Pires and Comcare - [2000] AATA 580

DECISION AND REASONS FOR DECISION [2000] AATA 580

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/76

GENERAL ADMINISTRATIVE DIVISION          )
           Re      CARMELA PIRES
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal       Pamela Burton, Senior Member
Dr Michael Miller, AO, Member
Air Mshl IB Gration, AO, AFC, Member

Date14 July 2000
PlaceCanberra

Decision The tribunal affirms the decision under review.

..................(Sgd.).......................
Pamela Burton Senior Member
CATCHWORDS
WORKERS' COMPENSATION – compensable strain to right wrist – whether carpal tunnel syndrome – whether condition resolved – ongoing pain to whole of right arm, neck and shoulder – whether regional pain syndrome – chronic pain – whether condition materially contributed to by employment – capacity to work.
Legislation
Safety Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

14 July 2000 Pamela Burton, Senior Member
           Dr Michael Miller, AO, Member
           Air Mshl IB Gration, AO, AFC, Member

This is an application for review of the decision of an independent review officer ("the IRO") of 4 March 1999 which affirmed the determination of Comcare's delegate of 13 July 1998 that Comcare was no longer liable in relation to the applicant's condition of "strain to right wrist".
At the hearing the applicant was represented by Mr Hugh Selby, and Comcare, the respondent, was represented by Mr Stuart Pilkinton. The tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents"), and various medical reports and other documents tendered by the parties. The tribunal heard evidence over a period of two days. Mrs Pires, the applicant, gave oral evidence, as did her husband, Mr Pires. Dr Voon, the applicant's general practitioner, gave telephone evidence on her behalf.
The issue for the tribunal to decide is whether the respondent is liable on and from 13 July 1998 to pay compensation for the applicant's claimed injury to her right hand and arm. If so, the question then arises as to whether the applicant has any capacity to work.
The respondent concedes that the applicant suffered a strain to her right wrist and carpal tunnel syndrome in the course of her employment, but says that the condition has resolved. The respondent also concedes that the applicant suffers from regional pain syndrome but contends that her employment did not contribute to that condition.
Background
The applicant was born on 13 January 1962 in Italy and migrated to Australia in 1967. She is a 38-year-old woman who is married and has two children. Between 1980 or 1981 and 1987 the applicant worked as a cleaner at the Allambie Nursing Home. In April 1989, the applicant commenced work with the University of Canberra ("the University") as a cleaner. In early 1991 she took three months' maternity leave. She injured her right wrist on 21 October 1991 when she was cleaning a stove. On 8 November 1991 she claimed compensation for "strain to right wrist" (T3) for which the respondent accepted liability. She went off work in March 1992, returning to work for a few weeks on 17 January 1994 on a graduated return to work program. It was unsuccessful and she has not since returned to work.
The applicant contends that the injury she sustained on 21 October 1991 was a manifestation of a condition which developed from scrubbing stoves in the course of her employment at the University. She contends that this work gave rise to carpal tunnel syndrome and/or regional pain syndrome from which she is still suffering and which incapacitates her for work.
The respondent contends that the applicant's employment at the University, being for a period of only two years and some months (excluding her maternity leave), is not likely to have materially contributed to her current condition. Instead, the respondent contends that her previous employment with Allambie Nursing home, her home duties and duties as a mother are likely to have played a significant role.
Evidence
At the hearing the applicant gave evidence that her cleaning duties at the University required her to clean nine stoves and ovens, three on each of three floors, and sweep the floors. On 21 October 1991, in the course of cleaning a stove with a scraper, she felt a sharp pain in her right wrist. She described this as an "electric shock". The sensation travelled up her right arm to her shoulder. She said that she had never experienced a pain like that before. She reported the incident to her supervisor but she did not stop work.
The applicant's evidence is that from that time on she had to change dramatically her normal routine of activities, including her home duties. She says she is unable to scrub the shower, clean the oven, vacuum or iron. She hangs clothes on the line but it takes her longer to do so and she winds up the clothes hoist with her left hand. If she uses her right arm it becomes sore and she develops cramps in her fingers. She says that she has pins and needles in her right hand and arm when she is in bed at night, and that she has to get up during the night on several occasions to relieve the sensation by shaking her arm. She described this problem as poor circulation in her right arm. She said it also occurred when it was cold or raining.
The applicant asserts that she can only carry light objects in her right hand. She says that she has not been able to lift her son since he was two years old because of the cramps she develops in her arms. He is now nearly nine years old.
On 24 October 1995 the applicant reported to Dr Voon, her general medical practitioner, that she had difficulties ironing, scrubbing, brushing and shampooing her hair, that she was unable to lie on her right side, and that she wakes at night with pain in her right arm (Exhibit D). Her reference to "pain" is a reference to a feeling of pins and needles, or paraesthesia, and numbness, with which she seems to cope poorly. She says she gets up at night to "shake" the numbness out.
