Krauss and Comcare
[2010] AATA 722
•23 September 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 722
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1404
GENERAL ADMINISTRATIVE DIVISION ) Re ANITA KRAUSS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member
Dr M Miller, MemberDate23 September 2010
PlaceCanberra
Decision The decision under review, in which Comcare rejected liability for Ms Krauss’s permanent impairment and non-economic loss in accordance with sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for ‘pain in limb (bilateral)’ and ‘associated adjustment disorder’, is affirmed.
..................[sgd].....................
Professor RM Creyke, Presiding Member
CATCHWORDS
COMPENSATION – claim for permanent impairment and non-economic loss –bilateral arm pain with associated adjustment disorder – whether current condition related to accepted condition – appropriate table under Comcare Guide to the Assessment of the Degree of Permanent Impairment (2nd edition) – ‘objectively identified orthopaedic or neurological conditions’ – degree of permanent impairment – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 5, 25, 27
23 September 2010 REASONS FOR DECISION
Professor RM Creyke, Presiding Member
Dr M Miller, Member1. Ms Krauss had an accepted claim for synovitis and tenosynovitis (right), changed to pain in both her upper limbs. The date of injury was 27 November 2002. The injury occurred at Ms Krauss’s workplace in the information technology area within the Australian Federal Police (AFP). Mr Krauss’s employment with the AFP ceased on 14 November 2005.
2. On 18 June 2008, Ms Krauss submitted a claim for permanent impairment and non-economic loss for her condition of ‘pain in limb (bilateral) with associated anxiety state’. That application was rejected by Comcare on 2 December 2008 on the ground that the degree of impairment was less than ten per cent. On 3 April 2009, Comcare affirmed the original decision, and on 7 April 2009, Ms Krauss sought review of that decision by the Tribunal.
History
3. On 14 January 2003, Comcare accepted liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) for Mr Krauss’s conditions of ‘synovitis and tenosynovitis (right)’. The date of injury was 27 November 2002. The description of her condition was amended on 7 December 2004 to ‘cervicobrachial syndrome (diffuse) (bilateral)’, a decision affirmed on 20 September 2005.
4. On 1 July 2005, incapacity was denied for her compensable condition for 31 January to 4 February 2005. Also on 1 July 2005, Comcare rejected further claims for incapacity payments for the periods 24 to 30 January 2005, and 7 to 18 February 2005, and for medical treatment.
5. On 27 September 2005, Ms Krauss claimed compensation for focal disc protrusion at C6/7 and C7 nerve root compression with a date of injury of 20 January 2005. A decision was made on 23 January 2006 to reject ‘aggravation of unspecified disc disorder, cervical (left)’.
6. On 23 November 2005, Comcare accepted liability under section 16 of the Act for medical and exercise expenses for Ms Krauss’s compensable condition of pain in the limbs (bilateral) with associated anxiety, up to and including 20 December 2005.
7. On 5 January 2006, the AFP sought a reconsideration of the decision dated 23 November 2005. On 28 March 2006, Comcare revoked that decision, and in substitution, denied liability of payments for medical expenses under section 16 of the Act.
8. On 23 January 2006, Comcare accepted liability under section 14 of the Act for ‘aggravation of cervical spondylosis without myelopathy (left)’. At the same time, liability for ‘aggravation of unspecified disc disorder, cervical (left)’ was rejected, a decision which was affirmed on review on 2 May 2006.
9. On 5 May 2006, a claim for incapacity payments for her bilateral upper limb pain from August 2005 to 8 March 2006 was rejected, a decision upheld on review on 24 August 2006.
10. On 30 May 2006, Ms Krauss lodged a claim for compensation for stress and anxiety and complex regional pain syndrome. On 16 December 2006, Comcare rejected a claim for ‘aggravation of pain in limb (bilateral) and anxiety state’, being the claim for stress and anxiety and complex regional pain syndrome. That decision was upheld on review on 5 April 2007.
11. By consent, on 19 February 2008 the Tribunal set aside the decision of 28 March 2006 in favour of a decision to pay reasonable medical expenses under section 16 of the Act for bilateral arm pain with an associated adjustment disorder from 23 November 2005 to 19 February 2008; to pay compensation under section 19 of the Act on the basis that Ms Krauss was totally incapacitated for employment as a result of her compensable condition for the period 1 August 2005 to 19 February 2009; affirmed the decision of 2 May 2006, denying liability for ‘aggravation of unspecified disc disorder, cervical (left)’; and affirmed the decision of 5 April 2007, denying liability for ‘aggravation of pain in limb (bilateral) and anxiety state’.
12. The Tribunal is reviewing the decision by Comcare of 3 April 2009 not to accept a claim for permanent impairment and non-economic loss for ‘bilateral arm pain with associated adjustment disorder’.
Legislation
13. The key provision of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) is section 24, which provides:
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
14. Definitions of ‘employee’, ‘impairment’, ‘injury’ and ‘approved Guide’ appear in section 4(1) of the Act. There is no issue that Ms Krauss is an ‘employee’ since she was employed by the AFP, which is specifically covered by the definition of ‘employees’ in section 5 of the Act.[1] Nor is there an issue that she suffered an ‘injury’ as defined.[2] The principal issues are whether Ms Krauss is suffering from an impairment which is permanent and translates, in accordance with the Comcare Guide to the Assessment of the Degree of Permanent Impairment (2nd ed) (approved Guide) to a whole person impairment of at least 10 per cent.
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), s 5(2)(a).
[2] Act, s 5A.
15. ‘Impairment’ means the ‘loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function’.
16. Under section 4(1) of the Act, the ‘approved Guide’ means:
(a) the document, prepared by Comcare in accordance with section 28 under the title "Guide to the Assessment of the Degree of Permanent Impairment", that has been approved by the Minister and is for the time being in force; and
(b) if an instrument varying the document has been approved by the Minister--that document as so varied.
17. Section 27 provides for non-economic loss as follows:
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non‑economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
($15,000 x A) + ($15,000 x B)
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
18. ‘Non-economic loss’ is defined as ‘an injury resulting in a permanent impairment, …loss or damage of a non-economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware’.
