JAL and Comcare
[2007] AATA 1810
•25 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1810
ADMINISTRATIVE APPEALS TRIBUNAL ) Nos T2006/29, T2006/76 &
) T2006/167
GENERAL ADMINISTRATIVE DIVISION )
Re JAL Applicant
And
COMCARE
Respondent
DECISION
Tribunal The Hon C R Wright QC (Deputy President) Date25 September 2007
PlaceHobart
Decision 1. T2006/29. The application to review, having been withdrawn by the applicant, is dismissed without proceeding to review pursuant to Section 42A(1A) and 42A(1B) of the Administrative Appeals Tribunal Act 1975.
2. T2006/76. The reviewable decision is set aside and in lieu thereof it is declared that on and from 21 March 2006 the applicant continues to be entitled to compensation for medical treatment under Section 16 of the Safety, Rehabilitation and Compensation Ac 1988. The matter is remitted to Comcare to proceed in accordance with this declaration.
It is ordered that the applicant's costs of these proceedings be paid by the respondent. If such costs are not agreed between the parties, they are to be taxed or settled in accordance with Section 67(13) of the Safety, Rehabilitation and Compensation Act 1988.
3. T2006/167. The reviewable decision is set aside and in lieu it is ordered that in assessing the applicant's normal weekly earnings for the purpose of calculating her weekly compensation entitlements under the SRC Act, the training allowance of $45 per week payable in respect of her training at "Business as Usual" is to be taken into account as factor "A" under section 8(1). The matter is remitted to the respondent for this purpose.
It is ordered that the applicant's costs of these proceedings be paid by the respondent. If such costs are not agreed between the parties, they are to be taxed or settled in accordance with Section 67(13) of the Safety, Rehabilitation and Compensation Act 1988.
[Sgd: The Hon C R Wright]
Deputy President
CATCHWORDS
Compensation - Disabled benefit recipient accepted for work training/experience - Injury following repetitive tasks preparing letters for distribution to business clients' of training business - Accepted as work-related and compensable under SRC Act - Subsequent medical reports expressed opinions that claimant's then existing disabilities not related to work injury - Entitlements terminated - Termination upheld on internal review - 3 applications for review to AAT - Central issue - were applicant's upper body disabilities the result of her work injury - Competing medical opinions considered - Tribunal found that those disabilities were caused by the work injury - Application to review upheld - Compensation - SRC Act 1988 - Applicant claimed NWE should be assessed taking account of $45 pw training allowance payable during period of applicant's work training pursuant to Disability Services Act 1986 Section 24 - Claim rejected by Comcare - Application to review upheld by Tribunal
Safety, Rehabilitation and Compensation Act 1988, s5(6), s8(1)
Disability Services Act 1986, s 24, ss 1, 2, 3, 4
Almond and Australian Postal Corporation 2007 [AATA] 1365
Sutton v Comcare (AATA 10935 16 May 1996),
Zarb v Comcare (1997) 48 ALD 718
Bortolazzo v Comcare (1997) 75 FCR 385.
Scott v Sun Alliance Australia Ltd (1993) 178 CLR 1.
REASONS FOR DECISION
25 September 2007 The Hon C R Wright QC (Deputy President) The Application for Review
1 There are 3 applications for review before the Tribunal. They were heard together in Hobart on 4,5 6 and 7 September 2007. T2006/29 was withdrawn by counsel for the applicant on 5 September 2007. The Tribunal's decision in matters T2006/76 and T2006/167 was reserved on 7 September 2007.
2. Viva voce evidence was presented at the hearing from the applicant, several medical practitioners, an osteopath and a number of lay witnesses. A number of documentary exhibits, consisting mainly of medical notes and reports were also received into evidence. The applicant was represented by Mr J Crotty and the respondent was represented by Mr B Morgan and Mr J Shears.
3. All three applications for review arose from Comcare's rejection of claims made by the applicant in respect of injuries which she sustained in the course of work training in which she was engaged, with "Business as Usual" in Hobart, on 6 September 2001. The applicant had been placed with that organization by CRS Australia as part of a program initiated to enable the applicant to undertake employment in the paid workforce. The applicant, now aged 25 years, has been in receipt of a disability support pension since aged 16 as a consequence of a number of major congenital abnormalities. While engaged in work placement with "Business as Usual" the applicant was taken to be an employee of the Commonwealth as the result of a ministerial declaration made under s5(6) of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
4. The work being performed by the applicant at the time she suffered her injury could not be regarded as particularly onerous or difficult if judged by the normal physical capabilities of an adult female, but in the applicant's severely compromised and vulnerable condition, it had significant disabling consequences.
5. The applicant's initial claim under the Act was accepted on 28 October 2001. Her work caused injury was then described as "sprain of unspecified site of shoulder and upper arm (right) and wrist sprain (right)". This was subsequently amended on 31 January 2005 by adding "intervertebral disc disorder - thoracic region". This latter condition was included by the determining officer as a result of considering Dr Hilton Francis' report of 24 September 2004 in which he described the applicant's condition resulting from the work incident of 6 September 2001 as "thoracic outlet syndrome". The determining officer explained in her letter to the applicant dated 31 January 2005 why the determined condition differed in wording from that described in the medical report.
