Lee-Gilbert and Comcare

[2001] AATA 655

DECISION AND REASONS FOR DECISION [2001] AATA 655

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A1999/205

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      NARELLE LEE-GILBERT            
  Applicant
           And    COMCARE  
  Respondent

DECISION

Tribunal       Senior Member J.A. Kiosoglous MBE Dr M.D. Miller (Member)        

Date16 July 2001

PlaceCanberra

Decision      The Tribunal affirms the decision under review.

(Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
COMPENSATION – chronic pain syndrome – repetitive strain injury – permanent impairment – degree of permanent impairment – activities of daily living considered – pre 1 December 1988 injuries considered – digital dexterity considered – use of video evidence commented upon – medical evidence discussed
Safety Rehabilitation and Compensation Act 1988 s. 24
Compensation (Commonwealth Government Employees) Act 1971
Re Peters and Australian Postal Corporation (AAT 9680, 23 August 1994)
Re Toohey and Australian Postal Corporation (AAT 13360, 2 October 1998)
Department of Defence as Delegate of Comcare v West (1998) 156 ALR 651
Comcare v Amorebieta (1996) 66 FCR 83
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery(1993) 32 ALD 147

REASONS FOR DECISION

16 July 2001   Senior Member J.A. Kiosoglous MBE  Dr M.D. Miller (Member)               

1. This is an application by Ms Narelle Lee-Gilbert (the applicant) for review of a decision of a review officer of the respondent dated 20 May 1999 (T228) which affirmed upon review a decision of a delegate of the respondent dated 25 November 1998 (T216) which rejected the applicant's claim for a lump sum permanent impairment payment pursuant to section 24 of the Safety Rehabilitation and Compensation Act 1988 (the Act).

2. The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T230), together with 56 exhibits, 23 lodged by the applicant (Exhibits A1-A23) and 33 lodged by the respondent (Exhibits R1-R33). In addition, the Tribunal heard evidence from the applicant, who also called Mr S.J. Gilbert, the applicant's husband, Dr G. Champion, Rheumatologist, Dr C. Browne, Rheumatologist, and Dr P. Hilton, General Practitioner. The respondent called Dr N. McGill as a witness. The applicant was represented by Mr H. Selby and the respondent was represented by Ms E. Ford, both of counsel.
   history of the application

3. The applicant was employed by the Department of Immigration, Local Government and Ethnic Affairs (the Department) from 1 July 1982.  On 10 February 1988 the applicant submitted a claim for aggravation of a repetitive strain injury (RSI) (T3).  The applicant attempted several return to work programmes after this time, but remained off work from about 1990 onwards.  In the ensuing years, the applicant underwent various rehabilitation assessments, without ever returning to the workplace.  On 22 November 1995 she was retired from the Department on the basis of invalidity.

4. The applicant lodged a claim for permanent impairment on 23 May 1996 (T138) which was rejected by a delegate of the respondent on 25 November 1998 (T216) and affirmed upon review on 20 May 1999 (T228).
   applicant's evidence

5. The applicant was born in 1957 in Queanbeyan.  She completed high school there in 1975.  She told the Tribunal that she was an active basketball player at school, representing the ACT in the under 16 age group, and also played water polo, polo cross, and travelled to country shows as part of her horse showjumping activities, which she stopped in or about 1973.  She stated that the last time she went horseriding was in 1975, but agreed, in cross-examination, that she had ridden a horse three to four years ago, but stated that it was only for 15 minutes or so.  She also agreed that she had fallen off a horse in 1978 and had headaches after that, which she described as being very minor.  She agreed that she had headaches as a child, but described them as being nothing like the ones she gets now.

6. The applicant told the Tribunal that there was no need for her to seek psychiatric assistance as a child, and neither her parents nor siblings had ever sought such assistance.

7. After high school, the applicant completed a 12-month secretarial course at Canberra TAFE College, based at Reid.  She told the Tribunal that she then got a job for 12-18 months at Gregory Ford as a switchboard operator, during which time she had no problems with her arms, shoulders or wrists.  She stated that she continued to play basketball and water polo, as well as swimming and doing aerobics at this time.  She gave evidence that she has been a religious person since age 9 and attends church on a weekly basis, with additional prayer healing sessions twice a week, in order to receive "true light" through "hands on healing".

8. The applicant stated that she has been full and frank in the history she has given to doctors over the years.  She further stated that she now gets facial pain in her right temple and cheek, pain either side of her spine, below the rib cage and restrictions of movement in her back.  She gave evidence that she has pain in the back of her wrists and hands, with an "electric current'' running down her fingers.  Her main problem is with her right arm, which is very sore up and into the shoulder.  She told the Tribunal that the intensity of pain has increased over time, and the spasms she has in her right arm have also increased.  She also stated that she has weakness in her right arm, and can loose grip without warning.  She described the pain in her arms as dull, debilitating, wearing and continuous.  She also stated that she had never experienced pain like that whilst working at Gregory Ford.  She denied, in cross-examination, that she does not have loss of movement in her neck, spine and arms, and stated that she is restricted in her movements, and in the way she twists and bends.

