).
On 20 August 2002, Comcare made a reviewable decision on its own motion varying the determination to accept liability for Ms Hopkins’ conditions of “syndromes affecting the cervical region, pain in the thoracic spine and headaches on the basis that these conditions are a sequela to the cervical strain sustained on or about 19 March 1992 and as such arise in the course of her employment with the Commonwealth” (T235 at 390 and 393). A Comcare Review Officer found that Ms Hopkins’ condition had stabilised and was permanent and that she had undertaken all appropriate treatment in connection with her condition. She was found to suffer from a permanent impairment and entitled to compensation pursuant to sections 24 and 27 of the SRC Act and awarded a lump sum payment of $61,398.28.
Between 7 April 2000 (the date of medical retirement) and 19 November 2014 (the date Comcare ceased liability payments – discussed below), Ms Hopkins was paid incapacity payments and medical and other expenses by Comcare in accordance with sections 16 and 19 of the SRC Act.
In the period from 7 May 2002 onwards, Ms Hopkins continued to be certified by her General Practitioner, Dr Si, as “totally unfit for work”.
In September 2014, approximately 20 years after she filed her compensation claim and 12 years after she was medically retired, Comcare referred Ms Hopkins to Dr M Wyatt, Consultant Occupational Physician, for further assessment. After assessing Ms Hopkins, Dr Wyatt concluded on 8 September 2014 that Ms Hopkins “has a constitutionally-based problem and that her condition is no longer work related.”
On 19 November 2014, on the basis of Dr Wyatt’s report, a Comcare Delegate determined that Comcare was no longer liable to pay compensation for medical expenses and incapacity payments under the SRC Act in respect of Ms Hopkins’ condition of “syndromes affecting cervical region, pain in thoracic spine and headache” because “on the medical evidence, Ms Hopkins’ condition was no longer contributed to, to a significant degree, by her employment” (T518 at 840-841).
On 3 February 2015, upon reconsideration, a Comcare Review Officer affirmed that decision (T530). Relevantly, the Review Officer found as follows:
Dr Mary Wyatt, Consultant Occupational Physician, was provided a copy of all relevant evidence contained on your claim file. On 29 August 2014, Dr Wyatt conducted an independent medical assessment at the request of Comcare. From this assessment Dr Wyatt provided a medical report in which it was stated you presented with chronic neck pain. You advised soreness generally through your neck, extending into the upper trapezius area and upper back. The most likely scenario is that you will continue to suffer ongoing neck pain, with associated headaches, much as you have done over the last five to 15 years.
Dr Wyatt considers you have a constitutionally-based problem and that your condition is no longer work related. She advised that muscular tension can worsen with computer use or with tension in the workplace, however this would be short-term. Once the individual had stopped work, the symptoms would be expected to settle within a matter of weeks, possibly months. Dr Wyatt also stated you should be transitioned to self-management. Continued use of medication is reasonable, although as articulated above, Dr Wyatt considers this is no longer a work-related condition.
On 21 October 2014 Dr K.C. Si, General Practitioner, provided a medical certificate in which it was stated that you discussed the report from Dr Watts [sic]. Dr Si noted that Dr Watts [sic] concluded that you were now fit for work rehabilitation. However Dr Si advised that Comcare had awarded you a permanent impairment claim on 28 August 2002 and agreed to fortnightly compensation payments until the age of your retirement. Your condition has not changed since 2002 and you have had already attempted return to work rehabilitation without success. Therefore, Dr Si doubts another return to work rehabilitation program will be successful.
Dr Si has indicated that your condition has not changed, however, has not commented on whether your current condition is still related to your employment.
To date Comcare has not been provided any medical evidence that would contradict the expert medical opinion of Dr Wyatt. I therefore rely on Dr Wyatt’s opinion.
Therefore l consider the determination of 19 November 2014 was correct and I have affirmed the determination.
On 14 March 2015, Ms Hopkins lodged an application for review with this Tribunal (T1).
ISSUE
The broad issue for this Tribunal to determine is whether Ms Hopkins is eligible for compensation payments pursuant to sections 16 and 19 of the SRC Act following the date Comcare ceased liability payments to her – that being 19 November 2014.
However, based on the various arguments made by the parties in their written submissions, in order to determine this issue as it relates to Ms Hopkins, the Tribunal must first determine what Ms Hopkins actually suffers from and whether this injury or condition or an aggravation of it was and remains materially contributed to by her employment with Comcare. In this context, Ms Hopkins’ entire medical history, spanning 30 years, becomes relevant.
The parties agreed that Ms Hopkins does not currently suffer and never has suffered from an “injury (other than a disease)” (as that term is defined statutorily - outlined further below).
As such, the Tribunal must address the following questions in relation to this matter:
a)Does Ms Hopkins suffer from a “disease” within the meaning of s 4(1) of the SRC Act as it was in 1992, and, in particular:
(i) does Ms Hopkins suffer from an ailment which was contributed to in a material degree by her employment with Comcare; or
(ii) has she suffered an aggravation of such an ailment which was contributed to in a significant degree by her employment with Comcare; and
b) If Ms Hopkins has suffered a “disease” within the meaning of the Act, has that disease resulted in “incapacity” or “impairment” such that is entitled to compensation pursuant to s 14 of the Act?
The medical evidence relevant to this matter spans approximately 30 years. In determining whether Ms Hopkins suffers from an injury or an aggravation of it as defined in the SRC Act, the Tribunal will, of necessity, review this entire medical history. In these circumstances, the Tribunal may well find, as it is entitled to do (as per Telstra Corporation Limited v Hannaford (2006) 90 ALD 263 and Cheung v Administrative Appeals Tribunal (2009) FCA 241) that Ms Hopkins never in fact suffered an injury or an aggravation of it. Should that occur, it goes without saying that Ms Hopkins may not currently be entitled to compensation payments. Further, the Tribunal may well find (again, as it is entitled to do) that something has changed medically such that whatever physical ailments Ms Hopkins now suffers from (however serious they might be) they are sufficiently different from her previous compensable injury because it cannot be said to the requisite degree that her employment with Comcare materially contributed to her current medical condition.
LEGISLATION
Both counsel for Ms Hopkins and Comcare agreed in written closing submissions that this matter is to be determined according to the SRC Act as it was in 1992 (the SRC Act 1988), being the year Ms Hopkins lodged her compensation claim.
At all material times, section 14 of the SRC Act 1988, entitled “Compensation for Injuries” provides:
(1)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.
Section 16 of the SRC Act 1988 provides for compensation in respect of medical expenses. It relevantly provides as follows.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Further, section 19 provides for compensation for injuries resulting in incapacity for work. By virtue of section 4(9) of the SRC Act an “incapacity for work” means an incapacity for work suffered by an employee as a result of an injury being an incapacity to engage in any work or to engage in work at the same level the employee was engaged in immediately before the injury happened.
In the SRC Act dated 1988 (relevant to these proceedings), “injury” is defined in s 4(1) of the SRC Act as:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
“Disease” is defined in s 4(1) to mean:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth ...
At all material times “ailment” is defined in s 4(1) of the SRC Act 1988 as “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Finally, “aggravation” is defined as including “acceleration or recurrence.”
EVIDENCE
This matter was heard over two days in Perth on 12 and 13 April 2016. Ms Hopkins was represented by counsel, Mr Offer. Comcare was represented by counsel, Mr Lenczner. The Tribunal thanks both counsel and their instructors for their invaluable assistance with what proved to be an enormous amount of medical evidence covering many years and a jurisprudential area that is perhaps best described as “complex”. The Tribunal also notes the respect Mr Offer and Mr Lenczner showed the witnesses who appeared throughout the hearing of this matter.
The Tribunal was provided with significant medical material spanning 33 years. This comprised:
·     An 869 page set of T-documents (T1 to T530). Of note, the T-documents included more than 200 Progress Medical Certificates prepared between 22 June 1992 and 6 November 2014;
·     A medical report prepared by Dr R Agnello dated 27 June 1983;
·     Ms Hopkins’ Outline of Evidence dated 25 November 2015;
·     A medical report from Dr Goodheart dated 2 April 2015;
·     A briefing letter to Dr Wyatt dated 1 July 2015 with attached briefing papers (comprising 143 pages);
·     A medical report from Dr Wyatt dated 29 July 2015; and
·     Two medical research articles relied on by Dr Wyatt.
The Tribunal also received a Statement of Facts, Issues and Contentions from Ms Hopkins dated 25 November 2015 and a Statement of Facts, Issues and Contentions from Comcare dated 11 January 2016.
Following the hearing of this matter, extensive Written Closing Submissions were received from counsel for Ms Hopkins (dated 8 June 2016 but received 14 June 2016). Written Submissions in Reply were then received from counsel for Comcare (dated 6 July 2016). Written Responsive Submissions were then received by counsel for Ms Hopkins on 26 July 2016 (incorrectly dated 8 June 2016). Finally, a Written Reply to the Applicant’s Responsive Submissions was received on 4 August 2016. Leave to file these submissions in reply had not been requested by Comcare or granted by the Tribunal. The Tribunal notes that no objection to the use of these submissions was raised by counsel for Ms Hopkins. The Tribunal has, accordingly, accepted these final submissions.
The Tribunal has reviewed all of the above and highlights the following materials.
Ms Hopkins’ Outline of Evidence dated 25 November 2015 (A1)
This outline reads as follows:
1.I was born on the 18th December 1951 and at the time of suffering my injury employed I was [sic] as a Clerk by the Department of Social Security (now Centrelink) (“DSS”).
2. I commenced working for DSS in approximately 1984.
3.At the time of suffering my injury my duties at DSS required me to work at a computer and desk for the duration of my work day. At that time the ergonomic setup of the desk, chairs and computer was terrible and I was constantly looking up and down and from side to side.
4.In the course of carrying out my duties at DSS I developed significant headaches and pain to my neck. This pain gradually worsened until the 20th March 1992 when I was unable to continue carrying out my work duties.
5.I subsequently made a claim for workers’ compensation and that claim was accepted by Comcare.
6.After my claim was accepted I participated in a graduated return to work program and eventually increased my hours to full time hours. Unfortunately whilst I was determined to undertake my duties on a full time basis the pain I experienced when doing so (and particularly of an evening) was unbearable.
7.I required anti-inflammatory and analgesic medications, deep heat and other topical ointments just to continue to work.
8.Over time I gradually broke down and was unable to continue working. My doctor initially reduced my hours however my symptoms continued to prevent me from carrying out my work duties.
9.As a result of my injuries and medical advice obtained from doctors I attended at the request of DSS, I was medically retired by DSS on the 7th April 2000.
10.At that time I was suffering severe headaches and significant pain and restriction of movement to my neck, shoulders and upper back. The pain was so severe I was unable to sleep. I would experience headaches (similar to the severity of a migraine) that prevented me from carrying out day to day tasks.
11.Unfortunately after being medically retired my injuries, symptoms and restrictions did not improve.
12.In 2002 I applied to Comcare for compensation for permanent impairment and non-economic loss. I was assessed as suffering a 32% whole person impairment and my claim for this compensation was approved by Comcare on the 20th August 2002.
13.Since that time I have continued to suffer from headaches and intrusive pain to my neck, shoulders and upper back. The severity of my headaches has reduced however the frequency of the headaches has decreased.
14.Prior to Comcare ceasing payment of my medical expenses I would undergo physiotherapy once a week, acupuncture several times a month and hydrotherapy approximately 3 times a week.
15.I have continued to require medication to alleviate the symptoms of my work injuries.
16.I have only been able to carry out menial daily tasks with the combination of the treatment outlined above and the medication. The duration of time I can carry out these tasks is also very limited.
17.I have attempted to undertake university studies however I am unable to read for prolonged periods of time. I managed to last approximately 6 months before my work injuries forced me to withdraw from university.
18.I have been certified totally unfit for work by my general practitioner since I was medically retired.
19.As a result of my work injuries I have been unable to participate in arts and crafts; I cannot read books for prolonged periods of time and I am only able to undertake extremely limited housework and gardening tasks.
20.If I over-exert myself I am forced to take additional medication to cope with the pain and then rest.
21.If I walk too fast or too far my pain increases. Despite this I attempt to go for a walk every day and have managed to increase my walking tolerance to 45 minutes to 1½ hours each day depending on the speed I walk or the surface on which I am walking.
22.From the date I was medically retired until the 19th November 2014 Comcare paid all of my medical expenses and paid incapacity payments to me on a fortnightly basis.
23.I have obtained medical certificates for the duration of that time.
24.As my incapacity payments have now ceased I have been forced to apply for a disability pension from Centrelink. I have also been issued with a healthcare card to assist with obtaining my medication.
25.As a result of my reduced income I have been forced to compromise my medical treatment. My medications have now been limited and I am no longer able to attend physiotherapy, acupuncture or hydrotherapy as often as I did.
26.Unfortunately the physiotherapy, acupuncture and hydrotherapy combined with my medications was what enabled me to maintain my quality of life. My quality of life has now decreased however as a result of my financial position I am unable to improve it.
27.I have now been forced to sell my house because I could not afford to pay the bills.
28.Since I injured myself in 1992 I have not been involved in any motor vehicle accidents or any other type of accident.
29. I have not suffered any other injuries to my neck, shoulders or upper back.
30.I continue to suffer from the injuries I sustained in the course of my employment at DSS on the 20th March 1992.
MEDICAL EVIDENCE
Report of Dr R Agnello dated 27 June 1983 (R4)

