Martin, D.J. v Telstra Corporation Ltd
[1993] FCA 928
•15 Dec 1993
FEDERAL COURT OF AUSTRALIA JUDGES' CHAMBER5
92% 1 9 3
JUDGMENT NO. .. .a . . . . . . . . . . . . . . ...m.e.em.
| IN THE FEDERAL COURT OF AUSTRALIA | ) | |
| I | ||
| AUSTRALIAN CAPITAL TERRITORY | ) | |
| ||
| DISTRICT REGISTRY | ) | |
| GENERAL DIVISION |
ON APPEAL FROM THE GENERAL ADMINlSTRATIVE
DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: DEBRA JAYNE MARTIN
Applicant
AND: TELSTRA CORPORATION LIMITED
Respondent
MINUTE OF ORDER
| JUDGE MAKING ORDER : | Neaves | J . |
| DATE OF ORDER | 15 December 1993 |
| WHERE MADE | Canberra |
| THE COURT ORDERS THAT: |
1. The application be dlsmlssed.
2. The applicant pay the respondent's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA | ) ) | |
| AUSTRALIAN CAPITAL TERRITORY | ) | |
| ||
| DISTRICT REGISTRY | ) | |
| ) | ||
| GENERAL DIVISION | 1 |
ON APPEAL FROM THE GENERAL ADMINISTRATIVE
DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: DEBRA JAYNE MARTIN
Applicant
AND: TELSTRA CORPORATION LIMITED
Respondent
m: Neaves J.
DATE: 15 December 193
REASONS FOR DECISION
| Debra Jayne Martin ( "the applicant") has applied to the Court by way of appeal pursuant to subs.44(1) of the Adnlinlstratlve Appeals Tr~bunal Act 1975 (Cth) from the declslon of the Admlnlstratlve Appeals Tribunal ("the Trlbunal") given on 12 January 1993. The Trlbunal affirmed | the determlnatlon made under the Conunonweal th Employees' | Rehabilltation and Compensation Act 1988 (Cth) by a delegate |
| of the Australian Telecommunications Corporation ("the Corporation") on 26 November 1991. That determination had affirmed a determination made by another delegate of the Corporation on 25 May 1991 that, on and from 24 April 1991, the Corporation was not llable to pay compensation to the applicant. Weekly payments of compensation had been made to the applicant in respect of a condltlon of tenosynovltis for intermittent periods between August 1984 and February 1986 and for a continuous period from May 1986. Those payments had been made pursuant to ss.27, 29 and 45 of the Conipensation (Commonwealth Government Employees) Act 1971 (Cth) and, after the repeal of that Act with effect from 1 December 1988, pursuant to the relevant transitional provisions of the Commonwealth Employees' Rehabilltation and Compensation Act 1988. As a result of the determinations made on 25 May 1991 and 26 November 1991, the payment of compensation ceased. | ||
| In its reasons for decision, the Tribunal referred to the appllcantrs employment history as a telephonist from March 1978 and later as a PABX operator. After stating that In 1982 the applicant noticed problems wlth her right hand, the Tribunal's reasons continue: |
"5. . . . In the initial stages pain in her hand would go away after rest. She stated that two years later, however, she was getting constant pain which she would have for a couple of days at a time. Up to this time she had not sought medical treatment and it was in June 1984 when she saw her general practitioner, Dr Taylor. She
specialist, In the bellef that she may have been stated that Dr Taylor referred her to Dr Danta, a suffering with carpal tunnel syndrome. Dr Danta referred her to Dr Brook, a specialist. On 10 September 1984, after seeing Dr Brook the applicant made a claim for compensation. In 1984 the applicant began to experience symptoms such as swelling in the right hand, shooting pains up from her wrlst up to her elbow, and pain in the rlght upper arm and shoulder and in her neck and jaw line.
6. In early 1985 the applicant attended a Commonwealth Medical Officer ("CMO"), who put her off work for an extended period of three months. During 1985 she attended CMOs on a fairly regular basls of about three monthly intervals. As a result of one such visit she attempted a graduated return to work in either late January or early February 1986 working for one hour a day for the first couple of weeks on her old PABX. She was then informed that she was not the person who was supposed to have begun work there and was transferred to the MLC Bulldlng to work as a clerical assistant. She worked two hours a day for two weeks and then thls
increased by one hour a day for two weeks. The goal was eventually to work for seven hours and twelve minutes. On 24 March 1986 she was off on four weeks recreational leave and returned to work on 18 April 1986. At this stage she was working three to four hours a day, which was the maximum she achieved. The work involved mainlv photocopying, There was occasional wrlting, but no hea6 llfting.