Background
19. Ms Krauss commenced employment at the AFP in the information technology area in 1993. Her employment was terminated on 14 November 2005.
20. She first experienced symptoms in her hands around June 2001, for which she claimed compensation on 3 December 2002. Liability for synovitis and tenosynovitis (right) was accepted on 14 January 2003. Ms Krauss commenced modified duties as part of a graduated return to work program on 17 February 2003. Under that program she gradually increased her hours of work.
21. On 28 July 2004, she claimed that due to packing boxes and dismantling computer equipment for a move to a new location she had aggravated her left arm and neck condition, resulting in pain in the shoulder and arm.
22. Between November 2002 and November 2005, Ms Krauss had significant periods in which she was unable to work full time, or at all, as a result of her compensable condition.
23. On 7 December 2004, Comcare made a decision to amend acceptance of liability for her condition, from ‘synovitis and tenosynovitis (right)’ to ‘cervicobrachial syndrome (diffuse) (bilateral)’. Cervicobrachial syndrome is a collection of neck and arm symptoms for which there is no known cause.[3]
[3] downloaded on 11 September 2010.
24. On 20 January 2005, she claimed to have aggravated her neck and shoulder symptoms when she overbalanced while trying to lift a heavy folder from the floor while seated.
25. On 11 August 2005, Ms Krauss was informed by the AFP that her employment would be terminated if she did not voluntarily retire. On 20 September 2005, she received a letter from the AFP informing her of her redundancy and separation date. On 14 November 2005, Ms Krauss’s employment with the AFP was terminated.
Issues
26. On 19 February 2008, a consent decision by the Tribunal accepted liability for medical expenses in respect of Ms Krauss’s bilateral arm pain with an associated adjustment disorder, the compensable decision, from 23 November 2005 to 19 February 2008; and agreed there should be incapacity payments for Ms Krauss’s compensable condition for the period 1 August 2005 to 19 February 2008. The consent decision affirmed the rejection of liability for Ms Krauss’s cervical neck condition and for aggravation of pain in limb (bilateral) and anxiety state. The principal issue in this proceeding is whether Ms Krauss continues to be impaired by a condition which is work-related.
27. At the hearing, counsel for Comcare confirmed that he was not casting doubt on the findings covered by the consent order. Nonetheless, in deciding whether conditions which fluctuated in intensity and impact continued to cause incapacity or were permanent, he said it was necessary to look at the pattern which commenced prior to the date of the consent order in February 2008. For that reason, medical reports prior to that date were included in the tribunal documents and some of these have been taken into account in the consideration of the following issues.
28. Specifically, these issues involve the following:
· What is the correct diagnosis of Ms Krauss’s current condition? Is it related to her accepted condition of bilateral arm pain with associated adjustment disorder?
· If so, is Ms Krauss impaired by that condition, is it permanent, and has Ms Krauss undertaken all reasonable rehabilitative treatment for the impairment?
· If Ms Krauss’s condition has caused permanent impairment, what table or tables from the approved Guide should be applied in the assessment of Ms Krauss’s whole person impairment under section 24 of the Act?
· Has Ms Krauss sustained a degree of whole person impairment greater than ten per cent when assessed under the approved Guide?
· Is Ms Krauss entitled to compensation for non-economic loss under section 27 of the Act?
Evidence
29. Ms Krauss first lodged a claim for compensation in relation to ‘pain and inflammation in the tendons of the wrist and forearm (particularly the right arm) and knuckle joints of the hands’. Ms Krauss said she could not ‘use a computer keyboard for more than 30 minutes at a time or for more than half a day without aggravating the condition’. Initially the mouse work occurred in her left hand and wrist. So she changed to using the mouse with her right hand, and then began to experience the pain in that hand too.
30. Ms Krauss noted that when she first detected the problem it was due to inflammation in her left hand and wrist, which also became hot. The condition would then settle down overnight. After some time, the pain persisted overnight but would settle over the weekend. Finally, it reached a point where it would not settle at all. When Ms Krauss switched to using the mouse in her right hand the same development occurred. Despite an attempt gradually to return to work and to increase her workload, this was not successful and her employment with the AFP came to an end.
31. Ms Krauss gave evidence at the hearing of the impact of her health conditions after February 2008. She said that picking things up, gripping, and anything that required repetition or grasping were activities with which she had difficulty. She said she often needed to pick up using two hands. She said she had problems driving a car because of the need to grip the steering wheel, turning the wheel was painful, and keeping her arms raised in a sustained position increased the pain. At the same time, Ms Krauss said she could not use public transport because of the steps, due to her difficulty gripping, and to the motion of the vehicle.
32. She also said she could no longer do the recreational activities she undertook formerly, which included feeding, training, riding and showing horses, and managing a vegetable garden. In relation to dressing, she had problems with buttons and clips and with shoelaces. Accordingly she generally wore V-neck tops, trousers with an elasticised waist, and shoes with Velcro clips. She said she was often bedridden.
33. Other difficulties she said she experienced were writing more than a couple of lines at a time. She also lacked fine motor skills, which made it difficult to use small electrical goods such as television remote controls and mobile phones, pick up tablets or needles and pins, and she did not have the manual dexterity to join paperclips efficiently.
34. She said she has difficulty with clothes pegs when hanging washing on the line, with lifting a heavy laundry basket, with ironing and she could not do sewing. In food preparation, she said she has trouble cutting, slicing and stirring. She has problems with lifting pots off the stove and taking a dish out of the oven. She said in cross-examination that she did not think she could lift an item weighing more than three kilograms, and that when she shops she asks the person at the checkout not to put too much into the bags so she can carry them.
35. Shopping, when it involved stretching to reach things or lifting items above a certain weight, also caused difficulties. In addition, she said she had difficulty cleaning and flossing her teeth. She cannot use a computer for more than a short time otherwise the pain in her hands flares up. If she does not have support for her hands when sitting she can also experience pain. She said she rarely socialises since sitting can be painful and others find this hard to understand. She said that, in her opinion, the pain, weakness and stiffness in her hands and arms are worse than it was five years ago.