9. The applicant told the Tribunal that she very rarely had migraines prior to getting RSI, and stated that the time she had off work from 1985 to 1987 was all related to her RSI problems.  She gave evidence that she has virtually never been without a headache since 1984, and has headaches 24 hours a day.  Her neck pain and shoulder spasms have been getting worse in the past few years.  She stated that her problems stated in her wrists and arms, and the combination of these problems led to her back trouble.  She further stated that she continued to receive treatment for RSI up until January 1988 when she went on holidays, and told the Tribunal that her injury flared up upon her return to work.  She complained that she got no help or the ergonomic furniture she requested for at least twelve months and had a very heavy workload.  She only takes Panadol, Fioronil and Aspirin, as she is very sensitive to most medications, and has unsuccessfully tried a number of medications over the years.

10. The applicant stated that she has to plan everything that she does, and gave the examples that she tries to avoid using clothes pegs, hangs out the washing in batches, keeps the garden wet, steers clear of heavy casserole meals, and tries to buy clothes that she can put straight over her head.  She told the Tribunal that her husband works in Sydney from Monday morning to Friday afternoon, and that it is tough without him at home during the week.  She gets homecare cleaning assistance once per week, and a gardener comes once a fortnight.  Her mother also assists on occasion with meals and ironing.  She gave evidence that she tries to stay as active as possible, swims in summer, tries to play basketball with her daughters, and to keep a positive attitude.  She stated that she needs to keep "pushing through" the pain in order to remain involved in her girls' lives.  She can cycle for about ½ hour on flat surfaces, but noted that pain gets worse with activity.  She stated that she is not able to use her fingers properly, and uses the palms of her hands.  She gets on with her life as best she can, "pushing through" the pain.

11. The applicant stated that she could possibly pull or push her children along depending on the circumstances, and considered that she would give it a go to try to help her children.  She went on about four skiing trips in 2000.  She recalled one trip where she went alone with her daughters for either one to two nights, and told the Tribunal that the others were day trips.  On the occasion where she went without her husband, she drove the 3 ½ hour journey each way, with breaks every hour or so.  She told the Tribunal that at various times on these trips she skied for periods up to 2 ½ to 3 hours, and pulled her girls around by their stocks in the snow.  She could not recall pulling her children up off the snow.  She further stated that she had breaks whilst skiing, the slopes were not steep and she rested whilst on the chairlift.  She also stated that she was in constant pain whilst on the ski trips.  She noted that her doctors have told her to keep as active as possible, and considered skiing to be part of that.

12. The applicant described an incident where a car crashed into her back courtyard, and the subsequent claim she submitted for shock.  She told the Tribunal that she woke up in shock at the noise of the crash and began vomiting.  She did not know at that stage what had caused the crash, but suffered shock from the noise alone.  The claim was settled for about $14,000 inclusive of repair costs for the courtyard.  She was also referred to an action she commenced against Woolworths Supermarkets in 1996 after an incident in which she slipped on some potato chips that were on the floor.  She denied, in cross-examination, that she tried to hide certain of her conditions from Woolworths, and stated that that claim related to knee and hip problems, unrelated to her upper body RSI related complaints.  She settled out of court for $15,000 in relation to that claim.

13. The applicant stated that she is quite passionate about going back to work, and were she in a medically fit position to be able to consider returning to work, then she would do so.  She told the Tribunal that she has not returned to work as she heeds her doctor's advice, which is that she is not fit to return to work, even in a limited capacity.

14. On the morning of the hearing, whilst giving her evidence, the applicant experienced a spasm in her right upper arm, which she described as being like a corkscrew going in and out of her arm, lasting a bit over 10 seconds.  She can only relieve the pain by applying pressure from her other arm.  The applicant was also shown two videos, one, which she had prepared with her husband (Exhibit A10), and one prepared by the respondent (Exhibit R18).  In respect of the former, she told the Tribunal that the instance where she appears to be in pain was caused by her husband bumping her, so that she used her right arm to break her fall against a kitchen cupboard.  In relation to the latter video, she stated that she was aware of being under video surveillance and still tried to get on with her life as best she could.  She further stated that no doctor had ever asked her if she could ski or not, and that when she skis (as shown on the video) she moves her whole body, not twisting from the hips or neck.
    shane john gilbert

15. Mr Gilbert, the husband of the applicant, prepared a written statement dated 7 May 2001 (Exhibit A5) from which the Tribunal notes the following:

    "…
    When I met Narelle in 1979 she was 22 years old.
    At that time Narelle's life revolved [around] her love of basketball, aerobics, and her keen desire to strengthen her body through weight training.
    …"

1. In oral evidence in support of his statement, he told the Tribunal that he has worked in Sydney from Monday morning to Friday afternoon since January 1998, and has noticed that the applicant's impairments have increased over that time.  He stated that she now suffers facial neuralgia, which commenced 12-15 months ago, has headaches of greater frequency and intensity and has increased restrictions in the use of her arms, due to pain and increased number and intensity of spasms.

2. Mr Gilbert stated that the applicant's impairments have significantly affected their home and family life.  He stated that the applicant has found coping with housework more difficult and has to plan activities more than usual, giving the example that she tries to avoid using pegs when hanging out washing. 

