Martin and Comcare
[2006] AATA 913
•26 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 913
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/331
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID MARTIN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S Penglis, Senior Member
Dr P Staer, MemberDate26 October 2006
PlacePerth
Decision The reviewable decision of the respondent dated 18 August 2003 is affirmed.
........(Sgd. Mr S Penglis)...................
Senior Member
CATCHWORDS
Compensation - Whether applicant incapacitated and therefore unable to work – whether applicant entitled to medical expenses for arthroscopy of his wrist - turns on own facts.
REASONS FOR DECISION
26 October 2006 Mr S Penglis, Senior Member
Dr P Staer, Member1. At the date of the accident the subject of this application, the applicant was an employee of the Commonwealth Child Support Agency.
2. On 22 April 2002, when opening a door at his workplace, the applicant got his right hand stuck in the handle of the door, injuring his right wrist and hand.
3. A medical certificate from the applicant’s general practitioner, Dr Burton, certified the applicant as totally unfit for work until 26 April 2002.
4. Further certificates were issued certifying the applicant as unfit for work until 28 May 2002.
5. On 7 May 2002 the applicant lodged a claim for rehabilitation and compensation for ‘right wrist/hand’. In the application the applicant described his incapacity as ‘pain with hand movements affecting writing, walking with stick (usually right hand), eating etc’.
6. Liability for the right wrist sprain was accepted by the respondent on 22 June 2002.
7. On 31 July 2002, Dr Allison of the Centre for Hand and Wrist Surgery wrote to the applicant’s general medical practitioner in the following terms:
“Further to my note on Mr Martin I saw him again today following his MRI scan. This does show a tear in the dorsal aspect to the scapholunate ligament. Whether this is a complete tear with structural instability or whether it is just a symptomatic partial tear could not be discerned by the MRI.
I believe he needs his wrist arthroscoped to further assess this and if it is a partial tear without instability then simple debridement of this is all that is required.
I have made arrangements to do this in the not too distant future and will keep you advised.”
8. The applicant sought the respondent’s approval for the arthroscopy.
9. The respondent referred the applicant to Dr Edelman for review. The applicant failed to attend the first appointment with Dr Edelman. The respondent therefore suspended the applicant’s entitlements under the Safety Rehabilitation and Compensation Act (“Act”).
10. The respondent arranged another appointment for the applicant, this time with Dr Hardcastle. The applicant attended upon Dr Hardcastle on 9 December 2002. Dr Hardcastle opined, amongst other things, as follows:
“I would not recommend surgery at this stage. In my opinion it is not unreasonable to consider a wrist arthroscopy as Mr Allison has recommended, but I was unable to find any clinical evidence of instability and there was none on the dynamic radiological investigation. Therefore I would tend to proceed with caution and try some less invasive techniques initially such as injections. If arthroscopy was performed and a procedure undertaken, then I would expect within three months the effect of his right wrist condition to cease. It has, however, to be remembered that sometimes surgery can make these conditions worse and I would proceed with caution in this particular case.”
11. Dr Hardcastle also opined that:
· “I would certainly expect him to be able to work on a part-time basis on 20-25 hours per week possibly using a wrist support fulltime.
· I would recommend Mr Martin be reviewed by the rehabilitation service and a graduated return to work be instituted.”
12. A further report was provided by Dr Hardcastle on 6 January 2003 in which Dr Hardcastle expressed the following opinion:
“…I would expect him to be able to work on a full-time basis in a clerical or supervisory capacity with respect to his wrist. It does appear that it is his low back and spinal symptoms generally that are inhibiting his travel to and from work.”
13. On 16 January 2003 the respondent wrote to the applicant advising that on the strength of Dr Hardcastle’s reports dated 12 December 2002 and 6 January 2003, the respondent considered the applicant to no longer be incapacitated for his employment with the Child Support Agency. Subsequently the respondent also denied liability for the requested arthroscopy.
