Meicha Palmer and Australian Postal Corporation

[2014] AATA 391

[2014] AATA 391 

Division	General Administrative Division
File Number	2013/2712
Re	Meicha Palmer
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	Deputy President S D Hotop
Date	20 June 2014
Place	Perth

The decision under review is affirmed.

.....(Sgd) S D Hotop..............................

S D Hotop

Deputy President

CATCHWORDS

COMPENSATION – employee of licensed corporation – applicant suffered elbow injury in November 2010 in performance of employment duties – respondent accepted liability to pay compensation for elbow injury – respondent determined in December 2012 that effects of elbow injury had ceased and no compensation payable – as at December 2012 applicant’s ongoing elbow pain not causally related to compensable elbow injury – respondent not liable to pay compensation to applicant for compensable injury from December 2012 and presently – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4, s 5A, s 5B, s 14, s 16 and s 19

REASONS FOR DECISION

Deputy President S D Hotop

20 June 2014

Introduction

1. Meicha Palmer (“the applicant”), who at all material times has been employed by Australian Postal Corporation (“the respondent”) as a mail officer, has applied to the Tribunal for review of a “reviewable decision”, dated 23 May 2013, made by a Reconsideration Officer of the respondent under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”). That reviewable decision affirmed a determination, made by another officer of the respondent on 17 December 2012, that the respondent is not liable to pay compensation to the applicant in respect of “soft tissue injury to the right elbow including any ulnar nerve paresis pins needles to the right hand [sic]”.

   The Evidence

2. The evidence before the Tribunal comprised the “T Documents” (T1–T60, pp 1–209) lodged on behalf of the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and:

   ·Exhibits A1–A6 tendered by the applicant;

   ·Exhibits R1–R5 tendered by the respondent; and

   ·the oral evidence of the applicant, and of Dr Steven Clarke (who was called by the applicant) and Dr Brian Dare (who was called by the respondent).

   The Relevant Legislation

3. The SRC Act relevantly provides as follows:

   “4     Interpretation

   (1)   In this Act, unless the contrary intention appears:

   …

   impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

   …

   licensed corporation means a corporation that is the holder of a licence that is in force under Part VIII.

   licensee means a Commonwealth authority or a corporation that is licensed, or that is taken to be licensed, under Part VIII.

   …

   (9)     A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

   (a)an incapacity to engage in any work; or

   (b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

   …

   (10A) For the purposes of the application of this Act in relation to an employee employed by a licensed corporation, or a dependant of such a person, a reference in this Act (except in section 28 or Part III, V, VI, VII or VIII) to Comcare is, unless the contrary intention appears, a reference to that corporation.

   …

   5ADefinition of injury

   (1)     In this Act:

   injury means:

   (a)   a disease suffered by an employee; or

   (b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

   …

   5BDefinition of disease

   (1)     In this Act:

   disease means:

   (a)   an ailment suffered by an employee; or

   (b)   an aggravation of such ailment;

   that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

   …

   (2)     In this Act:

   significant degree means a degree that is substantially more than material.

   …

   14Compensation for injuries

   (1)     Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

   …”

4. Section 16 of the SRC Act provides for the payment of compensation in respect of the cost of reasonable medical treatment obtained in relation to an “injury” (as defined in s 5A(1)), and s 19 of the SRC Act provides for the payment of compensation for “incapacity for work” (as defined in s 4(9)) resulting from an “injury” (as defined).

   The Factual and Medical Background

5. The following factual and medical background appears from the T Documents and is not in dispute.

6. On 26 November 2010 the applicant lodged with the respondent a completed “Incident Form”, signed by her and dated 26 November 2010, in which she indicated that, on 26 November 2010 at 1.30 pm, at her normal place of work, she injured her right elbow in the following manner:

   “ I was grabbing a full tray of mail to put into a ULD when I hit my elbow on the top corner of the ULD”.  (T3)

7. On 26 November 2010 (at approximately 4.00 pm) Dr David Evans issued a medical certificate in respect of an injury suffered by the applicant on that date when she “hit posterior aspect of right elbow on the post of the ULD” and which had been “painful since with some shooting pain going into the right forearm”.  (T60, p 128)

8. Dr Evans issued further medical certificates on 29 November 2010 and 6 December 2010 in which he described the abovementioned injury suffered by the applicant on 26 November 2010 as “likely soft tissue elbow injury”.  (T60, pp 129, 130)

9. On 9 December 2010 Dr David Collis issued a medical certificate in respect of the abovementioned injury suffered by the applicant on 26 November 2010 in which he referred to:

   “ Ulnar nerve paresis right arm due to bruising of nerve.

   Pins and needles feeling in right hand, diminished grip.  Pain ++ at right elbow.

   …”  (T60, p 131)

10. On 10 December 2010 the applicant lodged with the respondent a completed “Claim for Rehabilitation and Compensation” form, signed by her and dated 10 December 2010, whereby she claimed compensation in respect of an injury described by her as follows:

    “ Right elbow ulnar nerve paresis due to bruising

    Pins and needles feeling in right hand”.

    She indicated that the injury happened on 26 November 2010 at 1.35 pm and that she first had medical treatment for the injury on 26 November 2010.  (T5)

11. On 20 December 2010 an officer of the respondent made a determination accepting liability under s 14 of the SRC Act to pay compensation to the applicant in respect of an injury described as “soft tissue injury right elbow” sustained by her on 26 November 2010. (T6)

12. On 20 January 2011 Dr Evans referred the applicant to Dr Peter Silbert, Neurologist, for “nerve studies” with respect to her “left [sic] arm distal ulnar nerve symptoms” (T7).  An EMG Report of Dr Silbert, dated 27 January 2011, noted a referral diagnosis of “? ulnar neuropathy” and concluded as follows:

    “ Summary:

    Nerve conduction studies and needle examination were normal.

    Interpretation:

    The EMG was normal.

    There was no electrophysiological evidence of a right ulnar neuropathy at the elbow or in the hand.

    …”  (T8)

13. A report of Dr Aparna Baruah, dated 7 February 2011, relating to the applicant and addressed to Dr Evans, states as follows:

    “ RADIOGRAPH OF THE RIGHT ELBOW:

    HISTORY:  ? fracture.  Initial X-ray did not demonstrate a fracture, but ? cause for current pain.

    FINDINGS:  No evidence of a fracture.  The right elbow joint is enlocated.

    No elbow joint effusion.

    Bony mineralisation and cortical outlines have a satisfactory appearance.

    There is no interval change when compared to the previous X-ray from 29/11/2010.

    …”  (T9)

14. A report of Dr Mark Reed, Rheumatologist, dated 15 February 2011, which is addressed to Dr Evans, states as follows:

    “ …

    Thank you for your referral of Meicha, a 28 year-old woman with persistent pain in the right elbow, following an injury at work.  Meicha described pulling a plastic tray out of the metal frame of a letter sorting machine on 26/11/10, during her usual role as an employee for Australia Post.  During the movement, she impacted her right elbow on the metal frame of a large cage, with most of the contact felt over the posterior aspect of the joint.  She recalled immediate pain and swelling in the elbow, and she attended her supervisor at the time, following which an X-ray did not identify any bony abnormalities.  Meicha had a gradual improvement in her elbow pain and swelling over several weeks, although her symptoms worsened with a trial of physiotherapy, and she was able to engage in lighter duties with mail sorting, albeit while favouring the arm.

    On attempting to return to a short period of her previous duties several weeks ago, she had increased pain in the elbow, associated with paraesthesia in the right fourth and fifth fingers.  Her symptoms have again improved to some extent with rest, after remaining off work the past three weeks, although she has residual discomfort when carrying any weight in the right elbow.  She describes pain throughout the joint, with lesser discomfort in the distal arm and proximal forearm, and without any numbness or weakness in the hand.  She has not noted benefit from previous trials of Celecoxib or Panadeine four [sic], and she has moderate sleep disturbance at present.  Meicha denied previous episodes of pain in the elbow, nor has she had any discomfort in the neck, or remaining peripheral joints.

    Examination

    Meicha had tenderness throughout the right elbow, involving all of the joint lines, although she was able to flex and extend the joint fully.  There was further tenderness over both medial and lateral epicondyles, and she had pain in the elbow region on resisted finger extension, without discomfort on resisted finger flexion.  There was irritability on percussion of the ulnar nerve, which reproduced her previous forearm and hand paraesthesia, without evidence of motor or sensory impairment.  She retained a full range of movement in the neck, and her remaining joints were unremarkable, as were the cardiorespiratory and abdominal examinations.

    Investigations

    Previous plain films showed mild soft tissue swelling around the right elbow, without any bony abnormalities, and nerve conduction studies from 27/1/11 were unremarkable.

    Impression

    Meicha has features of both medial and lateral epicondylitis on examination, in addition to a probable element of ulnar nerve irritation.  The more generalised joint line tenderness and persistence of symptoms, however, would also raise the question of an internal soft tissue derangement such as post-traumatic synovitis, although the full range of movement would argue against this.

    Recommendations

    To exclude an internal joint arrangement [sic], and to confirm the epicondylitis/enthesitis findings, I have referred Meicha for an MRI of the joint, and I will review her with the results next week.

    …”  (T10)

15. An MRI report of Dr Bill Breidahl, dated 22 February 2011, which relates to the applicant and is addressed to Dr Reed, states as follows:

    “ …

    MRI OF THE RIGHT ELBOW

    Clinical Details:  Blunt trauma to posterior aspect of elbow in November 2010.  Ongoing elbow pain.  Tender medial and lateral epicondyles and within elbow.  Some symptoms of ulnar neuropathy.

    Findings:  The study is degraded by motion artefact but remains diagnostic. 

    There is a physiological amount of elbow joint fluid present.  Articular cartilage of the distal humerus, proximal radius and ulna is normal.

    The common extensor origin and lateral collateral ligamentous structures are normal.  The common flexor origin and ulnar collateral ligaments are normal.

    The distal biceps, brachialis and triceps are normal.

    The ulnar nerve just proximal to and as it enters the cubital tunnel is mildly enlarged and of increased signal intensity on T2 weighted images.  Whilst not specific, this may be a manifestation of ulnar ‘neuritis’.  The median and radial nerves are normal.

    Comment:

    1.Mild enlargement and T2 hyperintensity of the ulnar nerve just proximal to and as it enters the cubital tunnel, non specific, but possibly a manifestation of ulnar ‘neuritis’.

    2.No MR evidence of peri-articular tendon pathology.

    …”  (T12)

16. On 24 February 2011 Dr Reed reported to Dr Evans as follows:

    “ …

    Progress

    Meicha’s MRI showed mild enlargement and T2-weighted hyperintensity of the ulnar nerve at the level of the elbow, without any evidence of intra-four periarticular joint or tendon pathology.  Her intermittent paraesthesia in the right forearm and hand has resolved since last review, and she has return [sic] to work on limited duties, without any significant symptom exacerbation.

    On examination, Meicha had mild ongoing tenderness over both the medial and lateral epicondyles in the elbow, in addition to mild forearm muscle tenderness bilaterally.

    Meicha’s additional blood screen was unremarkable, except for a borderline vitamin D level at 71.

    Recommendations

    Meicha’s ulnar nerve symptoms have improved at present, and she is unlikely to require further treatment for this, including a steroid injection over the nerve, the level of the elbow [sic].  She has residual symptoms attributable to epicondylitis, in addition to an element of soft tissue pain amplification, and the best treatment for this will be through graded stretching and strengthening exercises.

    We have been through some exercises for this, which she will add to her regular physiotherapy regime, and Meicha will commenced [sic] hydrotherapy shortly, which should afford a significant benefit.  She will also consider a trial of low-dose Amitriptyline, 5-20 mg nocte, for the element of soft tissue pain, which may also aid her current sleep patterns.

    I have advised Meicha to avoid heavy lifting at work for the next eight weeks, although she could certainly increase her desk-based duties, as tolerated.  I will review her progress in two months.”  (T13)

17. On 27 April 2011 Dr Reed reported to Dr Evans as follows:

    “ …

    Progress

    Meicha remains very well with regard to her right elbow, without any significant recurrence of pain, nor any further paraesthesia in the forearm or hand.  She has recently increased her workload to light duties, without any recurrence of symptoms, and she maintains regular stretching exercises, in addition to the use of a brace.