3. Mr Gilbert told the Tribunal that the applicant was a very active skier in the early 1980s, and would ski about 5-6 times in a winter season, tackling some of the steeper slopes.  He gave evidence that in 2000 the applicant skied much slower than before, and only on the slow slopes, at about 50% of her old capacity, and still experiencing muscle spasms and needing to take breaks.  He could not recall anyone telling Dr Champion that the applicant was not an experienced skier, and denied, in cross-examination, that he was exaggerating the applicant's skiing abilities pre-injury.  He considered that the applicant would be capable of pulling both children along on their skis for about 20 minutes with some difficulty, and thought that she would be in pain whilst doing that activity. 

4. Mr Gilbert considered that if the applicant accepted the pain, or "put her mind to it", she could cut some vegetables, vacuum or drag the children through the snow.  He disagreed, in cross-examination, with the proposition that the applicant has not suffered a loss of movement, and stated that she cannot extend upwards or sideways without pain, can only turn from side to side with some difficulty, and has to turn her shoulders at the same time she turns her neck.
   dr d. champion

5. Dr Champion has been the applicant's treating Rheumatologist since April 1992, and has seen the applicant on about 13-14 occasions.  He has prepared written reports in this matter.  From the report dated 6 September 1999 (Exhibit A3) the Tribunal notes the following:

   "…
   … As of July 1999, I consider that she has the following percentage whole person impairment:

• Right upper limb 20% (as in Table 9.4 she can use the limb for self care and has difficulties grasping and holding).

• Left upper limb 10%.

• Neck 10% (Table 9.6).

• Back 10% (Table 9.6).

  It should be noted that in respect of the activities and range of movement which form the basis for the Comcare Guidelines, it is her difficulty is [sic] sustaining these activities and ranges of movement which are the essential problem.  It is the nature of chronic pain with spinal and limb allodynia that repetitive movements, and other repetitive minor mechanical stimuli, lead to a wind up of pain (temporal summation of minor sensory inputs into the spinal cord leading to higher level sustained pain responses due to the excitable dorsal horn neuron activity which is characteristic of central sensitisation of nociception).
  …"

1. In oral evidence in support of his reports, Dr Champion stated that the applicant has been consistent in her presentation over the years.  He referred to a number of studies on neurobiology and pain disorders, and told the Tribunal that the applicant's pain is pathological in nature, and occurs as a result of gradually increasing stimuli over the course of the day.  He further stated that whilst the applicant's pain will settle with rest and treatment, she retains a lifelong propensity to pain and retention of pain.

2. Dr Champion stated that work-related neck and arm pain is much more readily accepted overseas and that a culture of repression exists in Australia.  In relation to the video surveillance tapes, Dr Champion gave evidence that he was puzzled and surprised by the applicant's apparent ease in some of the skiing activities, but did not consider that the depicted activities refuted the genuineness of the applicant's problems.  He told the Tribunal that he has advised the applicant to remain active and noted that her pain levels can be variable.  He considered that the limitations with pain disorders can often be to specific tasks.

3. Dr Champion stated that one would expect to see an improvement in the applicant's condition over time, but that things vary, and she could not sustain fine finger keyboard work.  He noted, however, that in his recent assessment he found no fine finger problems, and stated that the applicant could use her fingers effectively for most tasks on a short-term basis.
   dr c. browne

4. Dr Browne, Rheumatologist, saw the applicant on 25 January 2000 and prepared two reports dated 14 March 2000 (Exhibit A4) and 4 June 2001 (Exhibit A15).  The Tribunal notes the following from his written report dated 14 March 2000:

   "…
   Overall, she does not feel any significant improvement in her chronic pain or functional capacity.  She experiences pain involving the whole of the right upper limb and upper left arm together with aching in her thoracic and lumbar regions and diffuse headaches.  She has recurrent paraesthesiae of the 4th and 5th fingers of the right hand.  At home she needs assistance with cooking, vacuuming, cleaning and has difficulty hanging clothes.  She can carry light shopping and is able to walk and swim for short periods.  She sleeps poorly and is on no current medications except for Fiorinal.
   …
   Opinion and Prognosis:      Mrs Lee-Gilbert was symptom free prior to commencing work with the Australian Public Service and within 12 months of commencing duties as a data processor with The Department of Immigration and Ethnic Affairs, she developed bilateral upper limb symptoms suggesting neuropathic pain with proximal spread to the upper arms and shoulders and an electrical sensation.
   It is highly relevant that her symptoms were perpetuated by the nature and conditions of her work subsequent to the onset in approximately 1982/83.  The condition became more chronic and entrenched and was not reversed by commencing part time work and cessation of keyboard duties.
   There has been no significant symptomatic improvement since ceasing work in 1990, although Mrs Lee-Gilbert seems to have adjusted to her condition as best she can and requires a good deal of home assistance and support for activities of daily living.
   In my view, she has a severe chronic neuropathic pain disorder involving the cervical and thoracic spine and upper limbs and potentially involving the lumbo sacral neuraxis in view of her complaint of vaginal neuralgia and dyspareunia.
   The neuropathic basis for her pain is strongly suggested by the history and physical findings which include the hallmark features of allodynia and secondary hyperalgesia with windup phenomena consequent upon repetitive minor mechanical stimulation of the affected upper limbs and shoulder girdles.
   The spread of pain together with the increased intensity of pain and persistence of pain after ceasing mechanical stimulation are the major clinical features suggesting central sensitisation of nociceptive processing.
   The condition is very difficult to treat and there are no available measures which will effectively curtail her chronic pain and functional impairment.
   She is permanently unfit for her pre injury duties and fit only for light non repetitive tasks.  Her prognosis for recovery of pre-injury functional capacity is poor.
   Utilising the Comcare guidelines for assessment of permanent impairment and specifically Table 9.4, I would assess that she has percentage whole person impairment of the right upper limb at 20% and the left upper limb at 10%.
   Utilising Table 9.6 there is 5% whole person impairment with reference to the cervical spine and 10% with reference to the lumbar spine."

