Penafiel and Comcare (Compensation)

[2016] AATA 150

Penafiel and Comcare (Compensation) [2016] AATA 150 (15 March 2016)

Division

GENERAL DIVISION

File Number(s)

2015/0020

2015/3587

Re

Amalia Penafiel

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	15 March 2016
Place	Sydney

The Tribunal affirms the decisions under review.

.......................[sgd].................................................

Senior Member J F Toohey

CATCHWORDS

COMPENSATION– right epicondylosis and synovitis – liability accepted – calculation of the applicant’s ability to earn per week – cervical disc bulge – whether respondent liable to compensate applicant for cervical disc bulge – whether cervical disc bulge related to employment – decision concerning right elbow affirmed – decision concerning cervical disc bulge affirmed

LEGISLATION

Safety Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

Senior Member J F Toohey

15 March 2016

BACKGROUND

1. Amalia Penafiel worked as a case officer for the (now named) Department of Immigration and Border Protection from 5 February 2005 until she retired on 17 March 2014. 

2. On 6 February 2013, Ms Penafiel suffered a sprain of her right elbow and forearm which she attributed to overuse during a period of high volume processing of visa applications.  Comcare accepted liability to compensate her under the Safety Rehabilitation and Compensation Act 1988 (SRC Act). 

3. By the end of May 2013, Ms Penafiel had resumed her normal duties and hours.  In February 2014, she developed pain in her neck muscles which she contends was secondary to her accepted condition and due to excessive keyboard work.  Comcare denies liability to compensate her for this condition.  It is common ground that it is an ailment within the meaning of s 4 of the SRC Act, and so properly characterised as a disease for the purposes of s 5B.

4. Ms Penafiel seeks review of the following decisions by Comcare:

   (i)in respect of her first claim, a reviewable decision made on 6 November 2014 affirming a determination that, for the purposes of calculating her entitlement to compensation under s 21 of the SRC Act from 18 March 2014, her ability to earn each week was $687.40;

   (ii)in respect of her second claim, a reviewable decision made on 13 May 2015 affirming a determination that Comcare was not liable to compensate her for “splenius capitis, levator scapulae and right trapezius muscles collectively known as ‘neck muscles’”.

   The first reviewable decision

5. On 23 March 2013, Comcare accepted liability to compensate Ms Penafiel for a “sprain of unspecified site of elbow and forearm” deemed to have occurred on 11 February 2013.  At the time of her injury, her normal working week was 37.5 hours.  She was off work until 18 March 2013 when she commenced a graduated return to work on modified duties.  Her hours increased each week until, by 30 May 2013, she had resumed her pre-injury duties. 

6. Despite being certified fit for normal duties, Ms Penafiel says she continued to feel pain in her right elbow.  An ergonomic assessment of her work station was undertaken in November 2013 and a number of adjustments made.  She continued to work her normal hours until 7 February 2014 when she felt pain in her arm and had to stop work. On 27 February 2014, her general practitioner, Dr Peter Parras, certified her fit for modified duties for five hours a day, four days a week.

7. On 17 March 2014, Ms Penafiel retired from her employment with the Department.  On the standard Cessation of Employment form she indicated her reason for retiring was “age”.

8. Section 21 of the SRC Act sets out the formula by which compensation for incapacity is calculated for an employee who has retired.  On 9 July 2014, Comcare wrote to Ms Penafiel to advise that, in accordance with ss 20, 21 and 21A of the SRC Act, the amount of her superannuation benefit had to be taken into account in calculating her incapacity entitlement.  Taking into account that Dr Parras had certified her capable of working 20 hours a week from 27 February 2014 and that she was still working those hours when she ceased employment, Comcare calculated Ms Penafiel’s ability to earn per week was $687.40 (gross) and her entitlement in respect of the remaining 17.5 hours per week was $173.92 (gross).

   Ms Penafiel contends that:

   (iii)she was not able to work 20 hours a week, even before her retirement on 17 March 2014; and

   (iv)she was unfit for any work from 31 July 2014 to 28 August 2014. 

   The second reviewable decision

9. On 5 February 2014, Ms Penafiel reported to her supervisor that she had to stop work on files because she felt pain in her arm; she had arranged to see her doctor and to have physiotherapy on 7 February 2014. 