14. Liability for medical review by the applicant’s general practitioner was continued.
15. On 28 May 2003 the applicant sought a review of ‘his case’.
16. On 18 August 2003 the respondent confirmed its decision to deny liability for an arthroscopy and for future incapacity payments.
17. That is the decision that the applicant now seeks the Tribunal to review.
The hearing of the application
18. Shortly prior to the hearing of the application, the applicant informed the Tribunal that he had secured employment and, because of that employment, was unable to attend the hearing. He requested that the hearing proceed in his absence.
19. A directions hearing was convened to ensure that the applicant understood how hearings before the Tribunal proceed and to indicate that it was strongly advisable for him, or someone on his behalf, to attend the hearing. The directions hearing was adjourned to allow the applicant to further consider his position.
20. At the resumed directions hearing the applicant informed the Tribunal that he still wished the matter to proceed in his absence. Counsel for the respondent, Mr Morgan, advised that the respondent would have no objection to that occurring so long as the applicant was made available for cross examination. To facilitate that, the Tribunal agreed to start at 3 pm on the first two days of the hearing and continue until 6pm so that the applicant could attend the Tribunal after work.
21. The only witness called by the respondent was Dr Alexeeff, an orthopaedic surgeon. Dr Alexeeff’s report dated 11 July 2005 was tendered into evidence, a copy having previously been made available to the applicant. As Dr Alexeeff gave evidence on the third day, when the applicant would not be (and was not) present, the Tribunal informed the applicant that if he had any questions he wished to be put to Dr Alexeeff, he ought put them in writing and provide them to the Tribunal members, who would then ask them of Dr Alexeeff. No such questions were provided by the applicant.
22. To further assist the applicant, at the conclusion of the hearing, the Tribunal made various directions with respect to the provision of the transcript of the proceedings to the applicant and allowing him a period of time from the transcript becoming available in which to provide written submissions (which he duly did).
The opposing cases
23. The applicant’s case was that, on the strength of his evidence and the medical evidence before the Tribunal, the Tribunal ought conclude that:
(a)the applicant remained incapacitated until 19 October 2004, the date he informed the Tribunal he next commenced employment after leaving the Child Support Agency.
(b)an arthroscopy of the wrist was reasonably warranted, the cost of which would be paid by the respondent.
24. The respondent’s case was that the reviewable decision ought be upheld because:
(a)the applicant’s evidence of his alleged incapacity ought not be accepted by the Tribunal; it was submitted by Counsel for the respondent that the Tribunal ought conclude the applicant was not a witness of truth;
(b)in any event, the medical evidence established that the applicant was no longer incapacitated for work as at 6 February 2003 and an arthroscopy of the wrist was not warranted.
The applicant’s evidence
25. The applicant’s evidence-in-chief comprised of two written statements which the applicant duly confirmed on oath as being true and correct.
26. The first statement was as follows:
“Whilst working for the Child Support Agency, I injured my wrist in a door on their premises.
I attended my local GP (Dr Burton) who told me to visit a specialist. I asked the insurance company if this was ok to see the specialist and they said that it was. My Doctor arranged an appointment with Dr Allison.
Comcare had accepted liability for this injury.
Dr Allison said that there was a problem with the wrist which was caused as stated, and that I would need surgery to rectify the problem.
Dr Burton was kept informed and updated as to what was happening with my injury and this case. Dr Burton found it extremely frustrating to deal with Comcare as they took so long to actually get anything done in regards to helping me and my situation. Dr Burton had even called Comcare himself and complained to them about the handling of this case whilst I was in his office.
When Comcare found out about Dr Allison’s recommendations, then they told me that I would need to go and see another Doctor of their choice, I would like to point out that the specialist who I saw first (Dr Allison) was someone who was recommended by Dr Burton and I can’t understand why Comcare were not happy to go ahead with his recommendations.