In an application for permanent impairment completed on 24 October 1995 (T59, p.92), the applicant claimed that she has pain affecting her right neck, shoulder, forearm and wrist, and that as a result she has difficulty caring for herself. In support, Dr Voon certified that she had reduced power in her upper limb to 75% of normal. In evidence the applicant said that she could dress herself, brush her teeth, towel herself down, and put on her shoes, with the use of both hands.
In March 1996 the applicant told Dr Voon that she had significantly restricted use of her right arm at all times (T67, p.113). In September 1996 the applicant was issued a driver's licence, from which time on she drove her children to school. The vehicle she drives has power steering. She is able to turn the ignition key on with her right hand, reverse, make sharp turns and drive without pain or discomfort. In July 1999 the applicant told Dr Mellick, consultant neurologist, that she gets pins and needles in the right hand intermittently, as well as pain in the whole of the right arm and sometimes neck pain (Exhibit 1).
The applicant is right-handed. She claims that she has restricted use of her right hand at all times. The treatments of physiotherapy, medication and cortisone injections have not given the applicant pain relief. She has refused - and it is not suggested that such refusal is unreasonable - an operation for the relief of carpal tunnel syndrome.
Mr Pires, the applicant's husband, gave evidence on her behalf. He verified that the applicant does no vacuuming, and that he scrubs the bathroom floors, the shower and windows. He said that the applicant wakes during the night in pain, complaining that her arm goes to sleep and she has no feeling in it. He was not able to say whether or not the applicant was able to use her right hand for carrying. He explained that he doesn't take much notice which hand she uses. He said that they both cook and wash the clothes and that the applicant hangs the clothes on the line.
The Video
The tribunal viewed a video film which showed the applicant in normal activities on 16 days between 16 January 1996 and 14 October 1996 (Exhibit 2). The applicant did not appear to undertake any strenuous activity. However, the film indicated that she showed little preference for using her left hand as against her right in carrying her handbag, shopping bags, opening doors, or when holding her child's hand and running along. She writes with her right hand. On some occasions she carried a few shopping bags in her right hand, and she gripped a drink container and held it to her mouth with her right hand. She was seen waving with her right arm. She buttoned up her child's coat with the use of both hands.
On 26 February 1996 the applicant told Dr Joubert, consultant neurologist, when he examined her on behalf of the respondent, that she had constant pain - a pins and needles feeling - in her right hand all day every day (T66). She was cross-examined about the apparent inconsistency with what she told Dr Joubert and what she was capable of doing as depicted in the video. In response the applicant explained that from February to April 1996, due to the pins and needles she had constantly in her right hand, she was not able to pick up anything in her right hand. However, she reluctantly conceded, by May 1996 the pins and needles feeling was coming and going and she was once again able to do the shopping and could hold light things and could pick up a cup but not for long.
Medical Evidence
Dr Voon, the applicant's treating general practitioner, began seeing the applicant in 1987. His clinical notes (Exhibit D) record on 11 June 1988, prior to the applicant commencing employment with the University, "aching right para- cervical/para-scapular; right forearm – myalgia". On 26 October 1991, about 5 days after the incident in which the applicant hurt her wrist, she attended upon a doctor at Dr Voon's practice, (Dr Voon being away) and had an x-ray of her wrist. It showed no abnormality. She saw Dr Voon on 4 November 1991 and complained of being "unable to move right arm". She stayed off work and had physiotherapy, which she said did not help much. She attended Dr Voon for certificates to verify that she was not fit to work. On 17 March 1992 Dr Voon referred the applicant to Dr Andrews, consultant neurologist, for nerve conduction studies which took place on 1 April 1992. The results and the conclusions drawn by Dr Andrews are detailed below. On 3 April 1992 a CT scan of the cervical spine was carried out which revealed minor symptoms of disc bulge at the C5/6 level (T14, p.25).
In his report of 25 November 1995 (T61), Dr Voon assessed the applicant as having a level of 30% permanent impairment of her right upper limb function under Table 9.4 of the Guide to the Assessment of the Degree of Permanent Impairment, the Guide authorised by section 28 of the Act. In his later reports of 24 May 1997, p.2 (T93) and 23 May 1998, p.2 (T122) after he had seen the video film, Dr Voon assessed the level of impairment as 10%. In evidence he said that the last two assessments were made in error which arose from the difficulty he had applying the descriptions given against the levels of impairment under the Table of the Guide. He referred to the difficulties the applicant reported she had with dressing, grooming, sewing and household chores on 11 May 1998. He concluded that the applicant had difficulties with self-care that were not shown on the video, and thus what he saw on the video film did not change his mind about the applicant's restriction and level of right upper limb impairment. In his report dated 23 May 1998 (T122) he says:
Mrs Pires does not disagree with what she could do as shown on the video. However, what is not shown on the video would help us to decide the degree of her disability. She cannot carry any heavy weight and definitely not for any length of time. She has difficulty doing household chores for any length of time.

