Page and Telstra Corporation Ltd
[2002] AATA 401
•29 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 401
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/891
GENERAL ADMINISTRATIVE DIVISION )
Re SUZANNE PAGE
Applicant
And TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Mr D.W. Muller, Senior Member
Date29 May 2002
PlaceBrisbane
Decision The Tribunal affirms the decision to reject a claim for compensation for permanent impairment pursuant to the provisional of the Safety Rehabilitation and Compensation Act 1988.
..............(Signed)................................
D.W. MULLER
SENIOR MEMBER
CATCHWORDS
Compensation – permanent impairment – underlying rheumatoid arthritis – percentage due to work – impairment to three fingers is impairment to hand not individual fingers
Safety Rehabilitation and Compensation Act 1988: s24 (7),(8)(a).
REASONS FOR DECISION
29 May 2002 Mr D.W. Muller, Senior Member
This is an application to review a decision made on 23 July 1999, to deny lump sum compensation under ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988, to Suzanne Page in respect to claimed permanent injury/impairment to her right index finger, right ring finger, right little finger, right hand and left hand.
The applicant is a single woman who was born on 22 October 1953. She worked as an administration officer with the Respondent from 1985 to 1998.
As part of her duties, Ms Page was required to deliver goods to staff in the field at the Emerald Line Depot. On 27 November 1992, whilst getting into a work truck, she grabbed a handle to pull herself up and into the truck. She suddenly felt a severe burning pain in the back of her right hand.
As a result of the incident on 27 November 1992:
(a)Ms Page was off work from 27 November 1992 until 27 January 1993;
(b)On 17 December 1992, Dr Bulwinkel, orthopaedic surgeon, operated on Ms Page's right hand to repair the tendons of her right ring and little fingers.
(c)Liability was accepted by the Respondent for both the time off work and for the costs of the surgery.
(d)Ms Page returned to work on graduated duties and resumed full-time work on 12 February 1993.
Ms Page's normal work duties involved constant and repetitive keyboard work, doing time sheets, ordering stores and typing letters. She had a heavy keyboard load.
The constant keyboard work aggravated Ms Page's right hand injuries to such an extent that she had to stop working on 18 March 1993. She underwent secondary repair surgery on 19 March 1993. A tendon from her right foot was grafted onto her right hand. Also a joint in her right thumb was fused.
Ms Page was off work from 18 March 1993 to 31 May 1993.
The Respondent accepted liability for the secondary repair but not for the fusion of the joint of the right thumb.
In May 1995, Ms Page was transferred to the Rockhampton office of Telstra. Her duties were not modified. She kept performing a substantial amount of keyboard work.
In 1998 the condition of Ms Page's right hand began to deteriorate again. She had further surgery by Dr Bulwinkel, in June 1998, involving repair to the right ring and little finger tendons with an open synovectomy of the joint of the right index finger.
Ms Page was off work from 22 June 1998 until at least 9 July 2001.
The Respondent accepted liability for the latest operation and time off work.
Ms Page claims that she has sustained a degree of permanent impairment to her right hand and fingers and seeks compensation for it.
The question of whether or not Ms Page has a compensable permanently impaired right hand due to the incident of climbing into the work truck in 1992, is complicated by the fact that she has been suffering from significant generalised rheumatoid arthritis since about 1984. Part of the impairment in her right hand is due to the work-related incident. The balance is due to non-work related rheumatoid arthritis.
The Tribunal had the benefit of medical reports and oral evidence from two orthopaedic surgeons, Dr Bulwinkel and Dr Macfarlane. They have been assisted in the formulation of their opinions by radiological investigations such as x-rays and bone scans.
Dr Bulwinkel has treated and reported on Ms Page on many occasions since 1992. He operated on her right hand. He has been monitoring her rheumatoid arthritis. Those parts of his report and evidence which the Tribunal finds to be of particular significance are:
24 October 1994:"Suzanne returned today the 13 October 1994 for a general review, particularly of her feet. Her right hand has responded well to the previous surgery and she is really very happy with this repair and return of function at this time. She did report to me however that she has stopped taking her rheumatoid arthritis medication – something that worries me a bit."
16 February 1998:
"The right fifth finger long extensor repair has sagged because of stretch of the repair. This is because of the ongoing rheumatoid activity I am sure and in fact this repair needs a little plication. This is a fairly easy procedure, which Suzanne is keen to have done at an early date.