Comcare also stopped my workers compensation payments on a few occasions which also caused me a great deal of stress and financial suffering.
Comcare then proceeded to send me to 2 other specialists, who both agreed that there was indeed a problem with my wrist that was consistent with being caught in a door as described.
From this point on, nothing was done to help my wrist injury.
I was also retrenched from my workplace after 12 months on workers compensation leave, and also while I was still on leave!
The Doctors who Comcare sent me to all agreed that there is a problem, but they all had different suggestions as to how to rectify the problem. Nothing was ever followed up on from this point at all. Comcare were not interested in fixing my injury or helping in any way after this.
All I asked for them to do was to manage my situation and have my wrist fixed. I also wanted my weekly compensation payments to be restarted.
Comcare kept on declining to help me in any way and therefore I have had to get the AAT to look at this for me.”
27. The second statement was as follows:
“I would like to reply on the evidence which has already been submitted to support my case and my claim.
Please accept all of the medical reports which have already been submitted in support of my injury.
All of the doctors statements support the fact that there was an injury which occurred at work, and they also all support the fact that there is still is an ongoing injury which still needs to have treatment of some sort to fix the problem
The bottom line is that my pay had been stopped without cause as I still have the injury to my wrist and this has been a major cause of not being back in the workforce.
To say that was able to do other duties supervisory (unclear) role seems to be a complete cop out on the side of the insurance company unless they were prepared to offer me a job in this position. There is no way that a company would promote someone up a few levels that had sustained an injury.
I was also booked in to have surgery as suggested by an initial doctor whose surgery attended but this was also cancelled by the insurance company as well.
From then on there was no ongoing treatment from a supervising doctor either.
I would like to have this matter settled by way of repaying the lost wages that should have been paid from the date they were stopped, of until the date commenced work plus an amount to cover the cost of surgery and recovery.”
28. In his closing submissions, Counsel for the respondent submitted that the Tribunal should not accept the applicant was a witness of truth. For the reasons which follow, we so hold.
29. In cross examination the applicant stated that the first job he had after he ceased employment with the Commonwealth Child Support Agency was working at a security parking service at the Perth Airport. After his evidence was given, and at the request of the Tribunal, the applicant informed the Tribunal that he commenced work at the Airport on 19 October 2004. When the applicant attended Dr Alexeeff on 26 May 2005, he completed a “Questionnaire/Medical History” form in which, in answer to the question “List approximately the period of time you have had off work”, the applicant wrote “Date of accident: to date”. That answer is wholly inconsistent with the applicant’s evidence of working at the Security Parking section of the Perth Airport.
30. The “Questionnaire/Medical History” form completed by the applicant also contained various statements which the applicant was required to mark if applicable. Relevantly, under the Section “Walking” the applicant ticked the statement “I can walk only if I use a stick or crutches”. This is wholly inconsistent with the applicant’s evidence before the Tribunal that he ceased using his walking stick before he started work at the airport.
31. When the applicant was being cross-examined, the “Questionnaire/Medical History” document was not available as it was only produced by Dr Alexeeff when he later gave evidence. Accordingly, on this point, the cross-examination of the applicant related to that part of Dr Alexeeff’s written report that stated “walking was restricted and required the use a stick or crutch.”
32. In regard to that statement the cross-examination of the applicant was as follows:
“Now did you tell him that? - Well, I would have told him that, yes.
And would it have been for that time or for previously? - It depends on what he asked me. He didn’t really ask me straight questions. He told me to tell him basically about myself”.
33. The “Questionnaire/Medical History” form was very clear and spoke of “the present time. The applicant’s answer on the form was patently untrue and his evidence in cross-examination – trying to explain away the matter by reference to the manner in which questions were asked of him when, in fact, the question was written – was wholly unacceptable.
34. The applicant was cross-examined about a motor vehicle accident in 2003. It was noted that as a result of that accident the applicant made a claim on the Insurance Commission of Western Australia for damages for the bodily injury that he suffered in the accident.
