MacDonald and Comcare
[2006] AATA 1012
•28 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1012
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/88
GENERAL ADMINISTRATIVE DIVISION ) Re ANDREW MACDONALD Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr J Campbell, Member Date28 November 2006
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Dr J Campbell
Member
CATCHWORDS
WORKERS COMPENSATION – issue of symptom complex – issue of whether this constitutes an ailment – whether the ailment or the aggravation of the ailment was contributed to in a material degree by his employment – whether symptom complex constitutes an injury pursuant to Section 4 of the Act – issue of liability- decision under review affirmed
Safety Rehabilitation and Compensation Act 1988; Sections 4, 14
Comcare v Mooi (1996) 69 FCR 439
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
REASONS FOR DECISION
28 November 2006 Dr J Campbell, Member 1. Mr Macdonald submitted a claim for workers compensation on 12 August 2005 seeking that liability be accepted for an overuse injury affecting his back, neck, nerves, shoulders and limbs. Mr Macdonald stated in his claim form that since June 2003 he had been experiencing “tingling, pins and needles, numbness in various parts of his body (face, hands and legs), substantial pain in wrists, shoulders and neck, headaches and fatigue and pain in his legs”.
2. In his claim form Mr Macdonald noted that he had been advised that “prolonged periods at the computer put stress and strain on the body’s muscles and over time trigger points build up that inhibit blood flow causing the muscles to be deprived of nutrients and oxygen, leading to [his] symptoms”.
3. Mr Macdonald’s claim for myofascial pain and overuse injury for shoulders, back and lower limbs was rejected on 19 October 2005 with the determination stating “Under s14 of the SRC Act I have decided to: reject unspecified injury to unspecified site”. This decision was affirmed upon reconsideration on 10 January 2006; the latter decision being the decision under review.
The Issues
4. The relevant issues in this matter are:
a.From what condition/symptom complex does Mr Macdonald suffer as regards his claim for compensation?
b.Does his condition/symptom complex constitute a disease in terms of the Safety Rehabilitation and Compensation Act 1998 (“the Act”)?
c.Does his condition/symptom complex constitute an injury in terms of the Act?
d.Is Mr Macdonald entitled to compensation pursuant to section 14 of the Act?
Decision
5. For the reasons nominated later in this decision, I find that:
a.Mr Macdonald suffers from a symptom complex which is best described as an intermittent complaint of symptoms involving tingling, numbness and weakness of shoulders, arms and legs - more often present on the left side of the body, on occasions associated with weakness of the facial muscles on the left side and headaches, and latterly with associated pain and paresthesia mainly on the left side - and pain in his back, legs, feet and toes.
b.Mr Macdonald’s symptom complex is best described as an ailment, but I am unable on the balance of probabilities, to find that there is evidence before me that Mr Macdonald’s ailment or the aggravation of any such ailment was contributed to, in a material degree, by his employment. As such, his symptom complex does not constitute a disease as defined in section 4 of the Act.
c.On the balance of probabilities, Mr Macdonald’s symptom complex, or aggravation of that symptom complex, does not constitute an injury as defined by section 4 of the Act, in that his symptom complex did not arise out of or in the course of his employment, nor was it a disease, as concluded in paragraph (b).
d.Mr Macdonald is not entitled to payment of compensation pursuant to section 14 of the Act.
Background – General
6. Mr Macdonald was born in Calcutta in December 1961, where he completed year 10 schooling, a two year primary school teacher training program and three years of primary school teaching prior to coming to Australia in 1985. Mr Macdonald completed year 12 studies in Australia in 1986, and undertook some part time studies in accounting in the late eighties prior to completing an advanced diploma in accounting at TAFE while on leave without pay in 2004. Mr Macdonald lives alone.
Background – Work
7. Mr Macdonald joined the Australian Taxation Office (ATO) in 1986, and between 1986 and 1996 worked initially in Sydney undertaking clerical duties and between 1992 and 1996 as an auditor, an activity which involved much travelling. During this latter period he experienced no particular set of health symptoms.