The right index metacarpo-phalangeal joint deformity is getting much worse with there being significant volar subluxation and destruction of the joint and now an inability to reduce the joint even with firm manual manipulation. At the same time she is troubled with the right middle finger PIP joint chronic swelling with crepitus and fairly severe synovitis on clinical examination. On x-ray this joint is starting to lose bone stock and very much needs an open synovectomy done in the future.
She obviously has a lack of control of her rheumatoid process. She ceased taking the Methatrexate because of nausea and general discomfort and unfortunately the rheumatoid process has proceeded along its own destructive way. I ordered an ESR and a bone scan to assess where things were as far as the rheumatoid process was concerned and with some concern noted the ESR to be 45. The whole body bone scan shows also rheumatoid activity in the medial compartment of the right knee, in the tarsal bones of both feet and in the hands in the distribution of the plain x-ray and clinical presentation would suggest. She also has considerable problems in the wrist joint with the carpus subluxing centrally between the radius and ulna on the right. Unfortunately this is going to very soon require formal fusion.
All in all Suzanne is in a lot of trouble. A number of surgical interventions are going to be required soon. Because of her age I am doing some research into the current availability of the newer generation of metacarpo-phalangeal joint replacements. Silastic ones at her age will fail and particularly when dealing with her dominant hand index metacarpo-phalangeal joint, we have to come up with something better. I do know that there are ceramic and polythene joints available and I am currently researching the state of the art of these particular implants. I expect that I will be able to provide her with a good salvage operation at this joint and I will be back in further contact with her as soon as the information comes to hand.
Obviously when we do anything to the right hand, it is worth attending to the stretched tendon as well and in the very near future we will need to plan a formal wrist fusion procedure.
I will keep you informed as to progress. I have exhorted her to get back into the clutches of the rhuematologists for proper control of her disease as well. I am sure she will talk to you more about this when she next sees you."
13 January 1999
"The review at the three-month mark post-surgery showed excellent restoration of anatomical alignment etc in the right index finger metacarpo-phalangeal joint as a result of the iso-elastic replacement. She had excellent almost full metacarpo-phalangeal joint flexion extension range with a slight rotation abnormality secondary to the necessary soft tissue re-balancing procedures. She was increasing her activities slowly under supervision as requested and expected. She still had a slight lag in the full extension of the fifth finger at that stage.
As far as the work capability of Mrs Page is concerned, I believe that the injuries that we have attended to with the above surgery will probably be as good as they are going to get and therefore technically restrictions need not necessarily be placed on her ability for employment. There is however concern in my mind as to whether or not the underlying rheumatoid condition is not going to significantly contribute to further problems arising and I have discussed with Mrs Page what her employment goals should be in light of what has passed and in light of her current continually active rheumatoid arthritis.
For the particular compensable injuries noted above, I do not believe any further treatment will be required. There are, however, other problems associated with her rheumatoid disease that are currently not disabling that will require further treatment in the future. Timing of that treatment will depend entirely on disability and activity of her rheumatoid arthritis."
24 August 2000
"This is just to back up our telephone conversation of today outlining the difficulties I have had in assessing permanent partial disability for Suzanne on the Comcare guidelines available. As mentioned above none of the available tables adequately describe a guideline as to percentage disability that can be directly related to Suzanne's particular disabilities.
It is my assessment however that considering all factors involved, a permanent impairment of Suzanne's function would fairly be in the 12% - 15% range when one considers the disabilities in the right hand."
Transcript 6 August 2001 at page 19:
Given the passage of time since 1992, the likelihood is that she would have had synovitis ---?--- Yes.
--- in those tendons? --- Yes; that's correct.
---giving the same level of interference with function as she has now? --- Yes, I think I can agree with that; yes.
That , given the passage of time, since November 1992, and today is August of 2001 --- ? --- Yes.
--- that the accident, in the long term, has not made those tendons in four and five any worse? --- No. At some time or other it is very likely she would have had some sort of rupture or injury which would have required the same sequence of treatment events; yes.