35. The applicant was asked whether he knew an “Andrew Maughan, Barrister and Solicitor of Northbridge”. The applicant said that he had never met or spoken to Mr Maughan or any other legal practitioner with respect to such a claim.
36. The Tribunal received into evidence a letter from Andrew Maughan, Barrister and Solicitor of Northbridge to Dr Sakarapani of West Perth, relating to the applicant, in the following terms:
“We advise that we act for David William Martin in respect of injuries he sustained in a motor vehicle accident on 11 October 2003.
We understand that our client has attended upon you for medical treatment and we would be grateful if you would provide us, on behalf of our client, an initial medical report that addresses each of the matters outlined below.
…
Your initial medical report may not be of great length as its purpose is principally to confirm the injuries sustained and the treatment administered (and recommended) so that the ICWA will attend to the payment of all outstanding medical accounts”.
37. The letter was signed by one John Morgan on behalf of Andrew Maughan.
38. In cross-examination the applicant was asked by Counsel for the respondent:
“so are you telling us that you can’t explain how a Andrew Maughan, Barrister and Solicitor, would be writing to Dr Sakarapani in relation to a person bearing your name and your date of birth”,
To which the applicant responded “no idea”.
39. It is plain that Mr Martin consulted Mr Andrew Maughan, or someone in his employ, to act for him in regard to his motor vehicle accident on 11 October 2003. The answers given by the applicant with respect to consulting a lawyer with respect to that incident are plainly false
40. It is apparent that the applicant’s approach to the giving of evidence in this matter was to say nothing that he perceived was either irrelevant to or possibly inconsistent with his case. He repeatedly refused to give truthful answers put to him if he considered that they did not relate to “wrist” and asserted that he could not recall when anything happened “unless you have something with dates on it”.
41. The applicant’s written submissions filed after the hearing touched on certain (but not all) of the above matters. To the extent relevant, those submissions were as follows:
“General issues of credibility with regards to my testimony.
1. at the hearing I was unprepared to answer questions about a wide range of issues. I have seen a large number of doctors and specialists over the last 10 years for a number of injuries. I have been prescribed several different strong painkillers over different periods – these have affected my memory and recollection of events. I have special difficulty in regards to remembering dates and names. I would submit that for many people it would be difficult to recall and differentiate a number of procedures or appointments that happened years ago.
2. I would need to refresh my memory in regards to many of these issues – before giving evidence or explaining details. I was not prepared to give evidence on many of these questions. I understand that this may have affected how the tribunal’s considerations of my credibility – however I think this is unfair given the circumstances.
42. As to these points:
· No evidence was produced at the hearing of the applicant having had his “memory and recollection of event” impaired as a consequence of taking medication. The matters which the applicant was asked to recall, but could not recall, were matters which an ordinary person could reasonably be expected to have some recollection of.
· The Tribunal does not accept that the matters set out above can be explained away by the fact that the applicant may not have been “prepared to give evidence on many of these questions”.
43. The balance of the applicant’s written submissions in this regard (but which are not reproduced above) related to issues in respect of which the Tribunal has made no adverse finding against the applicant, and therefore are not presently relevant.
44. All of the above, fortified by the medical evidence to which we will refer, causes the Tribunal to reject the applicant’s evidence which respect to his alleged continuing restricted movement of and pain from his wrist.
The medical evidence
Dr Stuart Burton
45. Dr Burton was the applicant's general practitioner from the time of his accident until February 2003. Dr Burton was highly supportive of the applicant and issued off work certificates up until 6 March 2003.