8. Mr Macdonald indicated that computers had been introduced into work activities in 1991/1992 in the ATO, but in 1996 and thereafter as a Collections Coach in the debt collection section, computer activity became a central part of his working life. This work involved accessing computers, making telephone calls, preparing a range of documents and updating individual screens. Mr Macdonald worked a 36 ¾ hour week, with minimal overtime and normal, daily periodic breaks.
9. Mr Macdonald resigned from the ATO in March 2005, with his last day of work being 6 April 2005. Mr Macdonald stated that he resigned because he was unable to continue with his desk job and that he was able to find work elsewhere. Mr Macdonald stated that he found the ATO work environment stressful, with some pressure to perform, but that he had no major problems with management and/or other staff and that he experienced the same work demands as everyone else.
10. Following his resignation from ATO, Mr Macdonald stated that he worked part time (25 hours per week) with H & R Block Tax Agents for a three and a half month period prior to commencing teaching accounting and taxation studies to students at Stirling College for 20 hours per week – an employment which is continuing.
Background – Medical
11. Mr Macdonald detailed a history of epilepsy at approximately age 10 – an attack causing him to fall to the ground but without seizure. Anticonvulsant therapy was instituted and this was continued for five years. No further attacks have occurred after discontinuation of medication.
12. In 1996 Mr Macdonald fell from a motor bike onto his left shoulder. The left shoulder was repaired at Westmead Hospital in February 1997 and remained “wonderful” up to 2002, with Mr Macdonald stating that since then he has experienced tingling, numbness and arthritis in his left shoulder.
13. Mr Macdonald stated that the office generally at Parramatta and Penrith was organised into small self contained work areas with chairs and desks that were able to be adjusted for individual needs. In 2001 he did ask for and received a special chair, for what he classed as not a particularly significant event.
History of Claimed Condition
14. Mr Macdonald stated that on 24 July 2002, while on holidays in Cairns he woke up with an episode of ataxia. He described symptoms of deviating to the right, feeling dizzy and weak, unable to open his left eyelid and a loose tone in muscles below his left eye. These symptoms were said to persist for an hour forcing him to cancel his reef trip and attend at the Cairns Base Hospital.
15. Hospital records from Cairns noted further reported symptoms including weakness in the left leg and numbness in lower left leg. The records also nominate that Mr Macdonald had been treated for the prior three months with antidepressants for a sleep disorder. The attending doctor, Dr Coffey, reported in a letter of 24 July 2002 that examination revealed normal cranial nerve function and motor power, with investigations, including a CT head scan, all demonstrating no abnormality. Dr Coffey considered that Mr Macdonald may have had a transient ischaemic attack (“TIA”) and commenced Mr Macdonald on daily aspirin therapy.
16. On returning to Sydney Mr Macdonald was referred to Dr C Yiannikas, a consultant neurologist. In a report dated 5 September 2002 Dr Yiannikas detailed a history consistent with that detailed above and again he found no abnormalities on examination. Dr Yiannikas considered that the symptoms are certainly suggestive of a TIA, although noted that it is hard to explain how Mr Macdonald’s leg was affected as well as his face, without any involvement of the arm.
17. On 2 September 2002, Dr J Yiannikas, a consultant cardiologist, reported that a cardiac echodoppler study was normal.
18. Dr C Yiannikas in a report dated 11 October 2002 noted that there is no obvious basis for his transient ischaemic event, with Mr Macdonald’s MRI brain scan being entirely normal and his MRI angiogram demonstrating a minor irregularity. In summary Dr Yiannikas concluded that the most likely cause is that of spasm and that no further investigations were warranted at that time.
19. Mr Macdonald stated that he did not suffer from similar symptoms between July 2002 and June 2003, although clinical notes from the Multicare Medical Centre indicate attendance for haemorrhoids (August and November 2002, and March 2003), difficulty with sleeping (October 2002 and February 2003) and chest pain (February 2003).