6. On 17 December 2002 the applicant claimed compensation in respect of the loss of a training allowance of $45 per week which had been payable to her under the provisions of the Disability Services Act 1986 during the period that she was training with "Business as Usual". The applicant contended that this allowance should be taken into account as part of her NWE (normal weekly earnings) under s8 of the Act thus entitling her to weekly compensation payments during her ongoing incapacity. This claim was rejected on 3 January 2003 (T3 - T2006/167) and that determination was later affirmed, but varied, as a consequence of an internal review on 20 May 2003, in which the finding was made that the applicant's NWE as at the date of injury was "Nil". An application to review this determination is contained in T2006/167.
7. On 2 September 2005 Dr Graeme Jones performed a medico-legal assessment of the applicant and concluded that her then current condition was not related to her injury in September 2001. He expressed the opinion that she was not suffering from thoracic outlet syndrome but from a mild form of cerebral palsy.
8. On 21 March 2006 a Comcare determining officer determined that the applicant "is not presently entitled to compensation for medical treatment under section 16 of the SRC Act". On 23 May 2006 this determination was affirmed by a review officer.
9. It is in respect of this determination that the applicant now seeks a review by the Tribunal in T2006/76. It should be noted that although the respondent has made its relevant determinations on the basis that the applicant's present need for medical services results from congenital abnormalities rather than the injury on 6 September 2001, there has been no attempt by Comcare to review its original determination to accept liability for the injury suffered by the applicant on that occasion (cf. Almond and Australian Postal Corporation 2007 [AATA] 1365). Accordingly, if the correct finding in the present proceedings is that the applicant's current symptoms and resultant disabilities and incapacities are the result of the 6 September 2001 incident and not some supervening or pre-existing condition, she will be entitled to succeed, subject, of course, to establishing the other components of each of her claims.
10. On 24 May 2005 (T30 - T2006/76) the applicant's solicitors lodged a claim with Comcare for compensation for permanent impairment arising from the September 2001 injury pursuant to the provisions of s24 and s27 of the Act. Relying on the opinion of Dr Graeme Jones referred to in para 7 (above), the claims officer rejected the claim. On 14 February 2006 that decision was affirmed by the respondent's review officer. On 1 March 2006 the applicant's solicitors lodged an application to review with the AAT. This application is the subject of T2006/29. As already mentioned the application to review was withdrawn on 5 September 2007, apparently for procedural reasons, during the course of the combined hearing.
The Applicant's History
11. The applicant was born on 5 October 1981. She is single and lives with her parents at Lenah Valley. She is unemployed and continues to receive disability payments in respect of chronic pain in her back and legs. These payments commenced nearly 9 years ago and were based upon the applicant's disabilities resulting from congenital abnormalities. The applicant's difficult history of interrupted schooling, rehabilitation and medical treatment is outlined in Exhibit A3. There is no need to reproduce it in these reasons.
12. In October 2000 the applicant consulted Dr Tethys Scheibner, a qualified osteopath and, as a result of treatments received from Dr Scheibner, she began to experience a reduction of pain levels in her lower back and limbs. In her evidence Dr Scheibner confirmed that prior to September 2001 the applicant had not complained of or sought treatment for pain or any other adverse symptoms in her right hand, arm, shoulder or neck. Dr Scheibner was asked by CRS to assess the applicant's work capabilities in October 2000, and, subject to written cautions against providing her with over strenuous working tasks, Dr Scheibner confirmed the applicant as suitable for assisted work experience.
13. In April 2001 the applicant was accepted for work experience for about 6 weeks at "The Mercury" newspaper. She carried out receptionist and research duties. She enjoyed the work and performed creditably. After this she did some receptionist work at Lenna Hotel for about 2 weeks. She started with "Business as Usual" on 13 August 2001. She performed clerical and general office duties. There is no need to describe them in detail. The simple fact is that on Thursday 6 September 2001, as a result of folding a large number of papers and inserting them into envelopes over a period of several hours she began to experience soreness and aching in her shoulders, neck and upper back. The following day she returned to work and performed similar tasks. She continued to experience pain and discomfort. This increased over the weekend. On the following Monday she consulted Dr Stewart Gardner, a general practitioner acting as locum for Dr Richard Jackett at New Town. Dr Gardner's provisional diagnosis was "repetitive strain injury to the right arm".
14. The applicant did not return to work at "Business at Usual" and between 17 September 2001 and 7 January 2002 she saw Dr Jackett for treatment. Dr Jackett found it difficult to make a firm diagnosis of the applicant's condition and was initially reluctant to refer her for specialist assessment. However he eventually referred her to Dr Hilton Francis, a specialist rheumatologist and pain management consultant, whom she saw on 14 February 2002.
Dr jackett
15. Dr Jackett noted in his medical report of 20 April 2002 (T8 - T2006/29) that between 17 September 2001 and 7 January 2002, the applicant's symptoms: "fluctuated in intensity and location" and in his referral letter to Dr Francis of 16 Dec ember 2001 (Exhibit A5) he noted:
"On 22/10/01 when I saw her, her condition appeared to have resolved and [I] certified her fit to return to work".