    On examination, Meicha had residual tenderness over the ulnar nerve at the level of the elbow, without any focal epicondyle tenderness, nor any restriction or irritability in the joint.

    Recommendations

    Meicha’s symptoms remain quiescent at present, and she will gradually increase her workload as tolerated.  I have not made any changes to her treatment, and I will review her progress in three months.”  (T17)

18. On 28 July 2011 Dr Reed reported to Dr Evans/Dr Collis as follows:

    “ …

    Progress

    Meicha reported a significant flare of pain in the right elbow since last review, which appeared to be precipitated by a session of manipulative physiotherapy.  She noted increasing swelling over the medial epicondyle in particular, with increased pain on movement of the elbow since that time.  She has not noted any recurrence of paraesthesia in the forearm or hand, and her symptoms are slowly improving with further therapy, and renew physiotherapist [sic].

    On examination, Meicha had increased tenderness compared to last review, over both the medial and lateral epicondyles of the elbow.  There was no focal swelling, nor any irritability on movement of the joint, and she again had further tenderness in the adjacent soft tissues of the forearm, and in the paravertebral muscles.

    Recommendations

    Meicha has had a flare of epicondylitis since last review, which appears to be settling with further physical therapy.  We have been through some simple stretching exercises to add to her regimen, and we have discussed that it would be worth considering adding the Endep, 5-20 mg nocte, for the element of soft tissue pain amplification.  She will consider this if her symptoms fail to continually improve, and we have also discussed that she could consider a steroid injection over the medial epicondyle, if her pain in this region remains.

    I will review her progress in two months.”  (T20)

19. A report of Dr Reed, dated 30 September 2011, relating to the applicant, which is addressed to Dr Robert Paul (general practitioner), states as follows:

    “ …

    Progress

    Meicha informed me today that she will now be following up with yourself, and that she has also recently changed her physiotherapist.  Her previous epicondylitis symptoms in the right elbow remain improved at present, although she has mild residual discomfort with repetitive activities.  Meicha’s major issue of late, however, is that of discomfort over the right scapula, which has been present for the past four weeks, and which she feels was precipitated by manipulation with her physiotherapist.  She remains on Lyrica, which has been increased to 150 mg nocte, although she has residual sleep disturbance with this, and she did not proceed with the trial of Endep as previously suggested.

    On examination, Meicha had ongoing soft tissue tenderness in both forearms, in addition to generalised soft tissue tenderness in the limbs and paravertebral muscles.  There was minimal tenderness over the lateral epicondyle of the right elbow, and she had mild tenderness over all of the cervical segments, in addition to the upper thoracic spine.  There was moderate paravertebral tenderness on both sides, worse on the right, without focal tenderness over the right scapula, nor any pain on shoulder movements.

    Recommendations

    Meicha continues to have a degree of soft tissue pain amplification, complicating her recovery from the lateral epicondylitis.  We have discussed that the mainstay of treatment for this will be through a graded increase in active exercise for the thoracic spine and upper limbs and she will endeavour to undertake regular freestyle swimming for this.

    To assist this, Meicha will go on to trial the Endep at 5-20 mg nocte, and she will continue this if helpful.  If not, she will again trial a morning dose of Lyrica at 75 mg, which should be better tolerated than when trialled initially.  If neither of these measures are helpful, then I have also given her a prescription to trial Cymbalta, 60 mg daily, which is often helpful for the treatment of persistent soft tissue symptoms.

    I will review her progress in two months.”  (T27)

20. A report of Dr Geoffrey Gee, Consultant in Pain Management, dated 3 October 2011, relating to the applicant, which is addressed to Dr Paul, states as follows:

    “ …

    Thank you for referring this lady who attended for a consultation with her husband.  Mrs Palmer complains of a pulling sensation down the medial posterolateral aspect of the right arm, pain in the elbow particularly over the ulnar margin, pain over the right shoulder blade and pins and needles in the ulnar distribution on the right.

    Mrs Palmer indicated that she was working in a metal frame on the 26 November 2010 when she hit the medial aspect of her right forearm again [sic] a metal stud.  The arm went numb.

    Since then she has had a range of treatments including physiotherapy without lasting benefit, hydrotherapy which aggravated [sic] and medications.  Lyrica and Celebrex seems to calm her at night.

    Apparently she has had EMG Studies with Dr Silbert but the results of testing were not available.  More recently she has had an MRI scan which demonstrates very mild changes in regard to the ulnar nerve.

    Her general health seems quite good.  There are no obvious medical or surgical issues.

    Clinically Mrs Palmer has tenderness over the right trapezius and levator scapula muscles.  Her cervical range appears entirely normal.

    There are no limitations to shoulder movements.

    At the elbow she has some tenderness over the biceps tendon which would suggest splinting of the arm.  There is mild tenderness over the ulnar nerve.

    She has an excellent range of movement in relationship to her right elbow.

    Neurologically there are no obvious changes to the testing of power, reflexes and sensation.

    The symptoms at the elbow would suggest that splinting is an issue.  I would like to review her EMG Studies from Dr Silbert.

    The cervical symptoms would appear to be muscular in origin.

    It is disappointing that her hydrotherapy has been aggravating her as I believe that exercise will be an important pathway for her.  Whilst she has been taking Lyrica the dosage regime has been poor so I have asked her to take this twice daily until I next review her.”  (T28)

1. On 17 October 2011 Dr Gee reported to Dr Paul as follows:

   “ …

   I reviewed Mrs Palmer on the 17 October 2011.  She has not been able to tolerate the Lyrica during the day even down to a lower dose of 25 mgs without side effects.

   Mrs Palmer’s EMG Studies were entirely normal.

   Mrs Palmer indicated that she had recently seen Dr Mark Reed who prescribed Endep so it would seem wise to trial this medication.  Mrs Palmer may need to cease the Lyrica to avoid any obvious effects.

   At this stage I would not consider that there is a need for any pain management on my part.  I am rather disappointed for her inability to get involved with hydrotherapy as I believe that sensible exercises would be realistic.”  (T32)

2. A report of Dr Alan Home, Consultant in Occupational Medicine, dated 19 October 2011, which is addressed to the respondent, states as follows:

   “ …

   Thank you for asking me to see Miss Palmer, who attended my Murdoch rooms on 19 October 2011 as arranged, for independent medical examination in relation to her right elbow complaint.

   …

   Review of Medical Reports

   I have reviewed the medical reports attached to your letter.  The pertinent findings are summarised in the Table below.

Date	Provider	Type	Comments
7 Feb 11	Dr A Baruah	XR	Radiograph of the Right Elbow – No evidence of a fracture.  The right elbow joint is enlocated.  No elbow joint effusion.  There is no interval change when compared to the previous x-ray from 29/11/2010
15 Feb 11	Dr M Reed	MR	Meicha has features of both medial and lateral epicondylitis on examination, in addition to a probable element of ulnar nerve irritation.  The more generalised joint the tenderness and persistence of symptoms, however, would also raise the question of an internal soft tissue derangement such as post-traumatic synovitis, although the full range of movement would argue against this.
22 Feb 11	Dr B Breidahl	XR	MRI of the Right Elbow – Mild enlargement and T2 hyperintensity of the ulnar nerve just proximal to and as it enters the cubital tunnel, non specific, but possibly a manifestation of ulnar ‘neuritis’.
24 Feb 11	Dr M Reed	MR	Meicha’s ulnar nerve symptoms have improved at present, and she is unlikely to require further treatment for this, including a steroid injection over the nerve, the level of the elbow.  She has residual symptoms attributable to epicondylitis, in addition to an element of soft tissue pain amplification, and the best treatment for this will be through graded stretching and strengthening exercises. I have advised Meicha to avoid heavy lifting at work for the next eight weeks, although she could certainly increase her desk-based duties, as tolerated.

27 April 11	Dr M Reed	MR	Meicha’s symptoms remain quiescent at present, and she will gradually increase her workload as tolerated.
28 Jul 11	Dr M Reed	MR	Meicha reported a significant flare of pain in the right elbow since last review, which appeared to be precipitated by a session of manipulative physiotherapy.
20 Sep 11	Dr M van Renselaar	MR	The treatment will consist of pain management strategies working in a CBT framework.
30 Sep 11	Dr M Reed	MR	Meicha continues to have a degree of soft tissue pain amplification, complicating her recovery from the lateral epicondylitis. To assist this, Meicha will go on to trial the Endep at 5-20 mg nocte, and she will continue this if helpful.
3 Oct 11	Dr G Gee	MR	There is mild tenderness over the ulnar nerve. Neurologically there are no obvious change to the testing of power, reflexes and sensation. The symptoms at the elbow would suggest that splinting is an issue. The cervical symptoms would appear to be muscular in origin.

KEY:        MR    Medical Review     XR      Radiology Report

History From Examinee

Miss Palmer states that she sustained injury to her right elbow whilst working as a mail officer with Australia Post.  She was moving a full tray of mail into a ULD.  She then stepped back and struck the medial aspect of her right elbow against a spigot (an upright metal protrusion) at the corner of the UGL cage.  She recalls the immediate onset of medial right elbow pain and she also experienced paraesthesia extending into the ulnar two digits of her right hand.  She recalls pain extending both proximally and distally from the medial aspect of the elbow into the arm and forearm respectively.

She confirms that she attended Dr David Evan at Complete Corporate Health, and later Dr Collis.  A diagnosis of ulnar nerve contusion or paresis was made.

She confirms that she underwent electrophysiological studies performed by Dr Peter Silbert on 27 January 2011.  These were normal. 

Plain radiographs of the elbow dated 7 February 2011 were also normal.

She came under the care of Dr Reed, rheumatologist, around February 2011.  MRI scans of the right elbow dated 22 February 2011 revealed no abnormality.

She recalls that symptoms of numbness in the ulnar two digits of her right hand ceased by February 2011.  She was, however, left with variable posteromedial elbow pain.

Symptoms improved in the period leading up to July 2011.  She recalls exacerbation of symptoms following a physiotherapy examination and manipulation in July 2011.  Symptoms have not settled since that time.

Miss Palmer reports a trial of Lyrica.  She found that Lyrica over-sedates her.  She reports daily use of Panadol Osteo.  She recently commenced Endep.

She confirms review by Dr Geoff Gee, pain specialist, who did not recommend any further invasive treatment.

She is currently attending a physiotherapist, Andrew, at Forrestfield Physiotherapy, twice weekly.  The physiotherapist provides her with massage to her neck and shoulder girdle muscles and range of motion exercises for her elbow complaint.

She attends a clinical psychological [sic] Marika van Renselaar.

Current Symptoms

Miss Palmer describes intermittent muscular ache in the right shoulder girdle.

She describes constant ache at the medial aspect of the right elbow at average intensity 6-7 out of 10.

She describes a further pulling sensation extending distally from the cubital tunnel when her elbow pain is more prominent.

There is no ongoing complaint of ongoing ulnar sensory deficit or paraesthesia.

She retains full elbow motion.  She denies swelling about the elbow.  There are no distal symptoms.

Abilities/Disabilities

Miss Palmer is right hand dominant.  She estimates a capacity to write half a page.  She says that even light manual activities at bench height cause her exacerbation of elbow pain within five or ten minutes.

She drives an automatic vehicle but frequently takes her right hand off the steering wheel.  She is able to grip the wheel with her right hand for short periods.

She states that she can lift a light shopping bag.  If given five bags to lift she would lift one with her right hand and four with her left.

She does perform shopping, bed making, clothes washing, food preparation, bench height cleaning and dish washing.  She performs most domestic chores with her left hand, with brief use of her right hand.

She does enjoy card making.

Past Medical History

There is no past medical or family history of relevance.  She is a non-smoker.

Educational/Vocational History

Miss Palmer has worked as a mail officer at Australia Post domestic airport for 25 hours per week over the past six years.  Currently she is performing selected duties, for one hour and 15 minutes daily, repairing envelopes.  She copes adequately with that work.

In the past she has worked as a childcare worker.

She left school after completing Year 10 schooling.  She suffers from dyslexia.

