Nutt and Comcare
[2008] AATA 583
•8 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 583
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1659
GENERAL ADMINISTRATIVE DIVISION ) 2007/5562 Re TRACEY NUTT Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date8 July 2008
PlaceSydney
Decision The reviewable decisions are affirmed. ....................[sgd]....................
Mrs Josephine Kelly
Senior Member
CORRIGENDUM
On 8 July 2008, the Tribunal directed the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the reasons for decision in this application at paragraph [30] by inserting the word “not,” as shown in bold font below:
“30. I accept that pain may, in some cases, be compensable (see Re Musumeci and Department of Health (NT) (1990) 19 ALD 797). I also accept that a mental ailment does not have to be a recognised medical condition to be compensable (Comcare v Mooi (1996) 42 ALD 495), however, this case does not fall into the type of case contemplated in either of those decisions.”
CATCHWORDS
COMPENSATION – Centrelink employee – accepted claim for aggravation of carpal tunnel syndrome - claim for incapacity and medical expenses rejected - whether applicant suffered an injury - whether injury caused by employment – whether incapacity to engage in work at same level – whether entitled to compensation for medical expenses – applicant’s evidence unreliable - medical opinion no objective physical disorder accepted – held no injury - reviewable decisions affirmed
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 16, 19
Comcare v Mooi (1996) 42 ALD 495
Re Musumeci and Department of Health (NT) (1990) 19 ALD 797
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
8 July 2008 Senior Member, Mrs Josephine Kelly INTRODUCTION
1. Ms Tracey Nutt worked for Centrelink and its predecessors as a customer service officer on a full-time basis between October 1982 and December 1997. Thereafter she worked on intermittent temporary contracts. In May – June 2004 she undertook a six week project for Centrelink. She was re-engaged in August 2004, and worked until her final contract terminated on 3 February 2006.
2. On 2 May 2005 Ms Nutt lodged a compensation claim for “carpal tunnel syndrome" (CTS) affecting her left elbow, arm, hand and wrist which was said to have been related to her daily duties involving use of keyboards, telephones and the processing of paperwork. On 20 June 2005 Comcare accepted liability pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for an aggravation of CTS. However, later claims for incapacity and medical expenses were rejected. Ms Nutt seeks the review of those decisions.
3. For the reasons set out below, I find that Ms Nutt has not suffered an “injury” as defined in s 4 of the Act and, therefore, her later claims cannot succeed.
REVIEWABLE DECISIONS
Proceedings N2006/1659
4. In a reconsideration decision dated 9 October 2006, Comcare affirmed the earlier determination of 20 June 2006. The decision-maker found that Ms Nutt's work duties had been modified to accommodate restrictions arising from her left arm condition, but determined that her post-injury duties were of a nature and quality comparable to her pre-injury duties. Therefore, Ms Nutt had a capacity for work at the same level at which she had been engaged before her injury, and was not incapacitated within the meaning of s 4(9) of the Act. She was not entitled to compensation for incapacity pursuant to s 19. That decision is the subject of proceedings N2006/1659.
Proceedings N2007/5562
5. On 3 October 2007, upon reconsideration, Comcare affirmed the decision refusing Ms Nutt’s claims for compensation pursuant to s 16 of the Act for the following medical expenses:
- A physiotherapy consultation on 22 March 2006;
- Pilates classes beginning 2 April 2007; and
- A GP consultation on 16 May 2007
That decision is the subject of proceedings N2007/5562.
ISSUES
6. The issues before me in this case are:
a) Whether Ms Nutt has suffered an “injury?”
b) If so, whether that injury arose out of, or in the course of her employment?
c) If so, whether she experienced any continuing incapacity to work, in particular within the meaning of s 4(9)(b) of the Act, that is an incapacity to engage in work "at the same level"?
d) Whether she is entitled to compensation for medical expenses claimed?
THE CASE FOR MS NUTT
7. Mr Vincent, of counsel, appeared for Ms Nutt. In summary, he argued that Ms Nutt continues to suffer from a condition, the label given being immaterial, that she is incapacitated for work at the same level as that in which she was engaged prior to the injury within the meaning of s 4(9)(b) of the Act, that that incapacity continues, and that she is entitled to compensation for the medical expenses claimed.
8. It was asserted that suitable employment for Ms Nutt is office employment for a maximum of 4 hours per day, 5 days per week, avoiding:
a) Repetitive and heavy use of her arms and hands;
b) Lifting heavy items on a repetitive basis;
c) Work requiring find manipulation, or activities requiring a high level of manual dexterity
d) Work requiring static loading on her left arm;
e) Work requiring a strong handgrip on her left arm; [and]
f) Prolonged driving and heavy manual handling activities, including pushing and pulling heavy weights.