1. In oral evidence in support of his reports, Dr Browne stated that on the basis of the video tape he was shown (Exhibit R18) he was impressed that the applicant had significantly better function than she had had upon examination, and that she appeared to perform reasonably well in towing both children behind her on skis.  He stated that the significant aspect of that activity was that the applicant appeared able to bear a load on her arms for a period of time without pain causing a need to stop.  If it were in fact the case that she went skiing the next day, he considered it difficult to see that the applicant was impaired by the towing activities.  He considered that the intervals in between the towing episodes were important, and that if the applicant were able to repeat the activity at short intervals, that was significant in demonstrating capacity.  If the applicant was having pain during the activity, he would expect her to modify her actions or stop doing the activity.

1. Dr Browne told the Tribunal that the applicant's hand function appears to be normal in the video and that the video puts his assessment of 10%, pursuant to Table 9.4 of the Guide to the Assessment of the degree of permanent impairment (the Guide), into dispute.  He considered that the applicant demonstrated a full range of movement of the cervical spine for the purposes of Table 9.6 of the Guide.

2. Dr Browne stated that it was highly unusual for the condition to have deteriorated given that the applicant has not been working for 11 or 12 years.  He considered that if new symptoms emerged 18 months to 2 years after ceasing employment, then it was more likely than not that that was a new diffuse pain condition.
   dr p. hilton

3. Dr Hilton has been the applicant's treating General Practitioner for about 13 years and has prepared a number of reports during that time in relation to this matter.

4. In oral evidence, Dr Hilton told the Tribunal that she has seen the applicant on about 60 occasions, but noted that between May 1999 and March 2001, Dr Champion was keeping an eye on the applicant.  She stated that she encourages the applicant to do as much as possible, and did not consider that the video evidence demonstrated any inconsistencies, and considered the towing episode to be a specific activity with breaks involved. 

5. Dr Hilton told the Tribunal that the applicant can do some light duties, and stated that she has other patients with chronic pain syndromes who do a range of activities and work through the pain in order to get on with life.  She stated that she found a full range of movement in the applicant on her last examination, but commented that the applicant only had such range for short periods of time.  In relation to Table 9.4 of the Guide, she told the Tribunal that she did not test digital dexterity on the last occasion and agreed that in the video the applicant appeared to be able to grip and grasp.  In relation to the headaches, she considered that such interfered with some aspects of daily living, such as movement and self care at times when things are bad, or when the applicant is in spasm.
   dr n. mcgill

6. Dr McGill, Rheumatologist, prepared three reports dated 8 May 2000 (Exhibit R3), 29 September 2000 (Exhibit R22) and 19 April 2001 (Exhibit R4).  In the report dated 29 September 2000 he stated (inter alia):

   "…
   Over the course of the video she demonstrated normal function of her upper limbs, neck, back and lower limbs while performing a range of activities that required flexibility, strength and gripping.  There was no suggestion of any impairment of function.
   The function demonstrated on the video was not in keeping with the symptoms she reported to Dr Youssef in September, 1998.  At that time he recorded that Ms Lee-Gilbert "told me that the pain in her arms, neck and shoulder girdle is present constantly.  At present she is only able to perform very limited domestic duties such as light dusting".  Her actions were also not consistent with the symptoms recorded by Dr Hilton, such as in his report of 28 November, 1990.  He recorded "Any activity was reported to increase her pain level and extend it down her back (thoracic area).  Recovery time was estimated at one hour.  She reported difficulty driving due to poor grip in the right hand".  He also reported "spasms and poor grip and electric shocks down both arms" and "severe daily headaches".  Her function as demonstrated on the video was clearly not consistent with those reports.
   There is no evidence on the basis of the video information that she suffers from any injury or disability with respect to her left upper limb, right upper limb, neck or back.
   I do not believe that the level of activity she demonstrated on the video is consistent with an alleged incapacity for employment as an administrative officer or data processing officer with the Department of Immigration.
   The evidence on the video I think clearly demonstrates that she does not suffer any permanent impairment with respect to either upper limb, neck or back (nor anywhere else)."

