Polder and Comcare - [2001] AATA 780

DECISION AND REASONS FOR DECISION [2001] AATA 780

ADMINISTRATIVE APPEALS TRIBUNAL )

)          No N2000/379
  N2000/680
  N2000/1883

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ELA POLDER
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member

Date12 September 2001
PlaceSydney

Decision The Tribunal's decision is as follows:

In relation to the reviewable decision in application number N2000/379, the decision is set aside.

The Tribunal substitutes its decision that the Applicant is liable to pay compensation to the Applicant in respect of the injury described by Drs Richter and Champion as cervicobrachial syndrome and the psychiatric condition, "pain disorder associated with both psychological factors and a general medical condition".

The matter is remitted to the Respondent for assessment of any compensation amounts payable to the Applicant under any section of the Act in accordance with this decision.

In relation to the reviewable decisions relevant to applications N2000/680 and N2000/1883, the decisions under review are affirmed.

The Respondent is liable to pay the Applicant's costs associated with application number N2000/379, in accordance with the Tribunal's General Practice Direction.
[Sgd] M J Sassella
Senior Member
CATCHWORDS
WORKERS' COMPENSATION - upper back strain – cervicobrachial syndrome - repetitive use of right arm – repetitive use of keyboard – liability for compensation and ongoing medical treatment – whether conditions have an organic cause – permanent injury – psychiatric condition – whether psychiatric condition is work related - chronic pain disorder
Safety, Rehabilitation and Compensation Act 1988, ss 4(1) "approved Guide", "disease", "impairment", "injury", "permanent", 14(1), 19(1), (2), (3), (4), 24, 27, 28
Re Labi and Comcare (AAT 13560, 21 December 1998)
Re Jeremic and Comcare (AAT 5975, 20 June 1990)
Re Grey and the Commonwealth (1985) 7 ALN N317
Commonwealth Banking Corporation v Percival 82 ALR 54
Johnston v Commonwealth (1982) 150 CLR 331
Re Wood and Comcare [1999] AATA 263
Treloar v Australian Telecommunication Commission (1990) 97 ALR 321

REASONS FOR DECISION

12 September 2001 Mr M J Sassella, Senior Member Dr J D Campbell, Member

The Applications

On 2 June 1997 Ms Ela Polder ("the Applicant") lodged a claim for compensation with Comcare ("the Respondent") in respect of the conditions of "upper back strain pain in r[ight] arm, repetitive action during course of work. Repetitive use of r[ight] arm, repetitive use of keyboard" (T5, folios 6-13).
On 4 March 1998 the Respondent determined that there was no evidence that the Applicant's continuing pain was related to the Applicant's employment (T30, folios 58-59). In reaching this decision the Respondent relied on the reports of Dr Kohan, orthopaedic surgeon, dated 15 January 1998 and Dr Richter, rheumatologist, dated 20 February 1998. The Respondent decided to cease liability for compensation for upper back strain.
An independent review officer of the Respondent reconsidered this decision on 30 October 1998 (T45, folios 83-89). It was found that the Respondent was liable for continuation of compensation for any incapacity experienced by the Applicant and for reasonable medical treatment sought for cervicobrachial syndrome.
On 5 May 1999 the Respondent wrote to Ms Polder notifying her of the decision to discontinue compensation in respect of "an episode of upper back strain" (T50, folio 103). The Respondent relied on the report of Professor Oakeshott dated 19 April 1999 (T49), where he found that there was no physical injury related to the Applicant's employment.
On 15 November 1999 the Applicant lodged a claim for compensation for permanent injury for 10% right upper limb impairment and 5% cervical spine impairment.
On 1 December 1999 the Respondent again wrote to the Applicant notifying her that, in the absence of any further evidence on her behalf, the Respondent was no longer liable to pay her compensation for her claim (T55, folio 116).
First reviewable decision
On 9 February 2000 the Respondent reconsidered this decision in response to a request from the Applicant's solicitors dated 14 December 1999 (T59, folios 129-136). The Respondent affirmed the decision. This reviewable decision is the subject of application N2000/379.
On 16 February 2000 the Respondent wrote to the Applicant's solicitors, notifying them that the Applicant's application for permanent impairment and non-economic loss in respect of "an episode of upper back strain" had been disallowed (T61, folios 140-141).
On 9 March 2000 the Applicant requested a reconsideration of the decision in relation to permanent impairment (T62, folio 142). The Applicant supplied further medical reports by Drs Champion and Dent in support of her application.
Second reviewable decision
On 19 April 2000 the Respondent affirmed the decision of 16 February 2000, refusing the application for permanent impairment (T63). The Respondent preferred the report of Professor Oakeshott to that of Dr Champion where Professor Oakeshott found that the condition was non-organic in nature. The determination noted that Dr Champion's report did not deal with Professor Oakeshott's opinion that the problems were non-organic in nature. The report of Dr Dent was not taken into consideration because there was no claim in respect of any psychological condition. This reviewable decision is the subject of application N2000/680.
Third reviewable decision
There is a third reviewable decision in respect of a claim for permanent impairment related to a psychiatric condition. The reviewable decision was made on 14 December 2000 and is the basis of application N2000/1883. The Respondent appears to have lodged no Section 37 Statement in relation to this application. There was no separate Section 37 Statement for the second reviewable decision because all relevant documents were included in the Section 37 Statement for application N2000/379. That was not so for N2000/1883, however. As best the Tribunal can piece together the events leading to the third reviewable decision, they appear to consist of:

A claim for permanent injury in the form of a letter seeking lump sum compensation for a psychiatric impairment was apparently lodged with the Respondent on 2 May 2000. There is no copy of the Applicant's letter available to the Tribunal. The only claim for permanent impairment in documents available to the Tribunal is T53 relating only to physical injuries. Mr Grey, the Applicant's counsel, provided a chronology to the Tribunal. That chronology refers to only one permanent injury claim, ie T53. The reviewable decision says that the letter of 2 May 2000 purported to claim "permanent impairment compensation for a psychiatric condition, including chronic pain disorder arising out of the upper back strain injury". A formal claim form was apparently lodged soon after.

On 19 October 2000 the Respondent apparently denied liability for a psychiatric condition. This is admitted in the Respondent's reviewable decision but no copy of the documentation relating to this primary decision has been provided to the Tribunal. A copy of the reviewable decision was attached by the Applicant to her application for review of that decision

On 22 November 2000 the Applicant sought a reconsideration of the primary decision. Again, this is admitted in the Respondent's reviewable decision but no copy of the documentation relating to this primary decision has been provided to the Tribunal.

On 14 December 2000 the Respondent affirmed its decision to deny liability for any psychiatric condition of the Applicant. The Respondent referred to the following evidence in its reviewable decision:

T39 – report by psychologist Ms T Citarelli (discussed at paragraph 45 below).

T40 – report by Dr G D Champion, physician (discussed at paragraph 46 below).

T58 – report by Dr M Dent, psychiatrist (discussed at paragraph 58 below).

Exhibit R5 – report by Dr R D Lewin, psychiatrist (discussed at paragraph 65 below).

On 14 December 2000 the Respondent found against the Applicant in the following reasons:

"Dr Lewin opined that the employee had some unresolved issues in relation to the break up of her marriage and the subsequent custody dispute with her former husband. In any event Dr Lewin was unable to find any depressive symptoms or any clinical evidence of anxiety disorder. Further, the doctor found the employee not to be suffering from any psychiatric illness.
"The opinion of Dr Lewin is supported by Dr Dent in that the doctor found that the employee's complaints of a psychological nature arose at approximately the same time as her personal problems. The doctor concluded that the employee has a condition that is the 'effect of anger in protest rather than any formal diagnosis being allowable of any depressive illness'.
"Accordingly, I do not believe that the employee has any condition that is outside the boundaries of normal mental functioning and behaviour. As such I do not believe the applicant is suffering from any psychological condition. Further, I do not believe any psychological symptoms, from which the employee may be suffering, have been caused as a result of her employment with DFAT."