Examination

Miss Palmer is a 29 year-old with medium height and thin build.

All movements were conducted in an active manner by the examinee.  Where passive movements have been induced it has been recorded in the examination findings.  No passive movements were performed beyond the limits of comfort.

Examination of the right elbow reveals no abnormality to inspection.  There is well localised and reproducible tenderness elicited to palpation overlying the cubital tunnel, that is, over the ulnar nerve.

There is a full range of active right elbow joint motion.  Elbow movements are pain free.  There is no pain with forearm rotation.  There is no pain with resisted flexion or extension of the wrist or resisted forearm pronation and supination.

There is no pain with resisted extension of the middle digit.  There are no clinical sings of entrapment neuropathy.

Ulnar nerve tenderness extends 10 cm proximal to the cubital tunnel and 10 cm distal to the cubital tunnel.

Neurological examination of the left hand is normal.  In particular, there are no clinical signs of sensor or motor ulnar neuropathy.

Assessment

Miss Palmer presents with a history of persisting medial elbow pain after suffering a contusion injury to the left [sic] ulnar nerve.  I note that diagnostic imaging with MRI scans of the elbow demonstrated thickening of the ulnar nerve at the level of the cubital tunnel.

At this stage it is reasonable to adopt a conservative approach to management.

Miss Palmer tells me that her use of Lyrica is problematic as she experiences over-sedation.  In my view, use of this medication should be reviewed.

The utility of further passive physiotherapy treatment must be questionable.  Miss Palmer should be encouraged to exercise within her symptomatic tolerances.

I anticipate that her pain symptoms will slowly resolve.  Recovery from neural contusion can occur over a period of eighteen months.

Again, there are no ongoing complaints of ulnar neuropathy and on that basis it is unlikely that she will be offered other treatment such as surgical ulna nerve release or anterior transposition.  However, review by an upper limb surgeon is reasonable.

In answer to your specific questions:

Causation

1.Please detail the history of Miss Palmer’s condition as reported to you.

The history provided by Miss Palmer is detailed above.

2.From what specific condition does Miss Palmer currently suffer?  Please provide a short description of the condition including its known aetiology and progression.

Miss Palmer suffers from local medial elbow pain reflecting likely damage to the ulna nerve and surrounding soft tissues.  There are no specific clinical signs of common flexor tendonopathy (golfer’s elbow) or common extensor tendonopathy (tennis elbow).  There are no clinical signs of elbow joint arthropathy.

3.On the balance of probabilities, as distinct from possibilities, is the condition currently suffered by Miss Palmer related to:

a)   Miss Palmer’s employment as a mail officer;

b)   a pre-existing, congenital, constitutional or underlying condition;

c)   the natural progression of an underlying condition;

d)   other health issues; or

e)   some other aspect of Miss Palmer’s employment (if so, please describe the factor and explain how it contributes to the condition);

f)   factors unrelated to work; or

g)   underlying degeneration as part of the natural ageing process.

The condition suffered by Miss Palmer does causally relate to her employment as a mail officer.  It is not related to other factors outlined in 3b to 3g of your question.

Contributing Factors

4.If you consider Miss Palmer’s employment continues to contribute to her condition, please explain the basis of your conclusion, particularly having regard to the fact the employment incident occurred on 26 November 2010.

Miss Palmer’s employment is the significant contributing factor to her condition, noting that the complaint started after local trauma to the ulnar nerve on 27 [sic] November 2010.

5.Has the condition which was contributed to by Miss Palmer’s employment as a mail officer ceased and been superseded by another episode?  If so, would you please specify the circumstances of the new episode?

It is not apparent that Miss Palmer’s condition now relates to another cause.

6.Has Miss Palmer’s initial compensable condition been superseded by a different condition?  If so, please provide your opinion on what factors contribute to this different condition.

It is not apparent that Miss Palmer’s initial compensable condition has been superseded by a different condition.

7.Are there any aspects of the clinical examination which tend to suggest that Miss Palmer is:

·     Voluntarily exaggerating her symptoms

·     Consciously guarding restriction of movement

·     Displaying symptoms and examination findings inconsistent with claimed condition

·     Demonstrating a range of movement during your passive observation that were [sic] not replicated during your clinical examination.

I cannot determine from the examination findings that Miss Palmer is voluntarily exaggerating her symptoms, consciously guarding restriction of motion, displaying symptoms and examination findings inconsistent with the claimed condition or demonstrating an inconsistent range of motion.

Indeed, she does not present with any evidence of guarding.  She demonstrates a full range of active elbow joint motion.  She moves her neck, shoulder, elbow, wrist and fingers freely.

Treatment

8.   Please advise whether Miss Palmer requires any other type of treatment?  Please detail treatment type, frequency and commencement date.

Miss Palmer does not require other forms of treatment.  Advice to undertake gradual reconditioning exercises is reasonable.  The symptomatic use of simple analgesia is recommended.  I would recommend discontinuation of Lyrica.

Work Capacity

9.   What are Miss Palmer’s current work restrictions?

Miss Palmer is fit to work within her symptomatic tolerances.  At this stage she is working one and a half hours per day performing quite minimal manual tasks.  I anticipate that over time she will be able to increase her hours of work.

10.   Is Miss Palmer it [sic] to work normal hours (5 hrs per day) including overtime?  If not, what restrictions apply to her hours of work and what is the timeframe for her return to normal hours?

I cannot determine any reason to preclude Miss Palmer from normal hours of work provided that she is not required to undertake repetitive or sustained manual tasks.  Work in a reception role or customer service role would seem more suitable, given her current physical complaints.

11.   In your opinion, will Miss Palmer be able to return to pre-injury duties and hours?  If so, when would it be reasonable for her to have achieved an upgrade to pre-injury duties and hours?

In the long term, Miss Palmer should be able to resume pre-injury duties and hours.

12.   Are there any other factors which you feel are relevant and have not been addressed in the list of questions, please provide additional comments.

I have no other factors of relevance to your consideration.

…”  (T33)

1. A report of Mr Angus Keogh, Orthopaedic Surgeon, dated 27 February 2012, relating to the applicant, which is addressed to Dr Paul, states as follows:

   “ …

   Thank you for your kind referral of this 29 year old right hand dominant Australia Post Worker.  She last worked approximately 3 weeks ago.  She has no previous medical history and no children.

   Back in November of 2010 she had a direct blow to the right medial side of her elbow.  She had what she describes as a direct blow to the ulnar nerve region with immediate numbness in the ulnar three fingers of her hand.  She had associated tingling in the medial forearm in addition.  This was associated with a period of stiffness in her elbow which lasted approximately 4 weeks.  The numbness continued for a total of 3 months.  She had xrays at the time which were unremarkable.

   Since that time she has had ongoing problems with intermittent numbness and pain experienced on the medial side of her arm, radiating towards the ulnar gutter and the medial side of the elbow.  It is associated with altered sensation throughout the ulnar portion of her hand and is made worse by things such as vacuuming and brushing her hair.  She also describes a burning and aching pain with a pulling sensation on the medial side of her arm.  She had a recent injection 3 weeks ago and now she complains of constant pain on this side of her elbow.  She is currently wearing a sling today and she finds that this helps with her symptoms.  She is also taking Gabapentin but finds that this does not provide any relief for her symptoms.

   On examination today, there is slight restriction of extension of the elbow.  Likewise, there is slight restriction in flexion at the elbow.  Supination and pronation are normal.  She has exquisite tenderness about the medial side of her elbow radiating up towards the mid portion of her arm.  There is a positive Tinels with dysaesthetic skin overlying the medial side of her arm.  Shoulder abduction is restricted by a pulling sensation down towards the medial aspect of her elbow.  The ulnar nerve does not sublux.  There is intrinsic weakness of the right hand and there is also weakness of the thenar group.  There is negative Tinels at the wrist.  The power of FCU is inhibited by pain in the medial arm.  There is some tenderness about the posterior and medial ulnohumeral gutter.

   Diagnosis:

   ? Ulnar neuritis.

   Meicha unfortunately does not have a lot of her imaging with her today and I gather than [sic] she has had several medical opinions previously.  I would like to gather as much information as possible before providing an opinion on this young lady.  It is obvious that she has a difficult problem and I hope I can help sort things out for her.

   I will see her in due course with the results of all of her imaging, and also some letters from previous reviews.”  (T39)

2. On 13 March 2012 Mr Keogh reported to Dr Paul, regarding the applicant, as follows:

   “ …

   I reviewed this young lady with regard to the ongoing problems with her right upper limb.  She has had an ultrasound and also an xray of her elbow since she was last here.  The ultrasound demonstrates normal appearance of the ulnar nerve without evidence of subluxation.  I am reluctant to pursue operative intervention at this stage as I have no objective findings of ultrasound neuritis at the elbow.

   Consequently, I have organised for her to see a pain specialist and have also organised for her to see one of the hand therapists here with regard to mobilisation and relief of trigger points in the upper limb.  This will occur some time in the next couple of weeks.  I have also referred her to Dr Phil Finch for an opinion with regard to her ongoing pain management.”  (T42)

3. Mr Keogh referred the applicant to Dr Philip Finch, pain specialist, on 13 March 2012.  Mr Keogh’s referral letter states as follows:

   “ …

   I was wondering if you would kindly review this young lady with regard to problems with her right upper limb.  She sustained an injury to her right arm whilst at work over 12 months ago now.  She has ongoing problems with dysaesthesia in the medial side of her arm extending down towards the ulnar nerve distribution.  She has been extensively worked up, including MRIs and also ultrasound and EMG studies, and has had multiple opinions.  She is currently being treated for neuropathic pain.

   At this stage, I am reluctant to consider a surgical option and would appreciate your opinion with regard to her ongoing significant pain in the medial side of her arm.

   Your opinion is appreciated.’  (T43)

4. On 16 August 2012 Dr Finch reported to Mr Keogh as follows:

   “ …

   Thank you for referring Meicha Palmer who is a 30 year old mail officer working for Australia Post.  Meicha struck her right elbow against a sprocket on 26 November 2010, which is a pointed apparatus used in sorting mail.  She developed severe pain, numbness and paraesthesia in the right ulnar nerve distribution to the hand.  Unfortunately, she has continued to experience pain in this limb ever since.  On account of MRI findings of possible tendonitis of the brachialis insertion she underwent a local injection.  She states this made her a lot worse.

   Meicha continues to describe pain radiating in the ulnar nerve distribution with paraesthesia, numbness, constant aching, coldness and weakness of the hand.  She describes mild swelling of the hand.  She has developed a poor posture with the right shoulder depressed and aching around the shoulder girdle.

   She takes Gabapentin 100 mg per day with minimal effect and Pregabalin 150 mg per day as a rescue analgesic agent.

   Meicha gives no past history of relevance.

   She underwent an EMG study by Peter Silbert about 2 months after her injury which was normal.  I looked at plain x-rays of the right elbow dated 7 February 2011 and 29 November 2010 which appeared normal.  An MRI of the right shoulder dated 23 November 2011 shows subtle changes to the brachialis insertion.  Plain x-rays of the right elbow dated 6 March 2012 appeared normal.

   On examination Meicha’s right hand had mild pinkish discolouration.   The right shoulder was depressed.  There was slight loss of full range of flexion/extension of the right elbow.  The range of movement of the wrist and fingers was normal but there was weakness of adduction of the fingers.  There was hypoalgesia in the right ulnar nerve distribution involving the little and ring fingers.  There was no apparent wasting of the right hand intrinsic muscles.  Reflexes appeared normal.  The brachial plexus was not tender.  She was tender over the right ulnar nerve at the elbow and over the vicinity of the biceps insertion at the elbow.

   It would appear that Meicha has suffered a right ulnar nerve neuropraxia and has ongoing pain from the dysfunction of the ulnar nerve.  She has developed mild Complex Regional Pain Syndrome.  Her work tends to exacerbate matters.  She tends to settle if she doesn’t work and perhaps a consideration would be for her to cease work, settle her claim and see if matters gradually settle down.  I am not sure that interventions are warranted, especially interventions such as ulnar nerve stimulator implants.

   I have asked Meicha to come back for further examination in a few weeks time as I am uncertain about further management.