1. In a subsequent report dated 19 April 2001, Dr McGill stated (inter alia):

   "…
   She was slim carefully groomed and composed.  Her gait was normal.
   Inspection of her upper limbs was normal.  Colour, temperature and sweating were normal and symmetrical.
   Muscle development in the upper limbs was good and symmetrical.  Circumference of each arm, 15cm proximal the olecranon, was 24cm.
   The upper limb reflexes were normal and symmetrical.
   During the assessment of muscle power she feigned profound weakness in the right upper limb.  She allowed me to overcome each muscle group in the right upper limb using one finger only.  During resisted adduction of the right shoulder she actively abducted the arm.  She had performed normal power with each of the muscle groups in the left upper limb immediately prior to the testing of that muscle group in the right upper limb and thus there was no doubt that she understood the nature of the test.
   During the sensory examination, I initially used cotton wool with her eyes closed.  In the left upper limb she initially reported correctly.  On one occasion in the right upper limb she replied "no" and shook her head when touched.  Subsequently she sometimes failed to respond also in the left upper limb.  The pattern of behaviour during the sensory examination clearly indicated false reporting.
   When asked to demonstrate the range of joint movement, she performed a full range with the exception of the right shoulder.  When placing her right hand behind her head and moving her elbow backwards, she indicated a sudden onset of pain in the right proximal arm.  There was no muscle contraction and the muscle bellies remained relaxed.  She did not have evidence of impingement and there was a full range of passive movement.  I felt that the behaviour was false.  The upper limb joints looked and felt normal.
   During the specific assessment of tenderness, she reported tenderness of her forearms, arms, and back muscles.  She stated that there was no tenderness of her hands, nor of her legs.
   She demonstrated a full range of neck movement in all directions but indicated some discomfort by means of facial expression.  She demonstrated a full range of low back movement without discomfort.  She was able to touch her toes while keeping her legs straight.
   The lower limb neurological examination was normal.  The lower limb joints were normal and moved through full ranges.
   …
   This 43 year old lady reported that she developed symptoms initially in her hands and upper limbs in 1983 and subsequently pains involving most parts of her body.  Her objective physical examination was entirely normal.  There was definite evidence on several occasions of false behaviour.
   …
   I do not believe that she has any physical disorder.  I also do not think that she fits the typical clinical picture of fibromyalgia.  Fibromyalgia is a common clinical syndrome (including outside of the compensation system) in which people feel depressed or anxious, have sleep disturbance, report widespread musculoskeletal pain and tenderness in the absence of any physical disorder.  They do not however, behave in a false manner at the time of assessment.  She may or may not have some psychological problem but her presentation today was dishonest.
   There is no physical problem related to her work nor is there any evidence of any physical problem on any other basis.
   She has no impairment in accordance with the Comcare Guide.
   She is fully fit for her former work and any other work within her training and experience."

2. In oral evidence in support of his reports, Dr McGill stated that there was no evidence upon either examination of the applicant or in the video footage of a problem with digital dexterity, or a loss of cervical spine movement.  He considered that the video showed a normal person doing a normal thing, and behaving in a normal manner.  He considered that on the basis of the footage he had seen (Exhibit R18), regardless of whether there were breaks in the towing activity, the applicant displayed normal functioning.  If the applicant did not have normal functioning, he would not expect her to be able to pull the children up the slope, and considered this to be a much more vigorous activity than clerical duties.

3. Dr McGill stated that he has had patients in which he has diagnosed a physical problem without pathological evidence, and other cases in which he has diagnosed fibromyalgia, where a patient feels pain without physical evidence being present.  In the applicant's case, he considered there to be substantial dishonesty in her presentation.  He stated that the inconsistencies in the applicant's presentation were not minor.  He rejected the notion that normal activity can cause changes in pain pathways, and stated that such a proposition is not accepted outside of compensation related settings.
   further medical evidence

4. The Tribunal notes the large volume of other reports before it.  As the video evidence became an increasingly significant aspect of this case, the Tribunal notes the following reports in relation to that aspect of the case.  It also notes that Mr Selby addressed such issues in his submissions to the Tribunal.

5. In a report dated 8 November 2000 (Exhibit R25) Dr R. Craven, Neurologist, stated (inter alia):

   "…
   Ms Lee-Gilbert's general behaviour and freedom of movement is startlingly different from the limitations described to me by her at the time I examined her three years ago.
   Her activities are not consistent with the history of her symptoms and disabilities as she reported them to me.
   …
   It is my opinion that the videotape does not confirm that Ms Lee-Gilbert suffers any injuries or disabilities that could be attributed to her employment with the Department of Immigration.  Her upper limbs and spine seem to function normally and included, as I have stated, times when she is moving vigorously, e.g. when skiing or pulling children along the ski slope.
   …
   The level of activity shown on the video is inconsistent with a finding that she would be totally incapacitated for employment as an administrative or data processing officer.
   …
   The level of activity shown on the video is not consistent with the finding that she suffered permanent impairment of the spine or upper limbs.
   …
   The level of activity is not consistent with my assessment (8 October 1997) that there was a 15% impairment of the cervical spine.
   Clearly, since the time of that assessment there has been a very significant improvement in her condition.
   …"