36. Ms Krauss affirmed that she could not raise her arms straight on each side higher than 45 degrees due to her physical weakness, shooting pains in the upper arms, the intensity of the pain, and a certain amount of stiffness. Her conditions meant she now has someone to do her gardening, and to look after her horses. In cross-examination she agreed that, up to January 2005, she was occasionally going out to feed the horses on her own.
37. In cross-examination, Ms Krauss said her reference in a lifestyle questionnaire to being bedridden during the day actually meant only that she had to lie down from time to time during the day. She admitted that when shopping she can manage to pick up and lift a bag in which there are about 10 to 15 items, but that at 15 items her pain was aggravated. Lifting things above a certain weight was a problem. However, she said the level of pain ‘depends on the day and the activities’ she did on the day.
38. She also admitted that her response to a question about whether the pain ‘prevents activity’ should be interpreted as her pain restricted, rather than prevented, her activities. She said that on some days she cannot walk more than 100 metres, but on good days she can walk for ten minutes and then, with a break, for another ten minutes. She said she could also buy things at a local shop and walk home with them.
39. Ms Krauss said her difficulty climbing steps was due to pain in her neck if she bent forward, as well as problems with lifting her arms, and gripping railings. She said she also had difficulty extending her arms about her head. She denied installing a ramp to the back door and a hand-held shower for her father with whom, prior to his death in 2009, Ms Krauss was living and who was sufficiently disabled to need a wheelchair. In cross examination, she also agreed that she could carry a tray with a standard drink and a plate of food on it for a short distance and said she could unscrew the top of an ordinary coke bottle.
40. In response to questions about raising her arms above her head to grab things off high shelves, for example, she said it was more painful if her arm was outstretched, but she could manage if she bent her elbow and lifted her arm and reached out that way.
41. She said her ability to do things depended on the pain level on a particular day. She admitted she drove her car two or three times a week on average but usually around Canberra, and in recent times not out to Captain’s Flat, where her horses were agisted. She said she avoided activities which she knew could cause her pain, such as movements of her wrists and neck.
Other evidence
42. Surveillance evidence was shown with footage taken on various dates in July 2009, August 2009, and December 2009. The surveillance footage variously showed Ms Krauss carrying two shopping bags from her local shops, easily picking up her father’s oxygen cylinder, lifting the boot of her car and removing her father’s wheelchair, helping him into the wheelchair, wheeling him into the Canberra Hospital cafeteria, and while there carrying a tray of food and opening a soft drink bottle for her father to drink. One sequence showed her taking off a jumper over her head, another visiting her property at Captain’s Flat, and another showed her shopping, where, apparently without limitation, restriction or hesitation, she lifted blouses and trousers above her head to try them on, examined Christmas cards by turning over the cards, and looked for a frying pan, including lifting and turning over the pans. Footage of Ms Krauss at a supermarket did show her asking someone else to lift milk off a top shelf for her.
43. When questioned after viewing the surveillance footage, Ms Krauss admitted she was able to rotate her wrists but she said that she did experience pain when she undertook a number of the activities shown in the surveillance footage. She said that since she had been experiencing persistent, ongoing pain since 2002, she has learned to cope with that pain. However, she admitted that the pain did not seem to impair her in a practical sense from undertaking the various activities shown in the footage.
44. Ms Krauss agreed that, when assembled, her father’s wheelchair weighed more than three kilograms. However, she said she did not know the weight of the component parts of the wheelchair, and she pointed out she had lifted these out separately. She also said that when she appeared to be raising her arms above her head with ease, she had her elbows bent and, as she had earlier said, she can raise her arms and lift more effectively with a bent elbow than with her arm outstretched.
45. In re-examination, Ms Krauss said that, because of her physical limitations, the Independent Living Centre had recommended a special lightweight wheelchair for her father and techniques to lift it. These included never lifting the assembled wheelchair and using blankets or rugs as pulleys to put the wheelchair frame in and out of the boot. The surveillance footage does show her using these techniques. She also said since she was the sole carer of her father, there was no one else who could transport him and his wheelchair to hospital, so she had to do it.
46. She also noted that on occasions when she was filmed walking, she had her arms folded, which provided some degree of support and limited her pain. She pointed out that when carrying more than one bag she would often hold one against her chest to reduce the weight. She said the footage of her examining frying pans failed to indicate that she was trying to find a lightweight one, and that the length of time she was examining them had created soreness in her arms and wrists. Ms Krauss noted that opening and closing the boot of the car was not a problem since it had good springs and only needed a light touch. She admitted that she has some jeans with zips and buttons.
47. Finally, Ms Krauss said that the days on which she was out and about were her good days. She said if she sits at home for any length of time this makes her pain worse so she has to leave the house and try to resume some element of normality. She also said that she never goes out for any length of time and when she gets home she takes the opportunity to lie down and rest. She said she was surprised to see herself freely trying on jackets. Her only explanation was that the garments must have been constructed in such a way as to make that possible.
48. Other evidence included a Manual Wheelchair Assessment conducted by the ACT’s Independent Living Centre and was followed by a quote for a lightweight wheelchair, which Ms Krauss subsequently purchased. The wheelchair’s overall weight was 12 kg and the weight of the frame, when the rear wheels and the footplates were removed, was 8 kg. The Assessment noted that ‘Mr Krauss’s daughter was able to manage lifting this wheelchair when the rear wheels and footplates were removed. We were not able to trial lifting the wheelchair into the car as Mr Krauss had become very tired … and his daughter was anxious to take him home’.
49. The Krauss’s home had been assessed for wheelchair access and the assessment noted: ‘Family are currently in the process of arranging for a ramp to be installed at the rear entry to allow wheelchair access’. Evidence was also provided that the oxygen cylinder used by Mr Krauss weighed 3.6 kg when filled.
Consideration
50. At the hearing, counsel for Comcare relied quite heavily on a report of Dr Leon Le Leu dated July 2005, which portrayed a more optimistic view of Ms Krauss’s condition and her capacities than she affirmed at the hearing. The Tribunal has not taken that report into account since it accepts that the report was prepared at a time when, as Dr Pascall reports and Ms Krauss concedes, her condition had improved and she was anxious to return to work. That context colours the findings. In any event, the report is no record of Ms Krauss’s condition since 2008.
