LINDA JOHNSON and COMCARE
[2009] AATA 328
•11 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 328
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1607
GENERAL ADMINISTRATIVE DIVISION ) Re LINDA JOHNSON Applicant
And
COMCARE
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date 11 May 2009
Place Brisbane (heard in Cairns)
Decision The Tribunal affirms the decision under review.
...................[sgd]......................
Senior Member
CATCHWORDS
COMPENSATION – injury – whether applicant suffered an injury in the nature of a “disease” – whether employment contributed to “disease” in a material degree – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4 and 14
Comcare v Sahu-Khan [2007] FCA 15
Kennedy Cleaning Services v Petkoska [2000] 200 CLR 286
Re Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797
Re Mackie and Australian Telecommunications Corporation [1991] AATA 79REASONS FOR DECISION
11 May 2009 M J Carstairs, Senior Member 1. Linda Johnson has worked at Centrelink since 1986, and for the past 11 years at the Centrelink call centre in Cairns as a customer service officer. In 2007 she claimed compensation payments for what she described in her claim form as “tendonitis wrists (R > L)”[1]. It can fairly be said, however, that a clear diagnosis of her medical condition has eluded the many specialists who have examined Ms Johnson.
[1] T 13; p 32.
2. Mr J Pappas, counsel for Comcare, acknowledged that the absence of a firm diagnosis will not defeat a well-founded claim for compensation. A number of decisions of this Tribunal confirm that it is not necessary to put a name to a condition, where the decision-maker is satisfied of the genuineness of symptoms[2]. It is not part of the respondent’s case, however, that Ms Johnson does not genuinely experience symptoms. What is missing is evidence (from specialists) to suggest that Ms Johnson’s symptoms are connected with her work. Work may at times exacerbate her symptoms, but equally, any activity does so.
[2] Re Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797; Re Mackie and Australian Telecommunications Corporation [1991] AATA 79.
3. In light of the specialist medical evidence, I have concluded that Comcare was correct to reject Ms Johnson’s claim for compensation.
THE LEGISLATION
4. Under the Safety, Rehabilitation and Compensation Act1988 (“the Act”) Comcare is liable to pay compensation to an employee for “injury” that results in incapacity for work, or impairment, or which occasions medical or related expenses[3]. “Injury” is defined in the Act to include a physical injury arising out of, or in the course of employment; or “disease” contributed to in a material degree by the employment; or the aggravation of either such “injury” [4].
[3] Section 14 of the Act.
[4] As referred to at paragraphs (a) (b) and (c) of the definition of injury at s 4 of the Act.
5. There was no evidence to suggest “injury” in the first or third of those meanings set out in the definition of “injury” in s 4 of the Act. Hence, in Ms Johnson’s case, the issue can be confined to whether she suffered injury in the nature of a disease, being an “ailment” that was contributed to in a material degree by Ms Johnson’s employment by the Commonwealth[5]. In other words, “disease” was suggested here, because there was no sudden physiological change, but rather a gradual and slow onset of Ms Johnson’s symptoms[6].
[5] See s 4 definitions of “disease” and “ailment”.
[6] Kennedy Cleaning Services v Petkoska [2000] 200 CLR 286.
ONSET OF SYMPTOMS AND MEDICAL EVIDENCE
6. In that regard, it is important to take close account of the medical evidence. Ms Johnson has seen numerous specialists since making her claim, none of whom provide a definitive diagnosis explaining the symptoms she suffers. Equally, none of the specialists consider her present symptoms of pain are connected with her work, in a causal sense.
7. Ms Johnson first reported her most recent onset of symptoms to her employer in 2006. I was referred to her earlier history of symptoms in 2003, (as reported then to Centrelink), but these seem to have settled for a time. In 2007, her general practitioner, Dr D Watters, referred her to Dr D Shepherd, orthopaedic surgeon, who undertook carpal tunnel surgery of the right wrist in May 2007.
8. From the time that Ms Johnson reported her problem to Centrelink, it was evident that Centrelink made every effort to make changes to Ms Johnson’s work environment in order to accommodate and/or alleviate her symptoms. There is no need to detail these efforts. Suffice to say that occupational therapists were consulted to examine her workstation and seating, and they suggested certain improvements. Changes were implemented as part of progressive efforts to alleviate her symptoms, including swapping her mouse to left handed usage, and at one time, strapping her index and middle fingers. Her duties were altered, and Ms Johnson mentioned in evidence that she was taken off telephone duties and placed in a trainer role, using dual headsets, so that she would have less need to use her hands when entering data on the computer. She also was provided with voice recognition software (Dragon) as a measure to rest her hands.