On 18 December 2000 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") and application for review of this reviewable decision.
Background/medical chronology
The Applicant was born 18 March 1968 in the Philippines. Dr Lewin (Exhibit R5) ascertained that her father was a plumber and her mother kept a small business. She was the fourth of seven children. She came to Australia in 1988 and is married with one child. She is currently separated from her husband.
The Applicant was educated to year nine equivalent in the Philippines and left school at the age of 15 (T15, folio 23). She has qualifications in business management and office and clerical skills. She has worked stocking shelves (4-5 months), in sales (one year), as a teacher's assistant (two years), as a clerical worker (one year) and most recently for the Department of Foreign Affairs and Trade ("DFAT") (6 years) (T15, folio 24).
She worked as a passport officer with DFAT as an Administrative Services Officer Level 2 from 1992 until 1999 when she was made redundant (Exhibit A6).
In 1994 she took seven months maternity leave and it was in this year that she began to complain of pain in the right shoulder and right fifth finger (T60, folio 137).
Her pre-injury duties at DFAT included "qualling", data entry, laminating, opening mail, despatching mail, "veroing", allocating, filing/sorting and batching. Post-injury, her duties included only the last three of these (T10, folios 18-22).
On 28 May 1997 Dr Zavras completed a medical certificate for Workcover (T3, folio 4). He stated that the Applicant was unfit to work from "28/5/97 to 9/6/97" due to "upper back strain and pain right arm."
The Applicant commenced physiotherapy treatment at the Eastgardens Physiotherapy Clinic on 29 May 1997 (T4, folio 5).
On 2 June 1997 the Applicant lodged a claim for compensation in respect of back strain (T5, folios 6-13).
On 2 June 1997 Wendy Reece, manager operations section, DFAT, made a statement concerning the Applicant, her pain and distress at work and the fact that she was aware of the Applicant's difficulties at work and at home (T6, folio 14).
On 5 June 1997 the Applicant commenced physiotherapy with Ms K Boothby (T8, folio 16).
On 10 June 1997 Dr Zavras completed a medical certificate for the Applicant, stating that she was unfit for work from 9 June 1997 to 16 June 1997, the diagnosis being "overuse syndrome right arm and neck" (T7, folio 15).
On 2 July 1997 Dr Korber completed a radiological report on the Applicant stating that there was minimal spondylosis at C4/5 and C5/6 with no other abnormality in the cervical spine (T9, folio 17).
On 18 July 1997 Mr D De Silva completed a rehabilitation report on the Applicant (T10, folios 18-22). He provided a detailed account of the Applicant's work duties and provided an assessment of the problems she encountered. Specifically he noted poor back support in her chair, no upper limb support when typing/using a mouse, prolonged and repetitive neck flexion aggravating symptoms, performing duties too rapidly and no systematic or structured return to work.
Dr Zavras provided medical certificates for the Applicant, excusing her from work on 28 July 1997, and from 8 August 1997 to 22 August 1997. He declared her fit for work from 25 August 1997 to 22 September 1997, "with frequent breaks – negotiate with rehabilitation officer". (T11-14, folios 23-26). He noted "increasing pain right arm" and "overuse syndrome".
On 15 September 1997 Iranah Jurkowski completed a rehabilitation report on the Applicant (T15, folios 27-31). She noted that the Applicant started to use her right arm in a repetitive motion more often when new technology was introduced for passport processing. She experiences pain in the right shoulder to the base of the head and ache on right side of her face and neck. This was aggravated by arm movement and walking. The Applicant could not lift her three-year-old daughter and was limited in her domestic activities and self-care because of her pain. It was recommended that the Applicant not remain in a static pose for longer than 15 minutes, reduce her hours to four per day and gradually increase her time at work.
On 15 September 1997 Dr Selecki issued the Applicant with a medical certificate, citing upper back strain and repetitive stress as diagnosis. She was declared fit for work from 22 September 1997 to 13 October 1997, for five hours a day with no repetitive work involving arm movements (T16, folio 32).
On 9 October 1997 the Applicant was issued with another medical certificate from Eastgardens Medical Centre for shoulder pain. This certificate retrospectively excused her from work from 26 May to 27 May 1997 (T18, folio 35).
On 11 October 1997 Dr Selecki gave the Applicant another medical certificate, excusing her from work from 13-17 October 1997 (T19, folio 36).
On 5 November 1997 a rehabilitation progress report stated that the Applicant's return to work was improving due to greater rotation of duties and treatment (T20, folio 37).
On 13 November 1997 Professor Ryan examined the Applicant and reported on this examination on 17 November 1997 (T21, folios 39-40). He stated that the Applicant "has a full range of cervical motion…no upper limb or irritative or compressive neuropathy." Prof Ryan stated that she felt pain behind the right and left ears when she lifted her right and left legs respectively. He stated "I cannot give any underlying physical explanation [for these symptoms]".
In a rehabilitation progress report of 17 December 1997 (T22, folio 41) it was stated that Dr Selecki had increased the Applicant's work hours to 5.5 a day, four days a week.
On 15 January 1998 Dr Buan provided the Applicant with a medical certificate, stating that she was fit for work from 16 January 1998 to 15 February 1998 (light duties, four days per week) citing upper back pain and repetitive strain as the diagnosis (T23, folio 43).