20. Mr Macdonald described an episode, on 10 May 2003, in which he ran head first into a football goal post causing him to suffer two black eyes, but no headache. Three weeks later, towards the end of May 2003, Mr Macdonald described suffering pressure headaches in both temporal regions which lasted for about 10 minutes and occurred more than once per day. Such headaches were said not to be associated with visual disturbances. By early June 2003 the pattern of intermittent headaches developed into chronic frontal headaches lasting three to four hours and occurring on most days, both at home and at work.
21. Mr Macdonald stated that two weeks later he began experiencing sensations of tingling, numbness and a feeling of general weakness variably on both the left and right side of his body, but not often in his legs. Records from the Concord Hospital detail Mr Macdonald as wakening with left sided numbness extending down his left arm and left leg, together with weakness on his left side.
22. It would appear that Mr Macdonald was admitted to Canterbury Hospital on 22 June 2003 and discharged on 23 June 2003 with a tentative diagnosis of a TIA, despite a normal CT scan and other investigations and an absence of evidence of any dysfunction of sensory and/or motor nerve functions.
23. On 2 July 2003 Mr Macdonald was admitted to Concord Hospital complaining of left face, arm, leg tingling symptoms and associated paresthesia which were both intermittent and worse at night, together with intermittent headaches. Mr Macdonald was discharged on 4 July 2003 with a principal diagnosis of a left sided sensory disturbance, with investigations of a CT brain scan and an electroencephalogram (EEG) revealing no abnormality.
24. Mr Macdonald stated that two months after discharge he took six weeks leave as his mother had died in Brisbane.
25. Clinical notes from the Multicare Medical Centre from August 2003 note that Mr Macdonald became aware that poor posture may be contributing to some of his symptoms and indicate that for the remainder of the year he did not require further medical attendances as his symptoms settled down.
26. On 3 February 2004 clinical notes from the Multicare Medical Centre note that Mr Macdonald believed that he might have a form of depression and that he requested a referral.
27. On 12 February 2004 Mr Macdonald proceeded on leave and then leave without pay from 24 March 2004 to 30 November 2004 and during this period successfully completed an advanced accounting diploma at TAFE.
28. On 6 March 2004 Mr Macdonald is recorded as attending the emergency department at Westmead Hospital with intermittent left sided numbness of one day’s duration and no other neurological deficit. A diagnosis of TIA was made, and in the absence of any neurological abnormality, was discharged and referred to a consultant neurologist, Dr Duggins.
29. In his report of 11 March 2004, Dr Duggins detailed Mr Macdonald’s current symptoms as commencing one week before his consultation on 9 March 2004, with such being a recurrence of sensory symptoms affecting his left face, left arm and left leg, together with a left frontal headache. Dr Duggins concluded that it is very difficult to put all these symptoms together. Following MRI scans of the head and spine (to exclude transverse myelitis), Dr Duggins, in noting that such scans demonstrated no abnormality, concluded in his report of 9 August 2004 that Mr Macdonald’s multitude of neurological symptoms are most likely related to anxiety and possibly reactive depression.
30. Clinical notes from the Multicare Medical Centre confirm that Mr Macdonald was noted as being slightly depressed in April and May 2004 and was treated with Naxium, with such a diagnosis again being raised in March 2005. On this occasion it was noted that he was sleeping poorly and that he had become aware of the occupational overuse syndrome circular (Exhibit A2). Mr Macdonald also stated that he had returned to work in December 2004, and apart from symptoms arising from his left shoulder (pain), he had worked all December 2004 without difficulty. Orthopaedic opinion noted in the clinical notes on 2 February 2005 opines that the shoulder pain was due to early avascular necrosis in the bones of the joint.
31. Mr Macdonald stated that in February 2005 he again developed a feeling of generalised weakness; that he would wake at night with numbness and cramping in his arms and he also experienced some wrist pain. The clinical records confirm that Mr Macdonald attended at the Multicare Medical Centre on 10 March 2005, and that he complained of aching legs, feeling weak, with such symptoms coming on after exercise and occasionally waking him at night. Mr Macdonald was again referred to Dr J Yiannikas, consultant cardiologist. On 14 March 2005, Mr Macdonald, having been made aware of the occupational overuse syndrome, requested a referral to a physician who understood the syndrome because he believed his symptoms of aching, tingling, cramping, weakness, reduced range of motion in shoulder, neck and back, and pain in neck and back was consistent with such a syndrome. In this regard Mr Macdonald stated that he sought information from the Repetitive Strain Association in Canberra, with Dr Lim being suggested as an appropriate doctor to consult on the issue.