However his clinical notes of 23 November 2001 (5 weeks later) reveal that the applicant was then complaining of right elbow and back pain. Dr Jackett was not called to give oral evidence by either the applicant or the respondent, so one must be guarded as to what, if any, inferences should be drawn from the evidentiary documentary material which deals with his assessment and treatment of the applicant. I think that all that can reasonably be concluded is that he was highly optimistic about the applicant's complete recovery and was suspicious that the applicant's parents may have been exaggerating the applicant's symptoms. In the circumstances I think he may have failed to understand the extent to which the applicant's fragile and compromised physiology as a consequence of her severe congenital problems predisposed her to suffer injury and succumb to pain and disability from comparatively minor trauma.
16. In reaching this conclusion I have been conscious that I have not had the benefit of hearing from either of the applicant's parents who would undoubtedly have been in a position to provide valuable information as to the applicant's disabilities and symptoms. I am also mindful of the fact that the applicant's credibility as to her consultation with Dr Jackett on 22 October 2001, was called into question as a result of his (presumably) contemporaneous clinic note in which it is noted that she said that she was "almost better". The applicant denied telling Dr Jackett that she was almost better and it is indeed strange that she should have done so when it is considered that only 6 days before she had consulted Dr Scheibner who noted:
"Still no better, getting shaking of her right arm, fingers blue, cold, right knee sore as well, not good generally".
At the same time Dr Scheibner noted that she had attempted:
"very gentle release of cervicothoracic junction, neruomyologic will not release, got sweaty and sympathetic".
The last paragraph of this note, in particular, appears to me to be of significance in respect of the evidence of other doctors who saw the applicant subsequently but failed to detect evidence of reflex sympathetic dystrophy or, to give it is more commonly used modern name, complex regional pain syndrome.
Dr Hilton Francis and Dr Peter Sharman
17. After his initial consultation with the applicant, Dr Hilton Francis continued to see her on a more or less regular basis and he kept Dr Jackett informed of the diagnostic steps and treatment by medication which he was prescribing. In a comprehensive report addressed to Comcare dated 22 April 2002 (T9 - T2006/29) Dr Francis described the applicant's account of the events of September 2001 at "Business as Usual" and continued:
"By the end of the day she was aching. She described a classical lower brachial plexus pattern of discomfort in to the arm with paraesthesia in an ulna distribution in her hand with the ache across the wrist, aching at the elbow and aching at the shoulder girdle and the upper torso and neck region. This was predominantly right sided.
Symptoms escalated through until November when she appeared to develop a more global neurological change. She developed excessive sweating on the right side of her body. She described vascular changes. All of this I felt was consistent with an autonomic overactivity as part of her neurological insult.
She also developed diffuse right sided allodynia and hyperalgesia. This fitted in to previous areas of pain in her ankles, knees and back".
During his oral evidence Dr Francis said that the vascular changes which he noted consisted of coldness in the right hand. In his report he also noted that the applicant was "generally clammy". He also said in his report:
"On the history that she gave she had a classical lower brachial plexus functional thoracic outlet syndrome coming on in association with the static loading in September 2001. Unfortunately because of previous problems and anxieties associated with the outcome she has gone on to develop a more global alteration in the neural supply with central sensitisation and autonomic overactivity".
He also said that he had not doubt that the applicant's work duties in September 2001 would be the cause of "precipitating this outcome on the background of some underlying predisposition". In his opinion the presence of neural irritability and central sensitization (as manifested by the autonomic overactivity), suggested that the prognosis "for settling just with time is not good".
18. In a later report of 12 December 2002 addressed to the applicant's solicitors (T10 - T2006/29) Dr Francis reported as follows:
"On the history she gave, I felt that in September 2001 she had developed symptoms in her lower brachial plexus in the right arm associated with static loading consistent with thoracic outlet neurologically based symptoms. The secondary components that developed were associated with the stress and anxiety responses with a more global alteration in her neural supply associated with central sensitisation and autonomic over-activity that became evident with this.
Effectively, I thought the problems were inherent in her structure and it was her structural risk in association with her activities that was the source of her problems. I do not think her body was every going to cope well with static loading activities.
...
"When I saw her on 8 August 2002, she was becoming more symptomatic, not less. She still had the predominant features of a lower brachial plexus thoracic outlet syndrome. She had however developed more diffuse neck pain, headaches and right temperomandibular joint dysfunction. There was an escalation of her longstanding right foot pain. I felt this was just all part of the stress response and the central sensitisation".
19. Dr Peter Sharman, a consultant occupational physician, also provided a medical report to the applicant's solicitors. His report dated 29 November 206 became Exhibit A2. Dr Sharman also gave oral evidence. In his report at page 3, he provides a useful account of the applicant's then current status. The applicant's evidence at the hearing tends to confirm that Dr Sharman's description is still applicable to her present condition. Dr Sharman said:
"At the time of my assessment, JAL reported ongoing problems with bilateral shoulder girdle pain, worse on the right. She has continuing problems with hand and wrist pain, particularly on the right side and finds she has tingling and numbness affecting the 4th and 5th fingers of her hands.
She remains under review by Dr Francis on a 6 monthly basis and is due for her next review in January of next year. As outlined previously, she continues to take Neurofen and occasional Deptran tablets at night.