51. The Tribunal has given most weight to the views of those medical witnesses who have examined Ms Krauss recently, particularly those who have given oral evidence and have viewed the surveillance footage of Ms Krauss commissioned by Comcare. Doctors Muirden, Champion, Stevenson and Andrews gave oral evidence; Doctors Macauley, Pascall, Mickleburgh, Eaton and Bradbury provided written evidence only.
What is the correct diagnosis of Ms Krauss’s current condition? Is it related to her accepted compensable condition of bilateral arm pain with associated adjustment disorder?
52. Liability was accepted up to and including 19 February 2008 for bilateral arm pain with associated adjustment disorder. Ms Krauss is currently suffering a continuing pain disorder in her upper extremities, that is, her arms, wrists and shoulders. In a report dated 25 October 2009, Dr Pascall stated that she was told by Ms Krauss in 2007 that her ‘psychological problems occurred after the 20 January 2005 incident, that is, after the sudden disc protrusion at the C6/7 level and the resultant C7 radiculopathy’.[4]
[4] ‘“Radiculopathy” is damage to the roots of nerves where they enter or leave the spinal cord’: Harvey Marcovitch (ed), Black’s Medical Dictionary (42nd ed) (2010), 564.
53. Counsel for Ms Krauss contended that Ms Krauss suffered tendonitis triggered by repetitive computer based work at the AFP. That in turn led to ‘central sensitisation of nociception, causing persistent pain’.[5] The pain response persists long after the original tendonitis has disappeared.[6] The meaning of the expression ‘central sensitisation of nociception’ was explained by Associate Professor Champion as a physiological term describing the neural processes of encoding and processing noxious stimuli in the nerve endings known as nociceptors.[7] ‘Nociceptors’ are the ‘nerve endings which detect and respond to painful or unpleasant stimuli’.[8] Counsel for Comcare suggested that Ms Krauss’s compensable condition had ‘substantially abated’ some time in early 2005, and her current condition is unrelated to her former work.[9]
[5] Transcript of proceedings (transcript), 274.
[6] Transcript, 242.
[7] David Champion, Somatosensory Testing in the Context of Chronic Pain: Review (2009) (apparently unpublished).
[8] Harvey Marcovitch (ed), Black’s Medical Dictionary (42nd edn) (2010) 466.
[9] Transcript, 105.
54. A complicating factor in attributing liability is that pain in Ms Krauss’s upper extremities is in part due to her cervical or neck condition which is not work-related. Care needs to be taken, therefore, in assessing the compensable level of impairment to disentangle the pain due to Ms Krauss’s hand, wrist and arm conditions from her neck condition.
55. The Tribunal notes that it has long been accepted that Ms Krauss suffers from pain with no organic basis. As early as 7 December 2004, the initial diagnosis of Ms Krauss's compensable condition was changed from a synovitis type condition to ‘cervicobrachial syndrome’, a condition with no identifiable organic cause. ‘Cervical’ in this context refers to the bones in the neck at the top of the spinal column.[10] ‘Brachial’ means ‘belonging to the upper arm’.[11] The diagnosis of her condition was later amended to bilateral arm pain with associated anxiety, again with no reference to organic symptoms. In other words, for the previous 5 – 6 years, it has been accepted that any organic symptoms for Ms Krauss’s pain condition had disappeared.
[10] Harvey Marcovitch (ed), Black’s Medical Dictionary (42nd edn) (2010), 116.
[11] Harvey Marcovitch (ed.), Black’s Medical Dictionary (42nd edn) (2010), 87.
56. Dr Kerrie Bradbury, Ms Krauss’s treating general practitioner, accepted in 2008 that Ms Krauss suffered from bilateral arm pain. Dr Bradbury addressed the issue of any alternative diagnosis only in her reference to Dr Muirden's report of ‘complex regional pain syndrome’, as to which she said ‘I am unclear as to the exact diagnosis and would be guided by expert Rheumatological opinion’. Dr Muirden is a rheumatologist.
57. In a report of 29 October 2008, Dr Macauley, consultant rheumatologist, said he believed Ms Krauss’s compensable condition ‘has now been superseded by a chronic pain syndrome with no identifiable organic pathology’. In his view ‘there are no known pre-existing constitutional, congenital or degenerative conditions involving her neck or upper limbs’. In a subsequent report of 4 November 2009, having seen the surveillance footage, Dr Macauley was of the view that Ms Krauss did not suffer any ‘significant musculoskeletal condition involving her cervical spine, shoulders, elbows, wrists or fingers’.
58. Dr Kenneth Muirden, consultant rheumatologist, provided an earlier ‘working diagnosis’ of ‘regional pain syndrome … without underlying inflammatory or degenerative pathology’. Following a re-examination of Ms Krauss, he confirmed in a report of 9 April 2010, that she suffers ‘upper limb regional pain syndrome’ which was ‘triggered initially by work-related factors’ and ‘cervical spondylosis that is a degenerative constitutionally-based condition, not related to workplace factors’. He said of her conditions ‘the symptoms are ongoing although not related now to organic-based pathology’.
59. Dr Garth Eaton, an occupational physician, reported on 29 April 2007, that Ms Krauss suffered cervicobrachial neurogenic[12] pain disorder. He said this could be described as chronic widespread neurogenic/neuropathic pain disorder consequent upon initial occupational overuse injury, which manifested itself as tendonitis/tenosynovitis, musculo-ligamentous strain and probable aggravation of underlying cervical spondylosis. Dr Eaton did not see the surveillance footage, nor provide a supplementary report.
[12] Words with ‘neuro’ as their root pertain to nerves or the nervous system.
60. Dr Virginia Pascall, in a detailed report of 28 December 2007, diagnosed adjustment disorder with anxiety features. Previously she had diagnosed arthritis in the left hand, but she said any inflammation of the tendons in the right hand ‘has resolved’. She denied that Ms Krauss suffered from ‘complex regional pain syndrome’ because she ‘does not have any of the required physical signs of the condition nor is there any postulated nerve damage to give rise to the condition’. In her view a finding of ‘chronic pain syndrome’ was ‘descriptive only’, not a diagnosis, since it provided no explanation of the source or nature of the pain. The same was true for ‘regional pain syndrome’.