Ms Hopkins was referred to Opthamologist, Dr Ross Agnello, by General Practitioner Dr K C Si in June 1983.
Dr Agnello’s report was provided to the Tribunal on the first day of the hearing of this matter. It predates the date of Ms Hopkins’ claimed injury (2002) by approximately nine years.
Dr Agnello was not called as a witness in these proceedings.
Dr Agnello’s 1983 report reads as follows:
Many thanks for referring the above patient who complains of a dull ache in and around both eyes. These have been present for the last six to seven months and are usually apparent at night. She seems to get these with knitting or reading and when the ache is present ocular movement is uncomfortable.
Uncorrected visions are 6/5 in each eye and N4.5 for near. On examining the ocular muscle balance there is a large exophoria for near with rapid recovery.
She is orthophoric for distance and extraocular movements were full. The intraocular pressures were within normal limits and the rest of the examination was clear.
The headaches are very typical cervical muscle spasm caused by prolonged head posturing. I have suggested deep neck massage if the headaches occur again.
I very much doubt that her symptoms are due to convergence insufficiency as fixation recovery on alternate colour testing is very rapid. However, should her symptoms continued (sic) unabated we could consider fresnel prism exercises for convergence insufficiency.
Report of Jan Johnston, Occupational Therapist, Work-Link dated 3 June 1992 (T8 at 18)
The Tribunal was provided numerous rehabilitation progress reports from 1992 onwards. All evidence considerable efforts on the part of Comcare to address and accommodate Ms Hopkins pain management.
This particular report detailed those work related duties that Ms Hopkins believed caused her work place injury. It was prepared shortly after Ms Hopkins alerted Comcare to what she and her then doctor believed was a workplace neck injury.
The report reads, relevantly, as follows:
Further to my report of 29/5/92, I wish to provide with an update on rehabilitation progress with Mrs Hopkins.
SUB-GOALS ACHIEVED IN PERIOD 29/5/92 to 3/6/92
*          Completion of Work Site Assessment
-          Ergonomic Review of work station
-          Review of work duties/work flow
-          Determined equipment required for work station
*          Development of Graded Work Programme (first 2 weeks only at this stage)
FACTORS AFFECTING REHABILITATION
Work Site Assessment
A Work Site Assessment was conducted at the Department of Social Security, Mirrabooka on 3/6/92. Discussion was conducted with Mr. John Boylson at the completion of the Work Site Assessment. Ms. Margaret Hillier (in the absence of Ms. Elsie Garbin) attended the Work Site Assessment with Mrs Hopkins and myself.
At the time, the duties which Mrs Hopkins perceived to aggravate her condition were discussed and guidelines for use in the Graded Work Programme were established with Ms. Hopkins and Ms. Hillier. These have since been discussed with Ms. Garbin.
It was established that currently, the following causes aggravation to Mrs Hopkins condition:-
*    Sitting at desk for extended periods.
*    Looking down at keyboard.
*    General positioning of work station (height of screen, position of current slopeboard).
*    Telephone work (using phone with left hand whilst writing with right and using headset for more than approximately 1 hour out of the 3 when on enquiry line).
*    Reception work
*    Ergonomic set up of work station at “counter”.
Having established the aggravating factors, the following recommendations have been made with regard to modifications to the physical layout of the work station:-
*    Provide (adjustable height and 600mm across) slopeboard. This will enable files and appropriate forms to be positioned (and not fall off) on the slopeboard in alignment with Mrs Hopkins body. NB: Ms. Margaret Hocking is currently investigating options.
*    That VDU(s) be raised to her seated eye height (approximately 250mm from top of desk). This needs to be undertaken at all the work stations at which Mrs Hopkins will work (I understand that it is difficult to have her positioned at 1 work station all the time).
*    That a headset L5001 model be provided. NB: Ms. Margaret Hocking is currently investigating headset options.
*    That Mrs Hopkins uses keyboard, slopeboard and VDU in alignment with her body when writing brief notes on forms/files but that keyboard is moved out of the way and the slopeboard positioned close to body when doing any amount of writing or reading of the file. It is also important that when keying, she positions her chair slightly back from the table. When writing on the file/forms however, she should move her chair close into the table. NB: Ms. Margaret Hocking is currently investigating a slopeboard with slide-out keyboard section.
Graded Work Programme
A discussion regarding work duties revealed that Mrs Hopkins is currently undertaking a range of duties involving phone work, sitting at desk working on files and relief counter work. It was established that there are few “alternative” duties at DSS, Mirrabooka and therefore the aforementioned duties would need to be alternated in the Graded Work Programme.
It is recommended that, depending on Dr Norcott’s approval, she continue on 3 hours per day/3 days per week for the next 2 weeks. The guidelines below should be adhered to in the first 2 weeks of the programme and a review be made on a weekly basis with Mrs Hopkins and again with her supervisors at DSS, Mirrabooka on 19/6/92 at 8.30am. It is important to note that, whilst the first 2 weeks only are detailed in the attached Work Programme, that a plan for the following 4 weeks will be established after completion of the first 2 weeks. It is felt that some improvement (or at least stability) is established prior to increasing her hours.
Guidelines for Graded Work Programme
*    That no greater than 1 hour be allocated to work on the telephone enquiry line (and that the headset is utilized for this).
*    That Mrs Hopkins takes responsibility for organizing her work to be as “mobile” as possible, (ie. filing work as she completes it), photocopying and liaising with staff members (ie. getting up from desk) to be alternated with work at desk.
*    That a 10 minute rest break be taken each hour (this will be reviewed after the initial 2 weeks) and that Mrs Hopkins undertake exercises specified by the physiotherapist during these work breaks. She should move away from her work station during the 10 minute work break.
*    That the modifications recommended for her work station be organised as soon as possible.
Report of Jan Johnston, Occupational Therapist dated (early) June 1992 (T5 at 11)
This further report reads as follows:
Thank you again for referring Mrs. Hopkins to Work-Link Occupational Health and Rehabilitation Service for assessment of her potential to benefit from a rehabilitation programme.
Since receiving your referral, I have conducted an initial interview with Mrs. Hopkins and have made contact with her doctor and employer.
The results of the initial contacts including initial rehabilitation recommendations follow.
INTRODUCTION
I met with Mrs. Hopkins at her home in Mullaloo, where she lives with her husband and daughter (21 years).
INJURY
Mrs Hopkins explained that she understood that her injury had onset gradually over the past years but was aggravated (and bought to a head) after an incident occurring several days prior to 20/3/92.
She explained that several days before the 20/3/92 she leant over a desk to retrieve a paper which had fallen behind it. She explained that left upper back discomfort and left lateral neck discomfort continued to worsen after the incident. She saw her General Practitioner on the 23/3/92. I understand that she continued to work but that, as she worked, the pain increased. I understand that she saw Dr Kevin Norcott after the pain continued to get worse at work (she had previously seen her family Doctor).
I understand that Dr Norcott recommended physiotherapy, which she commenced. She reported however, that she was having ongoing difficulty with work and needed to take Mersyndol to maintain herself in the working environment. I understand that she persevered with work but her discomfort continued and she returned to Dr Norcott after approximately 2 weeks. She reported that, whilst she continued to work, her neck pain had worsened to the point where she could only manage half days (4 hours per day) at work. I understand that her condition continued to deteriorate and Dr Norcott then recommended alternate days for 4 hours per day. She reported that her symptoms continued to deteriorate to the point where Dr Norcott reduced her hours to 3 hours per day, 3 days per week. Mrs Hopkins is currently working 3 hours per day, 3 days per week.
DIAGNOSIS: Cervical-Brachial disorder
CURRENT SYMPTOMS STATUS
Reported that the symptoms include right upper trapezius muscle discomfort (but experienced this on the left hand side yesterday), which tends to radiate to the left lateral neck area. She reported that the left lateral neck discomfort becomes a “throbbing sensation” if she continues to undertake the activity which has caused the discomfort, and that the pain may radiate to the head (“throbbing headache”) on occasions.
TREATMENT
Mrs Hopkins treatment has included physiotherapy treatment (which she is currently receiving twice per week at Mirrabooka Physiotherapy Centre). She is also treated with Mersyndol and Panadeine intermittently.
I understand that Dr Norcott has referred Mrs Hopkins to Dr Ng (Rheumatologist) whom she sees in early June.
EMPLOYMENT
Mrs Hopkins has been employed at Department of Social Security for 7 years and has been in Public Service for 10.5 years. She is an AS03 Clerk and works full-time.
Duties:
Mrs Hopkins reported that her position includes rotation between counter positions and back office. I understand that usually the counter position is undertaken for 2 weeks at a time and the back office position is undertaken for approximately 6 weeks.
The counter position includes:-
-Interviewing clients at counter
-Reception work
-Clerical work at counter
-Filing
The back office position includes:-
-Telephone interviews
-Telephone inquiry roster
-Clerical work
-Filing
I understand that a large proportion of her time involves reference to VDU and undertaking keying activities. She reported that she felt that her condition may have been caused through inappropriate positioning of her work equipment. She reported that the configuration of her computers at work had necessitated continual turning of her head to the right and continual looking down at the keyboard.
…
DOMESTIC DUTIES
Mrs Hopkins explained that she manages most household duties (with the exception of vacuuming) if she has not been working. She reported however, that if she has been at work, she is sometimes barely able to cook the evening meal. She reported that ironing causes her some discomfort as does vacuuming (which her daughter currently does). She is however, able to mop the floor.
DRIVING
Reported to drive a 1974 Holden which she reported, causes her discomfort. She is however, able to drive to and from work (approximately 30 minutes each way).
LEISURE/EXERCISE
Reported to cycle for approximately 1 hour over the weekend and swims approximately twice per month. She reported to walk her dog on a regular basis (15 minutes per day).
Reported that her leisure pursuits include going to the theatre. She reported that she can sit for 2 hours but that she feels some discomfort from having done so.
CLIENT PERCEPTION AND EXPECTATION OF REHABILITATION
Mrs Hopkins reported that she was eager to have further insight into aggravating factors for her condition. She was eager for the Work Site Evaluation to be completed and for a formal Graded Return to Work Programme to be developed.
EMPLOYER CONTACT
I spoke with Mr. John Boylson on the 29/5/92. At this time, we agreed that I would undertake a Work Site Assessment to examine the ergonomics of Mrs Hopkins work station as well as to examine her work duties and work flow. We agreed that it would be appropriate to then design a suitable Graded Return to Work Programme in conjunction with Ms. Elsie Garbin, Mrs Hopkins and Dr Norcott. I will be conducting the Work Site Assessment on 3/6/92.
DOCTOR CONTACT
I spoke with Dr Kevin Norcott on 29/5/92. At this time, Dr Norcott reported that he felt that a Work Site Assessment and a development of appropriate formal Graded Return to Work Programme was appropriate. We agreed to maintain contact with regard to Mrs Hopkins progress.
SUMMARY RECOMMENDATIONS
It is recommended that the following initial rehabilitation action be undertaken
*       Work Site Assessment - ergonomic review of work station
- review of work duties/work flow
*          Give recommendations for modifications required to the work station.
*          Development of appropriate Graded Return to Work Programme.
*Liaise with Doctor, employer and employee with regards to progress with Graded Return to Work Programme.
Report of Dr K C Ng, Rheumatologist, dated 5 June 1992 (T6 at 15)
In June 1992, Ms Hopkins was referred to Dr Ng by General Practitioner Dr Kevin Norcott. Dr Ng’s report reads as follows:
Thank you for referring this patient whom I saw in the rooms today (5.6.92).
She has been working with the Department of Social Security as a Clerical Assistant for the past 8 years. Her duties consist of a mixture of keyboard and clerical work. Every two months she is rotated to perform counter duties. Otherwise she stays in the back room performing similar duties but instead of dealing with the public she would be answering the phone, writing down the information and later transferring the data into the computer. Her writing and keying activities are performed in bursts.
She was apparently well until mid March this year when she developed a splitting headache over the week-end. She had a bad night on Friday and throughout the whole week-end the headache was troublesome unless she took Mersyndol. She couldn’t go to work on Monday and reported sick. When she went to work on Tuesday, the headache recurred. Her neck felt stiff and sore and the stiffness fluctuated. Some days she could hardly turn her head. For two weeks after the onset of symptoms she was frequently taking Mersyndol during the day to suppress the symptoms. In the end when she couldn’t tolerate the headaches any more she came to see you. On your advice she has reduced her hours of work and presently she is doing three hours, three days a week. She feels better in her symptoms on the days she is not working. Even when she is home reading and any activity which requires constant neck flexion posture, doesn’t help her symptoms.
Direct enquiry reveals no history of upper limb symptoms at all. She has no tingling sensation in her fingers, aching in the forearm or loss of grip strength like most of the RSI sufferers. Her symptoms are mainly confined to the head and the rest of the spine is fine and her previous health was good. Although she used to suffer headaches in the past, it was only once in a while. She herself couldn’t understand why these symptoms have suddenly manifested.
On examination today range of neck movements is reasonably good except for slight limitation of extension and rotation. Her neck muscles are not unduly stiff or tender but there is slight tenderness on the side of her neck especially on the right side. Dorsal and lumbar spine movements are normal in range and pain free. No abnormality found in lower limbs. Hand grips are strong. She contracted her forearm muscles without pain and neurological examination is entirely abnormality found in her peripheral joints.
I am somewhat baffled by the localised nature of her symptoms. Although it is probable that the symptoms might have been brought on by constant neck flexion posture whilst working, I can’t understand why this should bring on the symptoms so acutely. Moreover, there is no sign of irritability in the neck muscles even though her symptoms have not improved significantly despite the reduction in the hours of working.
Her symptoms are probably muscular since she responds well to a hot shower and gentle massage by the Physiotherapist. In fact, she finds physiotherapy to be quite good because after every session, range of neck mobility improves.
There is no other cause attributable to her symptoms apart from her posture at work. Her work station has been inspected by an Occupational Therapist who is also showing her how to adopt good posture whilst keying and writing. When she went into this position, she wasn’t shown how to adjust her equipment to achieve good posture.
If her symptoms persist, please request cervical spine x-rays to exclude any structural abnormality in the spine. If in spite of reduced working hours, her progress stagnates, I think it would be worthwhile referring her to a Neurologist just to make sure that there is no other organic cause for her symptoms. From the rheumatological point of view I don’t think she has under lying arthritis or such like.
Report of Radiologist, Dr I Devadason, dated 17 June 1992 (R2 at 11)
This radiological report reads as follows:
17/06/1992     Prior exam: None
CERVICAL SPINE: 6 VIEWS
The vertebral bodies and disc spaces are intact with normal appearances to the intervertebral foramina and posterior elements.
There is normal cervical alignment and no evidence of any bone lesion or instability.
IMPRESSION:  Normal cervical spine.
CT SCAN:                 CERVICAL SPINE
High resolution thin axial images have been obtained from C1-T1. The bones and soft tissues appear normal, without evidence of herniated disc or spinal stenosis.
IMPRESSION:  Normal study.
Report of Jan Johnston, Occupational Therapist, dated 13 October 1992 (T26 at 53)
This report reads as follows:
Further to my correspondence of 14 September 1992 I wish to provide you with an update on rehabilitation progress with Ms Hopkins.
I reviewed Ms Hopkins at work yesterday (12.10.92). I am pleased to report that Ms Hopkins has, for the past month, been working in normal duties and hours at DSS, Mirrabooka. She has reverted to taking normal tea breaks and no longer requires 10 minute rest break per hour.
Ms Hopkins reported that she had experienced some discomfort in her neck/shoulder area on only two occasions in the last month and that the discomfort had abated spontaneously without particularly impeding her at work.
We agreed that it would be appropriate now to review her on one final occasion in approximately 6 weeks’ time (appointment scheduled for 24 November 1992). It is expected that, if no further problems have arisen, that her file will then be closed. I have discussed this with her immediate supervisor and the Manager of the branch, Mr Rod Costa.
I will keep you updated as to developments in this case, however, in the meantime please do not hesitate to contact me should you have any queries regarding the content of this report.
Report of Jan Johnston, Occupational Therapist, dated 24 November 1992 (T27 at 54)
This report reads as follows:
Further to my correspondence of 13 October 1992, I wish to provide you with a closure report for Ms Hopkins.
I reviewed Ms Hopkins at work today (24 November 1992) and am pleased to report that she has now been working in normal duties and hours in DSS Mirrabooka for 2 months without significant difficulty. She informed me today that she has not needed to take any pain relieving drugs for 2 months.
Ms Hopkins reported that she will now commence re-entering (gradually), her previous leisure pursuits and is confident that she will not suffer any further relapse of her condition. Ms Hopkins did report, however, that she will take care with activities both at work and at home as she is aware of the types of activities which may aggravate her condition.
I feel that it is now appropriate to close Ms Hopkins rehabilitation file. Ms Hopkins is in agreeance with this and I have asked her to advise her Manager, Mr Rob Costa and/or the Rehabilitation Case Manager should there be any further problems.
Report of Professor James Taylor dated 21 November 1995 (T35 at 62)