10. On 7 February 2014, Dr Parras provided a workers compensation medical certificate noting “[Occupational Overuse Injury] Right trapezius neck muscles and right forearm extensor muscles” which he considered to be “a flare of original injury dated 6 February 2013”.  He certified Ms Penafiel unfit for work on 7 February 2014 and fit for modified duties for her usual hours from 8 to 14 February 2014.  On 27 February 2014, he certified her fit for modified duties for 20 hours a week.

11. On 13 March 2014, Dr Parras certified Ms Penafiel fit for modified duties for 20 hours a week from 14 March 2014 to 27 March 2014 (which covered the date of Ms Penafiel’s retirement).

12. Over the following months, Ms Penafiel saw a number of doctors whose reports are considered below.  On 23 October 2014, she claimed compensation for an injury described in her claim form as “splenius capitis, levator scapulae and right trapezius muscles collectively known as ‘neck muscles’”. She attributed her injury to “work overload and excessive work hours” while processing visa applications “in a high volume workload using PC, mouse, telephone”. 

13. Comcare contends that Ms Penafiel does not suffer an ailment of the muscles in her neck; alternatively, if she does suffer such an ailment, it was not contributed to, to a significant degree, by her employment.  Further, that even if there was such contribution, at all times since 18 March 2014 Ms Penafiel has been able to work at least 20 hours per week.

14. Finally, Comcare contends that, by retiring on account of her age rather than her health, Ms Penafiel effectively failed to continue with an offer of suitable employment.  As a result, for the purposes of s 19(4)(c) of the SRC Act, her hourly rate should be deemed to be the rate at which she was employed at the date of her retirement (plus indexation as necessary).  On this basis, Comcare contends that the reviewable decision should be affirmed, if not set aside and substituted with a less favourable decision.

    Medical reports from 2004

15. In 2004, while working at her previous employment in a bank, Ms Penafiel was present during an armed holdup.  Not surprisingly, she suffered stress and was off work for a month after the incident.  She saw a psychiatrist, Dr David Hughes, once or twice and, on his advice, she saw a psychotherapist.  On 11 November 2004, Dr Hughes reported to Dr Parras that Ms Penafiel still had “significant anxiety” and he thought she would benefit from “some ongoing cognitive behaviour therapy”.

16. A report from Dr Nicholas Cunio, cardiologist and consultant physician, dated 3 April 2007 to Dr Parras shows he had been seeing Ms Penafiel intermittently over a ten year period for symptoms including shortness of breath, but no “definite organic heart disease has been found”.  On 11 November 2008, Dr Cunio reported that Ms Penafiel was “quite anxious and probably does have panic attacks”. 

17. Ms Penafiel gave evidence that she last saw Dr Cunio about three years ago; she sometimes feels shortness of breath but he has said it has nothing to do with her heart. She still suffers from panic attacks from time to time, including an attack on the morning of the hearing which settled sufficiently for her to proceed. 

18. `In July 2012, Ms Penafiel saw Dr Ban Lau, consultant cardiologist and physician, who reported to Dr Parras that he thought most, if not all, of her symptoms of “chronic atypical resting chest pain and alleged chronic exertional dyspnoea” were due to her severe anxiety.

19. Comcare has submitted further reports including from Dr Cunio, St George Hospital and Dr Wassim Rahman, gastroenterologist and heptologist, and Dr Parras’ clinical notes, that show Ms Penafiel continued to experience symptoms of panic attacks, anxiety and stress throughout 2013 including after she had resumed full duties, and in 2014.

    Ms Penafiel’s evidence

20. Ms Penafiel does not dispute that she continues to suffer from anxiety, and has panic attacks from time-to-time.  She maintains, however, that they are unrelated to her arm and neck pain and she was able to work well despite them.

21. On 13 November 2013, Ms Penafiel completed an incident report complaining of “an ongoing pain in the neck extending to the back for more than a month”. She indicated that immediate treatment was not required.  She does not appear to have sought treatment or taken any further action at that time in relation to the incident.