7. At this stage the applicant was llving in Queanbeyan and her general practitioner was Dr Renshaw. She saw a CM0 late in 1986 in relatlon to being inval~ded out. She stated that in early 1987, when she was invalided out by the respondent, she was gettlng a lot of pain in her right hand, was very tired and hardly able to do any housework. She stated further that slnce that time no steps have been taken by the respondent in the direction of rehabilitation nor any attempt to get her back to work of any kind. She stated also that the symptoms in her arm have not improved and she gets constant pain in her right arm and shoulder, elbow, wrist and hand. This has led to the curtailment of actlvitles that she was previously able to perform around the house.
8. As a result of the claim for compensation on 10 September 1984 the applicant received compensation payments for intermittent perlods of total incapacity from 1984 untll 1986. She was retlred by the respondent on grounds of invalidity wlth effect from 27 August 1986 and continued to receive compensation payments from May
1986 until 24 April 1991 . . . "
| The Tribunal had before it reports on the applicant's cond~tlon from a number of lnedlcal practitioners. Some of those practitioners also gave oral evidence. One of the medical pract~tioners was Dr Peter Richard Henke whose evidence was summarised by the Tribunal in the following paragraph of its reasons: |
"10. Dr Peter Henke, a consultant in rehabilitation medicine, is also Director of Rehabllitatlon Mediclne at the Royal Prince Alfred Hospital, Sydney. He saw the appllcant on 29 September 1992 and provided a report dated 30 September 1992 (Exhibit R1) . In both his report and oral evidence he found the appllcant to be quite obese. In fact, he stated that her gross obesity is contributing significantly to musculo-skeletal stress and therefore to the continuation of symptoms she suffers. He found she presented wlth a typical picture of regional pain syndrome but no tenosynovitls. He did not consider that the work described to him by the appllcant was overly arduous and could not see lt as a potent instigator of the muscle problem or the regional pain syndrome. He considered that 'if one was to look at a single factor contributing most to her symptoms then her obesity must be that1. He stated that there was need for a planned rehabilitation programme to get her back to work, but felt this would necessitate weight reduction and increasing her activity. He was of the view that she was potentially fit for clerlcal work. He stated also in hls report of the persistence of an elevated E.S.R. (which was first noted by Dr Brook) which may indicate the presence of an inflammatory type problem. However, he was satisfied that this almost certainly would not be
associated with her work but would indlcate an idiopathic
condition."
The Tribunal referred to the evidence given by other medlcal practitioners including that of Dr Andrew Sutherland Brook, a specialist rheumatologist, who had, on 5 October 1984, diagnosed flexor tenosynovltls on the basis of swelling
| and tenderness of the rlght arm. The Trlbunal recorded Dr | Brook as stating that the orlglnal complaint of tenosynovitis |
| had been overtaken by regional paln syndrome and that this was still in evidence when he last saw the applicant on 31 May 1991 and was work related. | |
| Having noted that the medical evidence was in conflict, the Tribunal expressed its conclusion in these "20. The l'rlbunal has considered the evldence as a whole and in particular found guidance from the evidence of Dr Henke. The Tribunal notes that he was perhaps the most qualified of the medical witnesses givlng evidence, and certainly the most objective. He did not have a particular barrow to push and the ~ribunal is satisfied that hls opinion most accurately reflects the state of the applicant's condition. The Trlbunal considers that a careful readlng of his report and evidence shows that he was of the opinlon that the applicant did not suffer from any symptoms of tenosynovitrs, but did suffer from regional pain syndrome and the Trlbunal so finds. However, he was not prepared to posltlvely rate amongst the contributing factors to this latter condition the applicant's employment with the respondent, given that he did not regard her work as being 'overly arduous' and could not see it as a ' p o t e n t i n s t i g a t o r o f t h e muscle |
problem' . Instead, he attributed it primarily to the
applicant's obesity. The Tribunal is satisfied that Dr Henke accepts the possibility of there being a work relationship, but is satisfied that his evidence can be interpreted no higher that this. Hence, the Tribunal is satisfied and finds on the balance of probabilities that the applicant's reglonal pain syndrome was not related to her employment. The reviewing off~cer was therefore correct in finding that the applicant does not suffer from any physical disability, impairment or disease arislng in or out of her employment."