BACKGROUND
9. The following sets out matters that are not contentious.
10. On 28 April 2005, Ms Nutt was referred for rehabilitation assessment by an occupational therapist in respect of "aggravation of left carpal tunnel". A workplace assessment was carried out on 2 May 2005 and a report prepared dated 4 May 2005.
11. Ms Nutt was referred to Dr White, orthopaedic surgeon, who in turn referred her to Dr Kennedy, orthopaedic surgeon.
12. On 26 July 2005, Ms Nutt was assessed fit to enter into a rehabilitation programme commencing on 1 August 2005. A number of return to work plans were prepared over the next several months.
13. Ms Nutt has been assessed by many doctors. Following is a summary of medical assessments carried out from May 2005 until January 2006.
a)Dr White, orthopaedic surgeon, saw Ms Nutt in May 2005 and referred her to Dr Kennedy;
b)Dr Prowse, rheumatologist and physician, diagnosed a “chronic regional pain syndrome” and recommended conservative treatment on 3 August 2005. Dr Prowse further reported on 12 October 2005;
c)Professor Tonkin, Professor of Hand Surgery, on 17 November did not consider there to be a structural abnormality that would respond satisfactorily to surgery or medication, but that both Ms Nutt’s environment and respondent to it needed to be modified;
d)Dr Kennedy, orthopaedic surgeon, on 20 June 2005 said he believed Ms Nutt’s symptoms to be secondary to repetitive use of the arm from work related activities;
e)Dr Ragaran, rehabilitation physician, prepared a rehabilitation assessment report on 15 July 2005 in which he recommended changes to the way Ms Nutt’s duties were performed;
f)Dr Reddell, neurologist and physician, diagnosed a repetitive use syndrome on 27 May 2005;
g)Dr March, occupational physician, on 10 January 2006, opined that there were no generally agreed diagnostic label for Ms Nutt’s condition, and that she required permanent restrictions with regard to left upper limb activities.
14. The final return to work plan was prepared on 16 January 2006 and planned a return to pre-injury hours for the period 8 November 2005 to 28 February 2006.
15. On 3 February 2006, the rehabilitation programme was closed at the request of Centrelink. The occupational therapist wrote that Ms Nutt was:
Fit for permanently modified duties with restrictions on repetitive use of the (L) arm and regular rest breaks.
16. Ms Nutt refused to sign off on the closure of the return to work plan. On 3 February 2006 she wrote to Comcare stating that she continued to be affected by the injury, and given the termination of her employment expected to be unable to obtain other employment. She listed the duties that she had performed before and after her injury. She sought compensation for incapacity.
CONSIDERATION
17. The resolution of this case depends on the Tribunal's assessment of Ms Nutt's evidence and the medical evidence, particularly that of Dr McGill, consultant rheumatologist, and Dr Matalani, occupational physician. As well as having reports from Drs McGill and Matalani, they gave oral evidence concurrently.
18. Ms Nutt gave detailed evidence about her duties from May 2004 until February 2006 when her final contract came to an end. She had kept detailed diary notes about her injury and symptoms between May 2005 and 3 February 2006. She told of the efforts she had made to find suitable employment since February 2006, and of the employment she had had in that time. She had undertaken temporary, spasmodic, administrative work through an agency from 19 October 2006 until 27 July 2007. From 1 November 2006 until 11 August 2007 she and her husband were employed as relief managers of a camping reserve on a two days a weeks basis, although they worked less than the two days. Her duties included various office and receptions tasks, selling drinks and ice creams, and some cleaning duties. She stated that her husband helped her when she had difficulties. She began a full-time position with a real-estate agency on 9 June 2007 but finished on 19 June. She found that she could not manage the duties because her arm pain increased significantly. She tried to negotiate to do three days a week but that did not eventuate.
19. From 9 August 2007 until the time of the hearing, Ms Nutt was working as a receptionist at a time-share resort. She started in a job sharing arrangement working three days a week, however, as a result of staff leave, she had worked 4 to 5 days a week for the first months. Her evidence was that it is the least physically demanding job that she has ever done, being a very quiet place. She hoped to be able to handle the job on a three day a week basis. She felt that a four day break between her periods of work would allow time for her arm to recover.
20. In May 2005 Ms Nutt told Dr Reddel that she had had pain on use of the left arm for many years, which had led to many years inability to work.
21. I accept the evidence of Ms Wilson, Ms Nutt's team leader, that Ms Nutt had not complained to her about symptoms in her upper limbs at work before lodging the compensation claim in May 2005.