JAL reported she is very restricted in her activities as a result of her ongoing pain. Her symptoms limit all her upper limb activities, particularly on the right side.
JAL reported that she spends her time at home watching TV and listening to the radio and reading for limited periods. She reported that she has had an occupational therapy assessment of her home and a trolley has been provided for her to put things with an adjustable slope to allow her to read. She finds that she can read for periods of up to about 30 minutes, but if she exceeds that period she experiences increased problems with neck pain and hand symptoms.
JAL reported that she does not drive and finds that travelling in a vehicle as a passenger is difficult, as the jarring affects her right arm.
JAL reported that she cannot do any housework and needs some assistance with activities of daily living. Her mother assists her with drying herself after her shower, but she can manage wash her own hair. She manages most aspects of dressing herself, but sometimes has difficulty with buttons, zips and her bra strap. She is independent in toileting.
JAL reported that she finds it difficult to cut meat and has large handled cutlery to make eating tasks easier.
JAL reported that she has recently been studying through an open learning program from TAFE in Queensland. She had been studying freelance journalism. She uses a laptop computer and can manage at times with periods of up to 30 minutes, but often she can only use a laptop computer for 5 to 10 minutes before she suffers with an increase in her symptoms.
In summary, JAL reported a high level of ongoing disability as a result of bilateral neck, shoulder and arm pain, worse on the right side. She has been unable to work in any capacity since the onset of her condition, however she has been able to participate in a flexible distance learning program to further her education. She cannot perform any significant domestic tasks and requires some assistance with her activities of daily living".
Dr Sharman expressed his opinion in the following terms:
"JAL has developed a chronic pain syndrome affecting both upper limbs following a period of intensive office based work in September 2001. Although it is clear that JAL had significant pre-existing problems with a spinal scoliosis and thoracic asymmetry, it seems clear that the onset of her symptomatic condition commenced only with the repetitive tasks involved in her work trial
I would agree with Dr Francis that she has neuropathic pain, most likely due to pressure and traction effects on her brachial plexus associated with the upper limb and postural requirements associated with her work. I think it is quite reasonable to describe this as a "functional thoracic outlet syndrome". While it may be difficult to understand that a short period of office based work could trigger such a condition, I think it is understandable on the basis that she had significant pre-existing asymmetries which rendered her much more vulnerable to neural irritation and once this developed, a self perpetuating condition has arisen with central neural sensitisation and development of a chronic pain condition with associated autonomic overactivity, as evidenced by her increased sweating and vascular changes affecting both her hands.
Her prognosis in terms of an improvement and resumption of physically based tasks is quite poor, given the lack of improvement to date over the last 5 years. While it might be reasonable to try and correct some of her underlying biomechanical problems by a very gradual correction of her marked leg length discrepancy, I am doubtful this will result in any significant change in her neuropathic pain as it is now well established".
Whilst agreeing with Dr Francis, Dr Sharman noted as follows:
"I would accept that JAL has bilateral upper limb neuropathic pain caused by neural traction and pressure at the level of the brachial plexus, which could be described as a "functional thoracic outlet syndrome". She does not have a true thoracic outlet syndrome with neural and vascular compromise caused by a abnormal bony structures at the thoracic outlet. I can see no evidence that she has cerebral palsy. It is possible that the abnormalities evident on imaging of her cervical spine may be contributing to the neural irritation and her chronic pain".
20. Dr Sharman concluded his report with the following observations:
"As the treating specialist who has seen JAL on many occasions, I think Dr Francis is in the best position to make judgements about causation and prognosis of her condition. Certainly, Dr Francis' assessment is consistent with my own, whereas Dr Lethlean's assessment that her presentation represents illness behaviour is hard to accept. I do not see how Dr Lethlean can reconcile the clinical findings of markedly abnormal muscle function, neurological findings, circulatory changes typical of autonomic overactivity and the earlier changes on nerve conduction studies with illness behaviour. Any psychological illness that has developed is very likely to be secondary to her physical problems".
I found both Dr Francis and Dr Sharman to be highly persuasive witnesses both in their analysis of the applicant's condition in their reports and in their presentation and responses while giving evidence from the witness box. They were both called to give evidence by the applicant.
The Respondent's Medical Witnesses
21. The respondent called expert evidence from three medical witnesses; Dr Keith Lethlean a consultant neurologist, Dr Peter Stevenson a consultant physician and Professor Graeme Jones a consultant rheumatologist. Professor Jones gave evidence last but provided the first report dated 2 September 2005 so I will deal with his evidence first.
22. Professor Jones described his examination of the applicant in his report of 17 September 2005 (T34 - T206/29) as follows:
"Examination showed a young lady with marked body asymmetry. In the right arm in particular she had increased tone and clonus which is a sign of an upper motor neurone lesion, not a problem with the arm itself. He reflexes were very brisk. There was diffuse weakness in the arm without sensory changes. The pulses were normal including on abduction of the shoulder.
She also has an x-ray of her cervical spine which showed no cervical ribs but the C7 transverse processes were somewhat prominent. The formal report of the nerve conduction studies suggested asymmetries of sensory action potentials were noted and polyphasic potentials which were difficult to interpret and could have represented a number of abnormalities including carpal tunnel syndrome, thoracic outlet syndrome or even higher abnormalities.