9. Ms Johnson acknowledged in her evidence that Centrelink tried many strategies to enable her to return to her usual work. I note that Dr Watters considered Ms Johnson ought to have a complete break from work, and in a report dated 19 December 2007 he mentioned to her sick leave entitlements, suggesting that if her symptoms remained, he would provide certificates for periods of weeks or months so that she might rest[7]. At that time, Dr Watters diagnosed Ms Johnson as having “RSI due to work with a carpal tunnel component” and “some resultant reflex sympathetic dystrophy”[8].
[7] T 39; p 98.
[8] T 39.
10. At the time of hearing, Ms Johnson had not been at work for over four months. She hopes to return to work.
11. At least some of the specialists who have seen Ms Johnson in 2007, 2008 and 2009 have not adopted those diagnoses suggested by Ms Johnson’s general practitioner (as referred to above). The specialists were:
§ Dr D Bossingham, rheumatologist;
§ Dr D Macauley, consultant rheumatologist;
§ Dr D Douglas, consultant occupational physician;
§ Dr J Morris, orthopaedic surgeon; and
§ Dr P Haynes, consultant occupational physician.
It is helpful to examine what they have concluded was the likely cause of Ms Johnson’s problems.
dr bossingham
12. Dr Bossingham saw Ms Johnson four times in 2007 and produced four reports[9]. It is a fair summary of those reports to say that Dr Bossingham was puzzled by Ms Johnson’s case. It is easier to extract from his reports what Dr Bossingham considered Ms Johnson did not have, than it is to ascertain what he thought she did have:
§ Dr Bossingham did not agree with Dr Macauley that Ms Johnson might possibly be showing early signs of rheumatoid arthritis. He thought it was possible that she had osteoarthritis;
§ Dr Bossingham could not be satisfied that she had a synovitis of her hands [T18]; it was possible, he said, that she had a right extensor tendon abnormality of the second finger;
§ In his last report (addressed to Ms Johnson’s general practitioner), Dr Bossingham noted that her existing treatment had been unhelpful, but said he had little to suggest as alternatives. He also made the observation that the refusal of “workplace payments” was for good reason. (I understood Dr Bossingham to be saying that there seemed to be no evident connection between Ms Johnson’s symptoms and her work).
[9] T10-11 (11 April 2007); 47; T 18 (5 July 2007); T 27 (10 September 2007); T 37 (2 November 2007).
13. Dr Bossingham labelled Ms Johnson’s condition a “regional pain problem affecting both forearms”, but stated it was impossible to make a firm diagnosis.[10]
[10] T 27; p 71.
dr macauley
14. Dr Macauley's view was that Ms Johnson had a sero-negative form of arthritis. He thought his opinion and that of Dr Bossingham shared the common ground that each agreed that diagnosis was uncertain. Dr Macauley said that Ms Johnson's case represented one of the difficult areas of rheumatology[11]. When he examined her he thought she did not fit any specific rheumatic problem, although it was uncertain the direction her condition might take in the future. He did not doubt that her complaints of pain were genuine. He also observed, as have other specialists, that Ms Johnson’s experience of symptoms was the same at home as when she was at work. In other words, her symptoms remain rather constant whatever she does.
[11] T 30, p 75.
15. Dr Macauley concluded that it was important for Ms Johnson’s overall well-being that she remain working, limiting duties involving the repetitive use of her hands[12].
[12] T 30; p 75.
Dr Douglas
16. In 2008, Centrelink sent Ms Johnson to Dr Douglas. She gave Dr Douglas the same history given to others, which included that she perceived her work as changing over the years at Centrelink, computer tasks becoming increasingly mouse-based, and more intensive. Ms Johnson has identified these factors, in particular, as being the source of her problems.