46. On receiving the reports of Dr Hardcastle in January 2003, Dr Burton wrote in his notes of 18 January 2003:
“Also note inconsistencies which confirm the impression that I am forming"
47. On 6 February 2003, Dr Burton wrote
"Discuss contents of report; certified fit for restricted duties report makes reference to previous injury"
Dr Mark Allison
48. Dr Allison is an orthopaedic surgeon who specializes in hand and wrist surgery. The applicant was referred to him by Dr Burton. Dr Allison saw the applicant on the 19th of June 2002. He then asked that further tests be performed and saw the applicant again on the 1 October 2002.
49. In his written report Dr Allison stated
"Clinically and confirmed by MRI scan he has a tear of the scapholunate ligament. Whether this requires repair, reconstruction or just debridement will be ascertained when he has his wrist arthroscopy".
"With reference to your accepting liability for wrist sprain, a sprain is a partial tear in ligament and this is precisely what he has. Whilst I acknowledge that Mr. Martin uses a stick to walk and this is predominantly held in his right hand I do not believe that this is the cause of the injury. It may well have made him less co-coordinated in getting through the door but I believe, in the absence of any other injury history that it was the incident at work that caused the problem."
50. The proposed arthroscopy to the wrist was not undertaken.
Dr John Salmon
51. Dr Salmon, a Pain Management Specialist, saw the applicant on 26 March 2004 in relation to pain he suffered from a motor vehicle accident on 11 October 2003. In his report, Dr Salmon makes no mention of the applicant wearing a splint and there is no mention in his report of a wrist condition.
52. Dr Salmon also noted
· "psychometric testing showed significantly raised anxiety and depression scores on the DASS questionnaire and a very low pain self-efficiency score of eight.”
· There is significant associated psychological disturbance including anxiety and depression and marked avoidance behaviour with respect to his lumbar spine and dependence on the use of a walking stick since the motor vehicle accident in 1996"
Professor F. L. Mastaglia
53. The applicant saw Professor Mastaglia, Consultant Rheumatologist, on 1 November 2001. He was seen in relation to back injuries sustained in accident on 6 July 1995. In his report in the Professor stated;
"He also has intermittent sensations of numbness and pins and needles in both hands which commenced about six weeks before I saw him"
54. At the time of seeing Dr Mastaglia the applicant was walking with the aid of a stick.
Dr Philip Hardcastle
55. Dr Hardcastle is a Consultant Orthopaedic Surgeon. He assessed the applicant on 9 December 2002 and issued an extensive report dated 12 December 2002.
56. The applicant outlined how he had been injured and also told Dr Hardcastle about the previous motor vehicle accident when he had been off work for two years with spinal injuries. He denied having any previous problems with his right hand. The applicant told Dr Hardcastle he continues to have pain in his right wrist and that is of a constant nature and that on a scale of 0-10 the wrist pain is between 7-10 and that he felt his symptoms were getting worse. He walked with the aid of a stick.
57. Examination showed that motor power in the upper limb was normal but sensation to light touch was decreased on the volar aspect of his right thumb and index finger. Circumferences of the forearm and wrist were equal to measurement. Grip strength on the right side measured 3kg and 73kg on the left.
58. Dr Hardcastle made a diagnosis of synovitis involving the wrist joint and felt that the diagnosis was consistent with a soft tissue injury. He was unable to explain why the applicant’s symptoms were (according to the applicant) worsening or the degree of their severity. On the evidence, he is said; it would seem that there is still a contribution to his condition as a result of his injury.
59. Dr Hardcastle further stated:
"There does appear at this stage to have been a permanent impairment.
I would have expected the effects of the injury to have ceased by now …
I would expect an improvement in the long-term"
60. In relation to treatment, Dr Hardcastle was of the opinion that the applicant should continue with conservative treatment and consider undergoing cortisone injections to the area demonstrated on bone and MRI scanning as showing inflammation. He did not recommend surgery at this stage although he thought it was not unreasonable for Dr. Allison to have recommended arthroscopy at the time he first saw the applicant. Dr Hardcastle warned that sometimes surgery can make these conditions worse and he would therefore proceed with caution in this particular case.