Dr Voon then lists the other activities she is unable to do, or has difficulty carrying out.

Of the medical practitioners, Dr Voon has had the best opportunity of seeing and assessing the applicant since the 1991 injury. He is supportive of her claim and concerned about her condition. In evidence Dr Voon said that the applicant has been consistent with her complaints since 1992 and that her condition has not changed. His opinion is that the applicant suffers from regional pain syndrome associated with carpal tunnel syndrome (T59). In giving his evidence he agreed that it is his role to accept what the applicant, as his patient, tells him about her symptoms, subject to the history being consistent with his examination and clinical findings.
Complaints documented by a treating general practitioner in clinical notes are valuable to an inquiry of the kind conducted by this tribunal. In Dr Voon's case though, there are sufficient errors in his notes and reports to weaken the presumption of their accuracy and objectivity. An example of this is seen in the assessments (T93, p.155; T122, p.208) he made that the applicant had a 10% level of permanent impairment without any reference to his earlier assessment of 30% on 25 November 1995 (T61). Further, in August 1996 Dr Voon had referred to the applicant having "bilateral carpal tunnel syndrome". This, he said, was a typing error, as only the applicant's right arm is affected. The tribunal noted that the paragraph in his report of 23 May 1998 is identical to paragraph 1 of p.2 of his report dated 24 May 1997 (T93). In evidence Dr Voon explained that this had been included in error as a "computer inadvertency". Over time Dr Voon has given varying diagnoses of the applicant's condition. In his clinical notes of 4 November 1991 (Exhibit D), he finds that the applicant is tender in the neck and has pain travelling up the arm and down the palm of the hand. At that time he diagnosed regional pain syndrome. Carpal tunnel syndrome is hardly mentioned until December 1993, and then in the context of regional pain syndrome. By July 1994 (T33) both conditions are diagnosed. In evidence Dr Voon said that he did not investigate the applicant's circulation complaints.
Many other doctors have seen the applicant. What her condition is, whether or not she is suffering from ongoing carpal tunnel syndrome, whether she has ongoing regional pain syndrome and if so, what is its origin or cause, and what is the cause of her neck and shoulder pain, are matters upon which the various examining doctors have differing views.
The nerve conduction study results are the only objective evidence of symptoms. Dr Andrews, in his report of 1 April 1992 (T5), confirms that the applicant had "mild to moderate right carpal tunnel syndrome". He affirmed this diagnosis on 10 February 1994 although the nerve conduction studies revealed normal conduction (T27). In a letter to Dr Chin dated 13 May 1994, Dr Andrews explained that, from the nerve conduction studies, "[t]here does not appear to be any carpal tunnel or other peripheral entrapment" (T31). On 11 October 1996 Dr Andrews concluded, '[t]here is only a very borderline right carpal tunnel syndrome" and that it would not be causing significant symptomatology. He didn't think the applicant suffered any ongoing physical condition and he saw no need for surgical decompression of the carpal tunnel. He certified her "quite fit" to return to her previous employment (T78).
Dr Andrews viewed the video and observed that the applicant had no difficulty with her hands, wrists, elbows, shoulders or neck, and that her mobility appeared to be quite normal. He noted that this correlated well with his other clinical findings and the repeated neurophysiological studies that revealed only "borderline" carpal tunnel syndrome, which was not likely to cause symptomatology (T79).