| On the hearing of the present application, counsel for the applicant accepted that the Tribunal had not erred in law when it identified the question whlch it had to determine as being whether, on the balance of probabilities, it was | satisfied that the applicant's regional pain syndrome was not | related to her employment. Counsel for the applicant also |
| accepted that it was open to the Trlbunal to prefer the evidence of Dr Henke to the evidence of the other medical | ||
| practitioners. The case for the applicant was that Dr Henke's | ||
| evidence did not support the conclusion expressed by the Tribunal. In order to consider that contention it is necessary to refer in some detail to Dr Henke's evidence. | ||
| In his report, which is dated 30 September 1992, Dr Henke sets out at some length the medlcal and soclal hlstory glven to him by the applicant. The report contalns the following under the sub-heading "Examination': |
"Mrs Martln presents as a grossly obese woman who was obviously unwell from her current respiratory tract infection with coughing, sneezing and a running nose. It was noted that when she walks she is markedly dyspnoeic and has a waddling and grossly abnormal gait, which appears to be related to her bulk.
Observation of the arm fails to reveal swelling, wasting or other deformity. On palpation there are multlple tender areas including the neck on 3ts posterior and right side. There is further tenderness over the trapezia1 ridge and the supra-clavicular fossa. Thls extends out to the lateral aspect of the deltoid and lts anterior parts. In the forearm there is tenderness on both the medlal and lateral aspects.
The wrlsts are tender on both the anterior and posterior aspects and there is tenderness diffusely over much of the back of the hand and thls extends onto the flngers with her complaining of soreness under only light palpation.
There is further tenderness on the thenar and hypo-thenar ennnences and at the base of the second and thlrd digits.
In the cervical splne she has sllght restriction of movement whlch appears to be secondary to bulk. There is no abnormal muscle tone.
She denies any related symptoms to the neck with swift neck movements.
In the right shoulder there is no restrlctlon of rotation but she reports difficulty in elevation of the arm, wlth once agaln this appearing to be a function of bulk. I was able to passively elevate the arm through most of normal range without any obvious obstruction or marked aggravatlon of symptoms. There was a full range of movement in the elbows, wrist and fingers. No crepitus or joint instability is noted.
Tone in the arms appears to be normal. Reflexes were present and not overly brisk. Sensation was slightly reduced on the dorsum of the hand and over the thenar and hypo-thenar emlnences. She also reported some subjective reduction of sensation over the thumb, forefinger and
middle finger . There was no abnormality of colour or temperature in the upper limbs and no abnormal sweating."
The report records the results of certain tests carrled out by Dr Henke and continues:
This woman therefore presents with onset of multiple aches and pains in her right arm gradually increasing over a number of months. The plcture is that of a regional pain syndrome. There is currently no real evidence of a tenosynovltis with no stress symptoms on stressing any of the tendons of the forearm.
There is, however, focal muscle tenderness of a diffuse type, more in the form of myalgla and tender point symptoms whlch are typical of regional pain syndrome.
Currently I would also indicate that her gross obesity is contributing significantly to musculo-skeletal stress, and therefore to the continuation of symptoms that she
suffers . I note the report of Dr Brook, Rheumatologist, in which he indicates the definite presence of a flexor tenosynovltis. However, currently thls is no longer present.
that he indicates that there is no treatment for I am surprised, however, to note ln Dr Brooks' report tenosynovitis. Classical tenosynovitls is quite amenable to treatment and one wonders whether he is using the term somewhat loosely to describe thls more diffuse presentation that I saw.
If one was to accept that this woman did have a tenosynovitis of a mechanical type, then one would expect for this to settle with rest. Her current symptoms are not those of tenosynovitis. The widespread nature of her symptoms is not explainable in terms of a single musculo- ligamentous lesion.
The prognosis for regional paln syndrome is that of prolonged continuation of symptoms. The symptoms may be aggravated under emotional and psychological stress. In this women's case her depression and massive weight gain would be seen as potentially potent contributors to the continuation of the symptoms.
Treatment for this condition usually involves counselling, education and regular exercise. This woman needs to reduce her weight and it appears that she would need further counselling and advice so that she is not abnormally restricting her lifestyle as appears to have been the case over the past few years.