   …”  (T45)

1. On 23 October 2012 Dr Finch further reported to Mr Keogh as follows:

   “ …

   I have just reviewed Meicha Palmer who you may remember struck her elbow against a mail sorting spigot.  Meicha developed right ulnar nerve symptoms which very slowly have begun to improve.  She still experiences pain around the elbow but has lost the allodynia and has less paraesthesia.  Any activity tends to exacerbate matters.  She has not been able to return to work as a mail sorter.  She takes Lyrica and Gabapentin in low dosage with some benefit.

   On examination both hands were approximately the same in colouration, sweating and temperature.  There were some regional temperature changes, especially over the ulnar nerve distribution in the hand.  She did not have any evidence of allodynia to mechanical stimuli.  There was slight loss of extension of the right elbow.  There was no swelling of the hand.

   I think Meicha is slowly recovering from an ulnar nerve injury which previously had normal electrophysiological parameters.  She previously had an injection which exacerbated matters.  I don’t intend any invasive treatment but have suggested she could try a Tens machine.

   …”  (T47)

2. A report of Dr Finch, dated 13 December 2012, which is addressed to Dr Paul, states as follows:

   “ …

   Thank you for your letter.  Meicha Plamer [sic] continues to have pain in the vicinity of the right elbow and mild right ulnar nerve symptoms.  The limb is cold and discoloured at times but many of the symptoms of Complex Regional Pain Syndrome are not present.  On examination the right elbow is tender to palpation and there are slight sensory changes over the right ulnar nerve distribution.  The right hand is 3 degrees cooler than the left.

   Meicha reports an exacerbation of symptoms with the use of a Tens machine.  I am not sure that any invasive techniques are warranted.  I think she should look towards a change of career and settling of her claim as I think she has reached maximum medical improvement.  I would suggest further treatment be symptomatic only.

   …”  (T50)

3. In the meantime Dr Brian Dare, Consultant Occupational Physician, had clinically assessed the applicant, at the request of the respondent, on 3 December 2012 and provided a report, dated 4 December 2012, to the respondent.  Following receipt of Dr Dare’s report (which is set out in paragraph 46 below), the respondent, on 17 December 2012, made the determination referred to in paragraph 1 above.

   The Applicant’s evidence

4. The applicant, who was born in March 1982, confirmed that she had signed a witness statement, dated 7 February 2014, for the purpose of this proceeding and that its contents are true and correct.  That statement is as follows:

   “ …

   3.In or about May 2006, I commenced my employment with Australia Post as a Mail Officer.

   4.I was employed in the capacity as a Mail Officer and my duties were varied day to day, and could change on an hourly basis.

   5.My duties prior to 26 November 2010 were to operate and/or help other team members with:

   a.   Manually sorting mail of various sizes that were rejected by the machines;

   b.   Repair damaged or incoherently written mail that was rejected by the machines and then manually sort these;

   c.   Help out in other areas sorting mail manually;

   d.   Load mail sorting machines;

   e.   Move trays of mail and Unit Load Device (‘ULD’) around factory with the use of a pallet.

   6.These were my usual/normal daily duties.

   7.On 26 November 2010, I attended work in my usual capacity starting my shift and conducting my normal duties.

   8.Approximately one (1) hour into my shift, I was loading a ULD.

   9.Loading a ULD consists of stepping into the ULD, which is a large enclosed metal pallet, and placing trays of mail one on top of the other in such a way that I can navigate my way out.

   10.Upon loading a tray into the ULD, I went to turn and exit at which point, I struck the metal spike protruding off the top of the ULD with my right elbow.

   11.I have attached hereto and marked ‘Annexure A’ a photograph depicting the metal spike referred to in the paragraph above.

   12.At that point in time, I immediately stopped what I was doing and went and spoke to my supervisor.

   13.First Aid was administrated [sic] at that time, that being the application of an ice pack.

   14.I instantly had shooting pains running up my arm and reported this to my supervisor.

   15.I was told to go and sit down in the lunch room and wait for someone to take me to the doctors.

   16.Two (2) hours later, I saw Dr David Evans, the company doctor.

   17.Dr Evans prescribed rest and ice and anti-inflammatories to treat my injury.

   18.This treatment continued for about a month with no beneficial effect.

   19.I then went back to Dr Evans and told him that I was not feeling my arm properly and that I was still getting the tingles.

   20.Dr Evans then referred me to Dr Silbert for nerve conduction studies which resulted in an EMG Report.

   21.In March 2011 I commenced hydrotherapy treatment for approximately 1-2 months with no success or benefit.

   22.Emma Beckett in her Progress Exercise Report dated 11 March 2011 (T14) acknowledged the high level of pains I was suffering from at that time.

   23.This treatment was being alternated with physiotherapy treatment.

   24.My symptoms flared up as a result and therefore the hydrotherapy ceased.

   25.I found that in doing so, my pain levels were exacerbated and I was unable to continue with the treatment.

   26.I also attempted a gym program as the physiotherapy did not work however because of the poking and prodding, I found this too exacerbated my symptomology [sic] further.

   27.Australia Post then arranged for me to be medically examined by Dr Geoffrey Gee in October 2011.

   28.Dr Gee advised that there was no treatment he could prescribe to help my injury.

   29.Given my high pain levels and my altered moods, I was starting to feel really depressed about my situation.

   30.In 2012, I was treated by Psychologist, Marika Van Renselaar who I received a referral for through my General Practitioner, Dr Robert Paul.

   31.At the beginning, my psychological state was not too bad however as things progressed, I was finding my psychological injury was worsening.

   32.In or about April 2012 [sic], I saw an upper limb specialist [sic], Emma Beckett who tried to help me complete different exercises.

   33. However, this proved to be of little benefit given I could not lift my arm or pull my arm out all the way due to my pain levels.

   34.This treatment ceased as it wasn’t proving to be of benefit to my injury.

   35.I then underwent a cortisone injection on 3 February 2012 and instantly I could not feel my arm.

   36. As soon as I underwent the injection I knew it was the worst mistake I ever made.

   37.My arm went blue and I was in so much agony, I couldn’t sleep or eat.

   38.It felt like someone had put a knife in my arm and dragged it all the way down.

   39.I had tingles in my arm and couldn’t feel my fingers.

   40.I then had to wear my arm in a sling for about a month when usually it would only be for one week post injection.

   41.I was certified unfit to work for nearly three (3) months.

   42.Dr Paul then referred me to Occupation Physician, Dr Andrew Marsden who conducted various tests and assessments.

   43.Dr Marsden determined that there was nothing further he could do to better my injury.

   44.At this time, Australia Post had also arranged for me to undergo a medical examination by Orthopaedic Surgeon, Dr Angus Keogh on 27 February 2012.

   45. Dr Keogh referred me to Dr Finch to assess pain management.

   46.Dr Finch tried to get me to engage in mental activities whereby I stop thinking about the pain.

   47.No new medication and/or treatment was prescribed.

   48.I was still experiencing pins and needles and strange feelings down my arm, as if someone was punching and pulling at the upper part of my arm.

   49.Dr Finch also conducted various tests, one (1) of which was a temperature control test which determined that my injured arm was 5 degrees lower than what it should have been.

   50.On 27 May 2012, Dr Marsden wrote to Australia Post advising that there was nothing further that could be done for my injury and that they should look at potentially settling this matter.

   51.Dr Finch also issued a letter to Australia Post to that effect.

   52.It was then arranged by Australia Post that I undergo a further medical examination by Dr Brian Dare.

   53.Dr Dare determined that my symptomology [sic] was not as a result of my workplace injury and that I was fit to return to work.

   54.I provided a copy of that report to Dr Finch who could not believe what Dr Dare had written.

   55. Dr Finch did not agree with Dr Dare’s opinion.

   56.A Determination was then issued on 17 December 2012 in which Australia Post declined liability based on Dr Dare’s opinion in the abovementioned report.

   57.On 9 January 2014 [sic], my solicitors Slater & Gordon Lawyers filed an Application for Review of Decision in the Administrative Appeals Tribunal.

   58. Subsequently, I have attempted to return to work with Australia Post on light duties however because I found I was doing repetitive work with my left arm, I started experiencing pain in my left shoulder.

   59.Australia Post then attempted to place me in an alternative role however they advised that there were no other duties/roles they could find that were suitable.

   60.At that time I was taking sleeping tablets, Lyrica, Nupentin and a lot of Panadeine Forte.

   61.Dr Paul certified me unfit for work and I continue to remain certified totally unfit.

   62.I have now undergone an examination by Dr Steven Clarke who has agreed with Dr Finch’s view that I should be placed in an alternative role.

   63.I continue to suffer from severe pains up my arm and my right hand pinkie and ring fingers are cold.

   64.I am constantly in agony and am not sleeping or eating much.

   65.It has brought extreme hardship on my marriage and almost tore it apart.

   66.It has altered my moods considerably.

   67.It has effected [sic] my relationships with my friends and other social relationships given my inability to stay places for long periods of time.

   68. In the three (3) years after the injury, I have seen a great many of [sic] doctors and specialists in regards to the pain.

   69.All but one (1) doctor have claimed there to be a significant amount of injury to the elbow.

   70.Dr Brian Dare claims that the injury was not substantial enough to be of concern, and subsequently, Australia Post ceased payment all workers’ compensation entitlements in relation to my claim.

   71.The cessation of these entitlements have been ongoing for approximately 12 months.

   72.As a result of the injury, I have been unable to conduct my normal duties.

   73. Even house work has become difficult, and some aspects of personal hygiene are almost impossible without causing a significant amount of pain.

   74.I was advised by one of the many doctors that I should try a change in career.

   75.In light of that advice, I completed an Eyelash Extension Course in January 2012 however I found that this type of work also aggravated my elbow.

   76.For day to day house chores, I sometimes request the help of my father-in-law or my mother to help with some aspects of the work.

   77.We have recently purchased a dishwasher and dryer to help limit the work load around the house.

   78.It hasn’t been determined what kind of work I would be fit for given my high pain levels.

   79.The above is a true and correct account to the best of my knowledge.”  (Exhibit A1)

5. In her examination-in-chief the applicant also gave evidence as follows:

   ·the examination by Dr Dare, referred to in para 52 of her statement, included his measuring the movements of her arm and asking her “a few questions” and “that was it”, and the duration of the examination was “no longer than five minutes”;

   ·on that day she had numbness in the ring finger and little finger of her right hand, “pins and needles”, and a “burning sensation” in the elbow;

   ·she described those symptoms to Dr Dare;

   ·she has commonly experienced those symptoms and has continued to experience them “almost every day” to the present day;

   ·sometimes she experiences all of those symptoms at the same time, and other times she experiences one or more of those symptoms;

   ·she experiences pain in the underneath area of the right elbow;

   ·the level of pain, on average, ranges from 6 to 10 on a scale of 0 to 10;

   ·she is presently experiencing “pins and needles” in the forearm and a “burning sensation” in the elbow;

   ·she is not currently having any treatment for her elbow and cannot recall the last time she had treatment for her elbow;

   ·her attempt to return to work, referred to in para 58 of her statement, was in early-to-mid 2012, and consisted of sedentary work repairing damaged mail envelopes for 1–3 hours per day for about 3 weeks;

   ·the “alternative role” referred to in para 59 of her statement was a role in reception but, because Australia Post had closed down that section, there was no job for her in reception;

   ·Australia Post has no other jobs for her;

   ·the reference to “normal duties” in para 72 of her statement is a reference to normal domestic duties, not work duties.