Ms Hopkins was referred by Dr Norcott to Professor Taylor (Pain Management: Spinal Medicine) in November 1995.
Professor Taylor’s report reads as follows:
Thank you for referring this patient who has a repetitive strain type neck problem with headaches which is clearly related, as you pointed out, to the use of a VDU and computer keyboard.
She told me that in 1991 she began to have mild neck ache and since March 1992 has had major headaches, the first one lasting for several days and associated with a neck problem. At that time an occupational therapist gave her ergonomic advice re the set-up of her VDU and keyboard positions. She had been looking to the right and straight ahead alternately, repeatedly. The new set-up helped her a good deal and she had relief for some time. However she now has a different pain pattern, related to her new posture, with pain in the back of her neck and shoulders on both sides, and recurrence of the frontal headaches about once a week.
She has been in the public service for 14 years, but has only used a computer in the last 5 years. The problem is clearly related to her work.
Her neck ache begins as a rule in the early afternoon, but may begin late morning or early evening. The headaches come on later, after an interval, and the pattern is not always consistent. Sometimes she has headaches in the evening, sometimes they wake her at night, either in the middle of the night or on waking in the morning.
She has had physiotherapy since the end of 1994, including stay and stretch and some mobilisation of the upper thoracic spine. She has also been doing a swimming programme and swims thirty laps three times a week. She feels that this helps her with her fitness. She has had x-rays and a CT scan, which I assume must be normal since she did not mention them.
PREVIOUS HISTORY
There is no history of serious illness and she had no neck problems before 1991. She had occasional headaches once or twice a year before that. She has two children, now 23 and 25, and a good marriage. Her hobbies include gardening and she used to read, but has not done so recently. I note that she is 43 and has recently started using glasses, but she does not use them at work except for reading. She has no history of low back pain and she had no work loss before the present condition. In March 1992 she lost 4 weeks from work due to the initial problem and she has only had an occasional day or hour off since.
EXAMINATION
Ranges of movement in the neck are full and mainly pain free, though right side bending causes tension in muscles of the left side. Lumbar spinal movements are full and normal. On palpation there is no posterior tenderness of note in the neck and no anterior tenderness. There are no trigger points and the muscles feel quite relaxed. She is currently on holiday and has had an improvement in her symptoms.
I advised her that she should take regular breaks from her keyboard work, even if only for 30 seconds every 15 minutes to get up and do a series of exercises. These could be prescribed for her by Simon Millichip or one of the other physiotherapists. I have asked her to see Bryan Suter, clinical psychologist, for advice about relaxation techniques. I would like to see her again after this and would probably write to her work supervisor suggesting these changes. I think she is a conscientious and hardworking person and needs to be protected from herself in this regard.
Report of Dr Bryan Suter, Clinical Psychologist, dated 7 December 1995 (T36 at 64)
This report, addressed to Professor Taylor, reads as follows:
Thank you for referring Mrs Hopkins for consideration of teaching her relaxation and other headache management strategies. She presented as a spontaneous 43 year old female who spoke openly about her difficulties. The history she provided was of the gradual onset of neck pain some 3 years ago, which she attributes to commencement of keyboarding activities while employed at the Mirrabooka Department of Social Security. In March 1992 she reports experiencing major headaches, the first one lasting for several days, which she associated with a neck problem. Following this episode an occupational therapist assessed her work station and made ergonomic changes to her VDU and keyboard. A vocational rehabilitation provider was employed, whom I believe introduced a graduated return to work programme co-ordinated through her general practitioner, Dr Norcott, who has co-ordinated her treatment since 1992.
Her treatment has been predominantly analgesics and physiotherapy and she continues physiotherapy with Simon Millichip at Whitford Physiotherapy, which she finds of benefit. She has also been participating in a swimming programme which she finds of benefit.
Mrs Hopkins continues to work full time at the Department of Social Security in Joondalup, although she reports experiencing continuing neck and shoulder of front headaches about once a week. Further review of her history was unremarkable and I was unable to detect a psychiatric/psychological history of note.
On examination Mrs Hopkins acknowledged feelings of frustration and anger at her persisting symptoms and the effects this has had on her ability to participate in social and recreational activities. I felt, however, this was a normal response to her ongoing difficulties and from a psychological perspective felt she was coping reasonably well. She did report some benefit from meditation strategies learnt from John Ang of the World Ninja Association. She thus was interested in learning further relaxation and headache management strategies. I am happy to teach her these and feel she may also benefit from a brief biofeedback programme which should assist her in implementing these techniques with maximal benefit. In total I believe approximately five sessions will be required to complete such treatment, with a major focus on providing her self-management techniques which she can implement at home.
Report of Professor James Taylor dated 30 January 1996 (T40 at 69)
This further report from Professor Taylor, addressed to Dr Norcott, reads as follows:
I saw Joan Hopkins for review today. She has not made any spectacular progress since I last saw her, though she has implemented the various pieces of advice that I gave her. One particular problem is that she has been seeing different physiotherapists at different times and this has not always worked out to her benefit. I phoned David Host at Whitford Physiotherapy and he will regularise her physiotherapy management. I have also written a note to Uniswim to see whether they would be able to help her in her swimming techniques as she is not gaining as much benefit from swimming as she expected.
Once again I have not been able to find any specific pathology on examination of her neck. I think she should benefit from continuing instruction from Bryan Suter about relaxation techniques.
I do not plan to see her again unless she specifically requests this.
Report of Bryan Suter, Clinical Psychologist, dated 7 February 1996 (T41 at 70)
This further report from Dr Suter, addressed to Professor Taylor, reads as follows:
Since my letter of 7 December I have seen Joan on a further four occasions. Treatment commenced by teaching her various relaxation strategies with particular focus on muscle relaxation, visualisation and breathing techniques. Following this I proceeded with two sessions of bio-feedback treatment. The findings of EMG monitoring were of interest. I monitored both the upper trapezii muscles as well as the frontalis muscle groups. The readings of the frontalis muscles were essentially unremarkable, although there appeared a marked muscle imbalance between her left and right upper trapezii. I have discussed this finding with Simon Millichip, Joan’s physiotherapist at Whitfords. He will attempt to treat this further using muscle rebalancing techniques in an effort to disengage the right upper trapezius from compensating for the left. I feel this may be an important contributor to her headaches as she reports that neck muscle tension/aches frequently precede the onset of headaches.
I have requested that Joan continue practising the visualisation, relaxation and breathing strategies provided. She reports these of benefit in helping control her feelings of frustration and anger and she appeared particularly enthused by the findings of EMG bio-feedback. She will continue with physiotherapy treatment with Simon Millichip and I shall see her in 3 weeks, at which time I shall use EMG bio-feedback to review her progress.
Report of Bryan Suter, Clinical Psychologist, dated 15 February 1996 (T45 at 76)
This report, addressed to Comcare, reads as follows:
Thank you for your letter of 12 February 1996 requesting an update on treatment progress with Mrs Hopkins. I attach a letter I wrote to Professor Taylor dated 7 February 1996 providing an update of my treatment of Mrs Hopkins.
As noted in my initial letter of 7 December I felt Mrs Hopkins could benefit from a brief psychophysiological relaxation and headache management programme aimed at controlling her physical symptoms. Progress was noted in my report of 7 February 1996.
In answer to your specific questions:
The current physical and psychological symptoms she is experiencing.
The history she provided was that she experienced persisting neck pains with associated headaches. On an emotional level she reported feeling frustrated and angry at her persisting symptoms and the effects this had on her ability to participate in vocational, social and recreational activities. I noted in my initial report that this was not pathological but rather a normal response to her ongoing difficulties. From a psychological perspective I felt she was coping reasonably well.
Is there a relationship between these symptoms?
EMG biofeedback monitoring highlighted a marked muscle imbalance (dysymmetry) between her upper left and right trapezii. This muscle tension component could well be influencing both her neck pain and headaches. I have thus requested Simon Millichip, her treating physiotherapist at Whitford, address these difficulties further.
The relationship between her symptoms and her employment.
I am not qualified to provide an opinion on the physical basis of her injury. I would refer you in this regard to Mrs Hopkins’ general practitioner, Dr Norcott, or alternatively Professor J Taylor. However from a psychological perspective I do not believe she is suffering sufficient psychological difficulties to impact on her employment.
The treatment recommended for her condition.
I felt a brief time-limited psychophysiological programme would be of benefit, and to this end I have taught her several relaxation strategies and have utilised biofeedback in their implementation. EMG biofeedback is accepted as effective in the treatment of headaches. Due to the findings on EMG biofeedback (as reported in my letter of 7 February 1996), I felt treatment was best continued by her physiotherapist, Simon Millichip.
When do you foresee that the symptoms will have completely abated?
Again I am not qualified to comment on her physical symptoms. Her psychological state however has improved markedly with psychological treatment, which I feel in large part is attributable to the EMG biofeedback. EMG biofeedback provides an individual with a visual display of their muscle functioning while they are completing certain activities and/or implementing relaxation and/or pain management strategies. In Mrs Hopkins’ case it was evident that the right upper trapezius was significantly compensating for the left. Biofeedback provided her with a dramatic representation of these difficulties and provided her extra incentive to continue with physiotherapy treatment to rectify the problem. EMG biofeedback can be used to monitor progress.
What is the general prognosis?
From a psychological perspective her prognosis is good, but I would refer you to either her physiotherapist or treating doctors to provide an up-to-date prognosis on her physical condition.
Report of Bryan Suter, Clinical Psychologist, dated 2 May 1996 (T47 at 79)
This report, addressed to Professor Taylor, reads as follows:
Since my letter of 7 February I have seen Joan on a further two occasions. At review on 29 February 1996 she reported a general marked improvement, with a reduction in headaches and particular benefit from the physiotherapy with Simon Millichip. EMG biofeedback of the upper trapezii evidenced a movement towards muscle symmetry and it was thus decided to review her in 2 months and then discharge her from my care.
Unfortunately at review today she noted that over the past 3 weeks she had experienced particular difficulty with sleep, which she attributed to ongoing niggling “toothache-like” neck pain. The sleep interruption had resulted also in marked feelings of irritability, frustration and tiredness. She had commenced Valium as a means of muscle relaxation to assist sleep which had only been partly effective. I discussed with her the necessity to continue implementing the breathing and relaxation techniques I provided her, and suggested she may benefit from switching her medication from Valium to a low dose Tricyclic such as Amitriptyline. I will be telephoning her general practitioner, Dr Williams, in Joondalup to discuss this further, and hopefully she can commence this medication and cease the Valium. She has requested a review in 2 weeks and hopefully her sleep patterns will have started to improve.
Report of Bryan Suter, Clinical Psychologist, dated 30 May 1996 (T49 at 82)
This report, addressed to Comcare, reads as follows:
Thank you for your letter of 28 May 1996. As you correctly note I had intended to provide a progress report following a review on 16 May 1996. The reason I delayed the report was that Mrs Hopkins noted that the Amitryptiline prescribed by Dr Williams had in fact assisted her sleep and low back pain, although she was experiencing increasing neck pain and headaches. It was apparent however that she was not taking this medication regularly, and I thus requested that she do so with a further review in 2 weeks.
This review occurred today. Mrs Hopkins reported that her sleep had improved markedly with regular Amitryptiline usage, noting also a marked reduction in headaches. Previously she had experienced nightly headaches but in the 2 weeks since I had last seen her she had only suffered two low intensity headaches. Her neck pain had also improved significantly, which she attributed to the regular swimming she had undertaken. EMG biofeedback readings suggest the upper trapezii muscles are moving towards greater symmetry and it would appear that her current physical management programme is assisting in the controlling of her symptoms. I therefore believe that Mrs Hopkins does not require further psychological treatment and I have discharged her from my care.