Dr White, consultant neurologist, believes the applicant suffers from regional pain syndrome, but that the right-sided carpal tunnel syndrome is coincidental to that condition. In his report of 8 May 1998 (T121), he indicated that the applicant's history was "entirely compatible with a diagnosis of regional pain syndrome with her right sided carpal tunnel syndrome being a coincidental event, perhaps possibly a complication of whatever the underlying pathology causing her regional pain syndrome may be." He thought that the applicant was well motivated and that she would eventually be able to return to physical activities which would not provoke further pain. He did not view the video film.
Dr Browne, rheumatologist, in his report dated 7 July 1999 (Exhibit A), diagnosed right carpal tunnel syndrome. He noted that the applicant subsequently developed sensory symptoms in the whole of the right arm, typically occurring at night, which in his opinion produced a clinical picture "highly consistent with median nerve entrapment in the right wrist or carpal tunnel syndrome". He considered the mechanism related to flexor compartment overuse and probable flexor tenosynovitis within the carpal tunnel. He says she remains permanently unfit for her pre-injury duties and is fit for light non-repetitive duties if any are available. However, Dr Browne's diagnosis is not confirmed by the objective neurophysiological studies referred to above. Further, Dr Browne did not have the advantage of viewing the video film.
Dr Iansek, consultant neurologist, in his report of 16 February 1994 (T28), diagnosed carpal tunnel syndrome caused by the applicant's work. He had a history of pain in the right wrist occurring in the 1991 incident. In his opinion the symptoms of carpal tunnel syndrome persisted because the condition was "not treated at her request, in the first instance" and which led to the vicious cycle, which is usually set up once chronic muscle pain is initiated, that tends to perpetuate itself. Dr Iansek considered the applicant may well be exaggerating her symptoms and was at that time capable of more manual tasks to a greater degree than she admitted.
Dr Joubert, consultant neurologist, in his report of 14 March 1996 (T66), was given a history of the applicant having difficulties with grip and picking up small objects. This is not borne out by the video evidence. Dr Joubert was shown the video and, in his report of 19 November 1996 (T81), he regarded the applicant as being able to use her hands for all normal functions, including carrying and holding items, the video revealing no evidence of impairment of function or discomfort. He observed that the applicant was able to grip a pen and write.
Dr Chase, occupational health physician, saw the applicant in early 1992. In his report of 25 June 1992 (T6), he thought she suffered from right carpal tunnel syndrome, but that it was a condition she most likely would have developed whether she was working or not. He thought it was caused by a multiplicity of factors including obesity, age, pregnancy, and other causes including a thyroid problem. The latter condition being a cause is not, however, substantiated on the evidence. Dr Tuck, neurologist, reported to Dr Voon in 1992 that tests revealed normal thyroid function (Exhibit C).
Dr Dunlop, occupational health physician, in his report of 25 September 1993 (T17), recorded a history of right wrist pain in October 1991, and, shortly after, paraesthesia in the fingers of the right hand. In March 1992, he noted from Dr Voon's notes that the applicant was experiencing pain radiating from the right wrist to the right shoulder girdle. He accepted a diagnosis of carpal tunnel syndrome, explaining that such a syndrome generally has a multi factorial basis. In the applicant's case he specified a number of factors which he thought likely to have contributed to her condition, including her work. On Dr Dunlop's recommendation, the return to work program was developed.