32. Mr Macdonald stated that it was in March 2005, having been made aware of the occupational overuse syndrome circular, that he informed his supervisor of his symptoms, completed an incident report and later submitted a claim for compensation. Mr Macdonald stated he submitted his resignation on 10 March 2005 with his last day of work being 6 April 2005.
33. On 30 March 2005 Dr J Yiannikas noted in his report that Mr Macdonald complained of chest and leg discomforts, with chest pain in the lower retrosternal region becoming worse over the last five years and occurring both at rest and with exertion. Dr Yiannikas considered that the retrosternal symptoms were due to gastro-oesophageal reflux and the leg pains were of musculoskeletal origin.
34. Mr Macdonald consulted Dr Lim, a general practitioner specialising in physical medicine on 24 May 2005. In a report dated 20 June 2005, Dr Lim describes Mr Macdonald’s symptoms in the following terms:
“ongoing pain over his neck and upper torso, along both shoulders, radiating down his right and left elbows and wrists … particular pain in his right mid-thoracic area … pain down the backs of his legs, down his knees and both calves to his ankles … [for] 2 years … symptoms were associated with numbness, weakness and tingling … facial pain and headaches.”
35. In his report Dr Lim noted that on examination that Mr Macdonald had:
·severe restriction of movement of his left shoulder (repair operation);
·tight myofascial pain trigger points in the left trapezius and sternocleidomastoid muscles, as a result of overloading, due to the restricted left shoulder movements;
·obvious upper torso imbalance;
·multiple myofascial pain trigger points in his neck and shoulder muscles;
·tightness of his left iliopsoas muscle with myofascial trigger points down his calf and foot muscles; and
·myofascial trigger points in his wrist extensor muscles along with ligamentous strain in his wrists and elbows.
36. Dr Lim stated that with such a “degree of severity, it is often difficult to determine where the origin of his musculoskeletal dysfunction is. I believe his previous work and poor posture with operating a computer has contributed to a good degree to his symptoms”. Dr Lim suggested a regime of injecting 1% lignocaine in to the trigger points, home stretching exercises and low dose antidepressant therapy. A review of Dr Lim’s progress notes indicate a gradual reduction in Mr Macdonald’s symptoms, which is what Mr Macdonald told the tribunal. It is to be noted that Mr Macdonald’s stated that his symptoms recurred in March 2006 while at Sterling College.
37. Mr Macdonald was referred to Dr Kannangara a consultant rheumatologist in July 2005. In a report dated August 2005, Dr Kannangara detailed Mr Macdonald’s symptoms in the following terms:
“He complained bitterly of various musculoskeletal symptoms. He spoke about neck pain, back pain, muscles tightness and he has been told by masseurs that his leg muscles are very tight and hence these symptoms.”
Dr Kannangara reported that he found on examination “nothing in the entire muscular skeletal system to demonstrate an inflammatory or even a degenerative process”. In particular he found his muscles were not too tight and that although he has a mild degenerative disease of the cervical spine, “there is nothing to be worried about”. After further investigations, all of which revealed normal results, Dr Kannangara concluded that Mr Macdonald’s symptoms were non organic in origin and not that of a major illness.
38. When reviewed by a Rheumatology Registrar on 12 December 2005, Mr Macdonald’s symptoms were recorded as resolved, and that he was back to swimming four to five times a week, while continuing to take Endep (an antidepressant).