There appear however to be some potential practical difficulties with regards to Mrs Hopkins maintaining her current treatment regime. Currently she is on 3 weeks holiday which allows her to regularly swim, although she anticipates some difficulty complying with this treatment regime once she returns to work. This concern is based on the limited hours the swimming pool is available at her local gymnasium. A solution to these problems may be for Mrs Hopkins to take an extended 2 hour lunch break and then work back this time at the end of the day. She feels this could benefit work in that it would allow her to complete review of the day’s work done in her section prior to the computer being “closed down”, which would effectively facilitate a more speedy processing of claims. Also she noted that the late afternoon was quieter and would allow her to cover more work. In addition, she noted that occasionally there were problems that arose at 4.30 pm, a time when there were not always supervisors available. A concern however was that during lunchtime staff levels were already reduced by 50%, and thus to enable her to go for her regular swimming would require additional supervisory coverage.
It may be of benefit for Comcare to become involved in negotiating a change in work hours.
I would suggest however these changes be structured as part of a rehabilitative programme, such that the changes do not cause conflict but are seen to benefit all the office staff. Should you wish to discuss this further please don’t hesitate to contact me.
Finally I would be optimistic that with a maintenance of the current programme of swimming, medication and muscle relaxation techniques, Mrs Hopkins will continue to improve. ...
Report of Dr Brian Galton-Fenzi dated 26 November 1996 (T55 at 96)
This report from Specialist Occupational Physician, addressed to Comcare, reads as follows:
Thank you for your letter of 12/11/96 confirming an appointment for the abovementioned to see me.
In your letter you state that Mrs Hopkins is aware of the purpose of the examination which is to ascertain the extent of ongoing commonwealth liability for her claim for compensation as well as to identify any additional vocational rehabilitation services she may require.
In your letter you state that Mrs Hopkins reported her injury in 1992 and since that date she has undertaken extensive physiotherapy and attended Mr B Suter, a Clinical Psychologist.
Additionally you state that Mrs Hopkins commenced a gradual return to work in 1992 eventually reaching full time. In 1993/94/95 her time off work was minimal. However from May 1996 her absences began to increase again. You state that during the period of her claim Mrs Hopkins’ employer has continued to modify her work station and work duties as and when required.
Acknowledgment is made of a number of attachments with your letter which included:
•          Medical report, Dr K Ng, Rheumatologist, 5/6/92
•Medical reports, Professor J Taylor, Pain Management, 21/11/95, 19/12/95, 30/1/96
•Psychologists reports, Bryan Suter, 7/12/95, 8/2/96,15/2/96, 2/5/96, 30/5/96
•          Final medical certificate, Dr K Norcott, 1/4/93
•Rehabilitation reports, Graded Work Programme Activities, Vocational and Psychological services, Work Link, 29/5/92 - 24/11/92
•          Rehabilitation referral/information sheet, Margaret Hocking, 19/5/92.
Additionally just before I saw Ms Hopkins I received a facsimile message from the Department of Social Security, Carol Cannon, Rehabilitation Case Manager, T55 enclosing a report from the Exercise Physiologist, the Physiotherapist’s Report, and a Duty Review of an Administration Services Officer Class 4.
Ms Hopkins saw me in my Welshpool rooms on 15/11/96 acknowledging that she had been sent by the work environment unit, with permission from Comcare and believed it was “to identify what to do to avoid the aggravation of her headaches”.
In your letter of 12/11/96 you asked me to provide a report which addresses the questions below:
What is the diagnosis of Mrs Hopkins’ current condition?
She appears to have chronic strain of her lower neck and the scapular (shoulder blade) stabilising muscles and an associated occipital neuralgia.
To what extent is Mrs Hopkins’ current condition attributable to her employment related injury of 1992?
At interview she stated that in March 1992 she experienced a “major headache” one Sunday afternoon which she attributed to “a virus” taking the Monday off to visit her doctor.
On the following Tuesday she returned to work however the headache became “unbearable” and apparently attended a nearby doctor who stated that the problem was due to “ligaments in her left neck”.
Apparently a physiotherapist and/or an occupational therapist reviewed the work station, at that stage the desk was set up in an L shape with the computer to her left and the files to her right. She was not typing per se but was raising payments arising out of these files and putting them onto the computer. So therefore much of her typing was done while looking at the screen and then turning her head to look at the nearby notes to her right. She is not a touch typist using two finger typing only.
She was of the view therefore that she had right sided over compensation, to help the left ligaments which she stated where “messed up”.
She recalls having some time off, but by December 1992 she felt “okay” and decided to do an exercise programme attended aerobics twice per week (because she thought the gym was boring) and swimming once per week. She appeared not to be enjoying the aerobics too much so increased her swimming to three times per week up to June 1996. However, it appeared that her membership ran out and she was finding it increasingly difficult to find time to go for the exercises. At the time of seeing me she was exercising on Tuesday nights and weekends. She continues to experience neck ache when she is at work.
At a recent holiday she had no neck problems, she was able to swim more, do the work in the garden and walk to a nearby shops without intrusion. She also recently moved house and again experienced no problems arising out of her symptoms. She felt that this time while on holiday and moving house she was able to do what she wanted to do and from her viewpoint there was less “stress’”.
In May 1996 she had four weeks at home and she felt “good”.
She reminded me that in June 1994 she had been suffering significant headaches and therefore felt “she needed a holiday”, because she was feeling extremely tired and her job had been changed such that she now worked from the front counter seeing clients, assisting them by accessing a computer beside her. Again this required her to turn her head frequently. She took her annual leave in the United Kingdom travelling by coach from London to Dover and when she fell asleep on this coach she experienced “significant headache and ongoing thoracic ache”. As a result she needed to attend a physiotherapist in the United Kingdom who offered her a neck brace, which was helpful in reducing her symptoms.
It therefore appears that when she is not at work she has no symptoms however, on going back to work in the capacity of having to use a computer, review documents and handle clients, her symptoms return.
I note that she has given marginally differing histories and Margaret Hocking’s review on 19/3/92 there is the suggestion that the neck discomfort was a gradual onset over 1 or 2 years with a sudden onset when reaching over the desk on 19/3/92 to retrieve some paper. Therefore, in reviewing these histories and the various reports there appears to be ongoing pain and discomfort since this time though with some progressive improvement in the severity and frequency of the symptoms. It would therefore appear on the balance of probability that her current ongoing intermittent neck and headaches could be attributable to her employment related injury, of 1992.
Does Mrs Hopkins have any pre-existing condition which may be maintaining/contributing toward her current condition:
Mrs Hopkins did not attend with any CT scans or x-rays and therefore, I was unable to review those ones that you alluded to in your report. On physical examination she presents as a [sic] unsmiling, neat and well dressed 44 year old lady who gave a good and concise history. She moved with good flexibility and no apparent disability.
The cervical spine has a mild self-limited range of movements because of stated “pulling” in the right trapezius muscle area. Forward flexion of the cervical spine was 80% of expected with “pulling” in the right trapezius; extension was full and pain free; lateral flexion was 80% to both left and right tending to have “pulling” on the opposite side; rotation was 90% of expected again with “pulling” on the opposite side.
There was some mild tenderness at both levator scapulae muscles at their inserts into the shoulder blades. She stated that when she did experience neck pain she had is [sic] between cervical spine C3 and C6 in the midline, though on me this was not a problem.
Both shoulders had a full range of movements without any limitation or discomfort.
Both upper limbs were normal to full examination, there was no muscle wasting, normal power and equal reflexes. It was noted that she was right hand dominant.
Therefore from her history and my examination I was unable to identify any pre-existing condition which may be maintaining/contributing toward her current condition.
What restrictions would be placed on Mrs Hopkins with regard to the performance of her duties. She is required to undertake clerical duties including counter duties with the Department of Social security [sic]. All DSS employees are given the opportunity to vary their duties and to take regular breaks:
It is noted that currently her job as a clerk requires her to sit in front of a computer from 8.30am to 4.50pm daily. However, there are opportunities for her to take regular breaks and exercise her cervical spine and upper limbs in an effort to minimise her symptoms. She can also get up to see clients at the front desk, and in an effort to ensure that she remains an interested staff member she leans forward to the individual rather than backwards. It is at this time that she can experience some increase in her low neck ache.
I would not place any restrictions on the Department of Social Security in regards to this lady’s current duties. I think it would be important for her to break up her day between clerical, computer keyboard, client interview and other generalised clerical duties with the appropriate rest breaks and exercise activities. It would appear however that lifting anything in excess of 10kg, or having to stretch up to access high shelves or cupboards for extended periods of time all would have a capacity to cause an increase in her symptoms.
What treatment/therapy would be recommended for her and for what period should treatment continue:
It now appears that she has become quite chronic, with her symptoms having been established for at least 4½ years.
I would not be able to fault her current exercise programme with Kim Gurr and would suggest this is the only proposition for this lady. I note she continues to take Mersyndol Forte, 2 tablets on one day a week. I have discussed the implications of the use of medications and feel that it is more appropriate for her to take Paracetamol 1gm, 3 or 4 times per day and avoid the extremely strong Mersyndol Forte which she currently takes. She utilises a TENS machine for most of her sleeping time.
In summary therefore it is important for her to continue on with her exercise programme, focussed on her upper limbs and lower neck and cover this with the appropriate long term use of Paracetamol medication.
Can I suggest a time frame within which it would be reasonable to expect a cessation of the symptoms related to Mrs Hopkins 1992 injury:
As is usual in these cases, suggesting a time frame for improvement and cessation of symptoms, is difficult because of the nature of each individual’s personality and makeup. These cases do not have any known underlying impairment that is measurable or correctable and therefore relies heavily on the individual’s stated symptoms and disability. Other influences therefore are important and these are the psychological, beliefs and anxieties along with the psycho-social environment for each individual.
In reviewing this lady’s history it appears that she has improved to a large degree and remains at work, albeit with some modifications in regards to her tasks and work station and this can only be applauded. From the evidence before me, I would suggest that she will experience symptoms that are decreasing in their severity and frequency, such that her symptoms will have resolved in the next 2 years.
If her current condition is attributable to non employment factors, please comment upon the extent to which she could continue to experience symptoms (and possible aggravation of symptoms) in response to undertaking activities of daily living which are unrelated to the demands of employment:
At interview she stated that in regards to her housework she was “not doing much” with her husband (who has been made redundant) doing much of the activities such as loading the washing machine and then hanging out the laundry. She tends to do the ironing on an item by item basis when needed. She remains very active in the garden and this possibly relates to the move to the new house indicating that “she has been ripping out, and then replanting with a lot of digging” and indicates that she has no problems with these activities. She can occasionally be stiff before the event and if she experiences a headache before gardening then this can increase in its intensity.
Socially she states that she no longer attends theatre without taking some Mersyndol Forte beforehand and depends to a degree on whether she experiences headaches before, in deciding whether to go.
Therefore from the history, this case seems to be somewhat idiosyncratic in that working at clerical duties, especially when doing keyboard work or when attending the theatre these can increase her symptoms to some degree however, working in the garden on the more active tasks, appears not to bother her too much.
It is my opinion however that more activity is better than less and this should be encouraged and maintained. I am unable to identify any activities of daily living that are aggravating her symptoms as she seems to be avoiding the aggravating factors.
Report of Simon Millichip, Physiotherapist, dated 13 November 1996 (T56 at 101)