Fitness for Work Currently this woman's major restriction on fitness arises from her obesity. There may be a significant psychological component also contributing to that disability. One would have felt that she is potentially fit for clerical duties. Strength tests performed by myself indicate sufficient strength to allow her to cope wlth the physical demands of those dutles. Her strength IS, however, less than one might expect for a woman of such bulk, but glven that she has restricted her activity during the past five or slx years t h ~ s is therefore not surprising.
It is important, however, that this woman receives significant counselling regarding the effects of exercise and activity on the body as it seems that she still believes that activity per se is the source of her problems in splte of havlng continuing symptoms after six years of inactlvlty.
It would seem, therefore, that this woman needs
provided with assistance in lncreaslng her level of assistance in further reducing her welght and needs to be activity wlth this ~ncluding regular exercise. Overall, the persistence of an elevated E.S.R. on some of the blood testing is a cause for concern and may indicate the present [sic] of an inflammatory type problem. This, however, would almost certainly not be associated with her employment but would represent an essentially idiopathic condltlon."
In his examination in chlef, Dr Henke gave the
following evidence:
"Q. Now, in terms, then, of her complaints, would it be falr to say that you have got a woman complaining of pain wlth no gross cllnical signs and a strength, on testing, which is still in the normal range?
A. Yes, on the basls of the Sybex test, yes Q.
And wrappmg all that up I think that you considered that maybe she suffered from a regional pain syndrome?
A.
Yes, that's correct. I felt that a regional pain syndrome was probably the best way to describe this woman's symptoms of pain and local muscle tenderness.
Q.
what did you mean by the term, regional pain syndrome?
A.
By regional pain syndrome I'm referring to a person who has a series of symptoms which are those of pain, fatigue, sometimes sickness in association with the absence of any definite pathological finding with the only usual critical finding being that of some local tenderness of the muscle.
Q.
And that is when you looked at it, accepting the woman had the symptoms of which she'd complained, you were prepared to put that label on it, would that be fair to say?
A.
I felt that that was the only reasonable label that you could probably put on her case.
Q.
Doctor, in terms of the regional pain syndrome that you describe, what do you believe is the causative factor here?
A.
She described to me the nature of her work and it does seem that the work that she was doing was not overly arduous. It did not seem to involve very high levels of key strokes and she was not required to carry out heavy lifting or to hold her arms elevated in postures which might have led to load problems for long periods. Given that it seems that the work wasn't overly arduous and therefore could not be seen as a potent instigator of the muscle problem. On the other hand, as I have indicated, she is very heavy, very obese and I felt she has this load which she carries with her all the time: 24 hours a day, 7 days a week and this, in her case, is a very signlflcant component. My feeling was
that if one was to look at a single factor contributrng most to her symptoms then her obesity must be that.
Q.
The load you are describing is the load of carrying around her weight including the werght of the upper limbs?
A. That's correct.
Q.
You felt, under your heading of 'Frtness for Work', that she was potentially flt for clerical duties?
A.
Yes, I found it hard to understand why she couldn't carry out the duties that she described to me - the selective duties that she had at the time just before she went off. It seems as though they, once again were not overly arduous and it was hard to see how they could have been creating any physical stress of significance such that she would be unable to work or keep going.
Q.
You thought, I think, that because she told you that she hadn't done much for five or six years that maybe she'd lost a bit of her power and strength. Is that right?
A.
One would have to - if she has been restricting her lifestyle as she's told me then it is inevitable that she must have some reduction in function.
Q.
And the way ahead you saw as reduc~ng some weight and increasing activity?
A. Yes, it means a combination of the two."
In cross-exammation by counsel for the applicant, Dr Henke gave the following evidence:
"Q. Given the onset o f symptoms associated, particularly, doctor - and I would ask you to make thrs assumption - a history of onset of symptoms associated particularly with the use of the right hand in operating such a keypad over a fairly lengthy period, would it not be reasonable to deduce that there is at least some material - or there is some causative relationship between that work and the development of the Regional Pain Syndrome?
A.
I think you would - the question that would come up then would be whether the symptoms would have come on irrespective of whether she was at work or not. If she is experiencing those symptoms and had these bulk and postural problems, obesity problems, then certainly one would expect that there is a probability that she may have developed these symptoms anyway at some time in the future at some time. The exact time that that occurs is unpredictable because a very hlgh percentage of people get these - they usually come on usually in their 30s and 40s and it is therefore very possible that they will come on spontaneously. Now, if that person is working and doing the job such as you are describing, then it is not unreasonable for people to ascribe that to the job because it is a time association with the two. But whether you can - whether the role of the job can be seen as significant in terms of the symptoms is another matter, and you would have to think that the job would have to be very active and intensive and requiring her hand to be elevated almost continuously before you would start thinking that that was starting to become a significant factor.