39. Mr Macdonald attended Associate Professor Barnsley on 21 September 2005 for a medico legal examination. Professor Barnsley, a consultant rheumatologist, in his report dated 27 September 2005, detailed Mr Macdonald’s symptoms as commencing in June 2003 with the onset of a severe bitemporal headache with a feeling of strong pressure across his head, which was intermittent for one to two months. Associated with this was a developing sensation of weakness, “starting at the brain” and radiating down his body, together with intermittent feelings of tingling and numbness in different parts of his body, affecting hands, arms, legs and thighs. Such symptoms were recorded as episodic, lasting for one to two weeks, but settled with rest, avoiding work or having a holiday. A history of dizziness on standing is noted as well as increasing arm and right shoulder pain in recent months together with increasing fatigue and pain in his legs over the last year.
40. In summary analysis Professor Barnsley concluded that:
·he was unable to find any evidence of any physical condition;
·Mr Macdonald’s examination was quite normal;
·complaints of pain by Mr Macdonald in his neck and shoulders were not matched by any signs;
·Mr Macdonald’s description of the sweeping weakness throughout the body in the absence of any neurological or cardiological findings or any significant progression would not meet with any recognised organic condition. Therefore they may be a manifestation of stress or other psychological dysfunction;
·as he did not find any physical condition there is, therefore, no specific cause; and
·there is no evidence of any physical condition that has been contributed to in any way by his employment.
41. In oral evidence Professor Barnsley confirmed his written evidence and in so doing summarised the symptom complex as described by Mr Macdonald as being more of neurological origin than of physical origin. While concurring with Dr Kannangara’s view that Mr Macdonald’s symptoms are non organic in origin, Professor Barnsley indicated that this does not mean that they are not present, but simply that they cannot be attributed to any specific organic disease.
42. Further, Professor Barnsley enforced his earlier written comments in relation to Dr Lim’s report in that Dr Lim described a number of physical findings of uncertain validity and reproducibility. Professor Barnsley was unable to find any myofascial trigger points meeting the Travell and Simons criteria. Further, Professor Barnsley noted that even trigger point theory advocates have difficulty on agreeing on the presence or absence of trigger points under conditions of formal study hence the issue of reproducibility remains an issue.
43. Mr Macdonald was referred to Associate Professor Cohen, a consultant rheumatologist on 20 March 2006 by his general practitioner. In his report dated 27 March 2006, Professor Cohen detailed Mr Macdonald’s complaints as follows:
·for the last three years, various sites of “spasm” and momentary tingling and pain, especially the shoulders, forearms and head;
·at the time of consultation, pain in the shoulder especially when using the computer and “jerks”, “which sound like myoclonic phenomena”; and
·disturbed sleep over the last three to four years (six to eight hours interrupted) and compromised tolerance for stress, arising from these complaints.
44. Professor Cohen found Mr Macdonald presenting as an anxious, somewhat introspective man and with the exception of some restrictions of the left shoulder joint, there was no neuromusculoskeletal findings of note, and no areas of localised mechanical hyperalgesia which might qualify as trigger points.
45. Professor Cohen concluded that Mr Macdonald’s musculoskeletal complaints are fundamentally mechanical (that is, benign), amplified by a degree of hypervigilance. Professor Cohen recommended that Mr Macdonald return to his exercise regime, continue with low dose antidepressants and avoid local therapy to painful parts; Professor Cohen admits to not being a champion of the myofascial pain or fibromyalgia constructs.
Considerations and Findings
46. I have been particular in defining the clinical course of Mr Macdonald’s symptom complaints (hereinafter “symptom complex”) since his initial presentation at Cairns Hospital on 24 July 2002. I observe that Mr Macdonald’s symptom complex has been the subject of significant and repeated hospital and specialised medical attention and assessment. I note that repeated significant and intensive clinical investigation involving head CT and MRI scans of brain and spine, electroencephalograms, cardiac echodopplers, and biochemistry profiles have not detected a significant abnormality, apart from the cervical spine examination demonstrating a mild spondylosis.