Dr Macfarlane also furnished a number of reports and gave evidence to the Tribunal. Those parts of his reports and evidence which the Tribunal finds to be of particular significance are:
17 February 1999
Previous x-rays were seen. Comments are as follows:1.7 December 1992: Rheumatoid arthritis is present in both wrists with a subluxed metacarpo-phalangeal joint of the right thumb. There is ulnar drift, widening of the distal radio-ulnar joints.
2.13 January 1994: X-rays of both feet show cystic changes in the proximal phalanx of the left big toe and rheumatoid arthritis affecting the metacarpo-phalangeal joints of both big toes.
3.9 January 1998: The right hand: this shows generalised rheumatoid arthritis with a subluxed metacarpo-phalangeal joint of the right index finger.
4.24 June 1998: This is of the right hand and shows that the metacarpo-phalangeal joint of the right thumb is satisfactorily fused.
The iso-elastic joint replacement at the metacarpo-phalangeal joint of the index finger is in position and is satisfactory.
General rheumatoid arthritis is seen in the right hand and wrist.Diagnosis
1.Generalised rheumatoid arthritis, particularly affecting the right hand and wrist, also shown on bone scan to be affecting the tarsal bones (small bones of the feet) and the right knee and left hand.
2.A rupture of the extensor tendons to the right ring and little fingers, consistent with the accident of 1992.
3.Gout related to the Methotrexate medication.
Subsequent operations are anticipated. It is noted that it is likely that she will come to fusion of the right wrist, possibly at most over the next several years, but this is due to the generalised rheumatoid arthritis and not to her work.
Opinion and Assessment
This patient has had an injury to her right hand with rupture of the extensor tendons to the ring and little fingers, consistent with the accident of 1992.
This has been superimposed on long-standing generalised rheumatoid arthritis as noted above.
A secondary procedure was also required in 1993 owing to problems following the initial surgery.
She also had further operation in June 1998 for further repair and plication of the extensor tendon to the little finger. At the same time joint replacement was carried out at the metacarpo-phalangeal joint of the right index finger. X-rays prior to this procedure show subluxation of that joint.
In my opinion the problems related to that joint are due largely, if not completely, to her rheumatoid arthritis. There may have been some aggravation in the course of her work owing to difficulties using her right ring and little fingers, but primarily the problems with that joint in my opinion would relate to the rheumatoid arthritis and only to a relatively small amount due to aggravation by her work.
There is no reason seen for her being totally incapacitated for work since June 1998 and it would be expected that following such a procedure she would have been off work two or three months at most, following which she could have returned to light work.
She is unable to do too much in the way of repetitive work at a keyboard or computer, particularly with her right hand. Matters are expected to become gradually worse, particularly with regard to the right wrist. This relates to the generalised rheumatoid arthritis and is an ongoing matter.
With regard to permanent impairment, after referring to the American Medical Association Guides, 4th Edition, there is in my opinion:
(a) With regard to the ring and little fingers: In the order of 10% (ten percent) loss of each of these fingers which converts to 2% (two percent loss of the hand, 2% (two percent) of the upper extremity.
(b) The right index finger: 61% (sixty-one percent) loss of the finger, converting to 12% (twelve percent) of the hand and 11% (eleven percent) of the upper extremity.
Of this, it is considered reasonable to attribute 20% (twenty percent) to her work, leading to 2% (two percent) impairment of the upper extremity.
This then is 4% (four percent) impairment of the right arm due to her work, which converts to 2% (two percent) impairment of the whole person. This impairment is permanent.
The other problems relating to the thumb and wrist are not related.
The position is stationary and stable with regard to the 1992 injury, but further problems with the rheumatoid arthritis are anticipated.
It is uncertain how long the replacement of the metacarpo-phalangeal joint of the right index finger will last, and further operation may be required in the future.
Further operation on the extensor tendons right ring and little finger is not anticipated or indicated.
Her medications with regard to rheumatoid arthritis and/or gout will require continuation. Further information should be obtained from her Rheumatologist if required.16 June 1999
1. Using the Table 9.4: limb function – upper limb, percentage of whole person impairment: there is 20% (twenty percent) of impairment of the whole person.
In separating the degree of impairment resulting from the injury of November 1992 and the underlying long-standing generalised rheumatoid arthritis that is present, her major problems relate to the rheumatoid arthritis.
Obviously she does have impairment due to the accident, but the Tables do not allow for any assessment of this below 10% (ten percent) of impairment of the whole patient.