I arranged an MRI scan of her brain and cervical spine. The MRI scan of the brain showed prominence of the ventricular system for her age which is consistent with cerebral atrophy. I suggest this is related to her other congenital abnormalities. The MRI scan of the cervical spine showed reduced dimensions at C4 and C5 with narrow disc space and degenerative disc changes at C6/7 resulting in some exit foraminal narrowing at C6. There was also thought to be a small fluid collection consistent with a syrinx".
He also made the following observations:
"In this case it is virtually impossible to envisage any significant work related injury that could result in ongoing severe symptoms over such a period of time from what were really quite minor work duties. It may have been reasonable for these symptoms to lead to temporary worsening of pain, but not for them to be ongoing. Furthermore the signs are not consistent with direct damage to the limb. They are more consistent with cerebral atrophy and what I would regard as a mild form of cerebral palsy affecting the arm".
The cause of the claimant's pain is unusual. Some of her symptoms and signs are most consistent with being a mild form of cerebral palsy and possibly neck damage causing this. There is no direct problem with the arm. She does not have any hard evidence of thoracic outlet syndrome. Specifically the signs and investigations for this are negative. It is however a difficult diagnosis to establish with any degree of certainty.
I can envisage no way in which her current condition is related to her injury in September 2001.
There are no treatments in this case that are likely to make a difference to her pain".
Professor Jones reaffirmed his opinion in a further medical report of 30 May 2006 (Exhibit R7). He agreed with Dr Francis that the applicant had "neuropathic pain" but strongly disagreed with him on other matters. He said that he had no reason to change the conclusions expressed in his original report.
23. Dr Lethlean provided 3 reports to the Australian Government Solicitor on 5 July 2004 - (T20 - T2006/29), 16 December 2004 - (T23 - T2006/29) and 23 May 2006 (Exhibit R6). He also gave oral evidence by video link. Dr Lethlean saw the applicant on 24 June 2004. He has not seen her since. In his first report he reviewed her history (which did not differ in any material respect from the history supplied to other medical practitioners) and his examination. He considered x-rays taken in February 2003 and nerve conduction studies carried out by Dr Bruce Taylor on 14 January 2003. He reproduced Dr Taylor's conclusions in his own report. They were as follows:
"The electrophysiological findings were difficult to interpret, but with the decreased SNAP amplitudes on the right compared to the left were in keeping with a mild proximal neuropathic injury supported by the findings of mild inactive denervation of lower trunk innervated muscles on the right. There was evidence for mild superadded Carpal Tunnel Syndrome on the left, which tended to confuse things. These findings were suggestive of, but by no means diagnostic of, Thoracic Outlet Syndrome, right more than left".
He expressed his diagnosis as follows:
"This is difficult; in my opinion "chronic illness behaviour" is the best descriptor.
Initially, use-related muscle pain (myalgia) is accepted, but the increase and the persistence of pain and restriction is not explained by any medical disorder, nor by the initial injury.
Subsequent restrictions have resulted in little use of the limbs and continuing difficulties cannot be reasonably attributed to ongoing activity".
In response to specific questions addressed in the referring letter from Australian Government Solicitor he gave the following opinions:
"The precipitating factor for the applicant's condition would appear to be the particular manual activity of the Thursday/Friday (6 September 2001), which may well have produced muscle aching. It appears that this led to a functional decompensation with increased pain as reported and a marked restriction in activity, for which no physical basis is established.
...
In my opinion, the term thoracic outlet syndrome is not applicable. The extent of pain initially, with marked cervical involvement and restriction, argues for a more anatomically extensive diagnosis and nerve conduction studies would not in this context support the diagnosis.
In my view, the diagnosis of thoracic outlet syndrome does not stand.
...
In my opinion, the work trial with Business as Usual does not continue to materially contribute to her condition (unless the psychological sequence be attributed to that experience.
...
It is agreed that anxiety and stress have maintained and exacerbated her condition. They have in my view a primary role".
He also expressed the opinion that the applicant's physical condition prior to September 2001 was not relevant to her condition at the time of examination. He did not recommend further investigative procedures.
24. In his second report of 16 December 2004, Dr Lethlean dealt with several of the issues raised by Dr Francis in his report of 24 September 2004. That report (T22 - T2006/29) is fundamental to an understanding of Dr Lethlean's response of 16 December 2004, so I am setting it out in full:
"I have had a chance to read the report from Dr Keith Lethlean of 5 July 2004.
He gives a very accurate description of the onset of her problems.
The initiating event was within the workplace in association with the activities she was pursuing.
The initial symptoms were soreness (which he calls myalgia) and tingling, entirely consistent with a neurological component to her outcome, not myalgia and muscle soreness. He then documents numbness and tingling, again consistent with a neurological involvement.
From the outset therefore his assessment that she had myalgia is incorrect.
In this context it seems rather strange to then dismiss the nerve conduction studies results obtained by Chris Taylor which he quotes on page 6 of his report. Of particular interest to note is:
...These findings were suggestive of, but by no means diagnostic of, Thoracic Outlet Syndrome, right more than left.