Dr Champion, a rheumatologist with a special interest in pain, in his report of 17 June 1999 (Exhibit B), having a history of pain and paraesthesia in the right wrist and hand, accepted that it caused pains up the right arm to the neck by March 1992. He regarded the nerve conduction studies as supportive of a diagnosis of carpal tunnel syndrome. In his report of 17 June 1999 (Exhibit B), he says "[it] has been well established that there is very little proportionality between the degree of conduction block and the intensity of symptoms". In his opinion the return to work in January 1994 made the condition worse, resulting in the applicant's current inability to return to work. He describes the mechanism of the applicant's pain as arising from the spread of the initial symptoms of the right median neuropathy, to her arm and the neck, and leading to chronic regional pain syndrome. He regarded the initial symptoms as significant and said they were "almost certainly neuropathic in that there was a wide spread of electricity like sensation from hand to forearm followed soon by numbness and paraesthesiae". He notes that in time the symptoms became more proximal which, he says is common in that context, and that she went on to experience "a chronic regional pain syndrome (right cervicobrachial) with peripheral neuropathic features (well established carpal tunnel syndrome) and deep secondary allodynia phenomena consistent with central sensitisation of nociception." He explains the cervical spinal pain disorder as likely to be secondary to the right median neuropathy.
Dr Champion notes "[e]ight years have elapsed and there is no trend to improvement". He accepts that the applicant is unfit to work as a cleaner, and unlikely to obtain other work. This prognosis is based upon Dr Champion's acceptance of the applicant's complaints of pain and description of the level of pain. He did not have the advantage of viewing the video film, and of hearing the evidence the applicant gave to the tribunal.
Dr Mellick, consultant neurologist, in his report dated 16 July 1999 (Exhibit 1), says that the applicant reported "pins and needles in the right hand intermittently, as well as pain involving the whole of the right arm and sometimes neck pain". He noted that the symptoms were mostly associated with wet and cold weather and occurred mostly in the day – and occasionally at night, particularly if she sleeps on her right arm. He understood that the onset of these symptoms occurred in 1994 when she returned to work. The applicant gave Dr Mellick a history of the wrist pain from the 1991 incident. In the light of that history Dr Mellick does not relate the wrist pain to the current symptoms which he believes would have occurred in any event. He notes that her current symptoms are very similar to those which were present in the 1994-5 period. In his opinion the symptoms she is experiencing now are not those of carpal tunnel syndrome in the right hand.
Conclusions
The applicant suffered pain in her right wrist in the course of her cleaning work on 21 October 1991. She subsequently experienced pain and paraesthesia in her right hand and, by March 1992, the pain had extended to her arm and into her neck. The respondent concedes that the 1991 incident caused an injury, probably related to the carpal tunnel syndrome, but considers that the injury has now resolved. This accords with Dr Andrews' findings. The repeated nerve conduction studies revealed mild to moderate carpal tunnel syndrome. We accept that the carpal tunnel condition was caused by the injury the applicant sustained at work in 1991, or was materially contributed to by her work as a cleaner with the University of Canberra.
The cause of the spread of pain up in the applicant's arm and her neck in 1992 is not clear. In any event in 1994, when the applicant unsuccessfully returned to work on a graduated return to work program, there was no evidence of carpal tunnel syndrome. The symptoms then complained of by the applicant are more akin to symptoms she complains of now. We accept that the applicant has had continued pain in the right hand, arm, shoulder and neck region. We are satisfied that those symptoms bear no relation to her wrist injury or carpal tunnel syndrome. Apart from the mild carpal tunnel syndrome revealed only by the nerve conduction studies, there is no objective evidence supporting or explaining the symptoms the applicant describes. Dr Mellick concludes that, if the applicant ever had a carpal tunnel problem, it has long since resolved, and that the paraesthesia she has at night cannot be attributed to the 1991 injury or carpal tunnel syndrome.
