Mock and Comcare - [2009] AATA 545

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 545

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2007/5434 and 2007/5436

GENERAL ADMINISTRATIVE DIVISION )
ReNina Pei MOCK

Applicant

And Comcare

Respondent

DECISION

TribunalMs N Isenberg, Senior Member
Date22 July 2009
PlaceSydney
DecisionThe decisions under review are affirmed.

...................[sgd]......................
Ms N Isenberg
Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Aggravation of disease – workplace injury – whether any impairment suffered is permanent – whether applicant has ongoing entitlement to compensation and permanent impairment – compensation for non-economic loss – incapacitation for work

RELEVANT ACT:

Safety, Rehabilitation and Compensation Act 1988 – sections 14,16,19,24 and 27

REASONS FOR DECISION

22 July 2009	Ms N Isenberg, Senior Member
Background

Nina Mock worked at Star City Casino as an analyst doing computer work. She developed tiredness and aching in her right arm, elbow and forearm. She left that job in July 2001 and her symptoms substantially resolved. After a break, she worked in a temporary position until, in April 2002, she joined the Australian Bureau of Statistics (ABS) where she worked as an economic analyst, which also involved computer work. In October 2002, she complained of pain when performing mouse work and developed further pain and discomfort in her right lateral forearm. She had light duties for a period and then she changed departments to have more control over her activities. She lodged a claim for “Musculo – Ligamentous injury back/shoulder and lateral epicondylitis”.
In a determination dated 27 November 2002, the Respondent accepted liability for “aggravation of sprain of shoulder and upper arm (right)” and “aggravation of thoracic sprain” pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”). Liability was accepted up to and including 14 June 2004, but in a determination dated 25 June 2004, liability was denied pursuant to sections 16 and 19 of the SRC Act for medical expenses and incapacitation for work, respectively. Comcare issued a reviewable decision dated 18 October 2007 which affirmed that determination on the basis that Ms Mock no longer suffered from the effects of her compensable injuries.
Ms Mock also claims permanent impairment because of her condition.

Issues For Determination

I had to decide:
(a)Whether Ms Mock continued to suffer from the effects of the workplace injury and whether there is any liability to pay compensation for the effects of the injury pursuant to sections 16 and 19 of the SRC Act; and
(b)Whether Ms Mock has an entitlement to compensation for permanent impairment pursuant to sections 24 and 27 of the SRC Act in relation to her condition.

Legislative Framework

The relevant legislation in this matter is the SRC Act, in particular sections 16, 19, 24 and 27.

Applicant’s Evidence

Ms Mock said that she started working at Star City in September 2000, doing computer work for approximately six to seven hours a day. By November 2000, her right arm began to get tired. By March 2001, she was experiencing pain in her right elbow and although she had restricted duties, some pain continued. She resigned in July 2001 and took two months off because of the pain. She still experienced some pain after her break, but for approximately six months she did temporary work processing insurance claims. The job entailed less keyboard work and her pain was less than when she was at Star City. However, she continued to consult her general practitioner, Dr Li, about the pain and, in November 2001, she was referred to Dr May, a rheumatologist. She was also referred to Dr Sams, a psychiatrist due to her concerns about the future.
Although she was uncertain about her career and jobs that might require more keyboard work, she nonetheless took a job at the ABS in April 2002, which involved five or six hours a day of computer work. Immediately before she commenced at the ABS, she was experiencing very low pain in her right elbow and shoulder, neck and between her shoulder blades.
In July/August 2002, she took six or seven weeks leave that had previously been arranged. It was busy on her return and a few weeks later she experienced pain in her forearm, as she had experienced at Star City, and pain in her upper arm and shoulder. She said she was unable to use the computer for more than 10-15 minutes before experiencing pain. She was put on restricted duties until, in September 2003, she moved to a different area where she had more control over her workload. The pain persisted and, on the advice of the rehabilitation provider, in August 2004 she took leave to study for her Master of Business Administration to enhance her career prospects, and thereby reduce her need to undertake so much computer work. She returned to work in November 2004 and then, in February 2005, reduced her work to one day per week so that she could study. During that time, she worked on the computer for approximately five hours a day. In March 2006, she took leave without pay so that she could study speech pathology full time.
She continues to experience constant low-level pain although she now has a new career as a speech pathologist. Since she has been off the computer it has not been as bad, but she thought if she took up repetitive computer work again, her symptoms would increase.
She agreed that she had told Dr Conrad that her maximum level of pain while at the ABS was no greater than that she had experienced at Star City. She also agreed that she told Dr Dowda that the symptoms that she had been experiencing in the right arm and neck have essentially been stable over the last four years, although fluctuating in intensity depending on the activity that she does.