6. In cross-examination the applicant gave evidence to the following effect:

   ·she has attempted to return to work on 3 or 4 occasions and, on each occasion, her work duties involved repairing damaged envelopes;

   ·she was able to do that kind of work;

   ·she last worked a shift doing that kind of work in 2011;

   ·the envelope repair work was the only work that was offered to her;

   ·she could not continue to do that work because it was “repetitive work”;

   ·Dr Dare’s examination of her was “very quick” and, although it was a long time ago, her recollection is that it occupied about 5 minutes;

   ·she does not believe that Dr Dare properly examined her;

   ·she first received a copy of Dr Dare’s report, dated 4 December 2012, about one month after his examination of her on 3 December 2012;

   ·she last saw Dr Finch on 13 December 2012;

   ·she received a copy of Dr Dare’s report from Australia Post enclosed with its determination dated 17 December 2012, and that was the first time she saw that report;

   ·para 54 of her written statement cannot be true in that she could not have provided Dr Dare’s report to Dr Finch on 13 December 2012;

   ·she prepared her witness statement herself over a period of 2–3 days;

   ·the date “9 January 2014” referred to in para 57 of her witness statement is the date on which she sent her statement to her lawyer;

   ·although Dr Home’s report of 19 October 2011 (see paragraph 22 above) states “She does enjoy card making”, she has not been able to do that since her injury on 26 November 2010;

   ·her present symptoms are that she has a “pulling sensation” in the underneath area of her upper right arm, “burning and pain” in the right elbow, and “coldness and numbness” in the ring finger and little finger of her right hand;

   ·her grip strength in her right hand is “not strong”.

7. In response to questioning by the Tribunal, the applicant, as regards paras 54–55 of her witness statement, said that she sent a copy of Dr Dare’s report to Dr Finch after she had received it from Australia Post and she subsequently had a telephone conversation with Dr Finch about Dr Dare’s report.

8. In further cross-examination the applicant said that she faxed Dr Dare’s report to Dr Finch and that she then telephoned Dr Finch’s surgery and left a message with his receptionist and he (Dr Finch) called her back later that afternoon and they then had a discussion about Dr Dare’s report.  It was put to the applicant that documents produced to the Tribunal by Dr Finch under summons (Exhibit R4) include a note from Dr Finch’s receptionist to Dr Finch, dated 19 December 2012, that the applicant had telephoned hoping to speak with him about Dr Dare’s report and obtain his advice, and a further note that Dr Finch had said that there was “not much he can do”, and do not include a copy of Dr Dare’s report or a record of a  telephone conversation between the applicant and Dr Finch.  The applicant reiterated that she recalled having a telephone conversation with Dr Finch about Dr Dare’s report.  It was put to the applicant that paras 54 and 55 of her witness statement are untrue but she denied that proposition.

9. It was also put to the applicant that Dr Paul had referred her to the Pain Clinic at Royal Perth Hospital in 2013 and early 2014 but that she had not attended appointments made on 28 May 2013, 17 September 2013 and 20 March 2014 (Exhibit R3).  The applicant responded that she had not been informed of the most recent appointment and that she is presently waiting for Dr Paul to return from leave so that another appointment can be made.  She said that during the last 12 months the only medication she has been taking is Panadeine Forte and that she has not sought any further treatment because “everything [she has] tried has not worked”.

10. In re-examination the applicant said that the envelope repair work which she undertook for 3 weeks upon her return to work was repetitive work but it is incorrect to suggest that she did not find it stimulating or satisfying. 

11. In response to further questioning by the Tribunal, the applicant said that she did not regard the envelope repair work as less appealing than her normal duties as a mail officer and that she “had to do it because it was [her] job”, but she agreed that she did not want to do that work, asking rhetorically: “Who wants to do their job?”.

12. The applicant also acknowledged that her last workers’ compensation medical certificate was issued in November 2012 covering the period from 23 November 2012 to 21 December 2012 (T60, pp 207–208).  She explained that she then ceased to obtain workers’ compensation medical certificates because her workers’ compensation “had stopped” and she was not aware that she needed to continue to present such certificates because she was no longer on workers’ compensation.

    The Evidence of the Medical Witnesses

    Dr Steven Clarke

13. Dr Clark, Occupational Physician, confirmed that he had examined the applicant on 13 September 2013 at the request of the applicant’s solicitors and that he had subsequently prepared a report, dated 13 September 2013, regarding that examination.  He said that he had seen the applicant for probably about one hour of which his physical examination of her took 10 minutes.

14. Dr Clarke’s report of 13 September 2013 relevantly states:

    “ …

    I reviewed your client, the above 31 year old woman, in my rooms today.  She attended with her husband.

    Mrs Palmer worked as a mail officer at Australia Post.  She was a part-time worker working 5 days a week for 28 hours total per week.  She started the job in 2005 and the job involved sorting mail at the Perth Mail Centre at the Domestic Airport.  She described the job duties to me.  Mail generally is sorted by the optical sorting machines and once sorted it is delivered to trays.  The mail officer is involved in feeding the machine mail and then collecting the sorted mail and loading mail manually into what is called the ULD.  This is a job involving frequent lifting with a maximum weight limit of up to 16 kg.  If the mail to be lifted was greater than that weight then two people are required to do the lifting.

    It was in the setting of this worksite, therefore, that she injured herself back on 27 [sic] November 2010.  She was working in her usual duties on that day and she collected and lifted a tray full of mail to place in the ULD.  She turned and banged her right elbow forcefully into a metal spigot protruding from the top of the UDL [sic] and her symptoms at the time, plus the subsequent developments in this case, do indicate that the blow must have been directly over the ulnar nerve in the cubital tunnel.

    She reported severe pain and pins and needles into the hand immediately.  She says she fell to the ground and was taken to First Aid and then to see a Dr Evans who placed her off work for a few days.  Apparently there was abrasion and bruising noted in the region of the elbow and after several days she reported herself as being in ‘agony’ with right arm pain.  She was placed off work again for a further week and treated with Tramadol tablets.  There was no improvement in her symptoms.  She was thereafter referred to Dr Mark Reed, rheumatologist, whose communications I have read.  She first saw him in February 2011, his letter of that date confirming the history that I was given.

    By that time she had undergone an MRI which did show changes of hyperintensity in the substance of the ulnar nerve, a finding that would be consistent with trauma to the nerve.  She also had an EMG undertaken on 27 January 2011 by Dr Peter Silbert and that was a normal examination.

    She was subsequently treated by Dr Reed who notes the residual tenderness over the ulnar nerve in his review of April 2011.  By July 2011 there had been a flare-up in her right elbow pain following a session of manipulative physiotherapy, as I understand it.

    It appears that she may have developed epicondylitis at or about the same time and given that she did sustain a direct blow to the medial side of the elbow, the development of post-traumatic medial epicondylitis would not be surprising.

    She did try a number of medications prescribed by Dr Reed including Endep and Cymbalta and Lyrica.  According to the patient, none of these were particularly helpful and many had various and unacceptable side effects.

    She was referred to Dr Geoff Gee, pain specialist, whose letters I have read and I also note that she pursued an independent medical examination with my colleague, Dr Alan Home, whose letter of October 2011 I have also read.

    I note that Dr Home found that there was ‘well localised and reproducible tenderness elicited to palpation overlying the cubital tunnel, that is over the ulnar nerve’.  Further on in his letter he also reports that recovery from neural contusion ‘can occur over a period of 18 months’ and further down the page, on Page 6, his diagnosis is that Mrs Palmer ‘suffers from local medial elbow pain reflecting likely damage to the ulnar nerve and surrounding soft tissues’.

    A repeat MRI examination was undertaken on 23 November 2011, that is to say nearly one year to the day since trauma to her ulnar nerve and to my mind, the pertinent comment in relation to that MRI is the summary, ‘The ulnar nerve remains mildly thickened with subtle increase in T2 signal ...’, ‘this remains non specific in nature but could represent underlying ulnar neuropathy’.

    Mrs Palmer was referred in early 2012 to Mr Angus Keogh, an upper limb surgeon, and I have read his letter of that date.  The significant findings of his examination are that there was restriction in extension of the elbow and flexion of the elbow, whereas supination and pronation were normal.  He also describes ‘exquisite tenderness about the medial side of the elbow radiating up towards the mid portion of the arm and a positive Tinel’s sign with dysaesthetic skin overlying the medial side of her arm’.

    In March 2012 Mrs Palmer underwent an ultrasound guided injection to the medial epicondyle but it did not decrease her symptoms, indeed there was aggravation of her symptoms.

    Later in March 2012, Mr Keogh reviewed your client with a new ultrasound examination that is said to demonstrate ‘normal appearance of the ulnar nerve without evidence of subluxation’.  On that basis that [sic] he was reluctant to pursue operative intervention and he recommended she see a pain specialist.

    I read the letters of Dr Finch from late 2012.  I note his finding, in particular the discolouration and temperature loss to which he refers affecting the ulnar side of the right hand.  He also reported on weakness of adduction of the fingers, which is a sign of ulnar nerve neuropathy, and reduced sensation in the right ulnar nerve distribution involving the right little and ring fingers but no apparent wasting of the right hand intrinsic muscles.

    His diagnosis was that Mrs Palmer suffered from a right ulnar nerve neuropraxia and had developed mild complex regional pain syndrome.

    The most recent letter from Dr Finch, from October 2012, confirmed slight loss of extension at the right elbow, the continuation of pain around the elbow and loss of the allodynia in the ulnar nerve distribution.  He also notes that she had less paraesthesia than when he had first seen her.

    In Dr Finch’s ultimate letter of December 2012, he reviewed Mrs Palmer noting that she continued to have pain in the vicinity of the right elbow and the right ulnar nerve.  He noted the limb to be cold and discoloured at times and noted the right elbow to be tender to palpation and noted slight sensory changes in the right ulnar nerve distribution.  He recommended a change in career and settling of her claim and commented that he considered at that time that she had reached maximal medical improvement.

    In relation to Mrs Palmer’s return to work, I note there has been an attempt at a graduated return to work programme that occurred in 2011 and thereafter and for about one month, as I understand it, she did return to approximately half time restricted duties fixing mail and checking and sorting and work of that nature.  There was an aggravation in 2011 when she lifted half a tray of mail with recurrence of her symptoms that in her words put her ‘back to square one’.  I gather thereafter she was off work for a prolonged period and then underwent a steroid injection.  She has not been working since.

    As an overall comment, Mrs Palmer reported to me that there has been little change in the past year.  She has pain in the arm, particularly in the winter when it is worse and the arm aches in the cold.  She speaks negatively about the possibility of her returning to work at Australia Post with the requirement for the repeat lifting and elbow flexion that I gather is required in the duties of a mail officer.

    OCCUPATIONAL HISTORY

    Mrs Palmer attended Kewdale High School and left school in Year 10, not completing her TEE.  She worked thereafter in hospitality, at a café, making coffee and doing kitchenhand and serving type duties.  In that capacity she worked for approximately 4 years fulltime.  She then worked in childcare for approximately 2½ years fulltime prior to taking work at Australia Post where she started in 2005.

    In terms of her preferred vocational redirection, she considers that an appropriate redeployment for her would be to beautician type work.

    Around the home she finds that she cannot lift shopping, or at least cannot lift heavy shopping in her right arm.  She finds any repetitive motion of the elbow aggravates her symptoms, which are of pain in the region of the elbow with radiation of the pain and some paraesthesia into the ulnar two sided fingers.  Her current treatment involves Panadeine Forte and Targin medication, which she takes in variable doses, depending on her symptoms and these are prescribed by her general practitioner, Dr Paul.

    EXAMINATION

    There is restriction in the range of motion in her elbow.  Several of my colleagues have commented on that and it is certainly what I found today.  In particular extension lacked the last 5 degrees, that is there was a 5 degree lag and flexion was to 130 degrees.

    …

    Supination was 70 degrees and pronation 80 degrees.  These are within the range of normal, …

    To inspection of the hand, there is no evidence of interosseous wasting, spread finger function appeared normal, finger adduction appeared normal.  There was no Froment’s sign.  There is, however, weakness in grip.  On the right side she generated 3, 8 and 4 kg whilst on the left side 20, 24 and 14 kg measured in Jamar handles 1, 3 and 5.

    Her pincer strength was similarly reduced.  On the left side she could pinch 5 kg and on the right side only 2.5 kg.

    Examining the cubital tunnel posterior to the medial epicondyle, where the ulnar nerve resides at the elbow, there was again exquisite tenderness demonstrated to palpation and this has been a consistent finding with many of the colleagues who have seen this worker.

    I tested the sensation in the ulnar distribution of the right hand, this is abnormal.  Two point discrimination in the little finger and the ulnar side of the ring finger was at 10 mm whereas in the rest of the hand it was less than 6 mm (less than 6 mm is considered normal).  She also had present but decreased protective sensation, in particular there was decreased sharp and reduced heat sensation in that distribution.  These are all consistent with ulnar nerve injury.