He also notes on page 4 of his report that Jaclyn developed excessive sweating within the hand consistent with sympathetic over-activity. This again would be consistent with primary neurological insult as her initiating event.
I note also that 'there was no abnormality on inspection, musculature and development symmetrical, with no focal muscle wasting'.
On referring to her upper limbs and shoulder girdles, she is not symmetrical. She has a large right posterior thoracic scar which was inflicted in childhood. She has some significant asymmetry in her upper torso development in association with this (as you would expect with surgery in infancy). She has marked facial asymmetry. She has a scoliosis. She has the asymmetry in her upper torso.
In association with this, it is not surprising that she has some restriction of neck movement one side compared to the other. When I first saw Jaclyn in February 2002 the restriction was a little more marked to the right than the left. Certainly, with the passage of time and the persistent nature of the pain she has developed other secondary problems with disturbed sleep, escalating pain and a lot of apprehension. These are secondary. I can document their development subsequent to her presentation in February 2002. They are not primary as Dr Lethlean claims on page 8. 3f).
It is difficult to understand how Dr Lethlean comes to this conclusion in the face of:
1. An accurate history including neurological features from the outset.
2. A physical structure that would predispose to the development of problems at the level of the thoracic outlet.
3. Nerve conduction studies consistent with thoracic outlet syndrome.
4. A presentation at the outset entirely consistent with thoracic outlet syndrome.
5. A lot of secondary components now developing as a consequence of her incapacity and pain with the disturbed sleep pattern.
I suspect that Dr Lethlean is seeing the secondary components and labelling these chronic illness behaviour. They are secondary. They are chronic. They are a component of her outcome. They are not primary.
As Dr Lethlean accurately says, the diagnosis supporting thoracic outlet syndrome is predominantly clinical but the presence of abnormal findings on the nerve conduction studies, to my mind, clinches the diagnosis. Certainly, this was the presumptive clinical diagnosis before the nerve conduction studies were done".
25. In his report of 16 December 2004, Dr Lethlean says this"
"I have taken a different view of JAL, and recognise that I have examined her on a single occasion, and not at an earlier stage. I cannot reconcile the two views (Dr Hilton Francis' and my own).
I will address the nerve conduction studies of Dr Bruce Taylor, performed on 14 January 2003, as they are important.
There are bilateral sensory abnormalities, the greatest changes being the right radial nerve sensory distribution, lower forearm, and in the left ulnar nerve wrist-little finger. There is median nerve slowing distally on the left, and (relative) median nerve motor conduction slowing in the left forearm. Electromyographic changes in the right 1st dorsal interosseus muscle are minor/limited.
As Dr Bruce Taylor concludes, these findings are difficult to interpret, and certainly are consistent/in keeping with a mild proximal neuropathic injury on the right, but there are also left ulnar nerve changes of significance. I have not thought these findings conclusive, nor did Dr Bruce Taylor.
There might be merit in having these studies repeated after a period of time.
Per se the nerve conduction studies of 14 January 203 would be more consistent with a left thoracic outlet syndrome, than a right thoracic outlet syndrome.
In my opinion, the assessment must remain a clinical one, and at this time I have not modified my view as expressed in my report dated 5 July 2004.
I am conscious that Dr Lethlean is the only neurologist who has given evidence in relation to the present matter but notwithstanding that fact I remain unpersuaded by his evidence. His suggestion that the applicant was showing "chronic illness behaviour" seems to me to be an unacceptable diagnosis particularly as it tends to imply malingering or psychological factors as the causative process. Dr Lethlean himself found the applicant to be "consistent" in her account so I assume that his comment that there were "some inconsistencies on examination" related to the objective signs which he observed rather than the subjective elements of the applicant's presentation. One of his principal reasons for coming to the conclusions which he does is his belief that the applicant's activities at work in September 2001 were incapable of producing more than use related muscle pain of a temporary nature. This is a belief also shared by Professor Jones and, as will be seen hereafter by Dr Peter Stevenson.
26. Dr Peter Stevenson examined the applicant on 8 November 206. He reported his findings in Exhibit R3 dated 17 November 2006. The applicant discussed her original injury and subsequent symptoms with Dr Stevenson. She reported blue and purplish colour changes to her hands and their temperature being "cold and hot, mostly hot". Both she and her mother told Dr Stevenson that the colour changes had been there since "near the beginning". There was not a great deal of emphasis upon these changes in the other medical reports then available to Dr Stevenson but a review of those reports and the evidence given by some of the other medical witnesses tends to confirm that colour and temperature changes have been present for a long time. Dr Stevenson himself found that both arms and hands were very cold. He found other symptoms consistent with neuropathic pain. Dr Stevenson's report includes a very useful summary of the principal medical reports prepared and submitted to that date by the other medical witnesses, with the exception only of Dr Peter Sharman whose report was produced at a later date. Dr Stevenson was critical of Dr Francis' diagnosis of "functional thoracic outlet syndrome" and suggested it was probably spurious but his main criticism of Dr Francis related to his opinion as to the pathogenesis of the applicant's condition. The same may be said of his critique of Dr Sharman's report in his supplementary report of 11 January 2007, Exhibit R5. Dr Stevenson's final view was that the applicant's condition was due to an "obscure spontaneous disease". He based this largely on the reasoning contained in the following passage from Exhibit R3 (page 8):
""... the issue of causation is a matter of testable prediction. It is alleged by JAL and her mother that she used her arms too much. Dr Francis' claim of "static loading" argues that she had used her arms dangerously little. If JAL was packing 100 letters, it is rather difficult to support Dr Francis' argument that her arms were dangerously static.