47. After examination of all the clinical evidence in this matter, as defined by the clinical records of services of hospitals and treating doctors, the specialist opinions rendered and Mr Macdonald’s own oral evidence, I make the following findings of facts:
a.Mr Macdonald has and does continue to provide a relatively consistent history over time of his symptom complex. There is some evidence to suggest a failure to disclose the Cairns incident in July 2002 in later records. Similarly there is some material which points to pain symptomatology becoming more in evidence post March 2005.
b.His symptom complex includes tingling, numbness and general weakness of shoulders, arms and legs - more often on the left side of the body and occasionally associated with dizziness - difficulty in walking in a straight line, weakness of the left side facial muscles and headaches. Since July 2003, symptoms include variably, pain and paresthesia in legs, arms, back, feet and toes, again mainly on the left side. All such symptoms are of an intermittent nature lasting from short periods to days and weeks, followed by apparent resolution of such symptoms for varying periods lasting on occasions many months. Further, Mr Macdonald suffers from difficulties with sleeping, commencing about three months prior to the Cairns Hospital admission in July 2002 and intermittently thereafter.
c.The symptom complex as defined has occurred in the following circumstances:
-while on leave – Cairns July 2002
-when attending at work – May/June 2003
-on leave/leave without pay – course at TAFE in 2004
-after leaving employment with ATO – 2005/2006
d.All clinical investigations into the symptom complex have failed to detect any significant and relevant clinical abnormality.
e.Mr Macdonald experiences the symptom complex as described, with there being no suggestions to the contrary in any of the clinical records.
f.Clinical Consultant Neurological opinion is consistent in being unable to define a neurological basis for the symptom complex (Dr C Yiannikas, Dr Duggins).
g.Clinical Consultant Cardiological opinion was unable to find a cardiological basis for the symptom complex (Dr J Yiannikas).
h.Clinical Consultant Rheumatological opinion is consistent in being unable to demonstrate any musculoskeletal findings consistent with a definable organic condition (Dr Kannangara, Associates Professors Barnsley and Cohen).
i.Dr Lim, a general practitioner with a special interest and qualifications in Physical Medicine, and Dr Razvan, a general practitioner, are of the opinion that Mr Macdonald was able to demonstrate a number of myofascial trigger points (Dr Lim), with a diagnosis of myofascial pain and overuse injury in both shoulders, back and lower limbs (Dr Razvan), with both doctors believing that working long hours on a computer with associated postural strain contributed to the injury
j.The symptom complex being experienced by Mr Macdonald is most likely related to anxiety and possibly reactive depression (Dr Duggins), non organic in origin and not that of a major illness (Dr Kannangara), non organic in origin and may be a manifestation of stress or other psychological factors (Associate Professor Barnsley), fundamentally mechanical and amplified by a degree of hypervigilance (Associate Professor Cohen).
k.Mr Macdonald is firmly of the view that his symptom complex is a consequence of an overuse injury arising from his work activities and that the symptoms of paresthesia and ataxia are consistent with traumatic work related nerve damage, with his general neurological symptoms being consistent with a chronic peripheral neuropathy.
Legal Issues
48. For Mr Macdonald to be successful in his claim, I must be satisfied on the balance of probabilities that he has suffered an injury. An injury is defined in section 4 of the Act in the following terms:
"injury" means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
…
"disease" means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;
"ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)
49. In addressing the issue of whether the symptom complex as defined constitutes a diagnosable medical condition, I note Mr Macdonald’s belief that the appropriate diagnostic label in this matter is an occupational overuse syndrome. Mr Macdonald is reinforced in his belief by the opinions of Drs Lim and Razvan, selected parts of summary extracts from National Institute of Neurological Disorders and Stroke concerning paresthesia (Exhibit A4) and peripheral neuropathy (Exhibit A5), an extract from Wikipedia concerning ataxia (Exhibit A6), papers on myofascial pain disorders (T17) and on the diagnosis and management of trigger points (Exhibit A7).