    …

    I will now answer your specific questions:

    1.The diagnosis is ulnar neuropathy.

    2.The prognosis is guarded.  Dr Home suggested that improvement can take 18 months to occur, yet nearly three years have gone by and Mrs Palmer still has symptoms and still has sensory signs on the ulnar side of her hand.  The MRI has not been repeated since 2011 and at that stage it was abnormal even when repeated late in that year.  Certainly the sensory signs persist and her symptoms persist particularly with repeat elbow flexion, which is a common finding in ulnar neuropathy.

    3.This is straightforward.  Mrs Palmer sustained direct trauma to the ulnar nerve posterior to the elbow when she hit the spigot of the ULD on the day of injury.

    4&5These questions relate to treatment.  She has had a variety of medications, which either afforded her no benefit or were associated with unacceptable side effects and these have been ceased.  Currently she takes analgesics prescribed by her general practitioner.

    In relation to further treatment, (perhaps I should say further relevant investigations), what might be beneficial, is for her to undergo a formal hand evaluation with a hand therapist, where the sensory loss in her hand can be more formally documented.  This is usually done using what is caused [sic] a Semmes Weinstein Monofilament and is a frequently done test in cases such as this.  If the results thereof were highly abnormal, consideration could be given to repeating the EMG.

    6-8    These questions relate to work.  Mrs Palmer is not working and it appears to me that it is highly unlikely she will return to work that involves repetitive flexion of the right elbow.  This aggravates her symptoms and would be expected to do so in ulnar neuropathy.  It is certainly my experience in patients with this condition.

    Her suggestion of re-training and being redeployed into a role associated with beauty therapy or similar seems very reasonable to me.  She can pace herself in that type of work and unless she was doing vigorous massage or similar then there would not be the need for repeated and forceful lifting and bending of the elbow.

    …”(part of Exhibit A2)

1. Following a request by the applicant’s solicitors, Dr Clarke prepared a supplementary report, dated 13 December 2013, in which he, inter alia, commented on Dr Dare’s report of 4 December 2012, and concluded as follows:

   “ …

   Dr Dare’s history of injury is essentially in accord with that I took but when it comes to the current status I note that he states that Mrs Palmer describes a ‘constant ache in the right elbow’ and that ‘she states that she does not have significant sensory symptoms in the distribution of the ulnar nerve when she is not using her right arm.  She only tends to get these symptoms when doctors are examining her.’  He also says that ‘she describes no weakness in her right hand.’

   Ms Palmer reported to me when I saw her that she finds repetitive motion of the elbow aggravates the symptoms which are of pain in the region of the elbow with radiation of pain and some paraesthesia into ulnar two sided fingers.

   I do agree with Dr Dare that there was no evident muscle wasting of the ulnar nerve supplied intrinsic muscles of the hand.  Dr Dare does say in his letter (page 4) that ‘she had good grip strength’ and then comments on absence of wasting in the right forearm indicating that ‘supports the fact that she is continuing to use this arm despite her statements to the contrary.’

   This was certainly not in agreement with the grip strength measurement that I took when I saw her.

   When I examined this worker I noted on the right side she generated 3, 8, 4 kg compared to the left side 20, 24, and 14 kg as measured with the Jamar dynamometer handles 1, 3 and 5.  I might also point out that a bell shaped distribution curve such as she demonstrates is generally considered to demonstrate compliance with the testing modality.  That is to say, individuals who exert suboptimal effort typically no longer demonstrate the bell shaped curve between the three different handle positions.

   Dr Dare also says the sensory examination of the arm was normal but he does not say how that was undertaken.  Whereas when I examined her with 2 point discrimination, I found this to be diminished on the ulnar side of the ring finger and in the little finger, a finding entirely consistent with ulnar nerve neuropraxia.

   Under opinion on page 5 of Dr Dare’s letter, he refers to Mrs Palmer as having suffered a ‘soft tissue injury to the right elbow’ and then in paragraph 2 he says:

   ‘It would appear that there was direct contact with the ulnar nerve of the elbow.’

   Later on, under the same section, he states that there is ‘no objective clinical or physical evidence of a neuropraxia (of the ulnar nerve) as her symptoms of pain in the elbow are not consistent with an injury to the ulnar nerve and, in any event, her nerve conduction studies have excluded a significant ulnar nerve injury.’

   I note therefore that his diagnosis which he presents on page 6 of his report would be of ‘chronic pain syndrome of predominantly functional aetiology’.

   This is not a diagnostic label that I generally use.

   As I have outlined in my earlier letter, the history, patient symptoms and not one but two MRIs support a diagnosis of ulnar neuropathy.  Certainly it is not a major ulnar neuropathy which is indeed a very serious condition which grossly affects the function of the hand.  The only diagnostic point that is missing in this patient is that the EMG is normal …

   When I consider the case as a whole, it is my view that there is sufficient evidence to support the diagnosis of ulnar neuropathy.

   I agree with Dr Phil Finch, pain specialist, who I see also noted right ulnar nerve sensory symptoms at the time that he had seen her in late 2012.  He noted in addition to the sensory symptoms that Mrs Palmer also had evidence of weakness of adduction of the fingers which is a motor ulnar nerve sign which appears now to have resolved.

   Dr Finch is of the opinion that she had a neuropathic type of pain and I agree with that and such pain, of neural origin often responds to medication with gabapentin or similar.

   In relation to further ongoing treatment, I do not consider that any further physical treatment is likely to be beneficial to this worker; that is to say hand therapy or physiotherapy or the like or indeed, any alternative therapies.  In some cases of ulnar neuropathy anterior transposition of the ulnar nerve is undertaken as the symptoms tend to be intermittent and associated with repeated motion at the elbow.  On some occasions the subluxation of the ulnar nerve within the cubital tunnel can be demonstrated on ultrasound and on others it is more subtle than that.

   Dr Finch also made the suggestion that changing career would be in this worker’s best interests and I entirely agree with that.

   …”  (part of Exhibit A3)

2. Dr Clarke also provided a letter to the applicant’s solicitors, dated 10 April 2014, which relevantly states as follows:

   “ Thank you for your letter dated 2^nd April 2014 requesting additional information on your client Meicha Palmer.

   I can confirm I have read the documents T41 (an Ultrasound report) and Letter T49 (Medical report from Dr B Dare).

   I can also confirm that I have read through the Medical records from Mead Medical.

   I can confirm that nothing contained in any of those documents, alters my opinion expressed to you earlier, in my letters dated 13.9.2013 and 13.12.2013.

   I have re read my letters, in particular, the letter of 13.12.2013 which I believe already answers the questions you have asked of me today.

   To restate, Meicha Palmer has a Right Ulna neuropathy, sustained from direct trauma during her work at Australia Post.  Further, and due to that injury, she has developed neuropathic pain, which could also be called ‘a chronic pain syndrome’ and she has pursued treatments for that.

   …”  (part of Exhibit A4)

3. In his oral evidence-in-chief Dr Clarke gave the following evidence:

   ·he agreed with the opinion expressed by Dr Home in his report of 19 October 2011 that the applicant “suffers from local medial elbow pain reflecting likely damage to the ulnar nerve”, and he added that that diagnosis was confirmed by the MRI report of 22 February 2011;

   ·the MRI report of 23 November 2011 indicated that, in the meantime, the applicant’s ulnar nerve condition had “got a little better” but had “not completely resolved”;

   ·an MRI is an “extremely reliable” investigation regarding neural trauma;

   ·the criteria supporting his diagnosis of ulnar neuropathy in the applicant’s case are her symptoms and signs and the MRI investigations – the only relevant criterion not satisfied in her case is the EMG conducted by Dr Silbert on 27 January 2011 which did not find any electrophysiological evidence of ulnar neuropathy in her right elbow;

   ·there is medical literature which supports the proposition that an MRI is a more accurate test of the applicant’s condition than an EMG, although the latter test is more commonly done;

   ·the ultrasound of the applicant’s right ulnar nerve and elbow conducted on 6 March 2012 was normal but an MRI is a more objective and more reliable investigation than an ultrasound;

   ·the grip strength which the applicant demonstrated to him on examination reflected a bell-shaped curve distribution which indicated that she was making a genuine maximal effort;

   ·her right hand grip strength is “very much reduced” and this is likely to be due to a combination of her ulnar neuropathy condition and pain, the greater contributing factor being pain inhibition rather than the ulnar neuropathy itself;

   ·his diagnosis of her condition when he examined her on 13 September 2013 is mild right-sided sensory ulnar neuropathy, as a consequence of which she has developed a “chronic pain syndrome”, but she does not sufficiently satisfy the criteria for a diagnosis of “complex regional pain syndrome”.

4. In the course of a lengthy cross-examination Dr Clarke acknowledged that:

   ·right elbow pain would probably not explain the greatly reduced grip strength demonstrated by the applicant in her right hand in his examination; such a reduction in grip strength would be more likely to be caused by hand and/or forearm pain;

   ·the greatly reduced grip strength demonstrated by the applicant in her right hand would be likely to result in muscle wasting in her right upper limb, but he did not find any such wasting in his examination;

   ·a grip strength test is generally not a very persuasive test for demonstrating the presence of an ulnar neuropathy.

   Dr Brian Dare

5. Dr Dare, Consultant Occupational Physician, confirmed that, at the request of the respondent, he had clinically assessed the applicant on 3 December 2012 and had prepared a report, dated 4 December 2012, regarding that examination.  He said that such consultations normally last for about 45 minutes of which the physical examination occupies 10–15 minutes.

6. Dr Dare’s report of 4 December 2012 states as follows:

   “ …

   Thank you for referring Mrs Meicha Palmer for medical assessment and report.

   The following details of interview have been obtained from Mrs Palmer unless otherwise specified.

   DOCUMENTATION PROVIDED

   ·Workers’ Compensation Claim Form.

   ·First Medical Certificate.

   ·Progress Medical Certificates.

   ·Nerve Conduction Studies.

   ·Plain X-ray.

   ·MRI scans and Ultrasound of Right Elbow.

   ·Medical reports from Dr Reed, Consultant Rheumatologist.

   ·Medical report from Dr Finch, Consultant Pain Management Specialist.

   ·Medical report from Dr Gee, Consultant Pain Management Specialist.

   ·Medical reports from Mr Keogh, Consultant Orthopaedic Surgeon.

   ·Medical report from Dr Marsden, Consultant Occupational Physician.

   ·Return-to-Work Program.

   ·Medical report from Dr Alan Home, Consultant Occupational Physician.

   OCCUPATIONAL HISTORY

   Mrs Palmer was born in Perth and stated after leaving school she principally worked in child care.  She stated she joined Australia Post seven and a half years ago working at the domestic airport terminal distribution centre.

   She stated she was permanent part-time working five hours a day.  She stated she performed all the activities required at the distribution centre being regularly rotated through the various duties.  She stated she has not returned back to work since June 2012.

   She has been doing a beauty therapy course at a beauty school in Victoria Park.  She describes as being halfway through the course and states she hopes to qualify at the end of March 2013.  She stated she is mainly doing eyelash work and is not doing any activities such as massage or hair removal or nails.  She stated this is an area she would be keen to work in.

   HISTORY OF CURRENT COMPLAINT/INJURY

   Mrs Palmer states she has had no previous work injuries or workers’ compensation claims and stated she has had no problems with her right arm or her elbow in the past.  She stated she is right-handed.

   In regard to the incident that occurred on 26 November 2010 where she knocked her right elbow as she swung her arm back, on questioning her she said she did hit it directly against the ‘funny bone’ where the ulnar nerve transverses through the back of the elbow.

   She stated she was unable to keep working stating it ‘dropped her to the ground’.  She stated it resulted in severe pain and tingling symptoms in the distribution of the ulnar nerve to the hand.  She stated she iced it and was then seen by Complete Corporate Health which is a medical practice near where she works and used by Australia Post.  She stated she continued to see these doctors for over a year and states she is now seeing her own General Practitioner.