1. In a report dated 17 October 2000 (Exhibit R26), Dr J. Fleming, Psychologist, stated (inter alia):

   "…
   In my opinion the activities performed by the applicant on the video are not consistent with the history of symptoms and disabilities that she reported to me and the behaviours I observed during my examination in November 1999.
   …
   In my opinion the level of activity as demonstrated by the applicant on video is in conflict with her reported signs and symptoms and is therefore not consistent with a diagnosis of chronic pain disorder.  In my opinion it would be unlikely that a person with chronic pain could maintain the ongoing level of activity as demonstrated by the applicant on the video.  It would be difficult to sustain this level of activity over several days even with the use of medication.
   …
   In my opinion the level of activity demonstrated by the applicant on the video is not consistent with the finding of 20% whole person impairment pursuant to Table 13.1 or with 15% impairment pursuant to Table 5.1.  This is supported by the observation that the applicant on the video performed a number of daily tasks as well as sustained strenuous exercise without assistance.
   …"

2. In a report dated 23 October 2000 (Exhibit R24) Dr P. Youssef, Rheumatologist, stated (inter alia):

   "…

   1.This video shows Mrs Lee-Gilbert bending forward to unload a car, fix up her skis and pick up children off the ice on several different occasions over several different days.  She is seen twisting her neck in all directions without any difficulty.  She is seen raising both shoulders and bending her arms without difficulty while shopping.  She is seen doing strenuous activities, such as pulling children up a hill and inching her way up a hill while she is on skis.  This video is inconsistent with the history of symptoms and disabilities that she reported to me, which I detailed in my report of 29 September 1998.  On that occasion Mrs Lee-Gilbert reported to me that she was only able to perform very limited domestic duties, such as light dusting, and that she needed her mother to prepare meals and to help her look after her two children.  The findings of the video are completely inconsistent with this, and show a lady who is clearly capable of doing the shopping, of performing all the physical movements which would be required to perform all of the common domestic duties.

   2.In my opinion, the video demonstrates that Mrs Narelle Lee-Gilbert does not suffer any injuries or disabilities from

   a.her left upper limb

   b.her right upper limb

   c.her neck or

   d. her back

   which could be attributed to employment to [sic] the Department of Immigration in 1984, 1988.  The level of activity demonstrated on the video is not consistent with someone who suffers chronic pain syndrome of the upper limbs and cervical spine.  My opinion was mostly based on the history given to me by Ms Lee-Gilbert, which is not consistent with the findings on the video.  Also, during my interview with her, she developed sudden pain in the right arm when grabbing a bag.  Clearly she has no difficulty with such movements at the present moment.

   …"

1. In a report dated 4 October 2000 (Exhibit R23), Dr K. Muirden, Rheumatologist, stated (inter alia):

   "…
   What impressed me about the central figure in the videotape was her complete freedom of movement, with an ability to bend, twist, run, lift and carry, as well as pull two children on skis up a rise.
   …
   The physical capabilities of the person shown in the videotape are totally different from those of the person I examined on 17 December 1999.  The subject of the video has clearly recovered fully from her pain syndrome/fibromyalgia which was disabling her in December 1999.
   …
   The person shown in the videotape clearly does not suffer from any injury or disability in either her left upper limb, her right upper limb, her neck or her back.
   …
   In my opinion, the subject of the videotape shows no evidence of a cervicobrachial regional pain syndrome with features of fibromyalgia.
   …
   The activity exhibited by the subject of the video is inconsistent with any impairment that is permanent, as expressed to me on 17 December 1999, whether that resulted from her employment with the Department of Immigration or from any other injury.
   As indicated above, if the person shown in the video is definitely Ms Lee-Gilbert, she has clearly fully recovered from the condition which was evident at my clinical assessment on 17 December 1999.  You will note that in my previous report I indicated that approximately 50% of subjects with fibromyalgia do recover fully from their illness.
   …
   The person pictured in the video clearly is not suffering any form of whole person impairment to either arm or to the neck or back.  She has made what appears to be a dramatic recovery.
   …"

applicant's submissions

1. Mr Selby submitted, on behalf of the applicant, that she suffers a permanent impairment, pursuant to Tables 9.4 and 13.1 of the Guide in particular.  He further submitted that the Tribunal should prefer the opinions of the applicant's treating doctors, namely Drs Hilton and Champion, as they have had a long-term clinical and therapeutic relationship with the applicant, and have considerable expertise in pain medicine.

2. Mr Selby submitted that there is no evidence of malingering or exaggeration, as supported by the preferable medical evidence.  He further submitted that the applicant has been told to keep as active as she can, and that whilst she is capable of doing certain things, this is not to say that she is without chronic pain.  If the video evidence was put into its proper context, he submitted, it demonstrates that the applicant is genuine in her presentation of pain.  He invited the Tribunal to comment about the extensive use of video surveillance.
   respondent's submissions

3. Ms Ford submitted, on behalf of the respondent, that this case concerns the question of loss of function, not pain, and that the evidence clearly establishes that the applicant does not have a loss of function for any of the conditions related to the reviewable decision.  She further submitted that the video evidence demonstrates a capacity for strenuous activity and no restrictions of movement.  She also submitted that the applicant is capable of undertaking all the activities of daily living as defined in the Guide.  In her submission, there is no evidence of even the slightest difficulties using her hands, or with digital dexterity. 