22. Ms Anderson, who employed Ms Nutt at the real estate agency, gave evidence that Ms Nutt began work on a Saturday, working 4 hours, and worked the following Monday and Tuesday from 8.30 am til 5 pm. On the Tuesday afternoon, Ms Nutt was upset and said that she could not work full time due to personal problems, but did not elaborate. The next day Ms Anderson contacted the employment agency and was told that Ms Nutt had an injury to her left shoulder and could not pick up things using that arm. That was the first time Ms Anderson had heard of that problem. Ms Anderson offered Ms Nutt casual work because of her injury. Ms Nutt worked one day. Over the next three or four weeks Ms Anderson contacted her three to four times to offer her casual employment. The first time Ms Nutt said that she was going to Queensland to visit her family, the second time Ms Nutt was on her way back from Queensland and the third time she said that she was working with her husband at a caravan park. Mr Anderson arranged to have coffee with Ms Nutt to discuss further casual employment. Ms Nutt set out a list of requirements relating to her work environment and duties that needed to be met, and said that she could only work when she was not required at the caravan park and therefore could not guarantee that she would be available when she was needed. This was inconsistent with the evidence given by Ms Nutt.
23. Dr McGill reported on 29 March 2007. He found Ms Nutt had no physical disorder to explain the symptoms of which she complained in the left upper limb. He set out a comprehensive history taken from Ms Nutt and from documentation with which he had been provided. The following paragraphs from his report are compelling:
Apart from some variability of effort when demonstrating muscle strength in the left upper limb, her examination was normal. There was no evidence of complex region pain syndrome and there was no evidence of any physical disorder relevant to her left upper limb symptoms. She has had many examinations by various types of specialist (rheumatology, orthopaedic surgery, neurology) and no physical cause for her symptoms has been apparent at any stage.
…Her symptoms are not explicable on the basis of repetitive use. I thought it was clear from the wording of Dr Reddell’s letter that he found no evidence of a disorder related to repetitive activity and he used the term “repetitive use syndrome” as a label for the situation where symptoms are reported in the absence of evidence of a physical disorder sufficient to account for those symptoms.
24. Dr McGill also concluded that Ms Nutt clearly did not have chronic regional pain syndrome, according to the criteria contained in the Comcare Guides.
25. Dr Matalani reported on 28 May 2007. He diagnosed symptoms consistent with an over-use syndrome precipitating myofascial pain, currently in partial remission, to which her employment had substantially contributed. In his opinion, Ms Nutt was unfit for her pre-injury duties, but was fit for suitable duties, although it would be difficult for her to obtain full-time employment with the restrictions she had. He also considered that she was likely to be predisposed to exacerbation of her symptoms upon returning to full-time work.
CONCLUSION
26. Having considered all of the evidence, I find that Ms Nutt's evidence is exaggerated and unreliable. Where there is inconsistency, I do not accept Ms Nutt's evidence. For example, I prefer the evidence of Ms Wilson and Ms Anderson.
27. All the doctors who made a diagnosis relied on Ms Nutt’s subjective identification of symptoms. There is no objective confirmation of a physical injury. Dr Matalani agreed during cross-examination that muscle wasting would be expected if Ms Nutt was unable to use her left arm as she described. There was no such wasting.
28. I do not accept Dr Matalani’s diagnosis of over-use syndrome precipitating myofascial pain. In diagnosing over-use syndrome and myofacial pain, Dr Matalani unquestioningly accepted the history related by Ms Nutt which, in my opinion, is not reliable.
29. I prefer the evidence of Dr McGill to that of Dr Matalani and the other doctors who have made diagnoses. His history taking was detailed, and his consideration comprehensive.
30. I accept that pain may, in some cases, be compensable (see Re Musumeci and Department of Health (NT) (1990) 19 ALD 797). I also accept that a mental ailment does have to be a recognised medical condition to be compensable (Comcare v Mooi (1996) 42 ALD 495), however, this case does not fall into the type of case contemplated in either of those decisions.
31. I find that Ms Nutt has not suffered an injury within the meaning of that term in s 4 of the Act. I am entitled to make this finding, although the claims before me were for incapacity and medical costs (Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253). Consequently, I find that Ms Nutt has no incapacity and no entitlement to compensation for medical costs, pursuant to ss 19 and 16 of the Act respectively.
DECISION
32. For the reasons set out above, the reviewable decisions are affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly.Signed: ………[sgd...……..
Steven Mulipola, Associate
Date of hearing: 28 & 29 February 2008
Date of decision: 8 July 2008
Counsel for the Applicant: Mr M Vincent
Solicitors for the Applicant: Stacks Foster
Counsel for the Respondent: Mr G Elliott
Solicitors for the Respondent: Australian Government Solicitor
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