61. In a supplementary report of 25 October 2009, following viewing of the surveillance footage, Dr Pascall said Ms Krauss does not appear to be suffering any medical condition. However, in her view, subsequent pain avoidant behaviours became the predominant feature of the condition rather than any objective clinical signs of pathology.
62. Dr Walter Mickleburgh, consultant psychiatrist, in a report of 16 April 2007, diagnosed adjustment disorder with mixed anxiety and depressed mood, on the boundary between the moderate and extreme level, a condition he said was work-related. In addition, he said that she suffered general medical conditions of cervical vertebral degenerative change, and regional pain syndrome in both wrists and hands. He did not observe the surveillance footage nor provide a later report.
63. Dr Peter Stevenson, consultant physician, in a report of 11 July 2006, diagnosed ‘non-specific arm pain’ rather than ‘regional pain syndrome’, due to psychosocial factors. In evidence to the Tribunal, Dr Stevenson admitted that Ms Krauss may initially have suffered from seronegative arthritis and possibly a radiculopathy. In a supplementary report of 4 February 2008, based on the reports of six of the other medical witnesses, Dr Stevenson concluded that there is ‘no evidence of complex regional pain syndrome’, although he agreed that it was reasonable to conclude that Ms Krauss suffered from an adjustment disorder with anxiety and depressed mood.
64. In a final report of 13 October 2009, having seen the surveillance footage, Dr Stevenson said there was ‘no established specific diagnosis’ but confirmed there was ‘non-specific pain in neck and shoulder’. He said ‘There may or may not have been an Adjustment Disorder to social issues such as involuntary termination’. As he concluded, since ‘there is no grave physical injury her psychiatric illness is not explained by physical injury’.
65. Associate Professor David Champion, conjoint associate professor of medicine at the University of New South Wales, rheumatologist and pain specialist, in a report of 26 July 2009, said his diagnosis was ‘chronic regional (cervical spine and bilateral upper limb) pain syndrome on a background of osteoarthritis and cervical spondylosis’. He also reported:
In her case the disability is a complex mix of neurobiological mechanisms underlying chronic pain and significant psychosocial influences (which may indeed include exaggeration in the context of medicolegal consultations, which perhaps she finds somewhat adversarial).
66. In an earlier report of 21 June 2008, Dr Champion said that Ms Krauss had been permanently incapacitated for work by bilateral arm pain with associated adjustment disorder since January 2005. By inference, he accepted that her earlier compensable condition continued and was related to her regional pain syndrome.
67. Dr Champion’s report of 14 April 2010, following his viewing of the surveillance footage and a further consultation with Ms Krauss, concluded that Ms Krauss was still suffering chronic regional pain disorder. In his view there were ‘clear somatosensory findings in support’.[13] He acknowledged that ‘the pain intensity does vary’ and he accepted Ms Krauss’s claim that she tended to go out ‘when she felt somewhat better’. On those days she had ‘improved range of shoulder movement … particularly when moving with her elbows flexed’. Ultimately, he accepted ‘she truly has the disability’, namely, a ‘deeply entrenched’ chronic pain disorder.
[13] At the hearing, Dr Champion described use of somatosensory testing for chronic pain in these terms. ‘[W]hen you’ve got persistent pain or chronic pain, the nervous system is no longer functioning normally, and at the site of injury or inflammation, there is sensitisation of the pain nerve endings and recruitment of other nerve endings … such that there will be an excessive response to minor mechanical or thermal or other stimuli, and potentially persistent response. ..[T]he central nervous system connections of such sensitised nerve cells are in the spinal cord and right up to the brain and to consciousness. The central nervous system connections are also sensitised or switched on so that in regions even beyond the actual pathology or injury site, innocuous stimuli such as touch or pressure or thermal stimuli will evoke an abnormal response in the central nervous system.
68. At the hearing Dr Champion said that in chronic pain sufferers ‘[t]here’s a poor correlation between the report of pain intensity and its various qualities … and related behaviour. … [T]hey learn to live within the – or partially live within certain constraints, and so are not continually emitting verbal, or vocal reactions, or facial reactions, or anything else much, except … a physical protective response’.[14] As he also put it: ‘[a]s an indicator of pain-related behaviour, the absence of pain-related behaviour is not a reliable pointer towards [a finding that] there is no real pain’.[15]
[14] Transcript, 152-153.
[15] Id, 160.
69. Dr Colin Andrews, consultant neurologist, provided a report dated 11 August 2006 and gave oral evidence. He noted that Ms Krauss’s symptoms of her cervical spondylosis were pain at the base of the neck with headaches, that she had not undergone a rehabilitation program and was not then having physiotherapy. When testing her neck movements he believed ‘amplification’ was occurring. Dr Andrews said examination of Ms Krauss’s upper limbs revealed a ‘global weakness in the arms’ which he said was psychological not neurological. He also noted that he was not a believer in regional pain syndrome. Dr Andrews was not asked to make an assessment of permanent impairment.[16]
[16] Id, 220.
70. In summary, the Tribunal notes that the majority of medical experts are of the opinion that Ms Krauss suffers from chronic regional pain syndrome (Doctors Macauley, Muirden, Mickleburgh and Champion). Although they would not use the same description, Dr Eaton and Dr Stevenson also accept that she suffers a neuropathic or non-specific pain disorder.
71. The Tribunal notes that according to the authoritative American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, as revised (DSM IV-TR), the diagnostic criteria for pain disorder are:
· Pain in one or more anatomical sites is the predominant focus of the clinical presentation…;
· The pain causes clinically significant distress or impairment…;
· Psychological factors have an important role in the onset, severity, exacerbation, or maintenance of the pain;
· The symptom or deficit is not intentionally produced or feigned; and
· The pain is not better accounted for by a mood, anxiety, or psychotic disorder...[17]
[17] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed) (DSM IV-TR) (2000), 503.
72. According to the evidence, Ms Krauss continues to experience pain in her upper limbs, an anatomical site; it has caused her significant impairment; Dr Pascall, Dr Mickleburgh, Dr Stevenson and Dr Champion are all of the opinion that Ms Krauss’s condition was, or was associated with, anxiety or adjustment disorder; the medical experts do not appear to consider she feigned her pain, subject to comments about exaggeration of symptoms; and the disorder was not, by their diagnoses, better accounted for by an alternative description. The Tribunal finds accordingly that Ms Krauss does suffer from a pain disorder.