In my opinion this is too high and appropriate assessments have been made in my report of 17 February 1999.
Table 9.1 is again difficult to use, but might possibly give an answer of 25% (twenty-five percent) of impairment of the whole person due to her overall problems, though the Table does not help in assessing the problems relating to the extensor tendons of the right ring and little fingers which in my opinion would be relatively minimal and at most in the order of 5% (five percent) of impairment of the whole person. (Under Table 9.1 and not after referring to the widely used American Medical Association Guides).2. Commenting on Mrs Page's responses to each of the non-economic loss questionnaires:
These comments relate in particular to the work related contribution.
Section 1: Pain and Suffering:
Her pain and suffering relates to widespread generalised long-standing rheumatoid arthritis and only to a minimal amount to the injury of 27 November 1992 due to the rupture of the extensor tendons to the right ring and little fingers.
Section 2: Loss of Amenities:
She may have a little difficulty driving due to the rupture of these tendons, but again almost all of her problems relate to her generalised rheumatoid arthritis.
With regard to her inability to perform keyboard duties, these again refer mostly to the rheumatoid arthritis and only to a small amount to the 1992 injury.
Transcript 6 August 2001 at page 31
What was the cause, or what was each cause of the loss of extension of all fingers?--- Particularly it is rheumatoid arthritis affecting the extensor tendons of her fingers, with secondarily the rupture of those tendons back in 1992, and thirdly the operation on the index finger of her hand.
Are you able to attribute between those three respective causes as to what caused the loss of extension of all the fingers?--- The extension loss in ring and little fingers would be largely attributed to the accident in '92. The other extension loss would be largely attributed to her generalised rheumatoid arthritis and the subsequent operation on her index finger.
The operation on the index finger, what role did the rheumatoid arthritis play in bringing about the need for that operation?--- It would be a major role in that requirement.
You will see there also, "The fusion of the thumb is all right". Now, what was the reason for the fusion of the thumb?--- Again, to the best of my knowledge it was the rheumatoid arthritis.
The Tribunal is satisfied that Ms Page has a significant permanent impairment to her right hand but that the permanent impairment is due almost completely to her rheumatoid arthritis. This is not a case where the impairment has arisen solely because of an aggravation of an underlying condition. The aggravation component is very small. It is also not the case where the so-called "egg-shell skull rule" applies. The major component of Ms Page's impairment to her right hand is due to rheumatoid arthritis from which she has suffered to a significant degree since 1984. That is for at least eight years before the truck incident.
It is the view of the Tribunal that in attempting to assign a percentage of work related impairment, compared to a percentage of naturally occurring impairment to Ms Page's right hand, Dr Bulwinkel did not come to terms with the problem, whereas Dr Macfarlane did. The Tribunal accepts Dr Macfarlane's figure of a maximum of 5% of whole person impairment.
A whole person impairment of 5% does not give rise to an award of compensation because it is less than 10%. See s 24(7) of the Safety Rehabilitation and Compensation Act 1988.
"24(7) [Where degree of permanent impairment less then 10%] Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section."
It was submitted on behalf of Ms Page that subsection 24(7) does not apply in her case because of subsection 24(8)(a) which provides:
"24(8) [Exceptions] Subsection (7) does not apply to anyone or more of the following:
(a) the impairment constituted by the loss, or the loss of the use, of a finger;"
The Tribunal does not accept that subsection 24(8) applies in Ms Page's case. Her case is concerned with the loss of function of her right hand and the translation of that to a whole person impairment. It is true that part of her right hand impairment is due to problems with three fingers and a thumb but her claim does not involve a claim for impairment resulting from the loss of specific fingers.
The Tribunal has no evidence before it upon which it could find that Ms Page has a work-related permanent impairment to her left hand.
The decision to reject a claim for compensation for permanent impairment is affirmed.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D.W. Muller, Senior Member
Signed: .....................................................................................
B. Hitchcock, Personal AssistantDate/s of Hearing 6 August, 26 September 2001
Date of Decision 29 May 2002
Counsel for the Applicant Mr. RangiahSolicitor for the Applicant Maurice Blackburn Cashman Lawyers
Counsel for the Respondent Mr. Dickson
Solicitor for the Respondent Standish Partners
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