50. I also note the circumstances whereby Mr Macdonald became aware of occupational overuse syndrome (reading of Tax Office Circular 29/3/2005), and more particularly how he related some of his symptoms to those nominated in the circular, namely pain in neck or back, reduced range of motion in shoulders, neck or back, and aching or tingling, cramping and weakness. Further I note his reliance on the National Institute of Neurological Disorders and Stroke extracts, namely “chronic paresthesia is often a symptom of an underlying neurological disease or traumatic nerve damage” (Exhibit A4), the symptomatology of peripheral neuropathy detailed in Exhibit A5, with peripheral neuropathy being an acquired cause of ataxia (Exhibit A6). Similarly, I note that once of a belief, tentative or not, he sort reinforcement of his belief by seeking the advice of an appropriate doctor suggested by the Association for Repetitive Strain Injuries in Canberra.
51. I make no criticism of the manner in which Mr Macdonald sort to inform himself and seek treatment for his symptom complex. Nevertheless in addressing the issue of whether an appropriate diagnostic label can be attached to his symptom complex, it takes the matter no further. The reasons for such are as follows:
·Mr Macdonald’s first presentation with his symptom complex occurred while on leave in Cairns on 24 July 2002. His symptoms were clearly neurological in origin as evidenced by the reports and subsequent clinical opinion. Subsequent presentations have involved essentially neurological symptoms with some musculoskeletal symptoms, and have occurred with defined histories, including being at work, on leave and having left the ATO.
·Mr Macdonald’s first presentation involved essentially a left sided symptom complex involving left face, arm and leg. Subsequent episodes certainly appear to include both legs (Left > Right), feet, toes, wrists and back. With such a presentation that included includes legs, feet and toes it becomes increasingly difficult to understand how such can be related to an overuse syndrome born of computer activity.
·Mr Macdonald described his work activity as involving computer work from 1996 onwards, but his evidence was clear in defining that all aspects of his workplace environment were individually adjustable. He rarely worked overtime, he enjoyed normal work breaks and his debt collection coaching activities while involving computer work, also involved other activities. From such a description of his work activities, one has difficulty in understanding how the work place activities could give rise to such a widespread and complex range of symptoms. Such an understanding is also reinforced by Mr Macdonald’s failing to make any report of such symptoms, being work related, until following his reading of the circular in March 2005, and recognition of some of his symptoms corresponding with some of those in the circular.
·While Mr Macdonald postulates a particular disease syndrome and other disease entities, for example peripheral neuropathy, clinical opinion following repeated examination and investigation by many specialists has failed to find any evidence of a diagnosable neurological, cardiological or musculoskeletal condition.
·While I note that Dr Lim elicited myofascial trigger points in his examination of 24 May 2005, three consultant rheumatologists, Dr Kannangara (examination 25 July 2005), Associate Professor Barnsley (examination 21 September 2005) and Associate Professor Cohen (examination 20 March 2006) were subsequently unable to reproduce such trigger points. I acknowledge that there remains clinical controversy over the existence of trigger points and that Mr Macdonald had received some local injections to particular areas from Dr Lim, but nevertheless one would have expected such points to be found by Professor Cohen, when indeed Mr Macdonald had been referred by Dr Razvan, general practitioner, because of unusual symptomatology.
·Further, I note from the paper “Myofascial Pain Disorders Theory to Therapy” (Wheeler, Drugs 2004; 64(1) 45, 47) that “the pathogenesis of myofascial pain and trigger points remains unproven”.
·I further note Mr Macdonald’s difficulty with sleeping over a four year period and the prescription of antidepressants on various occasions, together with various notations in the clinical records examined. This does suggest consideration of a depressive illness of varying severity possibly being in evidence.
·I also note the opinions of Dr Duggins (likely related to anxiety and possibly reactive depression), Dr Kannangara (non organic in origin), Associate Professor Barnsley (non organic in origin and may be a manifestation of stress or other psychological factors), and Associate Professor Cohen (fundamentally mechanical, amplified by a degree of hypervigilance).
52. I find that, on the balance of probabilities, that a diagnostic label cannot be attached to Mr Macdonald’s symptom complex. Such a finding is dictated by the issues and observations nominated in the previous paragraph, which when assessed objectively detail a conundrum that defies definition as a known and definable clinical condition. A number of clinical possibilities have been canvassed and explored, but the clinical evidence is not available to progress the matter beyond both speculation and/or possibility.