Moreover, junk mail is a ubiquitous part of modern society. It does not come out of thin air, someone mails it. People do the task that JAL did, not for two days, like her, but for weeks and months. It therefore becomes a testable prediction that the posting of such letters creates an epidemic of "thoracic outlet syndrome" or complex regional pain syndrome. I know no evidence of such".
Discussion and Conclusions
27. In taking this approach I think that he, like Dr Lethlean and Professor Jones failed to take due account of the applicant's pre-existing idiosyncratic congenital abnormalities as providing a basis for inferring unusual sequelae from fairly mundane activity if carried out by a normal healthy adult of average physical capacity. Dr Stevenson disagreed with Professor Jones as to his suggestion that the applicant was suffering from cerebral palsy. He was not alone in this opinion and I am fully persuaded that Professor Jones' diagnosis was not correct. Dr Stevenson also disagreed with Dr Lethlean's diagnosis of "chronic illness behaviour" and although Dr Lethlean explained this as a "descriptor" rather than a diagnosis it is not a description which I accept.
28. In dealing with the applicant's condition at the time of her examination by him Dr Stevenson said (Exhibit R3 p.7 and 8):
"There is today blatantly obvious colour change very strongly suggestive of complex regional pain syndrome/reflex sympathetic dystrophy. This was not commented on by previous assessors, except for one comment that her hands were quite cold. Colour change is not described previously. Both JAL and her mother repeated that colour change had been present since quite early on in the illness. Though we have some differences of opinion, Dr Lethlean, Dr Jones and Dr Francis are all experienced clinicians whose clinical competence I respect. I am sure if colour change was longstanding, it would have been recorded previously. It was not, which is very odd. In short, I did not find clonus or hypertonicity suggested by Dr Jones. Cerebral palsy therefore is unlikely. The clinical picture is certainly not one of cerebral palsy. As seen today, the clinical picture is overt complex regional pain syndrome, and I feel sure Dr Lethlean, Dr Jones and Dr Francis would say the same on today's findings. Therefore the clinical picture must be variable".
...
As seen today, she has complex regional pain syndrome, type 1. There is no nerve pathology. Complex regional pain syndrome is not necessarily neurological. It may represent a pseudoneurological or somatoform illness. There seem psychological elements to JAL's predicament. This might, square with Dr Lethlean's suggestion of chronic illness behaviour. I do not believe this is at any conscious or superficial level. JAL's distress and predicament seemed very genuine. I am less clear that it is neurological".
29. When reviewing Dr Peter Sharman's report in Exhibit R3, Dr Stevenson said:
"Since Dr Sharman and myself seem perpetually fated to disagree, it is a rare pleasure to be able to agree with Dr Sharman's physical findings. They seem substantially the same as I saw. There was bluish discoloration more in the right arm than the left, there was marked restriction of movement. I am, how3ever, perplexed as to why he did not go on to make the obvious conclusion of complex regional pain syndrome, rather than use the notoriously dodgy term of "functional thoracic outline syndrome".
30. Although I do not accept Dr Stevenson's opinions as to the cause of the applicant's condition I am much attracted to his diagnosis that she suffers a complex regional pain syndrome rather than a functional thoracic outlet syndrome as favoured by Dr Francis, but in the final analysis it is not important to choose between different labels to attach to an array of symptoms but rather to determine whether or not those symptoms were precipitated by the occurrence of a work related injury.
31. Dr Francis has had a long association with the applicant since he first saw her in 2002 and has seen her about a dozen times overall. He pointed out that there are several anatomical components to the causation of the applicant's pain namely: (1) her asymmetrical body structure, (2) the dynamics of the static loading imposed upon her by the repetitive work being done at "Business as Usual" and (3) the anatomy of her nerve supply. He also referred to the applicant's surgical and medical history and anxiety and stress as significant predictors for her experience of pain as a chronic outcome. Dr Francis agreed that physical and psychological factors both fed into an individual's perception of pain. Dr Francis did not see Dr Jackett's assessment of the applicant in October and November of 2001 as indicating that the applicant's injury had fully resolved or become completely and permanently asymptomatic, but rather as indicating fluctuations in her condition. Indeed in his report to Robyn Sephton at Comcare on 20 April 2002, Dr Jackett mentioned that he had seen the applicant on 7 occasions between 17/9/01 and 7/1/02 and: "Throughout this period JAL's symptoms fluctuated in intensity and location".
32. It is my opinion having reviewed the whole of the medical evidence both written and oral that the diagnoses of Professor Jones and Dr Lethlean cannot be sustained in face of the much more persuasive evidence given by Dr Francis, Dr Sharman and Dr Stevenson. I think that Dr Francis' position as the applicant's treating specialist has put him in a particularly strong position to assess the applicant's progress, or lack thereof, from an early stage in her post-injury development. It is only the label of functional thoracic outlet syndrome which I find difficult to accept. Although Dr Sharman was prepared to accept this diagnosis he did so with some reluctance. Indeed in the passage from his report quoted above at page 14 he himself preferred to use the description "chronic pain syndrome". Both Dr Francis and Dr Sharman were firmly of opinion that the applicant's present condition was causatively linked to her original injury.