4. Ms Ford submitted that voluntary abstention from movement to avoid pain is not sufficient to come within the definition of impairment.  In the event that the Tribunal found permanent impairment, Ms Ford submitted that it arose prior to 1 December 1988 and was thereby precluded from the lump sum provisions of the Act, coming instead under the Compensation (Commonwealth Government Employees) Act 1971.
   discussion and findings

5. The Tribunal has only briefly set out the evidence and submissions before it, but takes all into account in reaching its decision.  In particular, it notes that it has taken the opportunity to view the further video material to which both counsel referred (contained in the four video tapes (Exhibit A17)), and also viewed quite a portion of the video material surrounding the particular passages referred to by counsel.

6. The applicant's claim for permanent impairment cited "neck, back, both arms and shoulders, head" (T138/219) with the diagnosis by Dr Hilton being given as "chronic cervicobrachialgia, neuropathic pain syndrome" (T138/220).  Accordingly, the Tribunal has taken a liberal approach as to which Tables are appropriate to use for assessment.  Whilst Ms Ford is correct that it is only in relation to the accepted condition that section 24 of the Act can apply in this matter, the applicant's contention is that the neck, back, shoulder, and headaches are all related to the accepted RSI condition, which is variously now referred to as chronic pain syndrome or neuropathic pain syndrome.

7. The Tribunal therefore turns to the evidence before it in relation to possible impairment pursuant to Tables 9.4, 9.6 and 13.1, being the Tables relied upon by the applicant.

8. Table 9.4 refers to limb function of the upper limb.  The minimum level of impairment is 10%, which is where a person "has difficulty with digital dexterity".  In that regard, the Tribunal was referred to the decision of Re Peters and Australian Postal Corporation (AAT 9680, 23 August 1994) in which the Tribunal, (comprising Senior Member Barnett (as he then was) and Members Staer and Lloyd) stated (inter alia) at paragraphs 18 and 20:

   "18.     … He has a degree of weakness in his left hand but that does not amount to a difficulty with digital dexterity. … The Tribunal is satisfied to adopt either of the two dictionary definitions of "dexterity" as quoted by Ms Mackey in her submissions
             "a skill and ease in using the hands" Webster Medical Dictionary; or

   "manual or mental adroitness" Oxford Illustrated Dictionary.

   …

   20.      Even if his left hand dexterity were slightly impaired in its ability to carry out fine manipulative movements (on which point the Tribunal is not satisfied), that would not necessarily be sufficient to warrant any assessment under Table 9.4 of the Guide.  For whatever reason, the legislature has chosen to preclude compensation for this type of permanent impairment unless it is quite severe.  This is demonstrated by the fact that the minimum degree of impairment which can be awarded for this impairment is 10 per cent impairment of the whole body."

1. Mr Selby did not seek to distinguish this authority, and the Tribunal finds that it is a proper statement of the standard to be applied to an assessment pursuant to Table 9.4.  The Tribunal also notes that pain, (as may occur with repetitive use for example) may result in the loss of digital dexterity and that this may result in an impairment pursuant to Table 9.4 (see Re Toohey and Australian Postal Corporation (AAT 13360, 9 October 1998).

2. Dr Champion stated that upon his most recent examination, he found no fine finger problems, and considered that the applicant could use her fingers effectively for most tasks, albeit limited in duration.  Dr Browne indicated that the video demonstrates good hand movement, and Drs McGill, Muirden and Youseff consider that there is no demonstrable difficulties on the basis of the compilation video they saw (Exhibit R18).  Dr McGill goes further and includes his own assessment of the applicant upon clinical presentation in reaching his conclusions as to the extent of her impairment.

3. The Tribunal has carefully watched extracts from the video material provided in addition to the compilation tape.  This put the "towing of children" incident into context.  Unfortunately for the applicant, having viewed the extended version of that incident, the Tribunal concluded that it puts the applicant's actions in an even bleaker light than what the compilation tape reveals.  What Mr Selby characterised as "resting" in between episodes of pulling the children behind her appeared far from what the Tribunal would call resting.  At the end of each run, the applicant would pull her children's ski poles from their hands, and hold them in either one hand or the other as she walked back down the slope or otherwise stood around.  When she then pulls the children, she can be observed as bending her arms, thereby taking the weight fully on her wrists and lower arms, and at other times pulling them so as to take the weight on her upper arms.  At times, one of the children is seen to tug on the skis so as to pull the applicant's arms backwards.  She is still able to hold onto the ski poles, however, despite this fact.  Were this towing of the children an isolated incident of some 25 minutes or so, then it may be explained away.  At other times on the videos however, the applicant is observed reaching into the car boot and lifting out ski poles and skis, she picks her child up out of the snow prior to the towing incident, she walks down stairs carrying items in one hand and holding out the other arm to balance, and presumably to take the weight if she slipped.  As the investigators' running sheets suggest, the day following the towing incident, she was able to go out skiing again for at least 2 or even 3 hours.  When skiing, at one stage she is observed digging the poles into the snow in order to propel herself along.  The Tribunal was left wondering how one could possibly do such a manoeuvre if one had a 10% impairment pursuant to Table 9.4.  The applicant's skiing is not simply the gentle "glide through the snow" suggested by the applicant.  Any skiing activity, even on gentle slopes is rigorous activity in the Tribunal's opinion.  The applicant is also shown on the videotapes picking up shopping bags, and carrying items at times with no apparent difficulty.