This report, addressed to the Department of Social Security, reads as follows:
Thank you for your request regarding Joan’s current status, with regard to her ongoing headache.
Joan has been receiving treatment recently from myself on a once weekly basis.
The main symptomatic areas at present are:
(i)        Left C2/3 facet joint
(ii)       Right C3/4 facet joint
(iii)       Right upper trapezius and splenius capitis.
(iv)Generalised stiffness of the cervico thoracic junction and upper thoracic area as far as T4.
Joan recently had a long weekend, and over the last year has also had holiday periods. During this time she reports significant improvement in her headache symptoms. This would obviously indicate that certain factors, at work exacerbate her symptoms to a significant degree.
Recently however, Joan has begun using a TENS machine on an as needed basis and has obtained good results in that she is able to control her headaches more effectively.
Joan, after four and a half years of having this problem has a very good feel for which functional work duties induce her headache. Essentially these exacerbations are caused by prolonged cervical flexion and any work duties which involve this, obviously, with this in mind, any ergonomic alterations at her work station which enable avoiding prolonged cervical flexion would be helpful.
As far as her injury status goes in terms of irritability, I think her headache is still quite irritable in nature in that if she has a headache it will last up to 48 hours, and is resistant to any drug or physical treatment. Joan finds exercise helpful and has been completing swimming sessions on a regular basis, which I would encourage her to keep doing.
Report of Kim Gurr dated 24 January 1997 (T59 at 105)
This report states as follows:
I met with Ms Joan Hopkins on 17th January 1997 at the Whitfords Fitness Facility.
Since last seeing Joan she has continued to exercise on a regular basis doing the hydrotherapy twice a week and the home exercises daily.
Joan reports to continue to experience ‘aching in the neck while working’ and she reports that headaches continue to be a persistent problem. Joan has recently had four weeks off work and she noticed her symptoms settled after about one week. She reports upon returning to work her symptoms increased in severity after about two weeks. She reports to continue to experience difficulty with cervical flexion and in particular when holding this posture in a sustained manner.
Joan reports to be managing all of the home exercises and can now sit in the ’postural sitting position’ for twenty minutes. She reports no difficulty with the hydrotherapy exercises.
I suggested to Joan that it would be appropriate for her to begin some progressive resistance exercises in the gymnasium soon. I also think it would be worthwhile my reviewing Joan’s work station as it would seem that her current work duties are directly implicated in an increase in her pain levels. It may be that some simple adaptations could be made to rectify this situation. I would be happy to undertake this work as I am a qualified ergonomist. I will await approval in this regard.
I have suggested to Joan that she contact me in about two weeks time in order to commence some progressive resistance exercises.
Report of Dr B Williams dated 1 April 1998 (T91 at 151)
This report, addressed to Comcare, reads as follows:
Thank you for your letter regarding Mrs Hopkins’ progress and in answer to your queries:
I first started seeing Joan on 29.06.95 with the recurring problem of neck pain which was essentially a chronic strain type of injury related to extensive terminal work in her job at Social Security. It was worse on the left hand side and at the time I prescribed anti-inflammatory medication, muscle relaxant medication and an anti-inflammatory gel massage. Since that time she has been seen on a number of occasions, two in 1995, six in 1996, three in 1997 and so far four times in 1998. Each time relating to an exacerbation of her pain but on examination she usually exhibits a full range movements but persisting muscular spasm mainly in the trapezius muscles and also the muscles which extend and lift the head, mainly the levator capitus muscles.
In addition to the above medication I have also suggested swimming (breaststroke) as well as prescribing a heat pack and suggested physiotherapy at times of exacerbations. At one stage in 1996 she was experiencing sleep problems and after discussing this with a psychologist (Bryan Suter), it was decided that a trial of Amitryptiline may be of use both for pain and night sedation. Unfortunately this left her feeling somewhat groggy and too impaired cognitively to be able to do her work so I decided to go back to her original regime namely the anti-inflammatories combined with a muscle relaxant (Diazepam) ¼ to 1 whole tablet nightly as she requires it, which serves as night sedation as well as a muscle relaxant.
In general I would report that her condition is essentially stable but there is an ongoing need for medication with intermittent analgesics and physiotherapy. I do not feel that there is any neurological component to the problem on a clinical basis and therefore do not feel we need to have a neurologist review her.
I have discussed the work place with her on several occasions and although I understand some modifications have been made perhaps there is more that can be done in this regard namely making sure that the terminal and keyboard are at an appropriate height that she doesn’t have to hang her head or alternate between the head up, head down or head sideways positions on a continual basis. I should add that with these chronic type muscular strains sometimes alternative duties or a complete change of occupation are required to resolve the problem completely.
At any rate I trust this report has bought you up to date and would be happy to keep you posted on her progress upon your request.
Report of Dr Stephen Dennis dated 29 July 1999 (T113 at 176)
This report from Occupational Physician, Dr Dennis, addressed to Centrelink, reads as follows:
Thank you for asking me to see Ms Hopkins whom I saw at the Westgate Centre 267 St George’s Terrace Perth at 3.00pm on 28 July 1999. Thank you also for the accompanying documentation including her file from Centrelink.
Diagnosis
Chronic cervical spine pain syndrome.
…
History of Current Condition
Ms Hopkins stated that in March 1992 one weekend she experienced a very severe headache. She said that it lasted throughout the weekend and she took the Monday off to treat herself with paracetamol medication. She returned to work on Tuesday. She said however that by 10.00am she was unable to hold her head up and was experiencing agonising headache.
She said she went to see a general practitioner opposite her work at Mirrabooka and said she was diagnosed as having a neck problem, having been told that the ligaments in the left side of the neck had given way. She said that this had been attributed to work because of the way her workstation was set up and said she was told that when it was inspected by someone from occupational health and safety and that it was “bound to lead to a problem”.
She was treated with physiotherapy and was off work for a while though she was unsure how long. She said she underwent a graduated return to work and by the end of 1992 had resumed full time duties without symptoms although she would still get headaches and neck pain. She said that an occupational therapist examined her workstation and corrected the shortcomings. She said that she was still experiencing weakness in the neck and after the end of 1992 symptoms continued in a similar vein.
They worsened however in 1994 and she began losing sleep because of a recurrence of bad headaches. She said that the symptoms worsened sufficiently for the compensation case to be reopened at the end of that year, 1994. Overall her headaches had increased and she was taking medication to relieve them. She said however that she did not have a lot of time off despite marked tiredness from lack of sleep. She continued to have physiotherapy.
She tried acupuncture by general practitioner Dr Si, overall this was of no help. She said that she had been referred to a Professor Taylor at the pain clinic who she said attributed her problems to work and who recommended swimming and exercises. She saw psychologist Brian Suter who tried biofeedback and she said while this was interesting and identified where her problems were originating it did not help in the long term with managing her case.
She also tried meditation and said that if she had a headache at the start of the session it would generally settle while she was meditating but would tend to recur after the completion. She has continued to have physiotherapy and describes this as manipulation, though not crunching of the neck. She said that generally this is helpful for one or two days depending on her activity and as [sic] continued to have this once or twice a week since 1994. She said that her principal problem is lack of sleep and that if she does not get sufficient rest she pays for it the next day and the problem will perpetuate itself.
She said that overall her condition has been unchanged since 1994.
She said that she has had x-rays and CT scan in 1992 and these did not reveal any abnormality. She has not had any further radiological investigations since. She said that at one stage she was involved in a self-hypnosis group through the Department’s Employee Assistance Program, she said however that she nearly crashed her car attending one of the sessions because of excessive tiredness.
She said that after this episode she was put off work by Dr Si and he was very reluctant to sign her back on. She said ultimately despite her keenness to return to work he would refuse. Ultimately someone from the Rehabilitation Section rang Dr Si and he agreed for her to return but not on computer work. She then changed her general practitioner to her current doctor, Dr Williams at Joondalup City Medical Centre.
In September 1998 Ms Hopkins commenced an extended period of leave to nurse her husband who had been diagnosed with cancer. He died in April and she found that while her symptoms improved during this time and she slept better, she was unable to undertake exercise and swimming and there was still some underlying problem that did not improve. She did continue physiotherapy throughout this time however. She said that she took a further three months leave in order to commence a walking and swimming program before she returned to work. She said that she felt good on her return to work.
Over the first week she initially coped for the first day or two but experienced a bad night with poor sleep on the Tuesday and Thursday. She said that she had made a decision for herself that if she did not get six hours sleep due to her neck pain, she could not attend work the following day. Thus the first week she broke her own rule on the Wednesday but stayed away on the Friday.
The following week she went to her supervisor and proposed a plan allowing her to take rest breaks and changes of posture and her supervisor gave approval for this. However she saw her physiotherapist on the Monday who had recommended that it would have been more appropriate for her to return to work on a graduated basis. Ms Hopkins stated that on the Tuesday and Wednesday however she was provided with appropriate relief by other staff and she coped quite well but she did notice a stiff neck.