17. It should be noted that when she saw Dr Douglas, Ms Johnson was still working full-time, albeit on what could only be described as restricted duties. She told Dr Douglas that for the most part she was not using the telephones and would certainly run into problems if she did more than 3 x 30 minute sessions on the telephones per day. She had been assigned a trainer role, listening to others taking the calls, and using Dragon voice recognition to enter data. She told Dr Douglas that a number of home activities also aggravated her pain, including brushing her hair, or holding a book to read.
18. Under clinical examination, Ms Johnson demonstrated a full range of movement of her shoulders, elbows, wrists, and fingers. Her arms were of even musculature. Dr Douglas could not find any swelling in her upper limbs, although Ms Johnson perceived that there was swelling.
19. Dr Douglas reviewed other available medical reports and concluded that Ms Johnson was not suffering any serious medical condition. (I note that Dr Douglas did not agree with the original diagnosis of carpal tunnel syndrome, observing that the surgery had been undertaken without the benefit of nerve conduction studies. Dr Douglas thought that Ms Johnson’s symptoms had never suggested a typical carpal tunnel syndrome).
20. Dr Douglas’s view was that Ms Johnson was simply unfit. He said, in this regard, that she was obese, and having worked for 20 years in a sedentary occupation without taking sufficient regular exercise, she ended up physically unfit. The mechanism that Dr Douglas considered was at play was that Ms Johnson was essentially undertaking static work at Centrelink which (he said) aggravated her condition of reduced fitness. This led to a de-conditioning of musculo-ligamentous structures in her upper arms which resulted in her described symptoms. In his oral evidence Dr Douglas said that if Ms Johnson undertook some fitness activities the symptoms she had would disappear.
21. Dr Douglas’s observations about fitness have found support in subsequent medical reports.
22. Dr Douglas explained in evidence that if Ms Johnson’s symptoms were those of an overuse injury, they would be expected to improve with time. The fact that Ms Johnson has symptoms even when she is not working suggested to him that the condition was not related to work. He said that because Ms Johnson is unfit, anything that she does will cause her discomfort. However he emphasised that activity that caused symptoms did not mean her condition was made worse in any sense.
dr morris
23. Dr Morris, who saw Ms Johnson in 2008, was unable to determine what was wrong with Ms Johnson which might explain her forearm symptoms[13]. On clinical examination, Dr Morris found Ms Johnson to have a full range of flexion and extension of her cervical spine, although with some pain experienced on lateral flexion. She had normal muscle power, reflexes, and sensations. However, wrist flexion resulted in symptoms after about ten seconds. There were no objective signs that would allow a definitive rheumatalogical or orthopaedic diagnosis to cover her forearm symptoms[14].
[13] Exhibit R1.
[14] Exhibit R1; p 8.
24. Dr Morris said that Ms Johnson “appears to be suffering from a chronic pain type situation” made worse by activities both at home and at work. Dr Morris did not consider that this condition was related to Mr Johnson’s work. The pattern of her symptoms was present at home and at work. He noted that at the time of his report, she had come back to work following 11 weeks at home, during which time her symptoms continued unabated.
25. Dr Morris said that any aggravation of Ms Johnson’s symptoms at work was only temporary, occurring while she was using a computer. At home the symptoms were elicited when she used a knife and fork, or brushed her hair or teeth. Dr Morris said that he believed that further medical treatment would not make a lot of difference, but going to a gym and strengthening her abdominal and back muscles, in particular the muscles in her neck and shoulders, would help minimise symptoms. Dr Morris said that the main problem was Ms Johnson’s general lack of conditioning and she needed to undertake an exercise programme to recover her fitness.
Dr Haynes
26. Dr Haynes was the next occupational physician to examine Ms Johnson and he prepared a written report in April 2009[15]. At the time of examination in April 2009, Ms Johnson complained of generalised neck pain, as well as pain down both arms. In that regard, it is necessary to bear in mind that she had not undertaken any work since December 2008. Like others, Dr Haynes noted that Ms Johnson continued to have pain in her hands when undertaking any kind of activity, which had not improved despite no longer working.
[15] Exhibit R3.
27. Dr Haynes again took the history, essentially consistent with that taken by others, that Ms Johnson had developed pain in 2003 and had undergone carpal tunnel surgery, but without the surgery resolving her symptoms.