22. On 5 February 2014, Ms Penafiel advised her supervisor by email about pain in her am and that she would be seeing her doctor and having physiotherapy.  She did not complete an incident report but I accept she believed her email would serve that purpose.

23. On 4 March 2014, Ms Penafiel sent an email to the “HR Service Centre’ advising:

    Dear Colleagues 

    I have decided to retire (age retirement) from the public service as of 28 March 2014.

    Kind regards

24. The records show that Ms Penafiel retired as of 18 March 2014.  Nothing turns on any difference in the dates.

25. Ms Penafiel’s oral evidence as to her reason for retiring in March 2014 was not altogether easy to follow.  As I understand it, she retired because, having turned 55, she could have access to her superannuation.  She gave evidence that she advised her employer that she was retiring on account of her age because, if she gave her health as the reason, it this would adversely affect her superannuation; she had used all her leave and was already on leave without pay; and she did not want to state that she was retiring for health reasons because of the possible stigma for future employment.  

    Associate Professor Paoloni’s evidence

26. Dr Parras referred Ms Penafiel to A/Prof Justin Paoloni, sports physician, who saw her for the first time on 3 July 2014.  A/Prof Paoloni has provided 11 reports and gave oral evidence at the hearing.

27. On 29 September 2014, A/Prof Paoloni reported that Ms Penafiel was suffering from right lateral epicondylitis and elbow joint synovitis, and was unfit for work; she had restricted movement in her neck, and her “neck injury may be contributing to her upper arm symptoms”.  On 5 November 2014, and again on 3 December 2014 and 2 March 2015, A/Prof Paoloni reported that he had cleared Ms Penafiel to work 5.5 hours on three days a week, with restrictions on lifting.  He recommended a series of cortisone injections (liability for which Comcare denied).

28. Giving evidence before the Tribunal, A/Prof Paoloni confirmed his opinion that Ms Penafiel suffers from chronic right lateral epicondylitis, and a neck injury that he believes is related to a C6/7 disc bulge due to compensating by using her right arm.

29. A/Prof Paoloni acknowledged that his opinion was based on the history Ms Penafiel gave him.  He acknowledged that disc bulges are common with age and are commonly asymptomatic.  He agreed that a history of anxiety and preoccupation with somatic symptoms would make him consider whether that was the reason for neck and arm pain but he thought there was only a “small possibility” that it explained Ms Penafiel’s symptoms.  He acknowledged that some of her reported complaints of pain on testing made the diagnosis of lateral epicondylitis more difficult, and that generalised widespread pain makes it “very difficult” to identify a particular area as the cause of symptoms.

    Associate Professor McGill’s evidence

30. A/Prof Neil McGill, rheumatologist, saw Ms Penafiel for assessment on 22 April 2015.  He provided a written report and gave oral evidence.

31. A/Prof McGill took a history from Ms Penafiel that, in 2009, she experienced right sided neck pain radiating into her right shoulder and pain at the right lateral elbow and dorsal forearm regions; there was no change in her work duties and her symptoms settled.  She has no further musculoskeletal symptoms until February 2013. 

32. Giving evidence, A/Prof McGill said lateral epicondylitis is a condition for which there are almost always no objective signs independent of the person’s cooperation and reporting, meaning diagnosis is “entirely dependent on the pattern of responses to testing” of which there are two components: provocative manoeuvres and tenderness.  He described in detail the forms of provocative testing and the responses that indicate lateral epicondylitis; he also described in detail testing for tenderness.

33. A/Prof McGill reported that Ms Penafiel sat throughout the assessment without apparent difficulty and had full neck rotation to the left.  In contrast, on formal examination her movement was considerably restricted and she indicated that movement caused her pain.  Giving evidence, A/Prof McGill made clear he had no reason to think Ms Penafiel was falsifying or exaggerating her symptoms.  However, he concluded that the pattern of pain she complained of on testing was in keeping with “a generalised switch-on of the pain pathways” but not with lateral epicondylitis.  In his opinion, factors such as heightened anxiety, depression and lack of sleep all tend to make such symptoms worse.  He did not think her symptoms could be explained on the basis of organic disease; rather, they could reasonably be described as regional pain syndrome (but not complex regional pain syndrome).