   She has had numerous investigations.  Initially she had nerve conduction studies which demonstrated no abnormalities.  She underwent an x-ray of the right elbow and this demonstrated no evidence of fracture.  She then underwent an MRI scan of her right elbow in February 2011 and this demonstrated mild enlargement of the ulnar nerve just proximal to the cubital tunnel.  There was no other abnormality.  Certainly there was no evidence of extensor or flexor tendinopathy.

   She was reviewed by Dr Reed, Consultant Rheumatologist and conservative management was recommended.  I note she was also reviewed by Dr Gee, Consultant Pain Management Specialist and also Dr Home and they all recommended conservative management stating it is likely her symptoms will resolve with further time.

   Various treatments included physiotherapy, hydrotherapy and also interferential [sic] but these treatments only increased her symptoms.  She has had one injection at the elbow and I note this was into the brachioradialis tendon, which only increased her symptoms.  I am unsure why this was performed considering her symptoms and investigations did not suggest a tendon injury.

   She attempted to return back to work during 2011 and I note her Return-to-Work programs were never successful and she was only getting up to half her normal hours and found it just increased her symptoms.  I note there was a further attempt to return back to work during the beginning of 2012 but again this has been unsuccessful and she has not returned back to work since June 2012.

   She stated with activity her pain tends to be worse, mainly in the right elbow and she found that when she did return back to work she was getting discomfort in her left arm stating that as she was using her left arm more she was feeling pain in her left shoulder.

   CURRENT STATUS

   Mrs Palmer describes a constant ache in her right elbow.  She states she does not have significant sensory symptoms in the distribution of the ulnar nerve when she is not using her right arm and she only tends to get these symptoms when doctors are examining her.

   She stated the main symptoms she gets with activities is the aching and pain in the right elbow rather than any sensory symptoms or pain into the right forearm or hand.

   She describes no weakness in her right hand.  She stated the pain or the constant ache in her right elbow is approximately 3 out of 4 going up to 7 to 10 when it is more severe and with activity.  She states she is unable to fully straighten her right elbow.

   CURRENT WORK STATUS

   She is presently not working but is doing a beauty therapy course.

   PRESENT ACTIVITIES

   She does continue to drive but not long distances.  She did drive today.  She has an automatic with power steering.

   She describes doing very little at home stating her mother comes around and helps with cooking and housework and also her husband does, but her husband works away at the mines.  They have no children.

   She stated with any activity she tries to do as much as she can but even doing cooking or making a sandwich this [sic] increases her pain and if she tries to do sweeping or vacuuming again she stated it ‘would not be good’.

   PRESENT TREATMENT

   She is taking a considerable amount of medication taking Panadeine Forte twice a day and she also takes Voltaren.  She takes Lyrica 150 mgs at night and 75 mgs in the morning and also Gabapentine [sic].  She stated she was given antidepressants to take by her General Practitioner but she has not yet taken those.  She is having no other specific treatment.

   PAST MEDICAL HISTORY

   Mrs Palmer states she is in good health.

   She stated she has had no surgery in the past.

   She has had no previous workers’ compensation claims and as outlined she has had no problems with her right arm or elbow.

   PERSONAL/SOCIAL HISTORY

   Mrs Palmer states she is married and lives with her husband.  She states they have no children.  She is a non-smoker and a non-drinker.

   PHYSICAL EXAMINATION

   Mrs Palmer presented in a cooperative manner in no obvious distress.

   She was 160 cm in height and weighed 51 kg.

   She tended to hold her right arm in 90 degrees of flexion close to her body favouring that arm.  I questioned her regarding this and she stated it tends to be more comfortable in that position.

   In regard to movement of the right elbow there was reduction in extension by 20 degrees but flexion was normal.  Supination and pronation was also normal.  She was very sensitive to light touch around the ulnar nerve at the elbow but touching other parts of the elbow did not cause significant pain.

   There was no tenderness to palpation over her right forearm or hand and there was normal colour and temperature of the right forearm and hand.

   There was no muscle wasting in the right hand of those muscle [sic] supplied by the ulnar nerve.  I specifically tested the strength of those muscles supplied by the ulnar nerve, and these were all normal.

   She had good grip strength and there was certainly no wasting of her right forearm and in fact, the forearm was approximately half a centimetre greater than the left, which is consistent with the dominant arm and supports the fact that she is continuing to use this arm despite her statement to the contrary.

   The sensory examination of the arm was normal apart from the tenderness to palpation over the ulnar nerve at the elbow.

   INVESTIGATIONS

   Nerve conduction studies performed 27 January 2011.

   Comment:  Normal

   Plain x-ray of Right Elbow (7 February 2011).

   Comment:  Normal

   MRI scan Right Elbow (22 February 2011).

   Comment:  Mild enlargement of the ulnar nerve just proximal to the cubital tunnel.  No other abnormality noted in the elbow.

   MRI scan Right Elbow (23 November 2011).

   Comment:  No evidence of common or flexor tendinopathy.  The ulnar nerve remains mildly thickening [sic] but less marked compared to the previous scan.

   Ultrasound of Right Ulnar Nerve and X-ray of Right Elbow (6 March 2012).

   Comment:  No sonographic abnormality of the ulnar nerve at the level of the elbow.  No evidence of ulnar nerve instability.  Common flexor tendon is intact.

   OPINION/DIAGNOSIS

   Mrs Palmer suffered a soft tissue injury to her right elbow with an incident which occurred at work on 26 November 2010 describing significant pain when she knocked her right elbow stating there was bruising and a small abrasion but no significant laceration.

   It would appear there was direct contact with the ulnar nerve at the elbow resulting in the tingling or sensory symptoms associated with such a direct blow.  I consider it is not unreasonable to state that there may have been minor injury to the ulnar nerve at the right elbow but I consider any such soft tissue injury has now resolved.

   I consider this is confirmed by various investigations with nerve conduction studies demonstrating no abnormality.  Her MRI scan although demonstrating some minor ulnar nerve thickening demonstrates no other abnormality of the right elbow and a recent ultrasound demonstrated no abnormality of the ulnar nerve and no subluxation.

   She has no evidence of chronic [sic] regional pain syndrome on examination with normal colour, temperature and power in the right hand and elbow although I am unable to explain why she cannot extend her right elbow.

   In summary, I consider she has now recovered from her soft tissue injury to the elbow, based on my physical examination today where there is no objective abnormality and this is also supported by her numerous investigations which show no abnormality to explain her significant subjective symptoms and impairment.

   I do not consider there is any objective evidence of a complex regional pain syndrome and there is also no objective clinical or physical evidence of a neuropraxia as her symptoms of pain in the elbow are not consistent with an injury to the ulnar nerve and in any event her nerve conduction studies have excluded a significant ulnar nerve injury.

   My specific diagnosis in regard to her condition would be chronic pain syndrome of predominantly functional aetiology.

   This is a rather descriptive diagnosis but explains her symptoms, which I consider, are not related her [sic] initial soft tissue injury as that injury has resolved based on my examination and her various investigations.

   As already outlined there is no evidence of an ongoing injury to the right elbow or the right ulnar nerve from her various investigations and she certainly does not require any ongoing treatment (including medication) and I agree with the other doctors in stating that surgery is certainly not indicated.

   Whether her symptoms will resolved in the future is impossible to know with any certainty but I can state based on the various investigations and my examination today there is no evidence of a significant ongoing injury to her right ulnar nerve or her right elbow.

   In answer to your specific questions:

   1.What medical history is given by Mrs Palmer and the specific cause of injury on the 26/11/2010?

   As outlined in my report.

   2.What are your findings on examination?

   As outlined in my report.

   3.What are your findings following indirect methods of assessment?

   As outlined in my report.

   4.From what specific medical condition/s does Mrs Palmer suffer from [sic] currently?

   I do not consider she has a specific ongoing physical injury to her right elbow or right ulnar nerve and I have given a diagnosis of chronic pain syndrome of predominantly functional aetiology.

   5.Do you believe the current condition is consistent with totally [sic] unfitness for work bearing in mind the MRI and ultrasound examinations?

   From a purely physical perspective, I do not consider she is unfit for work.  As I have outlined I do not consider she has evidence of an ongoing injury to her right elbow and I consider she would be fit to work full-time without restriction.

   6.Mrs Palmer undertook a beauty therapist course in October 2012 and is presently developing her skills in this area.  If Mrs Palmer is able to develop her skills as a beauty therapist, do you believe she is fit for duties as a mail officer?

   She is fit to work full-time as a beauty therapist.  As I have already outlined I consider she would be fit to work as a Mail Officer.

   7.Are there any other activities outside of Australia Post employment that may be aggravating or preventing Mrs Palmer from returning to full time work?

   I would not consider she would have any restriction in regard to work for any employment she wished to be involved in.  She has done childcare in the past and she would be fit for this on a full-time basis without restriction.

   8.Mr [sic] Finch indicated Mrs Palmer is suffering from regional pain syndrome.  With that in mind do you believe her current symptoms are subjective?

   Mrs Palmer does not have a complex regional pain syndrome but she does have a chronic pain syndrome of predominantly functional aetiology.  This is a diagnosis of exclusion describing her subjective symptoms.

   9.What treatment, if any, is indicated?  We also note Mrs Palmer has been prescribed stress medication and therefore we would appreciate your views on the relevance of this.

   She does not require any specific treatment and I consider she should cease her various medications, as I do not believe they are indicated, as she does not have a physical injury.

   10.What is Mrs Palmer’s work capacity at the time of assessment?  Do you believe Mrs Palmer is able to work full time with restricted duties?  If not, is she able to work part-time on restricted duties and how many hours can she work?

   I do believe she is fit to work full-time without restriction.

   11.What are your recommendations for Mrs Palmer [sic] rehabilitation and return to work programme?

   Her claim has become protracted and she has been off work for a considerable time and these are indicators of a poor outcome in successfully returning a worker back to work.  However, as I consider she is fit to work she should be encouraged to return back to work.

   12.When do you expect this condition to resolve, and has Mrs Palmer reached maximum medical improvement?

   It is likely her symptoms will resolve in the future but I am unable to give an accurate indication of when this will occur.

   I believe she has reached Maximal Medical Improvement as she has recovered from the minor soft tissue injury.

   13.What is your prognosis?

   In the short to medium term I consider she is likely to continue to have her present symptoms but I consider her long-term prognosis is for resolution of her symptoms.

   …”  (original emphasis)  (T49)

1. In his oral evidence-in-chief Dr Dare explained that his diagnosis of “chronic pain syndrome of predominantly functional aetiology” is a reference to longstanding pain in the absence of any objective pathology or abnormality which might explain it.  He said that he does not agree with Dr Clarke’s diagnosis of right ulnar neuropathy because the radiological investigations and his own physical examination of the applicant provided no evidence of ulnar neuropathy.  As regards the MRI investigations, Dr Dare opined that they do not constitute a sufficient basis for a diagnosis of ulnar neuropathy.

2. Dr Dare was referred to the right hand grip strength measurements recorded by Dr Clarke in his report of 13 September 2013 and he opined that, in the absence of any evidence of ulnar neuropathy, sensory loss, motor loss, the only explanation for those low measurements would be lack of effort on the part of the applicant.  He added that such measurements would necessarily be associated with gross muscle wasting and he found no relevant muscle wasting in his examination of the applicant.

3. In cross-examination Dr Dare gave evidence to the following effect:

   ·he did not measure the applicant’s grip strength because of his doubts about the validity of such measurements because of lack of effort – he was more interested in testing the muscle power in the ulnar nerve and the best way to do that was to test the individual muscles and he found no weakness in any of those muscles;

   ·the MRI reports of 22 February 2011 and 23 November 2011 are consistent with a diagnosis of ulnar neuropathy but do not themselves establish such a diagnosis;

   ·the “hallmark” of a diagnosis of ulnar neuropathy are nerve conduction studies which show how the nerves are working, and the nerve conduction studies referred to in Dr Silbert’s EMG report of 27 January 2011 were normal;

   ·in determining whether there was an ulnar neuropathy, he would “definitely” place more weight on an EMG report than an MRI report;

   ·the applicant’s ongoing pain may be explicable by “psychosocial” factors or “somatization”, in the absence of any physical reasons.