Medical Evidence

Some of the medical evidence before the Tribunal during this hearing was extracted from Ms Mock’s claim file against Star City.
Ms Mock’s general practitioner, Dr Maria Li, commenced treating Ms Mock’s pain during her employment at Star City and continued treating her after that time. In early 2001, she had, according to her notes, referred Ms Mock for x-rays and sent her to a chiropractor. Ms Mock had been having “twinges” in her lower arm and had been experiencing hand pain since about November 2000. She discussed overuse syndrome and prescribed painkillers and physiotherapy. She reviewed Ms Mock throughout 2001. She referred Ms Mock to Dr May, rheumatologist, in November 2001, at a time when Ms Mock was only undertaking keyboard work for approximately one hour a day; Ms Mock was expressing concern because her keyboard work was so minimal. She also referred Ms Mock to a rehabilitation and pain consultant, Dr Ganora.
On 1 November 2002, Dr Li certified that Ms Mock had a musculo-ligamentous injury to her back, shoulder and right lateral epicondylitis as a result of doing keyboard and computer work and that the date of injury was 17 October 2002. She advised Ms Mock to maintain exercises, use of massage, anti-inflammatories for acute pain and physiotherapy. In another report dated 21 November 2002, she diagnosed Ms Mock with a “right shoulder and thoracic back strain” and opined that Ms Mock’s condition was an aggravation of a previous injury and the prognosis was guarded.
On 2 June 2003, Dr Li reported that Ms Mock’s right arm and shoulder condition commenced during the course of her employment with Star City as a result of her “intense mouse and keyboard work” and that Ms Mock was not suited to jobs that involved consistent keyboard and mouse work. She also reported that her employment with the ABS had caused an ongoing aggravation of the symptoms in her right arm and shoulder.
In a further report dated 11 August 2003, Dr Li opined that Ms Mock still had ongoing problems with her right arm and shoulder. Dr Li stated that Ms Mock often required anti-inflammatory analgesia, heat and the undertaking of swimming and other physical activities to treat her condition. Dr Li reported that Ms Mock would not be capable of returning to her pre-injury duties and that she required a suitable employment position that would involve less intense keyboard activities.
Later, on 6 April 2004, Dr Li reported that Ms Mock’s condition remained unchanged and that it was impossible for her to totally avoid aggravation of her condition. Dr Li opined that aggravation would ease with appropriate treatment.
Dr Murray Stapleton, plastic and hand surgeon, provided a report dated 4 July 2003. He found Ms Mock to have tenderness over the right lateral epicondyle but considered her condition was constitutional and was aggravated by her Star City employment, activities in other employment and in her recreation and domestic life. Dr Stapleton opined that Ms Mock was able to perform her work duties without restrictions. He reported that her prognosis was good and she would benefit from surgical opinion. Dr Stapleton did not consider that Ms Mock would have permanent impairment.
Ms Mock described her pain levels to Dr Stapleton in the following terms on a scale of 1 to 10, with ‘1’ representing the least amount of pain and ’10’ representing the most amount of pain: 10/10 at Star City, 6-7/10 at the insurance brokers and remaining at that level at the ABS. At the time of examination, it was 6/10.
Dr David Crocker, occupational physician, examined Ms Mock on 17 September 2003 and diagnosed “lateral epicondylitis and soft tissue injury”.