On Thursday of the second week however she was not able to take her break at 11.30 and was not provided with appropriate relief. The same situation occurred on Friday and she said her symptoms were severe over those two days and she had a very bad night’s sleep Friday with headaches on Saturday and Sunday morning.
She said at this time a resources meeting was held and she had come to understand that if she was not able to do her normal duties then she would be removed from her job. She said this had resulted in her seeing her general practitioner who she said told her it was only a matter of time before such a problem would arise.
She said that she was referred by her doctor to a rehabilitation provider with the aim of providing alternative employment outside the Public Service. She was certified fit to work four hours a day only.
Since that time Ms Hopkins has been working from 8.30am to 12.30pm on the reception counter where she is able to stand. She says she has been coping satisfactorily with this work and said that she believes that because of an afternoon off she would be able to undertake swimming and exercising and is less likely to need to take time off as a result.
Ms Hopkins said that there has not been substantial interruption to her home duties. She said that when she has severe symptoms she simply neglects the household duties and she can generally manage them in between times. She lives at home with her 28 year old son who undertakes all the heavy work. She said that she is able to cope with such things as shopping and does not do heavy lifting or push heavy trolleys.
She said that driving has been a problem in the past and she is to buy an automatic car. She said however that she noticed over the months when she was visiting her husband in the Gairdner Hospital she would generally cope better and better with the drive down the freeway and she said in this regard things improved.
Ms Hopkins stated that she liked her current job but feels that she is not capable of undertaking it full time, at present at least. She said however she accepts that her condition is unlikely to improve in the longer term. She said the other aspect that she is wary of are the financial considerations, she said that she could not afford to reduce her superannuation to cover her in light of her husband’s death.
Past History
Ms Hopkins denied any other significant past illness and there has been no history of accidents, injuries or fractures.
Current Medications and Treatment
Her only current medication are vitamin supplementations. She continues to have physiotherapy once or twice a week.
Clinical
On examination Ms Hopkins presented as a woman of stated years. She is 160cm tall. She said that her weight had generally been steady and in the past year had been 52kilograms. This represents a body mass index of 20.3, which is in the low normal range. She appeared to sit comfortably throughout the interview but was noted to not move her cervical spine to any substantial degree.
On inspection there was no evidence of muscle wasting or deformity. She said that her symptoms were not currently severe. On palpation there was some tenderness under the occiput in C1 and C2 areas posteriorly and in the lateral musculature. There was no other substantial muscle tension spasm or abnormality under palpation.
The active range of movement of the cervical spine was reduced. Flexion was decreased by about half and extension by about one quarter. Lateral flexion was 25° bilaterally with discomfort reported on turning to the right. Rotation was 70° left and right. On examination of the upper limbs, tone, power, reflexes, coordination and sensation were all normal. She denied any upper limb symptoms at any stage of her history.
Assessment
Ms Hopkins has a chronic cervical spine pain syndrome that probably originates from the upper cervical vertebra. This appears to be chronic and no treatment has provided lasting relief. She finds that physiotherapy and analgesia will provide temporary relief but these are not addressing the underlying problem. She has not had recent x-rays but it is likely there will be some degenerative change evident in the cervical spine.
I would certainly consider it unlikely that her condition would improve in the near future and I would anticipate that resumption of full time work may not be definitely possible in the future.
I would suggest that she remain on four hours a day for the present. In retrospect it might have been more appropriate for her to return on a graduated basis. I would suggest that after four weeks her condition be reviewed with the aim of a gradual increase in hours and duties. I will be overseas but return to Perth at the end of August. That would be a suitable time to review her. If in the meantime her general practitioner puts her off work, then I would consider that that would need to be accepted and a review arranged.
I would not consider it necessary or appropriate at this stage for her to be seeking work outside of her current employment.
If it has not already occurred an ergonomic review of her workstation would be appropriate. Her current reception duties are appropriate.
Report of Dr Stephen Dennis dated 6 September 1999 (T121 at 188)
This further report from Dr Dennis, addressed to Centrelink, reads as follows:
Thank you for asking me to review Ms Hopkins whom I saw at 18 Ventnor Avenue West Perth at 3.30pm on 2 September 1999. I had previously seen Ms Hopkins on 28 July 1999.
History of Current Conditions
Since that time Ms Hopkins has continued at work five days a week, working four hours a day 8.30am to 12.30pm. She has been undertaking reception duties where she is standing up at the front counter for most of her working morning. She said that this enables her to avoid prolonged sitting or operation of screen-based equipment
She said that for the first two to three weeks of commencing this regime she coped well and did not have substantial disabling symptoms, she had continued on with her routine physiotherapy once a week. However in the third week she had her physiotherapy at lunchtime but the physiotherapist was a different practitioner from her usual one and this appeared to stir up her symptoms. She said that this resulted in increased pain throughout the afternoon and then developed into a headache.
She said that at 6.00pm that evening she took some paracetamol and continued taking these four hourly until she had taken the maximum that she could for the 24-hour period. She did not sleep at all well that night but did go in to work the next morning despite the headache being no better.
Later that day she saw a physiotherapist again. However a different one was on duty and she had some further treatment. She said that overall the headache was severe for 36 hours and by the last morning of the week she was tired and fed up with the pain. She commenced taking Dextropropoxyphene (‘Digesic’) and anti-inflammatory medication, which gradually started to improve the headache. She said however that the symptoms persisted over the weekend and she commenced taking some slow release jpiroxicam (‘Feldene’) over the following week, which appeared to assist with settling down the symptoms somewhat. She did however continue to have neck ache in the mornings for the following week. This has persisted until the present time.
She has not missed any work however throughout this neck and headache. She has developed a sore throat for the last three days and feels she may be developing an upper respiratory tract infection.
She said that last night she slept for six and a half hours, the best for quite a considerable time.
She was reviewed by her general practitioner Dr Williams of the Joondalup City Medical Centre last Saturday. She said that her blood pressure still had been slightly elevated with a diastolic blood pressure of 95mmHg.
Ms Hopkins has been seeing a psychologist through Centrelink employee assistance program providers Davison Trahaire, which has been of some assistance in dealing with the stresses earlier this year.
Ms Hopkins stated that she did not feel that she had coped as well with the return to work as she had expected and would not consider herself able to increase her hours at this stage. She said that she was still quite uncertain as to how she would deal with her future employment situation. She says that she would have difficulty with undertaking normal Centrelink duties, principally the prolonged sitting and keying aspects of the job. She said that she believes she would be able to continue working on reception duties for at least four hours and in future may be able to increase the hours somewhat though this was by no means certain.
Clinical
On examination Ms Hopkins presented in a similar manner to the July assessment. She sat comfortably throughout the interview but was noted to not move her cervical spine substantially. There was some tenderness of the lower cervical spinous processes and the C1 and C2 areas posteriorly. There was not particular muscle spasm and she reported some mild trapezius tenderness.
There was some reduction of the range of movement. Flexion was decreased by about half and was more uncomfortable than extension, which was only mildly reduced. Lateral flexion was similar to the previous assessment at 25° bilaterally with rotation about 60°, which is a slight reduction from the last assessment. There was no evidence of upper limb abnormalities by history or on examination.
Assessment
Ms Hopkins continues to experience neck and headache that is exacerbated by prolonged sitting and keying, and can be exacerbated by injudiciously applied physiotherapy. I am not optimistic of her being able to increase her hours in the short or intermediate future.
I have spoken to Dr Williams. His view was that Ms Hopkins has a chronic low-grade soft-tissue strain of the cervical spine. He commented that Ms Hopkins has been effective in managing her condition herself by means of a judicious combination of medication and physiotherapy. I would agree with this and we also concurred that it would be difficult to see Ms Hopkins progressing beyond working part-time and working in prolonged use of screen-based equipment sitting at a usual office desk.
She has not undergone formal specialist assessment or radiological assessment for a number of years. While Dr Williams and l agreed that this might offer some identification of any underlying problems it was unlikely to significantly alter the management of her condition. It does remain an option, particularly if he [sic] symptoms worsen.
Summary and Recommendations
Thus overall I would expect that she will not be fit to return to full time work and would expect this to continue indefinitely. I do not consider that she is currently fit to undertake routine Centrelink clerical officer tasks whereby she must sit and undertake keying for prolonged periods of time. I am aware that positions that do not require this are few and far between at Centrelink and the option of having her undertake long-term reception duties may need to be considered.
It may be appropriate for employment options outside of Centrelink to be considered and this may require assessment by a vocational counsellor through a rehabilitation agency. It may be most appropriate for this to be undertaken through Comcare. I would be happy to discuss this with the Compensation Case Manager if this would be of assistance.
Report of Dr Ross Whittaker, Consultant Rheumatologist, dated 28 September 1999 (T126 at 200)