28. Dr Haynes observed by reference to the medical history, that there had never been a firm diagnosis made in her case. He found no objective evidence of a current medical condition. His clinical examination showed Ms Johnson to have a normal range of movement in her neck, normal rhythm of both neck and arm movements. She could also raise her arms, and move her elbows, wrists and hands normally.
CONCLUSIONS
29. The medical evidence is overwhelmingly against acceptance of Ms Johnson’s claim for compensation. Returning to the section of the Act which provides the source of liability – s 14 – its terms provide that compensation will be payable for “injury” that results in impairment. But the “injury” there referred to (taking into account the definitions in s 4 of the Act) must be an ailment to which Ms Johnson’s work made a material contribution.
30. I can and do accept that the problems of specifying a particular diagnosis do not stand in the way of acceptance of the claim. I readily accept, as did those doctors who turned their mind to this aspect, that Ms Johnson suffers genuine symptoms. However, the evidence of the various specialists lends no support to a connection between the constellation of symptoms, however described, and the circumstances of Ms Johnson’s employment at Centrelink.
31. I note that Ms Johnson’s general practitioner thought otherwise, but Dr Watters’ various diagnoses of “tenosynovitis”, “RSI with carpal tunnel component”, and “reflex sympathetic dystrophy” find no support amongst the specialists. More recent evidence suggests that the treatment in 2007 for a carpal tunnel problem may have been incorrect. Synovitis appears to have been excluded as a possible diagnosis in 2007[16].
[16] T 18; p 47.
32. Even if I were satisfied that the “best fit” description for Ms Johnson’s symptoms was a “regional pain problem” (Dr Bossingham) or a “chronic pain problem” (Dr Morris) the necessary causal connection with work is absent. Dr Morris did note Ms Johnson had mild degeneration in her cervical spine showing in a CT scan in 2007, but he did not suggest that mild degenerative changes were related to Ms Johnson’s work, nor did he suggest that her arm and hand symptoms were in any way related to the mild degeneration.
33. Ms Johnson’s evidence about her day-to-day activities since taking extended sick leave from December 2008 was that she has rested as much as possible, lying down for most of the day with her neck and arms supported. However, she said in recent weeks she has re-joined the gym and is taking the advice that she needs to re-programme her muscles. She acknowledged in her oral evidence that doctors had only advised her to rest her arms, and she had not been advised to rest entirely. Ms Johnson also acknowledged that her symptoms have improved in the past when she was undertaking exercise with a personal trainer.
34. Symptoms of pain may be compensable in certain circumstances. However, the words in Musumeci are apposite:
….. while inability to make a precise and incontrovertible diagnosis may well make more difficult a finding of a link between employment and a claimed incapacity, that fact of itself does not militate against a finding for an employee under the legislation … where the proofs are otherwise adequate……..To say that "pain of itself is compensable" would indeed be too broad a statement[17].
[17] Re Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797.
35. Ms Johnson’s case is one that does not overcome the difficulty identified in the words (emphasis added) of Deputy President Todd: the evidence in this case does not reveal a link between employment and injury resulting in incapacity.
36. For the claim to succeed it was necessary for Ms Johnson to show that her work made a material contribution to the development or aggravation of her condition. The word “material” imposes an evaluative threshold[18]. All relevant contributing factors need to be assessed to decide whether, in a particular case, the employment made a material contribution. The specialist evidence is against such a conclusion.
[18] Comcare v Sahu-Khan [2007] FCA 15.
37. All specialists note that Ms Johnson experiences the same symptoms at home. Her symptoms have not abated even when she has taken substantial periods of leave. The preponderance of recent medical evidence is that Ms Johnson’s de-conditioning, and the effects of a sedentary lifestyle, result in continuing symptoms whether the activities are at home or at work.
38. The evidence of causation which I accept as correct in Ms Johnson’s case is that of Drs Morris and Douglas. That is, Ms Johnson’s symptoms are the result of her lack of fitness and de-conditioned muscles, particularly in her neck and shoulders. These are matters unrelated to her work at Centrelink, and so Ms Johnson cannot show that her employment made a material contribution to her symptoms.
DECISION
39. The Tribunal affirms the decision under review.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member
Signed: ...............................[sgd]...........................................
Emily Clarke, AssociateDates of Hearing 20 April 2009
Date of Decision 11 May 2009
The Applicant was self-represented
Counsel for the Respondent Mr Jack Pappas
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