34. With reference to MRIs of Ms Penafiel’s right elbow and neck, A/Prof McGill noted that an MRI of her right elbow on 28 July 2014 showed “moderate common extensor tendinosis” but “no significant discrete common extensor tendon tear”, a finding he said was “very common” in someone of Ms Penafiel’s age.  He considered an MRI of her cervical spine “essentially normal”; the early disc degenerative changes at C6/7 seen on the scan were “well within the expected range” for someone of her age.  He referred also to studies showing the very high degree of hereditability in cervical spine disease.  In his experience, he said, even quite severe forms of arthritis in the elbow do not lead to neck pain, and he does not believe Ms Penafiel’s current symptoms could possibly be influenced by her employment. 

35. A/Prof McGill thought it probable that Ms Penafiel had previously had lateral epicondylitis but, if so, it was unlikely to be related to use of a keyboard because the condition is aggravated by lifting the hand in the “palm down position”, as opposed to the action involved in keyboarding, although it would be made more uncomfortable by using a keyboard.  In his opinion, the effect of her work duties would have ceased when she ceased work.  In his view, there is no plausible mechanism by which the work she was doing would influence her symptoms once she stopped work.

36. In A/Prof McGill’s opinion, Ms Penafiel could perform her previous work duties without restriction.  He acknowledged that a return to work without restrictions could result in “decompression”; if that occurred, it might be on psychological grounds but it was not tenable on the basis of physical disease.

    Other medical reports

    Dr Parras

37. The next certificate issued by Dr Parras after Ms Penafiel’s retirement was on 28 March 2014 when he certified her fit for modified duties for 20 hours per week.  For the period up to 8 August 2014, he continued to certify her fit for modified duties for 20 hours per week.

38. On 31 July 2014, Dr Parras certified Ms Penafiel unfit for work to 28 August 2014 by reason of her pain and disability which he attributed to a flare up of her previous injury. He cited a report of the same date from A/Prof Justin Paoloni.  He certified Ms Penafiel unfit for work through to 28 November 2014, and fit for modified duties for 15 hours a week from 29 November 2014. 

    Dr Dias

39. Dr Uthum Dias, consultant occupational physician, saw Ms Penafiel for assessment on 30 April 2014.  She reported worsening symptoms by November 2013.  He diagnosed her as suffering from symptoms and signs consistent with chronic right-sided lateral epicondylitis due to keyboarding and mouse work, the pathology of which could be confirmed on imaging.

40. Dr Dias reported that Ms Penafiel’s continuing symptoms limited her “domestic and social functioning on a day-to-day basis.” He thought there was “an element of moderate psychosomatic overlay inherent in her presentation and her examination was punctuated by a moderate degree of abnormal illness behaviour”; with a scan to delineate objective pathology, she might be a candidate for a cortisone injection or referral to an orthopaedic specialist for further assessment.  He thought her symptoms likely to gradually resolve over the next three months but there was a high risk of recurrence given the nature of lateral epicondylitis.

41. Dr Dias disagreed with Dr Parras and saw no reason Ms Penafiel could not work her pre-injury hours, although he agreed with Dr Parras’ assessment that restrictions on lifting and keyboarding were appropriate.

    Dr Paul

42. Dr Matthew Paul, consultant occupational physician, saw Ms Penafiel for assessment on 1 October 2014 when she reported constant neck pain radiating into her right trapezius muscle and right shoulder, and all the way down into her right hand, with episodic numbness and tingling in the right hand.  She also reported pain in her right elbow which travelled into her forearm and upper arm below the shoulder.

43. In a report dated 10 October 2014, Dr Paul agreed with Dr Parras’ diagnosis of lateral epicondylitis which he thought was associated with, and aggravated by, Ms Penafiel’s work duties but he did not think her history and the examination findings supported a diagnosis of occupational overuse syndrome which, he said, generally improves once a person ceases work.  Rather, her history and the examination seemed to indicate “a discrete issue in the cervical spine”.

44. Dr Paul thought that, if right-sided lateral epicondylitis were her only condition, Ms Penafiel could work full time at her normal duties with some modification and restriction.  He thought her “work cessation” was primarily related to her neck condition but whether that condition was work-related needed to be explored.  He thought it likely to be a degenerative condition with possibly some nerve root impingement, and there could be features of chronic pain disorder.