Dr Goodheart’s views need to be read in light of the evidence provided by Dr Wyatt. In that regard, the Tribunal notes with concern that Dr Wyatt seemed somewhat preoccupied with discrediting Dr Goodheart’s ability to properly diagnose Ms Hopkins. Relevantly, Dr Wyatt states when questioned:
Dr Goodheart is, as I understand, a neurologist, so I’m not - he would often see headaches, but I’m not sure how many musculoskeletal problems he would deal with. It probably is the wrong time to put this in, but I should have added when I was talking about my qualifications I have got post-graduate qualifications in musculoskeletal problems as well. But - so, you know, I and a number of other doctors are regularly seeing musculoskeletal problems. By that, I mean problems of the soft tissues, muscles and - et cetera. I’m not sure how often Dr Goodheart is seeing musculoskeletal problems. As a neurologist, he would be dealing more with strokes and tumours and Parkinson-type problems.
(Transcript at 127)
This comment is in many ways akin to comments made by Dr Wyatt in relation to Dr Si, whose diagnostic skills she also sought to question. The Tribunal has rejected Dr Wyatt’s comments about Dr Si’s diagnostic abilities, noting that Dr Si was, in fact, in a better position to comment on his clinical notes than Dr Wyatt, and similarly rejects any suggestion that Dr Goodheart’s medical skills are somehow of less value than her own. The suggestion seems to be that Dr Goodheart and indeed Dr Si are less qualified in relation to this matter because neither are trained as occupational therapists. This is also a contention stressed at paragraph 96 of Comcare’s Written Submissions in reply.
In response, counsel for Ms Hopkins writes as follows:
24.At paragraph 96 of its submissions, the Respondent notes “Dr Si and Dr Goodheart did not suggest that they had that (sic) any expertise in the area of occupational medicine”. That proposition is undoubtedly true. However, as explained by Dr Wyatt, the specialty of occupational medicine is a broad one, encompassing, for example musculo skeletal issues, chemical exposure, non work caused conditions such as multiple sclerosis and might involve work on a policy level (see Transcript 118).
25.It is submitted that Dr Wyatt was not expressing any specific expertise in any one bodily system or function in the manner of an orthopaedic surgeon, respiratory surgeon or similar. It is submitted that Dr Wyatt’s area of speciality did not make her solely or uniquely qualified to give an opinion in this matter, nor that her area of expertise gave her an advantage over the other medical witnesses, particularly Dr Goodheart. …
The Tribunal agrees with this analysis. As with Dr Si, the Tribunal finds no reason to doubt Dr Goodheart’s abilities or the conclusions he draws. In relation to Dr Goodheart’s assessment of Ms Hopkins’ state of health and the reasons for that assessment, Dr Goodheart outlined in detail during examination in chief and cross examination how he approaches his clinical assessments of those who are referred to him (“history, examination and medical notes”; “… my job is to listen to the history and ask questions. My job is to examine the patient, according to how I’m directed, and look at the investigations and form a conclusion”). The Tribunal finds nothing lacking in this regard
The Tribunal is also concerned with Dr Wyatt’s evidence in relation to why it is, precisely, that Ms Hopkins suffers from a “constitutionally-based problem that would have developed in any event and without any specific cause”.
In that regard, the Tribunal notes Dr Wyatt’s written report of 8 November 2014 (T502), in which Dr Wyatt writes as follows:
She presented to have a common health problem. Population studies, i.e. studies of large groups of people, tell us that between 20% and 30% of people have long-term neck ache, and it is slightly higher in women than men. Around 10% of the population have neck ache most of the time. Ms Hopkins’ clinical problem presented as a fairly typical long-term neck problem, with tightness of the muscles of the neck and mildly restricted range of motion.
...
The most likely scenario is that Ms Hopkins will continue to suffer ongoing neck pain, with associated headaches, much as she has done over the last five to 15 years.
…
Ms Hopkins attended as a straightforward lady and her clinical examination was consistent with her reported symptoms. There were no signs of her voluntarily exaggerating her symptoms, nor of guarding or inconsistencies.
…
I consider Ms Hopkins has a constitutionally-based problem and that her condition is no longer work related.
Muscular tension can worsen with computer use or with tension in the workplace, however this would be short-term. Once the individual had stopped work, the symptoms would be expected to settle within a matter of weeks, possibly months.
There is a broad range of literature that looks at risk factors that increase the likelihood of an individual developing neck pain, however, computer use is not one of those. Computer use can cause symptoms when the computer is being used, particularly when the person is sitting in one position and there is static posture and perhaps muscular tension. However, once the person stops using the computer, any ongoing contribution from that activity would cease.
Ms Hopkins has not worked now for some 14 years. I consider any work contribution has long ceased.
…
I believe Ms Hopkins has a constitutionally-based problem. As articulated above, this is a fairly common problem in the community.
Elsewhere (R3), Dr Wyatt writes:
There is evidence that people who work at computers can have increased tension in the neck muscles, which can contribute to soreness while they are working on computers.
However, we do not have evidence that computer work by itself would cause long-term neck problems. The problem is soft tissue or muscular, there is some increased tension with static posture, particularly if the person is not used to the job or carries a level of tension in their muscles. However, with that type of problem, once the person has stopped the job, within a relatively short period the work contribution would cease.
…
In the medical report I referred to the fact that neck complaints are common in the community. A significant proportion of the community, whether they work or not, has long term neck pain.
In answer to your specific questions:
32.1.In your answers to paragraphs 5 and 6 in your report dated 8 September 2014, you stated that the applicant ‘has a constitutionally-based problem’. Please explain/clarify what you meant by this statement.
By constitutionally-based problem, I mean a problem that has not been caused by a specific work injury or other injury. By that I mean this is a problem Ms Hopkins was expected to develop, without a specific cause.
Finally, the Tribunal notes that when asked about Dr Goodheart’s assessment of Ms Hopkins workplace injury, Dr Wyatt again refers to the statistical norm and states (Transcript at 127):
... this is not an uncommon problem that Ms Hopkins has. It’s a very common problem. There is nothing about her condition that’s out of the ordinary. She has got long-term neck pain, headaches, soreness in the affected neck and areas. This is a common problem. So that’s the first thing I would say. The second thing is again I think we rely too much on the history and we need factual information about really what has happened, and so if there is a history that the problem has started with work and then been ongoing since then, you might hypothesise something like that, but there’s a clear history of problems before she started work with Centrelink and before computers and before an episode. So I think the accuracy of the history needs to be taken into account, the general - the common nature of this problem, and then the idea that some activities such as working on a computer or various work tasks sensitised to a long-term problem is just not something that we - it’s not something that’s normally hypothesised. I have never heard of that being hypothesised before. We - if this was an issue and a certain proportion of a population were being sensitised, we would have a different public health approach. We are putting our kids on computers in schools. You know, where - where - computers are everywhere. If a certain percentage of people were computer users and were becoming sensitised, we would be dealing with it quite differently. The evidence says that in fact the most common time for people to start their long-term neck complaints is in their twenties. That’s a longstanding piece of evidence. So I can’t say it makes any sense, from my perspective.
Finally, it is noted that when questioned by counsel for Comcare, Dr Wyatt explained her diagnosis as follows (Transcript at 141):
You have talked in your report, further down, about the prevalence of neck pain in the general population and you have gone on later in the report to say that you expect to see someone who had muscular tension problems ceasing work on a computer, getting some improvement in the matter of weeks and possibly months?   Yes.
Are we playing the averages there? That’s what you expect to see?   Yes.
Would you agree with me that there are people who don’t fit within the statistical norms?   Yes.
And would you agree with me that those people outside the statistical norms are in a more medically category?   The - in medicine when we are learning in undergraduate years, we are taught that the bird flying overhead is more likely to be a sparrow than a Chinese Nightingale so we start with a sensible, pragmatic approach and look at the clinical condition. Of course some people presenting with headache might have an acute episode of systemic lupus erythematosus, but we don’t deal with every problem as an outlier. We start with the basics. I don’t know if I am getting ahead of things here but we have first of all the individual with the health problem and we have the health problem and then we have the person. And so the person’s make-up has a huge bearing - and I am sure you would have seen this many times over - has a huge bearing on how they deal with the problem, what they understand about the condition and ultimately the treatment and the investigations they receive. So I apologise if I have cut off a line that - I think you were asking me about perhaps Ms Hopkins is an outlier but really, her pattern of problems is very common and fits within our normal everyday framework, so in that setting I don’t know that it is going to be helpful to suggest there’s an unusual medical problem.
Perhaps I can clarify my question. If she is still experiencing difficulties as a result of her duties from the 1990 through to 2002, then she would clearly be an outlier wouldn’t she? Because she should have had improvement within weeks and months?   Is - you asked me if she’s - if she’s had problems for a long period of time is she an outlier?
No?   No.
But if those problems are still related to her work duties she would be an outlier wouldn’t she?   I think the rheumatologist she was referred to expressed it the best - Mr Ng and he’s - in his letters he said “If it was posture at work that was the cause of the problems then when she is away from the postures of her work the problem would settle. If there’s not a material change and there’s a persistent problem then it’s an underlying problem - not the work contribution.”
I think what he said was that you would expect it to settle?   Thank you, yes.
Would you agree with that?   I would.
And not everybody progresses as expected, do they?   And we are probably now into a more philosophical discussion. Not everyone progresses as expected but here is a common health problem progressing as common health problems do so there is nothing out of the ordinary about the nature of her problem - the duration of the problem
The only thing that is unusual is if it is connected to work?   Certainly when there is a belief that there is a work condition and an acceptance there is a work condition then that complicates the situation substantially.
The Tribunal has difficulty with the approach taken by Dr Wyatt. To begin, it is not entirely clear whether Dr Wyatt is saying that Ms Hopkins has always suffered from a constitutionally-based problem (and, as such, her work environment never caused her injury) or whether she is saying that while she might have suffered an initial injury at work, any resulting pain should have stopped as soon as she stopped doing what caused the pain in the first place.
This lack of clarity may arise because, as noted by counsel for Ms Hopkins in Written Closing Submissions at paragraph 29, Dr Wyatt (unlike Dr Si and Dr Goodheart) was not “witness” to the progression of the condition. In any event, this lack of clarity is problematic.
More troubling, however, is Dr Wyatt’s focus in this context on the statistical norm and her inability to address what happens when someone does not necessarily fit the norm. As explained by counsel for Ms Hopkins (Transcript at 141):
32.Dr Wyatt's opinion appears to be largely based on statistics indicating that a large proportion of the population have long term neck ache. As Dr Goodheart pointed out, this doesn't assist greatly. We need to look at why people are suffering in this way. It is submitted that the fact that 20% to 30% of the population has neck pain does not logically lead to the conclusion that employment has no contribution in this particular case.
33.Fifthly, Dr Wyatt suggests that, if there were some contribution from employment, such contribution would last only a few months and, once a person stopped work, symptoms could be expected to settle within weeks or possibly months (T502 at page 807). The key word here is “expected”. As Dr Wyatt conceded, this is no more than playing the law of averages. The fact that most people would recover with a certain period is not helpful in the present circumstances and people don't always fit within the statistical norms.
The Tribunal agrees with this assessment. Some people do not conform to the statistical norm. The question here, and one not addressed by Dr Wyatt, is: why can’t Ms Hopkins be seen as one of those people and what do we do if we find that she is?
Overall, the Tribunal finds that the evidence of Dr Goodheart is preferred because, as outlined by counsel for Ms Hopkins, on the evidence, his opinion has the advantage of:
a)Continuity, being based upon consultations in 2002 and 2015;
b)Being consistent with much of the reliable medical evidence contemporaneous with the development of Ms Hopkins’ condition;
c)Being consistent with Comcare’s previous determinations in respect to the condition;
d)Being consistent with Ms Hopkins’ experience and evidence.
Further, as outlined above, the Tribunal was not greatly assisted by Dr Wyatt’s apparent inability to discuss the reality of persons who do not confirm to her analysis of the statistical norm in a context where it is alleged by a witness who is found to be completely sincere and honest that her pain was caused by her work environment and is ongoing. To simply dismiss this version of events because this is not what “usually” happens is problematic, particularly when nothing in the previous 30 years of medical reporting specifically rejects a connection between work and the injury in question.
Throughout the hearing of this matter and in written submissions, it was contended by Comcare that Ms Hopkins’ condition may well have resulted from an event outside of her employment. Reference is made, for example, to a “weekend event” prior to seeing her doctor in 1992. In that context, it is suggested that Ms Hopkins suffered some sort of traumatic event at home that had nothing to do with her employment:
8.Initially, approaching the application of the applicant for compensation from a common sense view point, the respondent submits, that if employment, whether as a result the use of computers or otherwise, was a factor in the initiation of the headaches and/or neck problems, then more likely, the headaches and/or neck problems would have started at work, and not out of work hours on a Friday night and over a weekend, and that the applicant would have related particular work activities to headaches and any neck problems without the necessity for the provision of that advice by a medical practitioner. Evidence is lacking as to what Dr Northcott had in mind or what medical theories he subscribed to when he provided any information to the applicant.
16.The fact that the applicant worked with DSS and computers prior to the ‘weekend’ of itself does not indicate that that work played any part in ‘setting up’ as yet undisclosed medical condition, contended for by the applicant, somehow disclosed by the headache on the weekend and subsequent complaints of headaches and neck aches.
17.In any event, if the Tribunal does not accept the primary submission of the Respondent that the applicant’s headaches and neck aches are explained by reference to constitutional factors (not employment related), there exists an alternative explanation, for the initiation of headaches and neck aches namely that something happened on the ‘weekend’ (commencing Friday night) which resulted in the headaches and the neck aches. The applicant may have twisted her neck or did something, unknown to her, which provoked the headache or otherwise had a headache. It is not uncommon experience for people to wake up with sore necks and to have headaches with or without neck aches.
In relation to this issue, counsel for Ms Hopkins argued as follows:
6.The Respondent, at paragraph 8 of its submissions, goes on to submit that, from “a common sense view point”, if work was a factor in the initiation of the headaches and/or neck pain it might have been expected that the problem would have started at work and not out of hours. With all due respect, this analysis overstates the importance of the March 1992 events. As Dr Goodheart points out there was a history of neck pain and headaches in the context of the introduction of computers in the workplace. The specific incident of March 1992 may have been connected to the Applicant’s work duties or may simply have been a “sentinel event” (Transcript at top of page 94 and further at pages 112 and 113).
The Tribunal agrees and accepts Dr Goodheart’s assessment that the “weekend issue” represents a sentinel event leading Ms Hopkins to seek medical assistance – medical assistance that ultimately drew, in her mind, the connection between her work duties and her medical symptoms. There is also no concrete evidence before the Tribunal to support the suggestion that some sort of event happened at home to cause Ms Hopkins symptoms. Rather, the majority of the evidence before this Tribunal points to a causal connection between Ms Hopkins’ work related activities and her physical symptoms.
Further, the fact that Ms Hopkins first noticed her symptoms at home is not significant in the circumstances of this case. What matters is whether her symptoms (regardless of where she first noticed them) were materially contributed to by her work environment.
It is also suggested that at a later date, Ms Hopkins hurt her neck while travelling on a coach and this may well have been the cause of her ongoing, long term pain.
There is again very little evidence to support this contention. Further, the Tribunal again stresses that it is not necessary that Ms Hopkins’ work environment be the sole cause of her condition. Theoretically, there may have been multiple events that caused headaches and neck pain. What matters, however, is whether Ms Hopkins’ symptoms were materially contributed to by her work activities. If that contribution is to a material degree, it is beside the point that other factors also contributed. Nor does it matter that factors outside of employment also contribute to a material degree. The legislation does not require employment to be the sole, proximate or dominant cause of an injury: Su v Comcare [2011] AATA 934; Comcare v Reardon [2015] FCA 1166.