73. Dr Stevenson and Dr Macauley denied there was a link between her bilateral arm pain and her later pain disorder. Dr Pascall diagnosed an adjustment disorder rather than a pain disorder and accepted that this element of Ms Krauss’s former accepted conditions continued. Doctors Muirden, Eaton, Mickleburgh and Champion considered the pain disorder was related to her initial occupational overuse injury. The Tribunal accepts this majority view and finds that Ms Krauss’s initial condition is related to her current pain disorder.
Is Ms Strauss impaired by her current condition? Is the impairment permanent, and has she taken all reasonable rehabilitative treatments for the impairment?
74. The next issue is whether Ms Krauss’s pain disorder continues to cause her impairment. For the condition to be permanent, it must be ‘likely to continue indefinitely’.[18] In deciding whether the impairment is permanent the Tribunal is to consider the duration of the impairment, the likelihood of improvement in Ms Krauss’s condition, whether she has undertaken all reasonable rehabilitative treatment, and any other relevant matter.[19]
[18] Act, s 4(1).
[19] Act, s 24(2).
75. Counsel for Comcare suggested that Ms Krauss’s underlying condition was ‘subject to periodic flare ups, but it’s not a permanent impairment caused by her work’.[20] Counsel for Ms Krauss argued the condition was permanent.
[20] Transcript, 105.
76. Dr Kerrie Bradbury affirmed, in certificates of 14 March 2008 and 20 November 2008 respectively, that Ms Krauss’s bilateral arm pain with associated adjustment disorder permanently incapacitated her for work. In relation to treatment or rehabilitation, she said the conditions were self-managed by means of exercise and hydrotherapy, including Tai chi for flexibility, relaxation, home help, and pain control with analgesics.
77. In his supplementary report of 4 November 2009, having seen the surveillance footage, Dr Macauley concluded Ms Krauss suffered no permanent impairment. As a result she needed no further treatment.
78. Dr Muirden in his report of 8 February 2008 said Ms Krauss’s pain syndrome was ongoing. In his 9 April 2010 report he said the impairment was stable and was ‘unlikely to be reduced by further medical or rehabilitative treatment’. In that report he also noted that for her chronic pain condition rehabilitation would be a mixture of exercise and work with a clinical psychologist but he had doubts that Ms Krauss, ‘would be compliant with further rehabilitation treatment’.
79. In response to a question as to whether there was ‘evidence of … voluntary or involuntary exaggeration of the symptoms or signs’. Dr Muirden said: ‘I have always considered that Ms Krauss has been genuine in her reports of widespread upper limb pain’. Nonetheless, he said he believed there had been a ‘lack of co-operation that may have been voluntary’ in her response to the measurement he undertook of grip strength.[21]
[21] Id, 252.
80. Dr Stevenson said in his report there was no permanent impairment, a view he confirmed in his oral evidence at the Tribunal. As he said, Ms Krauss may have discomfort and emotional distress, but in his view, there was no permanent shoulder pathology, no radiculopathy, and no arthritis.[22] Since there was no permanent pathology, there was no need for rehabilitation.[23]
[22] Id, 190.
[23] Id, 192.
81. Dr Pascall was of the opinion that by 2005 Ms Krauss’s physical symptoms in her hands, wrists and arms due to work had resolved. She agreed Ms Krauss subsequently suffered a cervical disc protrusion, and had ‘changes in the left wrist arthrogram’ but said neither was work-related. Following her viewing of the surveillance footage, Dr Pascall’s view was that Ms Krauss no longer appeared to have ‘substantial difficulty with any activity of daily living’. In other words, she was no longer impaired and hence there was also no need for rehabilitation nor to continue to take analgesics.
82. Dr Champion said that, in his view, Ms Krauss continues to suffer from ‘an objectively identifiable musculoskeletal/neurological condition’. However, he conceded that ‘others would argue against it’.[24] Nonetheless he was not prepared to change his whole person impairment assessment which implies that he believed she had a permanent impairment and that no rehabilitation was warranted. He noted, however, in his report of 14 April 2010: ‘[f]or analgesia she takes Panadeine Forte or Voltaren as required, typically one or other on about four days a week’.
[24] Id, 170.
83. Dr Andrews’ evidence as to Ms Krauss’s treatment for pain concurred with Dr Champion’s. Dr Andrews did not make an assessment of permanent impairment.[25] Dr Eaton in his report in 2007 said he would find it ‘extremely difficult’ to assess level of permanent impairment and he was unable to say her condition was ‘stable’. He suggested that further treatment through a pain management program and counselling might be appropriate. Dr Mickleburgh in his 2007 report said it was not possible to estimate whether Ms Krauss’s multi-causal conditions were permanent, and his prognosis was guarded. As he said, ‘Because the whole morbidity may be greater than the sum of its parts to try to separate the various factors as percentages risks an error of reductionism’. However, his view was that the condition was ‘chronic and progressive’ but would benefit from treatment of her physical problems as well as treatment to control her pain and for her depression.
[25] Id, 220.
84. In summary, Dr Macauley denies she suffered any permanent impairment, a view which accorded with that of Dr Stevenson. At the hearing Dr Andrews said he was sceptical about any condition labelled regional pain syndrome and he was not asked to provide an opinion on permanent impairment. His views on this issue can be discounted. Dr Pascall’s opinion is that Ms Krauss suffers no current impairment. Dr Bradbury affirms that Ms Krauss’s condition is permanent. Her view, as the long-standing treating practitioner, has been taken into account. Doctor Muirden and Dr Champion were of the same view. That means there is an equal division of medical opinion on the issue of permanency.