    CONSIDERATION

45. By s 5A(1), “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…

46. By s 5B(1), “disease" means:

    (a)an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

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

47. "Significant degree" means a degree that is substantially more than material: s 5B(3).

48. Section 5B(2) provides that, in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment, the following matters may be taken into account:

    (a)the duration of the employment;

    (b)the nature of, and particular tasks involved in, the employment;

    (c)any predisposition of the employee to the ailment or aggravation;

    (d)any activities of the employee not related to the employment;

    (e)any other matters affecting the employee's health.

1. Comcare submits that Ms Penafiel does not suffer from a neck condition that was contributed to, to a significant degree, by her employment.  Rather, Comcare submits, her condition is part of widespread symptoms that are not explicable on the basis of organic disease and can be explained by her long-standing anxiety and pre-occupation with her somatic symptoms. 

2. I accept that submission.  I am satisfied, on the information before me, that Ms Penafiel has suffered from symptoms of anxiety, including panic attacks, for many years.  Assuming, without having to decide, that the armed holdup in 2004 was the start of her anxiety, that would hardly be surprising.  There is no suggestion from any doctor, including A/Prof McGill, that Ms Penafiel is fabricating or exaggerating her symptoms but I accept the evidence of A/Prof McGill that changes in her cervical spine seen on the MRI are minor and consistent with her age.  I accept his evidence that factors including heightened anxiety and depression tend to make symptoms worse.  The fact that Ms Penafiel demonstrated greater restriction on formal testing supports this conclusion. 

3. In conclusion, I prefer A/Prof McGill’s evidence to that of A/Prof Paoloni.  A/Prof McGill provided a detailed, reasoned explanation for his opinion.  A/Prof Paoloni did not put it higher than to say that Ms Penafiel’s elbow and forearm condition “may” be contributing to her neck pain.  He did not disagree with A/Prof McGill that disc bulges are common with age and are commonly asymptomatic, and he agreed that a history of anxiety and preoccupation with somatic symptoms raised the possibility that it explained Ms Penafiel’s symptoms, even though he thought that possibility small.  Considering Dr Cunio’s report that no definite organic heart disease could be found to explain Ms Penafiel’s symptoms, the possibility seems more than small.  Dr Paul’s report tends to support this conclusion as well.

4. In relation to Ms Penafiel’s right elbow and forearm pain, I accept A/Prof McGill’s opinion that any effects of her duties would have ceased when she ceased employment and that any continuing symptoms are unrelated to her employment.  He was the only specialist to undertake a thorough review of Ms Penafiel’s clinical history.  He gave detailed and considered evidence to explain his opinion.  I prefer his evidence to that of A/Prof Paoloni who acknowledged that some of Ms Penafiel’s reported complaints of pain on testing, and her generalised widespread pain make it difficult to identify a particular area as the cause of symptoms. 

5. To the extent that Ms Penafiel has any reduced incapacity for work, I accept Comcare’s submission that it is not attributable to her employment.  I accept A/Prof McGill’s opinion that, subject to some graduated return to full duties to avoid “decompression”, Ms Penafiel can work full-time.  I am satisfied that any continuing reduced capacity is due to factors unrelated to her employment. 

6. I am also satisfied that the weight of the evidence supports the conclusion that Ms Penafiel has at all times since 18 March 2014 been able to work at least 20 hours per week.  Insofar as she has not been able to work those hours, I am not satisfied that it was due to her accepted injury.  For the reasons above, I prefer A/Prof McGill’s opinion to that of A/Prof Paoloni.

7. Comcare did not press at the hearing its submission that, by retiring, Ms Penafiel effectively failed to continue with an offer of suitable employment.  I make no finding in relation to that issue.

   CONCLUSION

8. For these reasons, I affirm the decisions under review

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

............................[sgd]............................................

Associate

Dated 15 March 2016

Date(s) of hearing	9 and 10 December 2015
Date final submissions received	13 January 2016
Applicant	In person
Counsel for the Respondent	Ms Elenne Ford
Solicitors for the Respondent	Mr Peter Lehmann