Q.
It is of significance though, doctor, that certainly the main complaint and the complaint that has become chronic has involved the hand that was primarily used on the keyboard?
A. That's - I think you must regard that as having some significance. On the other hand, it's not unusual
for regional pain syndrome to have one hand or the other to be involved. That's why it's called a regional pain syndrome, because it only involves one
region. So it certainly raises the question. Q. Is it also of significance, doctor, that an experienced rheumatologist in 1984 did in fact
diagnose frank tenosynovitis in the flexor tendons of I think two or three of the flngers of the right hand?
A.
Yes, the diagnosis of that is correct and I alluded to that because the report that I was provided indicated - that was forwarded to me failed to sort of demonstrate any objective evidence from a number of other practitioners. If that person had definite tenosynovitis, [it] would include local swelling, crepitus, pain associated with stressing of the tendons, then one would feel far more inclined to accept that the work may have had a role."
In relation to the last answer, lt is to be noted that, in answer to a question from a member of the Tribunal, Dr Brook sald that, in 1984 when tenosynovltis was first diagnosed, there was no mention of crepitus.
Counsel for the applicant submitted that the Tribunal's finding that Dr Henke was not prepared positively to rate the applicant's employment amongst the factors contributing to her condition of regional pain syndrome (par.20 of its reasons for decision) was a finding not open to it on Dr Henke's evidence. He also referred to the Tribunal's statement (ibid.) that it was satisfied that, although Dr Henke accepted "the posslbllity" of there being a work relationship, his evidence could be "interpreted no higher than this". It was submitted that, although Dr Henke clearly regarded the applicant's obesity as being primarily the cause of her condition, he, in fact, accepted that there was probably some causal relatlonshlp between the condition and
| circumstance that Dr Henke had not stated, in express terms, | the applicant's employment. Reliance was placed on the | that the applicant's employment was not a factor contributing to her condition. |
| To support those submissions, counsel referred to particular parts of Dr Henke's report and oral evidence. He referred to the statements in the report that the applicant's gross obesity was "contributing significantly to musculo- skeletal stress and therefore to the contlnuation of symptoms that she suffers" and that "her depression and massive weight gain would be seen as potentially potent contributors to the contlnuation of the symptoms". He also referred to Dr Henke's statements in the course of his oral evidence that the applicant's work "could not be seen as a potential instigator of the muscle problem", that her obeslty was "a very significant component" and that "if one was to look at a single factor contributing most to her symptoms then her obesity must be that". | ||
| Counsel placed particular emphasls upon the words "I think you would" which Dr Henke used in commencing to answer the question put to him in cross-examination whether it would not be reasonable to deduce, from the assumptions which the doctor was asked to make, that there was "some causative relationship between the work and the development" of the condltlon. The text of the question and of the whole of the answer glven to it appears earlier in these reasons. | ||
| ||
| I am unable to agree. It is not appropriate to select from Dr Henke's report and oral evidence particular phrases or sentences as representing his opinion. The report | ||
| and the oral evidence must be read as a whole and the Tribunal clearly approached the evaluation of his evidence on that basis. It is clear that Dr Henke addressed his mind to the question whether the applicant's employment was a contributing factor to her condition of regional pain syndrome. He had regard to the nature of the work as related to him by the applicant. | ||
| It was, in my opinion, open to the Tribunal to distil from his evidence, read in its entirety, that the | ||
| applicant's employment could not be said to be a contributing factor to her condition of regional pain syndrome unless it was shown that the work she did was very active and intense, requiring her hand to be elevated almost continuously, a description which did not accord with the nature of her work as described by the applicant. The Tribunal was entitled to, and clearly did, accept that the applicant's work did not answer the description referred to by Dr Henke. | ||
| ||
| For these reasons, the application is dismissed. The applicant must pay the respondent's costs of the application. |
I certify that this and the preceding 14 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neavek,
I P
As ciate
Dated: 15 December 1993
| Counsel for the applicant | : Mr R.L. Crowe |
Solicitors for the applicant : Gary Robb & Associates
| Counsel for the respondent | : Mr P.S. Jones |
Solicitor for the respondent : Australian Government
Solicitor
| Date of hearing | : 30 July 1993 |
| Date of judgment | : 15 December 1993 |
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