85. In that context it is noted that neither Dr Pascall, nor Dr Macauley had their views tested at the hearing. Dr Eaton and Dr Mickleburgh had not seen Ms Krauss since 2007, nor had they seen the surveillance footage of her in 2009. In those circumstances, it is inappropriate to give the same weight to their opinions about Ms Krauss's condition in 2010 as others who have provided a more recent assessment and had seen the surveillance footage. Nonetheless, they both conceded she had a regional pain condition which was ‘chronic’ although when they saw her, they thought she might benefit from further treatment. However, since both expressed some doubt about the effectiveness of further treatment, particularly given the length of time since the initial triggering event and in light of the evidence, for example, of Dr Muirden, repeated with approval by Dr Bradbury, of Ms Krauss’s reluctance to explore treatment for psychological conditions in preference to concentrating on her physical symptoms, the Tribunal considers their view of the need for such treatment should be given little weight.
86. On balance, and giving some weight to the opinions of Dr Eaton and Dr Mickleburgh in support of its view, the Tribunal finds that Ms Krauss does suffer continuing pain from a regional pain syndrome and that the condition is permanent, that is, is ‘likely to continue indefinitely’. The Tribunal notes that the polarised medical reports provided in this complex case have not made it easy to come to that conclusion.
87. That polarisation of views has been influenced by a number of factors. There is a degree of scepticism among some doctors about whether Ms Krauss continues to suffer any condition. In some cases this is because the medical expert is not convinced of the existence of conditions such as regional pain syndrome; in others, it is due to the impact of the surveillance footage which cast doubt on much of Ms Krauss’s evidence as to the impact of her conditions; in others it was due to the perceived non co-operation which Ms Krauss demonstrated when being tested. The Tribunal accepts there is a rational basis for these negative views and in particular that there has been a level of non co-operation by Ms Krauss in some medical examinations, and that the surveillance evidence supports a finding that Ms Krauss has, on occasion, significantly exaggerated the effect of her condition.
88. The views were well summarised by Dr Pascall in her 25 October 2009 report, having considered the surveillance footage:
There is no reason to suppose [Ms Krauss] would have substantial difficulty with any activity of daily living. Whilst she may experience some pain, the important factor is that she is able to accomplish the activities [as shown on the surveillance footage] without hesitation, and to do so with some of them repeatedly.
89. The Tribunal notes that any diagnosis of a pain disorder depends heavily on the account of the person in pain, and that testing for the effects of such a disorder involves an element of subjectivity. This in turn may be affected by the therapeutic relationship between the medical expert and the patient. This is another factor which needs also to be considered.
90. The Tribunal noted too the view of Dr Champion, responding to questions about the disparity between Ms Krauss’s account of her level of incapacity and the pictures presented in the surveillance footage, that: ‘virtually everyone in the medicolegal examination tends to favour an impression of their disability’, and as he put it ‘it would seem curious almost not to.’[26]
[26] Id, 248.
91. The Tribunal also gave weight in its consideration to the opinions of Dr Bradbury, Ms Krauss’s treating general practitioner, who provided three detailed reports which included careful comments on reports of other medical experts; Dr Muirden, a rheumatologist, who provided six reports for Comcare and gave evidence twice to the Tribunal; and of Dr Champion, who appeared for Ms Krauss, but who is an acknowledged expert on pain medicine and who also provided seven or eight reports and appeared twice at the Tribunal. Each maintains that Ms Krauss’s pain syndrome is permanent.
92. In particular, both these specialists were questioned extensively at the hearing about Ms Krauss’s level of incapacity in light of the surveillance footage; each maintained that Ms Krauss had clearly over-emphasised her condition in examinations, but each said in their opinion, Ms Krauss continues to suffer from a chronic regional pain syndrome.
93. In light of the medical opinions of Drs Bradbury, Muirden and Champion the Tribunal is prepared to accept that Ms Krauss does suffer continuing pain. That is in part based on the Tribunal’s acceptance that the surveillance footage would have masked to an extent Ms Krauss’s level of pain, that she is so inured to pain that she has learned to live with it so that it does not inhibit all her activities, that her activities as shown may have occurred at times and on days when her pain was less intense, or she was self-medicating, and that in the sequences shown with her father, Ms Krauss had no option but to take her father to the hospital and to manage his wheelchair, and to get him lunch. In addition, the Tribunal notes the view of Dr Champion that individuals that consistently experience pain are less likely to adopt behaviour which demonstrably indicates a painful experience. The surveillance footage was also no indication of whether, following these filmed excursions, Ms Krauss may well have needed to lie down on her return home.
What table or tables from the approved Guide should be applied in the assessment of Ms Krauss’s whole person impairment under section 24 of the Act?
94. Counsel for Ms Krauss conceded that he was not relying on the motion tables in the approved Guide namely, Tables 9.8 to 9.11. Nor is there evidence that Ms Krauss would meet the criteria in Table 9-E Objective Diagnostic Criteria for CRPS (chronic regional pain syndrome). That table requires that at least eight of the objective diagnostic findings must be present. It was common ground that Ms Krauss did not meet the requirements in Table 9-E.
95. That leaves Table 9.14, Upper Extremity Function, an alternative table to the ‘specific orthopaedic or neurological tables’.[27] Table 9.14 ‘assesses the function of the entire upper extremity’, but only from ‘objectively identified orthopaedic or neurological conditions arising in, and affecting the, the upper extremities’.[28]
[27] Approved Guide, 108.
[28] Ibid.
96. What are ‘objectively identified orthopaedic or neurological conditions’ was the subject of extensive submissions at the hearing. At issue was whether a pain disorder devoid of organic symptomatology can be said to be objectively identified. The Tribunal has not found jurisprudence on the meaning of the condition.
97. Counsel for Comcare was of the view that ‘[o]bjective takes its natural and obvious meaning in something that can be seen or touched or felt or indisputably exists’. This involved more than a subjective assessment by a medical specialist, however, expert. Further he argued that as the Table involved an ‘in globo’ assessment, the requirement for a ‘slightly more stringent criterion’, namely, an objective identification, than for the individual motion tables commencing with Table 9.8, was understandable. In his view, such a requirement was also consistent with the Guide when viewed as a whole.[29]
[29] Transcript, 285.