33. Dr Stevenson agreed with both Dr Francis and Dr Sharman that the applicant was exhibiting symptoms of neuropathic pain when he saw her and he was clearly of the view that she was suffering from a complex regional pain syndrome. In view of the very definite signs of colour and temperature changes to her upper limbs and the other features noted when he saw her, this is not surprising. Dr Stevenson's reason for failing to relate this condition to her original injury was summarised, I think, in one of his answers to Mr Crotty in cross-examination when he said:
"Yes, if one sees complex regional pain syndrome which follows an insult, you expect it to have onset within weeks, to be at its height within months, and then generally to run a decreasing course thereafter".
34. Dr Stevenson thought that the symptoms of complex regional pain syndrome had not been adequately established by objective observation before his examination of the applicant in November 2006. However I take a somewhat different view. Having heard the whole of the evidence in these proceedings I am satisfied that there were developing signs of that condition from very early on in the applicant's history and, although the condition usually develops more quickly and usually resolves more quickly than it has in this case, it is nonetheless the preferable diagnosis for the applicant's current condition, and the factors just mentioned do not cause me to doubt my finding that it is and was caused by the initial compensable injury.
35. On that basis the applicant has in effect established in her favour the major contentious issue in all 3 applications to review but she cannot recover in the permanent impairment claim as that application (T206/29) was withdrawn. She has established "in principal" entitlement to medical treatment costs pursuant to section 16 of the Act from 14 February 2006 ie the date on which a relevant decision by the respondent purported to terminate her entitlement. However details of such treatment were not supplied to the Tribunal during the hearing and both parties are agreed that the Tribunal's final order in respect of application T2006/76 should be remitted to the respondent to assess and deal with that issue in accordance with the Tribunal's findings.
36. As to the third application - T2006/167, it is necessary to consider whether or not the $45 pw training allowance being paid to the applicant while she was working at "Business as Usual" should be taken into account as part of the NWE process provided for in section 8 of the Act. The legislative formulation for the approval of a training allowance is to be found in section 24 of the Disability Services Act 1986. Section 24, subsections 1, 2 and 3 are as follows:
"(1) Where a person is undertaking a rehabilitation program that consists of, or includes, employment or vocational training, the Secretary may approve payment of a training allowance to the person.
(2) The rate of a training allowance is such amount per week as is, subject to paragraph (3)(a), determined, by legislative instrument, by the Minister.
(3) The Minister:
(a) shall determine different rates of training allowance for the purposes of subsection (2) in respect of persons undertaking full‑time employment or vocational training and persons undertaking part‑time employment or vocational training; and
(b) may determine different rates of training allowance in respect of different classes of persons having regard to their age".
As well as a training allowance, the Secretary may also approve payment of a living-away-from-home allowance to a person undertaking a relevant program (see Section 24(4)).
37. Section 8(1) of the SRC Act provides that NWE is to be calculated by the formula (NH+RP) + A where:
"A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred or likely to be incurred, by the employee in respect of that employment".
The declaration of the Minister under s24(1) of the Disability Services Act made on 28 November 1988 (Exhibit R13) gives no indication of the purpose for which a training allowance is to be paid.
38. The respondent argues that such an allowance is in the nature of an allowance paid or payable in respect of special expenses incurred. Reference was made by counsel to a number of cases including Sutton v Comcare (AATA 10935 16 May 1996), Zarb v Comcare (1997) 48 ALD 718, Bortolazzo v Comcare (1997) 75 FCR 385. None of these decisions is directly in point and I do not regard the dicta of Heerey J in Bortolazzo @ 388 as being universally applicable - see for example the views of the High Court expressed at page 11 of Scott v Sun Alliance Australia Ltd (1993) 178 CLR 1.
39. I see nothing in the provisions of either Act now being considered which would lead to the conclusion that the allowance provided for in the Disability Services Act is an allowance in respect of "special circumstances". It is not without significance, perhaps, that s24(4) of the DS Act provides a specific allowance for living-away-from-home which plainly would come within the ambit of such an exclusion. However the respondent has not persuaded me that an allowance under s24(1) of that Act falls within the special expenses proviso in s8 of the SRC Act. Accordingly the applicant succeeds in application to review T2006/167. The reviewable decision will therefore be set aside and in lieu it will be ordered that in assessing the applicant's normal weekly earnings for the purpose of calculating her weekly compensation entitlements under the Act her training allowance of $45 payable in respect of her training at "Business as Usual" is to be taken into account as factor A under section 8(1). The matter will be remitted to the respondent for this purpose.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 4, 5, 6, 7 September 2007
Date of Decision 25 September 2007
Counsel for the Applicant Mr James Crotty
Solicitor for the Applicant James Crotty Barristers & Solicitors
Counsel for the Respondent Mr Brian Morgan
Solicitor for the Respondent Australian Government Solicitor
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