   Additional Medical Evidence

4. The applicant also tendered in evidence the following medical material:

   ·eight medical certificates issued by Dr Paul certifying the applicant’s unfitness for work in the period from 21 January 2013 to 7 May 2014 (part of Exhibits A5 and A6);

   ·GP Mental Health Treatment Plan, dated 4 February 2013, signed by the applicant and by Dr Paul, in respect of “reactive depression secondary to chronic pain (stemming from WC case)” (part of Exhibit A5);

   ·letter from Dr Paul addressed to Royal Perth Hospital, Pain Clinic, dated 5 March 2013, which states as follows:

   “ …

   Thank you for seeing Meicha re: complex regional pain syndrome post right elbow injury.

   Previous WC claim which has now been finalised.  Ongoing symptoms with significant psychological overlay.

   Currently on Edronax for mood and energy (could not tolerate multiple SSRIs).

   I feel she would benefit from multidisciplinary clinic review.

   …”  (part of Exhibit A5);

   ·letter from Dr Paul addressed “To Whom It May Concern”, dated 25 March 2014, which states as follows:

   “…

   Meicha has been regularly attending this surgery since 1^st September 2011.

   Her most recent Workers Compensation progress certificate was dated 23^rd Nov 2012.

   She has subsequently attended on the following dates:

   21^st December 2012, 21^st January 2013, 4^th February 2013, 5^th March 2013, 9^th April 2013, 9^th May 2013, 8^th July 2013, 29^th August 2013, 8^th October 2013, 6^th December 2013, 7^th February 2014.

   All of these visits were in relation to the complex regional pain syndrome affecting her right arm.

   Any medical certificates provided during this time were also related to the complex regional pain syndrome.

   …”  (part of Exhibit A6).

5. The respondent tendered in evidence medical material including:

   ·Mead Medical Group’s clinical records relating to the applicant (produced under summons) (Exhibit R1);

   ·Dr Philip Finch’s medical records relating to the applicant (produced under summons) (Exhibit R4).

   The Issue

6. As previously mentioned, the respondent, on 20 December 2010, accepted liability under s 14 of the SRC Act to pay compensation to the applicant in respect of “soft tissue injury right elbow” sustained on 26 November 2010 (“the compensable injury”). On 17 December 2012, however, the respondent determined that it was not liable to pay compensation to the applicant in respect of “soft tissue injury to the right elbow including any ulnar nerve paresis pins needles to the right hand”. That determination was affirmed by a reviewable decision of the respondent, dated 23 May 2013.

7. The issue for the Tribunal’s determination is whether the applicant has, from 17 December 2012, continued to suffer, and is presently suffering, from the effects of the compensable injury such that the respondent has, from 17 December 2012, continued to be liable, and is presently liable, to pay compensation to her:

   ·pursuant to s 16 of the SRC Act, in respect of the cost of reasonable medical treatment obtained in relation to the compensable injury; and/or

   ·pursuant to s 19 of the SRC Act, for “incapacity for work” (within the meaning of s 4(9) of the SRC Act) resulting from the compensable injury.

   Consideration

   The compensable injury

8. The Tribunal notes that:

   ·in the abovementioned determination of 17 December 2012, the injury, in respect of which it was determined that there was no present liability to pay compensation to the applicant, was described as “soft tissue injury to the right elbow including any ulnar nerve paresis pins needles to the right hand”;

   ·in the abovementioned reviewable decision of 23 May 2013, which affirmed that determination, the relevant injury was described as “right elbow ulnar nerve paresis pins needles right hand”.

   Each of those descriptions, however, differs from the description of the injury in respect of which liability to pay compensation was accepted by the respondent on 20 December 2010, namely, “soft tissue injury right elbow”.

9. Neither of the parties sought to dispute the appropriateness of the description of the compensable injury, as determined by the respondent on 20 December 2010.  It seems to the Tribunal, however, that, having regard to the contemporaneous medical evidence before it, a more precise description of the relevant injury suffered by the applicant on 26 November 2010 is: contusion of ulnar nerve at right elbow.  The Tribunal, notwithstanding that observation, is not prepared to vary the description of the compensable injury, as determined by the respondent on 20 December 2010, because that matter was not raised by either party as an issue for the Tribunal’s consideration and determination in this proceeding.

   Does the respondent continue to be liable to pay compensation to the applicant, pursuant to ss 16 and 19 of the SRC Act, in respect of the compensable injury?

10. The Tribunal notes that none of the numerous medical practitioners, who have examined the applicant since the date of the compensable injury and whose reports and records are in evidence, including Dr Dare, has disputed the genuineness of the applicant’s complaints of experiencing pain and other symptoms in her right upper limb since that date.  Although the respondent, in submissions, put in issue the credibility of the applicant’s evidence regarding her continuing to experience symptoms in her right upper limb – including, in particular, pain symptoms in and around her right elbow - in the period since she suffered the compensable injury, the Tribunal accepts her evidence in that regard.  The question whether those ongoing symptoms are resulting from the compensable injury, however, is a medical question which falls to be determined by the Tribunal having regard to the whole of the medical evidence before it.

11. The two medical witnesses who appeared at the hearing of this proceeding, namely, Dr Clarke and Dr Dare, expressed diametrically opposed opinions in relation to that question.  In short, Dr Clarke’s opinion is that the applicant suffers from right ulnar neuropathy and ongoing neuropathic pain in the right elbow resulting from the compensable injury, whereas Dr Dare’s opinion is that, as at 3 December 2012 (when he examined her), the compensable injury had resolved and the pain symptoms in her right elbow, of which she was complaining, were not resulting from the compensable injury but, instead, were explicable on the basis of her suffering from “chronic pain syndrome of predominantly functional aetiology”.

12. Having considered the whole of the medical evidence before it, the Tribunal considers that that evidence, on balance, supports Dr Dare’s opinion rather than Dr Clarke’s opinion.  The Tribunal notes, in particular, the following aspects of that evidence:

    ·the contemporaneous clinical records of the general practitioners (namely, Dr Evans and Dr Collis), who saw the applicant in the period immediately following her suffering the compensable injury on 26 November 2010, refer to (inter alia) a bruising of the ulnar nerve and a gradual settling of the acute pain and tenderness initially experienced by her (Exhibit R1);

    ·the EMG report of Dr Silbert, Neurologist, stated that nerve conduction studies and a needle examination regarding the applicant’s right ulnar nerve on 27 January 2011 were “normal” and found “no electrophysiological evidence of a right ulnar neuropathy at the elbow …”;

    ·an MRI of the applicant’s right elbow on 22 February 2011, which had been arranged for the purpose of investigating (inter alia) “some symptoms of ulnar neuropath”, found “mild enlargement and T2 hyperintensity of the ulnar nerve …possibly a manifestation of ulnar ‘neuritis’…” (emphasis added) (T12);

    ·the medico-legal report of Dr Alan Home, Consultant in Occupational Medicine, dated 19 October 2011, refers to the applicant’s presenting “with a history of persisting medial elbow pain after suffering a contusion injury to the left [sic] ulnar nerve” but notes that, on examination, there was “a full range of active right elbow joint motion” and “elbow movements [were] pain free”, and that there were “no ongoing complaints of ulnar neuropathy”, and states a prognosis of her pain symptoms “slowly” resolving , noting that “recovery from neural contusion can occur over a period of eighteen months” (T33);

    ·an MRI of the applicant’s right elbow on 23 November 2011 found that the ulnar nerve “remains mildly thickened with subtle increase in T2 signal, less marked when compared to the previous scan … non specific in nature but could represent underlying ulnar neuropathy” (emphasis added) (T36);

    ·an ultrasound of the applicant’s right ulnar nerve and elbow on 6 March 2012 found “no sonographic abnormality of ulnar nerve at the level of the elbow” and “no evidence of ulnar nerve instability” (T41).

13. The Tribunal notes the reports of Dr Reed (T10, T13, T17, T20, T27), Dr Gee (T28, T32), Mr Keogh (T39, T42, T43) and Dr Finch (T45, T47, T50), referred to in paragraphs 14, 16–21 above, but, as none of those reports is a comprehensive medico-legal report and none of them directly addressed the question whether the applicant’s complaints of ongoing right elbow pain are causally related to the compensable injury, the Tribunal has derived little assistance from any of those reports and attaches limited weight to them for present purposes.

14. The Tribunal is not persuaded by Dr Clarke’s opinion evidence to the effect that the applicant suffers from right ulnar neuropathy and ongoing neuropathic pain in the right elbow resulting from the compensable injury.  In the Tribunal’s opinion, the MRI reports of 22 February 2011 (T12) and 23 November 2011 (T36), to which he apparently gave significant weight in forming his diagnosis of ulnar neuropathy, go no further than to acknowledge the possibility of ulnar neuropathy at the applicant’s right elbow and do not confirm, or even indicate the probability of, such a diagnosis.  Furthermore, the EMG report of 27 January 2011 (T8) and the Ultrasound report of 6 March 2012 (T41) both confirm the absence of evidence of ulnar neuropathy at the applicant’s right elbow.  Having regard to the whole of those investigations regarding the applicant’s right elbow, the Tribunal accepts Dr Dare’s analysis and evidence (referred to in paragraph 46, 47 and 49 above)  and, accordingly, is not satisfied that the applicant suffers from ulnar neuropathy.

15. Nor is the Tribunal satisfied that the applicant suffers from “complex regional pain syndrome”.  The Tribunal notes the report of Dr Finch dated 13 December 2012 (T50) which states that “many of the symptoms of Complex Regional Pain Syndrome are not present” in the applicant’s case, and the evidence of Dr Clarke that the applicant does not satisfy the criteria for a diagnosis of complex regional pain syndrome.

16. The Tribunal accepts Dr Dare’s opinion evidence and, on the basis of that evidence, it finds that, as at 3 December 2012, the compensable injury had resolved and that, from that date, any ongoing pain symptoms experienced by the applicant in her right elbow, and in her right upper limb generally, and any incapacity for work on the part of the applicant, have not been, and are not presently, resulting from the compensable injury.

17. Although it is unnecessary for the Tribunal to make a finding as to a precise cause – other than the compensable injury – of the applicant’s ongoing pain symptoms in her right upper limb since December 2012, the Tribunal is, having regard to Dr Dare’s evidence, inclined to the view that those symptoms are probably attributable to a “chronic pain syndrome” which cannot be explained on a physical or organic basis but which may be explicable on a psychological basis.

18. Finally, the Tribunal notes the various medical certificates regarding the applicant’s unfitness for work issued by Dr Paul, covering the period from 21 December 2012 to 7 May 2014, and Dr Paul’s letter of 25 March 2014 (set out in paragraph 50 above) which states that the applicant’s “most recent Workers Compensation progress certificate was dated 23 November 2012” and that the abovementioned medical certificates related to “the complex regional pain syndrome affecting her right arm” (T60, p 209; Exhibit A5 and Exhibit A6).  Those medical certificates, however, were not (as Dr Paul acknowledged in the abovementioned letter – see also his letter of 5 March 2013 (set out in paragraph 50 above) which refers to the applicant’s workers’ compensation claim having been “finalised” and to “ongoing symptoms with significant psychological overlay”) issued for workers’ compensation purposes and they, furthermore, relate to “complex regional pain syndrome” which, the Tribunal has found, is not a condition from which the applicant has been, and is presently, suffering.  In the Tribunal’s opinion, those medical certificates do not constitute evidence that, in the period covered by those certificates, the applicant was continuing to suffer from the effects of the compensable injury.

19. Having regard to the finding set out in paragraph 62 above, the Tribunal concludes that, for the period from 17 December 2012 to the present date, and as at the present date, the respondent is not liable to pay compensation to the applicant, pursuant to s 16 or s 19 of the SRC Act, in respect of the compensable injury.

    Decision

20. For the above reasons, the decision under review is affirmed.

I certify that the preceding 66 (sixty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

...(Sgd) T Freeman.......................

Administrative Assistant

Dated 20 June 2014

Dates of hearing	14, 15 April 2014
Representative of the Applicant	Ms I Siljanoska
Solicitors for the Applicant	Slater & Gordon
Counsel for the Respondent	Mr M Gollan
Solicitors for the Respondent	Sparke Helmore