Dr Croker reported that Ms Mock had a good outlook for a favourable prognosis and opined that she would be able to undertake her usual work duties in the future.

Dr Croker reported it was unlikely that Ms Mock would require ongoing physiotherapy treatment for her condition.
On 8 October 2003, Dr Peter Conrad, orthopaedic surgeon, attributed all of Ms Mock’s condition to her work at Star City, and considered the work she performed at the ABS as a minor aggravating factor only, unrelated to the primary cause.
On 22 March 2004, Dr James Bodel, orthopaedic surgeon, expressed a view that Ms Mock had recovered from any soft tissue injury which she may have received while at Star City. Dr Bodel reported that Ms Mock’s clinical condition was static but that her long term prognosis was excellent.
Dr Royle Crooks, NSW Workcover approved medical practitioner, examined Ms Mock and prepared reports dated 10 December 2007 and 30 April 2008.

Dr Crooks did not consider chiropractic treatment to benefit Ms Mock’s condition and opined that Ms Mock required local injections. He considered that physiotherapy treatment would be beneficial to her condition. He also reported that the prognosis was variable and it might take up to three years to properly recover. Dr Crooks did not consider Ms Mock to be suitable for employment that involved any keyboard or computer use.
Dr Dwight Dowda, occupational physician, prepared a report to Comcare dated 6 April 2004. He had the benefit of assessing Ms Mock again in April 2008 and provided two reports dated 15 April 2008.
In the earlier report (Exhibit R1), Dr Dowda opined that Ms Mock did not suffer from a specific condition. Dr Dowda reported that he did not consider that her presentation of a diffuse regional pain syndrome, involving particularly the upper right extremity, was due to her employment at the ABS. Dr Dowda considered that Ms Mock had a diminished capacity to engage in work at the same level that she was engaged in at the ABS, particularly computer intensive work. Dr Dowda did not consider that Ms Mock required medical treatment or a specific treatment program for her condition. Dr Dowda considered that a self managed home exercise program would be appropriate for Ms Mock’s condition.
In the supplementary report of 15 April 2008 (Exhibit R2), Dr Dowda did not find any objective clinical signs which might be ascribed to a specific clinical diagnosis. Dr Dowda reported that Ms Mock did not require any specific medical treatment for her symptoms and that her incapacity for work arose in the course of her employment with Star City, with exacerbation of symptoms occurring in the course of her employment with the ABS. Dr Dowda noted that Ms Mock did not suffer from any level of permanent impairment.
In his evidence, Dr Dowda distinguished between “exacerbated” and “aggravated”. The former connotes a temporary flaring up where, after the affecting stimulus is removed, the condition returns to a baseline. An “aggravation”, on the other hand, is said to be permanent. Unfortunately, some doctors use the phrases interchangeably. In his view, Ms Mock’s work at ABS caused only an “exacerbation”. He was consistent in his view that the continuing effects of her condition are as a result of her employment with Star City.
He said she had chronic regional pain syndrome and developed symptoms while working at Star City and that she recovers to the baseline of symptoms when exacerbating activities cease.
Dr Christopher Browne, Rheumatologist, provided a report dated 30 September 2008. Dr Browne did not consider that Ms Mock was fit for her pre-injury duties and reported that Ms Mock did not present with any assessable impairment.
In his evidence, he said that he had taken a history from Ms Mock that although there had not been a complete resolution of symptoms before commencing work at the ABS, Ms Mock had not been concerned about her condition when she took up the position. He observed, incorrectly, that there were no visits to her general practitioner about her symptoms after leaving Star City. He described her as having “exacerbations and aggravations” of occupational overuse syndrome during her time at the ABS. He thought the terms were synonymous in this context. He interpreted her condition as an aggravation of her pre-existing condition acquired at Star City.
At the time of examination, he did not find epicondylitis but was prepared to accept that she had suffered the condition when other doctors had examined her. He thought Ms Mock’s work may have “more chronically aggravated” her condition leading to a lesser chance of recovery, noting that Ms Mock gave a history that the pain continued despite her duties being modified. He noted “periodic flare ups” in which her symptoms were exacerbated by activities being undertaken, including domestic activities. When he examined Ms Mock she described her pain level as being 2/10.
Dr Browne was unaware that Ms Mock had had a two-month break after leaving work at Star City, and a six-week break before her first complaints at the ABS.
The Respondent also provided the report of Dr Virginia Pascall, occupational physician, dated 21 June 2008. Dr Pascall certified Ms Mock to be fit for computer based work, with restrictions. Dr Pascall did not find evidence that Ms Mock suffers from thoracic spine problems. In relation to Ms Mock’s lateral epicondylitis, Dr Pascall indicated that there was “very little remaining”. Dr Pascall considered that the primary symptom in Ms Mock’s forearm was related to muscle weakness and some pain was due to muscle tension triggered by stress.