53. In such circumstances, I shall first consider the issue of whether Mr Macdonald’s symptom complex can be considered to be an ailment. That he has a symptom complex was an earlier finding of fact, as indeed was the inability to attach a diagnostic label to the symptom complex. I am mindful that it is not necessary to label Mr Macdonald’s condition with the label of a recognised condition (Comcare v Mooi (1996) 69 FCR 439). Further in relying upon the opinions of the various consultants previously detailed, I am satisfied that Mr Macdonald’s symptom complex lies outside the range of normal human function, does constitute a disorder, defect or morbid condition and as such is an ailment as defined by section 4 of the Act.
54. While the symptom complex may constitute an ailment, the absence of any particular understanding of the underlying pathology and/or pathogenesis of the ailment, makes it extremely difficult for a decision-maker to conclude that a disease as defined by Section 4 of the Act exists. For a disease to exist as defined by the Act, Mr Macdonald’s employment must have contributed to, in a material degree, the ailment suffered, or an aggravation of that ailment.
55. In these matters I note there is no correlation necessarily defined between onset of symptomatology and employment. Indeed onset of symptoms appears to be random, with onset of symptoms occurring in variable circumstances. In the absence of a temporal connection and without a clear understanding of particular work events giving rise to particular symptoms, it is difficult to contemplate what, if any, contribution was made by employment to Mr Macdonald’s symptom complex. I acknowledge that Mr Macdonald attributes his symptom complex to work activities, but in the absence of a clinically defined and understandable explanation of how, when, where and why this is the case, the issue of contribution remains distant from constructive examination. Furthermore, a detailed examination of his evidence in relation to his workplace activities, placed in the context of his reporting of symptoms over the four year history makes the task even more difficult.
56. In such circumstances I conclude that there is insufficient material before me to allow me to find, on the balance of probabilities, that Mr Macdonald’s ailment or aggravation of his ailment was contributed to in a material way by his employment. In such circumstances Mr Macdonald has not suffered a disease as defined by the Act.
57. In addressing the issue of an injury as defined by the Act I am confronted with the continuing difficulty of not understanding the pathophysiological process as inherent in the symptom complex. I note that the High Court in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286, 300 per Gleeson CJ and Kirby J, in noting “that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted …” stated “If the evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an “injury” in the primary sense of that word.”
58. In the circumstances of this matter, the absence of either a basic and/or composite understanding of the underlying pathophysiology of the symptom complex makes it difficult to characterise Mr Macdonald’s symptom complex as an “injury”.
59. Even in the circumstances where the symptom complex was to be defined as an injury, the injury must arise out of or in the course of his employment. For the injury to arise out of employment it is generally understood that there is a causal relationship between the injury and the employment, while in the course of employment denotes a temporal connection.
60. As discussed within the concept of disease, the absence of any understanding of the pathophysiology of the symptom complex coupled with the lack of specificity of the evidence presented as regards work activities and their relationship with symptom onset make it difficult to come to any particular finding as to whether the purported injury arose out of employment, or that is was caused or aggravated by employment. Similarly, what evidence there is would indicate that symptomatology did not necessarily arise during employment; that is, a temporal connection is not particularly evident.
61. In the circumstances as defined I conclude, on the balance of probabilities, that even where an injury is found to have occurred, there is insufficient evidence to adduce a finding that the symptom complex or an aggravation of such was an injury that arose out of or in the course of Mr Macdonald’s employment.
62. I conclude that on the material available to me, Mr Macdonald has not suffered an injury as defined by section 4 of the Act. As such he is not entitled to payment of compensation pursuant to section 14 of the Act.
Determination
63. The decision under review is affirmed.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell, Member
Signed: .................[EmilyGadsby]....................
AssociateDate/s of Hearing 11 October 2006
Date of Decision 28 November 2006
Representative for the Applicant Self-represented
Counsel for the Respondent Mr G ElliottSolicitor for the Respondent Ms D Bennett, Australian
Government Solicitor
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