It has also been suggested that Ms Hopkins’ condition cannot be seen to be work related because her symptoms appear to be transitory – ie, they “come and go”; she has less pain when on holiday; she can sometimes do the gardening without pain etc. The Tribunal rejects this analysis. On the evidence, discussed further below, the Tribunal is satisfied that Ms Hopkins’ symptoms are not transitory. She was medically retired in 2002 because her condition made it difficult for her to work and the evidence shows that since then, despite moments of relief, her condition continues to negatively impact on her overall physical well-being. The pain she experienced became chronic and is now ongoing. The important question for this Tribunal is whether the pain she has experienced and now experiences when she does experience it is materially contributed to by her work with Comcare. As discussed below, the Tribunal finds this to be the case, both past and present.
Finally, in relation to whether Ms Hopkins remains incapacitated for work, the Tribunal notes the very firm conclusion of both Dr Si and Dr Goodheart that Ms Hopkins is totally unfit for future work because of her accepted condition and that recent departures from her physiotherapy routine (caused by Comcare’s cessation of compensation payments) has resulted in an increase in her physical discomfort and standard of living. The evidence is clear that Ms Hopkins remans incapacitated for work and that, in the circumstances, her medical treatments, including physiotherapy, are entirely reasonable.
FINDINGS
On the evidence, the Tribunal finds that Ms Hopkins suffers from a medical condition best described as a diffuse pain syndrome of soft tissue origin, associated with cervical and thoracic spine symptoms with associated muscle contraction headache. For the reasons outlined above, the Tribunal makes this finding on the basis of the detailed medical history and evidence provided by Dr Goodheart, who has examined Ms Hopkins on three occasions between 2001 and 2015.
This condition constitutes “an ailment” as that term is defined in section 4(1) of the SRC Act 1988.
The question then is whether Ms Hopkins’ ailment was contributed to in a material way by her employment with Comcare. If so, then Ms Hopkins can be found to be suffering from an “injury” as that term is defined in the SRC Act 1988.
On the evidence, the Tribunal finds that Ms Hopkins’ condition was contributed to in a material way by her employment with Comcare and that the condition arose at least from 1992 – the date of her compensation claim.
The Tribunal makes this finding on the basis of the evidence provided by Ms Hopkins in relation to her work related duties with Comcare and the contemporaneous records kept by Comcare which document difficulties Ms Hopkins was having with specific tasks at the time she was injured. For the reasons outlined above, the Tribunal also accepts as entirely credible the evidence of Ms Hopkins’ General Practitioner, Dr Si, that prior to the date of injury Ms Hopkins did not suffer from the type of symptoms she experienced post injury. The Tribunal also attaches significant weight to the evidence of Dr Ross Goodheart who outlines a clear causal connection between Ms Hopkins’ employment duties with Comcare and her past and current state of health.
The Tribunal does not accept arguments advanced that factors external to Ms Hopkins’ employment were the cause of her condition. There is no reliable evidence to substantiate that contention.
The Tribunal also accepts the evidence of Dr Si and Dr Goodheart that Ms Hopkins’ current symptoms remain work related and that she remains totally unfit for work. In that regard, the Tribunal notes with considerable concern the fact that Ms Hopkins’ physical condition has deteriorated since Comcare denied her ongoing compensation payments in November 2014, resulting in a reduction in her physiotherapy treatments – which treatments the Tribunal finds are useful and necessary, and thus entirely reasonable, in the circumstances of this case.
For the reasons outlined above, the Tribunal specifically rejects the evidence of Dr Wyatt that Ms Hopkins’ current condition is of a constitutional nature and no longer related to her employment with Comcare. The Tribunal echoes the sentiments expressed by counsel for Ms Hopkins that Dr Wyatt’s opinion, running contrary to much of the medical evidence before this Tribunal, covering 30 years, is not sufficient to justify a finding that Ms Hopkins’ condition is not now, or indeed was never, work related. The Tribunal finds that there is insufficient evidence of any fresh materials or advances in medical knowledge relevant to Ms Hopkins’ condition, only that a medical practitioner has been engaged who reaches a different conclusion to those who came before her. As outlined above, the Tribunal does not accept the conclusions drawn by Dr Wyatt and finds that Ms Hopkins’ condition was materially contributed to by her employment with Comcare and remains so.
On the basis of all of the evidence before it, the Tribunal thus finds as follows:
a)In the period from at least 1992 to 19 November 2014 (the date Comcare ceased liability payments), Ms Hopkins suffered from an ailment as that term is defined in the SRC Act;
b)This ailment was contributed to in a material degree by her employment with Centrelink;
c)Ms Hopkins thus suffered “a disease”, hence “an injury”, as those terms are defined in the SRC Act at the relevant date;
d)Ms Hopkins was medically retired in 2002 and from that time until 19 November 2014:
·the effects of her injury caused incapacity for work for which Comcare is liable to pay compensation; and
·the effects of her injury warranted medical treatment for which Comcare was liable to pay compensation.
Further, the Tribunal finds:
a)In the period following the date of Comcare ceasing liability payments on 19 November 2014, Ms Hopkins continued to suffer from an ailment as that term is defined in the SRC Act, described as “a diffuse pain syndrome of soft tissue origin, associated with cervical and thoracic spine symptoms with associated muscle contraction headache”;
b)This ailment was contributed to in a material degree by her employment with Centrelink;
c)Ms Hopkins thus suffered “a disease”, hence “an injury”, as those terms are defined in the SRC Act at the relevant date;
d)From 19 November 2014 until the present:
·the effects of her injury caused incapacity for work for which Comcare was liable to pay compensation; and
·the effects of her injury warranted medical treatment for which Comcare is liable to pay compensation.
DECISION
For the reasons outlined above, the decision under review is set aside.
In substitution it is decided that Ms Hopkins’ incapacity since 19 November 2014 (the date of ceasing liability) has been caused by an accepted condition defined as a diffuse pain syndrome of soft tissue origin, associated with cervical and thoracic spine symptoms with associated muscle contraction headache. Further, any medical treatment Ms Hopkins has required since 19 November 2014 has been in relation to her accepted condition. Comcare is therefore liable to pay compensation to Ms Hopkins for incapacity payments or medical treatment as of 19 November 2014 pursuant to sections 16 and 19 of the SRC Act.

I certify that the preceding 210 (two hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr C Kendall.

....................[sgd]..........................................
Administrative Assistant
Dated 23 September 2016

Dates of hearing 12 and 13 April 2016

Date final submissions received 4 August 2016

Counsel for the Applicant Mr T Offer

Solicitors for the Applicant Trewin Norman & Co

Counsel for the Respondent Mr J Lenczner

Solicitors for the Respondent Australian Government Solicitor

[2016] AATA 742

23 September 2016

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Statutory Construction

Remedies

Appeal

Division	GENERAL DIVISION
File Number	2015/1177
Re	Joan Hopkins
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President Dr C Kendall
Date	23 September 2016
Place	Perth

Dates of hearing	12 and 13 April 2016
Date final submissions received	4 August 2016
Counsel for the Applicant	Mr T Offer
Solicitors for the Applicant	Trewin Norman & Co
Counsel for the Respondent	Mr J Lenczner
Solicitors for the Respondent	Australian Government Solicitor