98. Counsel for Ms Krauss by contrast argued that ‘objective’ was not solely based on ‘observable phenomena’. As he put it:
An objective assessment by a medical practitioner can be based, and usually will be based, upon subjective data provided by another person, namely, the patient, provided that the practitioner is acting properly, in accordance with peer accepted protocols and criteria which are medically or statistically based and rational.[30]
As he said:
Even ‘objective’ orthopaedic assessments (eg those relating to the assessment of disabilities arising from back injuries) involve the correlation of history, radiology and clinical examination. Of those, the history and the clinical examination are necessarily coloured by subjective responses from the patient filtered through the training, knowledge and experience of the practitioner, and even the radiology (notionally objective, one might think) is subject to interpretation as to clinical significance. The objectivity of the assessment comes from the rigour with which the orthopaedic examiner applies evidence-based criteria accepted in that discipline.[31]
[30] Id, 277.
[31] Applicant’s Outline of Submissions, [2.9].
99. The Tribunal notes that the medical meaning of ‘objective’ in relation to a symptom is given as: ‘discernible to others as well as the patient’.[32] Such a definition could be met by the tests proposed by both counsel. The key indicator is that the matter is not purely subjective, or observable only by the person involved, but can be tested also by others.
[32] The Macquarie Dictionary (3rd edn) (2001), 1321.
100. That suggests the issue is whether the level of pain can be assessed by tests which are standardised. The practical problem is that the nerve ends said to be involved in pain disorders have not traditionally been able to be observed by any means – physical or electronic. As Counsel for Ms Krauss expressed the dilemma:
The predominant view in the evidence is that the Applicant suffers from a regional pain syndrome arising originally out of tendonitis in the arms triggered by repetitive work, which in turn led to central sensitisation of nociception causing persistent pain.
The central sensitisation of nociception is a neurobiological dysfunction affecting the neural processes of encoding and processing noxious stimuli in the nerve endings known as nociceptors. It describes the ‘increased responsiveness of neurons to their normal input or recruitment of a response to normally subthreshold inputs. Nociceptors are undoubtedly part of the neurological system. Therefore, the central sensitisation of nociception is plainly a ‘neurological condition’. However …. conventional neurophysiological techniques … only assess the function of myelinated peripheral axonal systems and miss the effects on small fibres such as nociceptors.
101. Whether nerve endings can be observed is a topic at the forefront of medical science. Even pain medicine specialists acknowledge this. The position was captured in an article in 2009, by authors in the pain medicine field who state:
Despite a growing interest in neuropathic pain, neurologists and pain specialists do not have a standard, validated, office examination for the evaluation of neuropathic pain signs to complement the neurological, musculoskeletal, and general physical examination.[33]
[33] David Walk et al, ‘Quantitative Sensory Testing and Mapping: A Review of Nonautomated Quantitative Methods for Examination of the Patient With Neuropathic Pain’ (2009) 25 Clinical Journal of Pain, 632.
102. The abstract for the articles goes on to note:
A comprehensive neuropathic pain evaluation protocol is essential for further advancement of clinical research in neuropathic pain. A protocol that uses tools readily available in clinical practice, when established and validated, can be used widely and thus accelerate data collection for clinical research and increase clinical awareness of the features of neuropathic pain.[34]
[34] Ibid.
103. At the same time, another author in the pain medicine field pointed out, in an article that is said to summarise the current state of knowledge regarding pain perception, that although pain is influenced by nociception, genetics, the context, mood, cognition, chemical and structural factors, and injury, neuroimaging tools are providing for non-invasive access to the central nervous system.[35] Thus, electrical activity in the brain can be monitored using electrophysiology, electroencephalography (EEG) and magneto encephalography (MEG); metabolic responses can be monitored by forms of positron emission tomography (FDG-PET), by near infrared spectroscopy (NIRS); and functional magnetic resonance imaging (FMRI).[36] In other words, as the author puts it: ‘Neuroimaging methods have the capacity to fulfil this need [for objective identification] as they provide a non-invasive, systems-level understanding of the central mechanisms involved in pain processing’.[37]
[35] Irene Tracey, ‘Imaging Pain’ (2008) 101 British Journal of Anaesthesia, 32. Emphasis added.
[36] Id, 34-37.
[37] Id, 32.
104. Nonetheless, at this emerging stage in the science, the Tribunal is not confident that even neuroimaging is yet in a position to provide the kind of ‘objective’ evidence which the approved Guide requires.
105. That view was expressed by Dr Muirden in his evidence when he said that the somatosensory testing employed by Dr Champion ‘may be … not relevant to the assessment of impairment on Table 9.14’.[38] Even Dr Champion conceded that ‘there would be those who would not regard [Ms Krauss] as having an objectively identifiable neurological condition’. Among those was Dr Andrews, who said he was sceptical of the existence of pain syndromes.
[38] Transcript, 254.
106. The Tribunal is, accordingly not prepared to find that the science of pain medicine has yet reached the stage where it can confidently be said that there are objective means of identifying the neurological conditions which may be involved in a regional pain syndrome so as to meet the criteria in Table 9.14 of the approved Guide.
Has Ms Krauss sustained a degree of whole person impairment greater than ten per cent when assessed under the approved Guide?
107. If the Tribunal is in error in that conclusion, the use of the Table would not assist Ms Krauss. Among the doctors who have assessed Ms Krauss level of incapacity the majority do not find that she satisfies the criteria in Table 9.14. Dr Macauley assessed her Whole Person Impairment resulting from the injury in 2002 as nil per cent. Dr Stevenson did likewise. Dr Pascall said she had no incapacity and hence would have found her level of impairment as Nil. Although Dr Champion found her level of impairment under Table 9.14 as 20 per cent, and Dr Muirden also found 10 per cent, Dr Muirden qualified that finding because he said use of Table 9.14 appeared to be proscribed since there were no objective signs.
108. On balance, therefore, although the Tribunal has found that Ms Krauss suffers from a regional pain syndrome, the assessment of the level of her impairment, according to the preponderance of the medical evidence, does not reach the required threshold of 10 per cent impairment. The decision under review is affirmed.
I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senoir Member and Dr M Miller, Member
Signed: ..................[sgd]..............................
C. Kocak, AssociateDate/s of Hearing 19 - 21 January 2010, 19 - 20 July 2010
Date of Decision 23 September 2010
Counsel for the Applicant Leo Gray
Solicitor for the Applicant Pappas J - Attorney
Counsel for the Respondent Phillip Walker
Solicitor for the Respondent Sparke Helmore
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