Consideration

It was submitted by the Applicant, largely on the basis of the reports of Dr Stapleton and Dr Crook, that Ms Mock had epicondylitis, and that this was in addition to her complaints arising out of her work at Star City. In contrast, Dr Dowda found there to be no lateral epicondylitis. However, I note that, as early as November 2001, Dr May wrote of Ms Mock’s pain at the epicondyle. Ultimately, little turned on the precise description of the condition.
It was submitted on Ms Mock’s behalf that her symptomatology showed a marked change due to her work at the ABS rather than a continuum. I do not accept this to be the case. I note that notwithstanding having ceased work at Star City in July 2001 and only having undertaken limited keyboard work at the insurance brokers, she was continuing to experience pain, according to Dr Li’s notes, in her right arm and shoulder in November 2001. In March 2002, well before she started work at the ABS, injections in her back were being discussed. Ms Mock was experiencing problems - notwithstanding that she was only working approximately one hour a day on the computer - such that she was referred to a rheumatologist,
Dr May, in November 2001. She told Dr May that she was having problems with things such as lifting shopping bags, chopping vegetables and, in the same context, using a mouse and that she had a dull ache at rest. Dr May advised her to consider her choice of employment, which suggests to me that she was of the view that Ms Mock was predisposed to heightened levels of symptomatology that would be dictated by her activities. Ms Mock was referred to a psychiatrist because of concerns that she held about her future, and Dr May advised her to consider her career choices.
I was particularly persuaded by the evidence wherein Ms Mock had told Dr Conrad that her maximum pain level while at the ABS did not exceed that which she had experienced at Star City. This was confirmed by what she had told Dr Stapleton, in fact suggesting that her symptomatology improved while at the ABS compared to Star City. Most succinctly, I note that she told Dr Dowda that her symptoms had essentially been the same for the last four years, but fluctuating depending on what she did.
I note Dr Dowda’s explanation of the difference between “exacerbated’ and “aggravated”. I consider, after reviewing all the available medical evidence, on balance, that the work Ms Mock performed at the ABS caused an exacerbation of her symptoms only; that is a temporary aggravation and that the continuing effects of her condition are as a result of her employment with Star City.
I find that as at 14 June 2004, Ms Mock did not continue to suffer from the effects of “aggravation of sprain of shoulder and upper arm (right)” and “aggravation of thoracic sprain”, sustained during the course of her employment with ABS.
It follows that she is not entitled to compensation for permanent impairment resulting from “aggravation of sprain of shoulder and upper arm (right)” and “aggravation of thoracic sprain”.

Decision

The Administrative Appeals Tribunal affirms the decisions under review.

I certify that the thirty-nine (39) preceding paragraphs are a true copy of the reasons for the decision herein of
Ms N Isenberg, Senior Member.

Signed:....................................[sgd]...........................................
Associate

Dates of Hearing  18 and 19 May 2009
Date of Decision  22 July 2009
Counsel for the Applicant         Stuart Moffett
Appearance for the Applicant   Debra Lawrence, Teakle Ormsby Conn Lawyers
Counsel for the Respondent     Matthew Gollan
Solicitor for the Respondent    Vivian Haddad, DibbsBarker