Taking account of the whole of the evidence and material before us, we conclude that the applicant's 1991 right wrist injury had resolved by 13 May 1994 and that she does not presently suffer from carpal tunnel syndrome. The preponderance of medical opinion is that, whatever the mechanics of the injury in 1991, the effects of that discreet injury ceased by 1994. She suffers from some other chronic pain condition, mainly in her neck and shoulder and upper right arm.
We accept Dr Mellick's finding that the applicant is presently suffering from another condition showing different symptoms which he describes as chronic pain syndrome. The issue then arises as to whether or not the 1991 incident caused, or her work as a cleaner materially contributed to, her current chronic pain condition. As to this the medical experts disagree.
Dr Mellick finds no underlying organic mechanism to explain the chronic pain and he concludes it is a product of the process of somatisation. That finding begs the question of whether the chronic pain is linked with the event of the 1991 injury. We think that is unlikely. On the history of the applicant's complaints and symptoms and particularly the nature of her current complaints, it is also open for the tribunal to conclude that the applicant's chronic neck, shoulder and right arm pain emanates from the minimal disc bulge at C5/6 level shown in radiology taken 3 April 1992 (Exhibit 4). We make no finding as to that possibility.
We note that the applicant appears not to have been completely pain free so far as her right hand and arm is concerned prior to commencing work at the University. Dr Champion, in his report of 17 June 1999 (Exhibit B), notes a history that, prior to 21 October 1991 the applicant had intermittent discomfort, aches and pains in the right upper limb. He attributed these to her work duties, though he did not specify whether he thought this was due wholly or in part to her work with the University which she commenced in 1988, or to her previous cleaning work.
Dr Voon first saw the applicant after the October 1991 incident on 4 November 1991, at which time he diagnosed regional pain syndrome (T8). It is not likely that he would diagnose a chronic disorder so early after injury if he did not think it was a pre-existing condition. Further, it is significant that Dr Voon made a reference to myalgia on 11 June 1988 (Exhibit D). Dr Mellick, in his report of 16 July 1999 (Exhibit 1), notes this. Myalgia is a condition more akin to the symptoms the applicant has complained of since 1994 which complaints have continued to the present.
Those doctors who support the applicant's claim that her current condition is connected with the incident of 1991 or her work generally have accepted the extent of the applicant's complaints. However, by 1996 the video gives a realistic picture of the applicant's daily outdoor activities. We are of the opinion that the applicant is not very restricted in her activities. During cross-examination and faced with the video evidence, the applicant eventually conceded that she had exaggerated her condition in claiming permanent impairment. This admission then opens the possibility of her propensity to exaggerate. None of Dr Champion, Dr Browne or Dr White had the advantage of viewing the video.
The tribunal accepts that the applicant has some arm, neck and shoulder pain and paraesthesia at night in her hand, and possibly some impairment, but concludes that these complaints are unrelated to her work-related wrist sprain injury and possible carpal tunnel syndrome. We are not satisfied that the applicant's current condition is causally related to the injury in 1991, or that her work with the University has materially contributed to her pain condition as and from 13 July 1998.
The tribunal affirms the decision under review.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member, Dr M Miller, AO, Member & Air Mshl IB Gration, AO, AFC, Member
Signed:   .....................................................................................
  Associate
Date/s of Hearing  21 & 22 February 2000
Date of Decision  14 July 2000
Counsel for the Applicant        Mr Hugh Selby
Solicitor for Applicant               Gary Robb & Associates
Counsel for the Respondent    Mr Stuart Pilkinton
Solicitor for the Respondent    Phillips Fox