4. The Tribunal has only made mention of several of the many incidents observed on the video tapes to illustrate the overall impression it has gained, taking into account all of the evidence before it.  That impression is that it cannot possibly be suggested that the applicant would meet the 10% threshold under Table 9.4.  The applicant's presentation on the respondent's videos is entirely inconsistent with her prior presentation at medical examinations, and with the performance on her own video (Exhibit A10), and demonstrates no real restrictions in movement or difficulties with digital dexterity. 

5. The Tribunal found Dr McGill to be a most impressive witness, and prefers his evidence in areas of dispute, but even Dr Browne, called by the applicant, recoiled from his initial 10% assessment.  Armed with the video material and with the plethora of medical opinion contrary to the applicant, it would be ludicrous for this Tribunal to find 10% impairment under Table 9.4, particularly given the standard to be applied to meet the 10% threshold (applying Re Peters).  Whilst Dr Champion suggested that the applicant would only be able to use her fingers effectively in the short term, there is no credible evidence to support this contention, and the Tribunal finds that the applicant has no impairment for the purposes of Table 9.4.

6. Again taking into account the video material and medical reports, the Tribunal would be hard pressed to find that there is any loss of movement in the applicant's spine for the purposes of Table 9.6.  The applicant is seen bending and twisting, and even if she skied on the gentlest of slopes, one does not ski for two hours if suffering from a loss of half normal range of movement.  The Tribunal prefers the opinion of Dr Browne, who indicated that the applicant has a full range of movement in the cervical spine, and the Tribunal so finds that there is no impairment pursuant to Table 9.6 of the Guide.  Even if the Tribunal were in error in this regard, there is certainly no change in the level of impairment in the spine such that it would satisfy the test set out in Department of Defence as Delegate of Comcare v West (1998) 156 ALR 651 in relation to pre 1 December 1988 permanent impairments which worsen after 1 December 1988. Further to that, as Ms Ford correctly pointed out, the Federal Court has established in Comcare v Amorebieta (1996) 66 FCR 83 that voluntary abstention from use is not comprehended by the Guide (see paragraph 13 therein), and when voluntary abstention is factored into the applicant's case, the actual loss of movement could not possibly approach 10% on the evidence before the Tribunal.

7. In relation to Table 13.1, the Tribunal is satisfied, and so finds, that the applicant does not meet the 10% threshold on the evidence before it.  Whilst she may have headaches, and on her evidence, may even have regular or constant headaches, she is clearly able to soldier on and engage in multiple skiing trips, shopping excursions and the like.  Indeed, even in the diary kept by the applicant (Exhibit A7) there are only three days therein where she actually stays home.  She is otherwise driving about the place, attending to bills, groceries and luncheon appointments.  The activities of daily living as defined in the Guide refer to the very basic acts to sustain daily life, having regard to both the basic mechanics of the activity and the psychosocial aspect of the function (Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 32 ALD 147 at page 151 (inter alia) approving a passage of the Tribunal at first instance).  In this regard, the Tribunal is not satisfied that the applicant has minor interference with her ability to receive and respond to stimuli, stand, move, feed herself, control her bladder and bowel, attend to self care or have interference with sexual function.  Even if in fact she did have a severe headache or pain spasm which interfered with any particular activity as defined (which the Tribunal does not accept is necessarily the case), it is apparent from the evidence, and particularly the activities on the video, that the appropriate treatment (resting) must enable her to then continue not only with such activities of daily living, but with what appears to be relatively normal life.

8. Accordingly, the Tribunal is not satisfied that the applicant suffers from any impairment pursuant to any of the relevant Tables in the Guide and so finds.  In conclusion, the Tribunal will make comment in relation to the video evidence, as requested by Mr Selby.  The Tribunal appreciates that there is a real danger in the current age to erode the very core right to privacy by the increasing use of surveillance.  This is a problem which extends beyond the compensation arena.  There is also a rightful expectation however, that government money is correctly allocated.  The Tribunal considers it to be correct policy to ensure where a person has been in receipt of Commonwealth compensation of one kind or another for such an extraordinarily long time as in the present application, that the person is as impaired as they claim to be.  This necessarily involves observation, which is the key to determining things such as loss of range of movement.  If a person has been in receipt of some 12 years of government benefits, and then seeks a lump sum in addition to such, there is a correct expectation that the compensating authority will investigate the claim thoroughly.  This will, more than likely than not, involve video surveillance.  Had the applicant's presentation on the video evidence been consistent with prior presentations as to the level of restriction of movement, then her claim would have been upheld.  That is, unfortunately, not how events have unfolded.
   decision

9. For the reasons given the Tribunal affirms the decision under review. 

   I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Dr M.D. Miller (Member)

   Signed:         .............(Signed).....................................................
     Personal Assistant

   Date/s of Hearing  14 May 2001, 7 & 8 June 2001
   Date of Decision  16 July 2001
   Counsel for the Applicant        Mr H. Selby
   Solicitor for the Applicant         Gary Robb & Associates
   Counsel for the Respondent    Ms E. Ford
   Solicitor for the Respondent    Dibbs Barker Gosling