61. Three times in his report Dr Hardcastle comments on:
"The high level of subjective pain"
62. Dr Hardcastle found it difficult to explain this very high level of subjective pain of which the applicant complained and the constant severe nature of his symptoms.
63. Dr Hardcastle felt the applicant would be able to work on a part-time basis of 20 - 25 hours a week possibly using a wrist support full-time.
64. The applicant was seen again by Dr Hardcastle on 19 December 2002 and he issued a further report on 6 January 2003.
65. Between the two examinations, and in relation to some of the questions asked, Dr Hardastle found a number of inconsistencies in relation to the applicant’s statements of his activities and what he said he could and could not do. In relation to his work capacity Dr Hardcastle said:
"I would expect him to be able to work on a full-time basis in a clerical or supervisory capacity with respect to his wrist. It does appear that it is his low back and spinal symptoms generally that are inhibiting his ability to travel to and from work
I normally provide patients through my private room, with a form to fill out prior to consultation. This was provided to Mr. Martin but he did not fill this out as his lawyer advised him not to. There do appear to be a number of claims involved here and litigation may be a significant factor in the situation for whatever cause"
Dr Michael Alexeeff
66. Dr Alexeeff, a Specialist Orthopaedic Surgeon, saw the applicant on 26 May 2005 and issued a report on 11 July at 2005.
67. Dr Alexeeff took an extensive history in relation to the applicant’s injuries, his previous work and current work capacity. He noted that he is not undergoing any treatment for his hand and that there had been no electrophysiological testing. Again the applicant gave the history of pain at the level of 7 - 10. He said walking was restricted and he required the use of a stick or crutch. Pain restricted him travelling on journeys to less than an hour. He drove an automatic car but stated he could manage a manual car. His sleep habits were poor and he would wake several times a night. He also stated that in some activities he was now using his left arm rather than his right.
68. On examination, Dr Alexeeff found that the applicant was a large well built man and was noted to have excellent muscle definition. The applicant said this reflected his use of weights and martial arts activities. He denied the use of anabolic steroids.
69. Specifically in relation to the right hand, Dr Alexeeff found focal tenderness over Lister's tubercle dorsally. He found no tenderness in the anatomical snuff box or over the ulna recess. There was no evidence of de Quervain’s Disease.. He found wrist range of motion 50% restricted both dorsi-flexion and palmar-flexion, although ulna adduction and radial abduction were better preserved. There was no evidence of thenar, hypo-thenar or other intrinsic muscle wasting. There was no evidence of long flexor or extensor tendon dysfunction.
70. In answer to specific questions Dr Alexeeff said:
"Specifically there was no evidence of any other underlying pathology”
“In my opinion, there is no evidence to suggest that his current condition is or can be described as an aggravation of an underlying condition"
"In my opinion this man is not incapacitated for work"
"This man ought to be able to function quite reasonably the only issue to debate would be that of dexterity given a degree of wrist stiffness"
"The issue of wrist arthroscopy now I think is largely irrelevant”
“The question of arthroscopy of the time of injury as advocated by our colleague Dr Allison was not unreasonable"
"In my opinion this man needs to have his splint removed and be mobilized. No other formal treatment is warranted"
"Motivational or other factors leading to prolonged symptomatology are well established in the medical literature in the compensable system because of its adversarial nature there is no incentive to get better. This tends to prolong claims rather than leading to their resolution. Establish reports define that settlement of any disputation is usually the first step to resolve symptoms”
“What can be stated is that subjective symptoms far outweigh the objective clinical signs that at this point in time"
71. Dr Alexeeff gave evidence in person and under cross-examination maintained the opinions expressed in his report.
72. All of the medical evidence before the Tribunal supports the respondent’s decision that the applicant was no longer incapacitated for work as a result of his accepted condition as of 6 February 2003.
73. Although recommended by Dr Allison, and considered by Dr Hardcastle and Mr Alexeeff as not being unreasonable at the time, the only evidence before the Tribunal of any currency was that of Dr Alexeeff. He was firmly of the opinion that an arthroscopy could not be justified. The Tribunal sees no reason why it ought not to accept that evidence, and does so.
74. In this regard we note that, in respect to the medical evidence, the applicant’s written submissions after the hearing of the matter, relevantly stated as follows:
“Medical issues
.
1. In regards to muscular wastage of my arm, or general body, Dr Alexeeff admitted that it is easier to maintain muscle – than to build it in the first place. I explained how I have experienced significant muscle loss – approx 35 kgs from the motor vehicle accident in 1996. However, that is coming from a maximum weight of 140 kgs. Looking at me now – I can understand how people would say that there has been no muscular atrophy. However there has been considerable atrophy since 1996.
2. I would argue that the issue of atrophy of my arm/wrist has not been properly investigated, nor the other factors taken into account. Has one arm changed in size in relation to the other? Is the injured arm smaller or has it changed in size from before the incident?
3. I did/do not use the wrist splints full time. I wear them for certain periods – so that I do not become reliant on them, and to protect against atrophy. As I stated in my evidence, I also use the EMS (Electronic Muscle Stimulator) machine – that stimulates muscle tissue with electrical impulses. I believe this has staved off significant atrophy in my arm.
4. I submit that my wrist is still painful. When I move my wrist in a certain way, or under load/stress, I sometimes get pain that I would rate as 6 to 7.
Current pain/consequences
1. I do not fully understand Mr Morgan’s legal arguments regarding the tribunal’s requirement to assess damage at the time of the hearing. If that is the case – I think it is unfair for a number of reasons.
2. There is no dispute that my wrist was injured. Medical evidence supports this. My wrist currently causes me pain. I do not know why. I would like further treatment to clarify/remedy this. I believe that Comcare is liable.
3. Comcare’s actions have resulted in this hearing being held at this time – as they would not compensate me for the work related injury, or provide treatment at the time I required it. To now say that injuries can only be determined at the time of the hearing allows the respondent to delay that time – so as to secure a favourable outcome..
4. Additionally, I do not know if my wrist has been further sprained/injured in everyday use – due to the underlying injury. As stated in my evidence and to various doctors – I would sometimes get a very sharp pain in my wrist when I tried to use it. I would sometimes drop plates or cups in the kitchen, etc. Comcare has not wanted to investigate this properly.”
75. As to these points (several of which overlap):
·The doctors who examined the applicant found no evidence of atrophy and they are agreed that disuse will always cause wasting.
·The doctors found measurements in both arms to be equal with no evidence of wasting.
·The applicant was asked to bring his splints to the hearing so that they could be observed. He did not do so and gave a very flimsy excuse. The EMS is unlikely to stimulate the muscle development
·For the reasons given above, we do not accept the applicant’s assertion of pain. In any event, even if his assertions were to be accepted, it does not change the medical evidence or the Tribunal’s findings with respect thereto.
·The Tribunal considers the whole period from the time payments were stopped until the date of the hearing and on the basis of the whole of the medical evidence. That is the basis upon which the Tribunal has proceeded.
Conclusion
76. The Tribunal concludes that, on the medical evidence before it, the respondent’s decision must be affirmed. The Tribunal would also affirm the respondent’s decision on the basis that, for the reasons given, we do not accept as fact that, as at the date that the respondent ceased making payment, the applicant suffered, or has since suffered, the symptoms that the applicant gave evidence of.
77. The reviewable decision is therefore to be affirmed.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member
Signed: ................(Sgd. Ms R Riberi)......................
AssociateDate/s of Hearing 10 and 11 August 2006
Date of Decision 26 October 2006
Representative for the Applicant Self-represented.
Counsel for the Respondent Mr MorganSolicitor for the Respondent Australian Government Solicitor
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