On 15 January 1998 Dr Kohan reported on the Applicant's condition (T24, folio 44). He stated that she was complaining of pain in the right shoulder, radiating to the neck, and pain radiating down the right upper limb. Acupuncture had helped these conditions. She wears eye protection at work to protect herself from a bright light that was introduced in 1995. He diagnosed soft tissue pain syndrome, affecting right upper limb.
On 27 January 1998 Dr Richter, rheumatologist, diagnosed the Applicant as suffering from cervicobrachial syndrome caused by overuse of her arms (T26, folio 52).
On 5 February Dr Khor recommended an electroanalgesia machine for the Applicant (T27, folio 53).
On 20 February Dr Richer again reported on the Applicant (T28, folios 54-55). He suggested work modification as the major treatment of the condition. She had full range of movement of the cervical spine with no localised tenderness.
On 3 March 1998 a rehabilitation progress report notified that the Applicant would be on leave from 29 January 1998 to 3 March 1998 (T29, folio 56).
On 4 March 1998 the Applicant was notified that compensation would be discontinued (T30, folio 58). Her condition was not considered related to her employment.
On 12 March 1998 Dr Crumlin gave the Applicant a medical certificate granting her sick leave from 15 January 1998 to 15 March 1998. She was diagnosed as having cervicobrachial syndrome (T34, folio 60). He stated on 7 April 1998 that she was fit for work from 7 April 1998 to 7 June 1998, working only a five hour, four day week with a five minute break every 45 minutes (T34, folio 63).
Also on 7 April 1998, another rehabilitation progress report was completed on the Applicant (T35, folio 64). Dr Crumlin referred the Applicant to Dr Champion.
On 17 April, in a letter to the Respondent, Dr Richter confirmed and explained his diagnosis of cervicobrachial syndrome (T36, folio 66).
On 30 April 1998 the Applicant's rehabilitation program was closed (T38, folio 68). The Applicant returned to work on increased hours, but still fewer hours than pre-injury.
On 14 May 1998 Ms C Citarelli reported on the Applicant (T39, folios 70-73). She reported that the Applicant was histrionic, distressed and showed disorganised communication. She had severe depressive symptoms. The Applicant also displayed dissatisfaction with her employer for a perceived lack of support and she felt isolated and stigmatised because of her condition.
On 6 July 1997 Dr Champion provided a report on the Applicant (T40, folios 74-78). He diagnosed cervicobrachial pain disorder with pain referral…to her right side of thorax. She has cervical spinal pain syndrome with somatic referred pain – "overuse syndrome". He stated that the condition arose "clearly…in the course of repetitive work." He believed that the Respondent should accept liability.
The Applicant was declared fit for work on 4 July 1998 from 5 July 1998 to 5 August 1998. She was said to be for three days per week for telephone work mainly (T41, folio 79).
Dr Crumlin prepared another medical certificate on 8 September 1998 (T43, folio 81), declaring the Applicant fit for work from 5 October to 5 December 1998, three and half days a week.
On 30 October 1998 the Respondent accepted liability for compensation, varying the decision of 4 March 1998 (T45, folios 83-89).
On 24 March 1999 a rehabilitation closure report was completed by Mr L Davids (T48, folios 93-94). He stated that because of changing technology in the passport office, requiring more keyboard-based work, which would be detrimental to the Applicant's condition, the Applicant had applied for a voluntary redundancy.
On 19 April 1999 Professor Oakeshott examined the Applicant (T49, folios 95-102). He found no objective clinical signs of injury or underlying pathology. He found no organic basis for her symptoms. As further treatment he recommended no further treatment. He found no physical reason why she could not work full-time without restrictions. Prof Oakeshott refuted the diagnosis of cervicobrachial syndrome, finding no evidence of the condition at the consultation.
In May 1999 the Applicant separated from her husband and moved with her daughter to Artarmon (T58, folio 121).
Based on the Oakeshott report mentioned above, the Respondent, on 5 May 1999, informed the Applicant that it intended to cease liability (T50, folio 103).
On 28 May 1999 the Applicant was examined by Dr Bleasel, neurosurgeon (T51, folio 104). He found a "direct causal connexion [sic] between the work she was doing and the injuries sustained…"
On 1 December 1999 the Respondent wrote to the Applicant, notifying her that, in the absence of any further evidence on her behalf, it was no longer liable to pay her compensation for her claim (T55, folio 116).

On 6 December 1999 Dr Champion argued in favour of a 10% impairment in relation to the cervical spine and for upper limb function, following the Comcare tables 9.6 and 9.4 respectively (T56, folio 117).
On 14 December 1999 the Applicant lodged a request for reconsideration of her claim for compensation (T57).
On 11 January 2000 Dr M Dent, consultant psychiatrist, provided a report on the Applicant (T58, folios 119-128). He stated that she was suffering from a "clear diagnosis under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th edition) ("DSM-IV") of…chronic pain disorder…one with both psychological features and a general medical condition." Dr Dent recommended treatment at the chronic pain disorder unit at Royal North Shore Hospital. He considered that a 10% level of impairment under Comcare table 5.1 for psychiatric conditions was appropriate.
On 14 December 1999 the determination of 1 December 1999 was affirmed by the Respondent (T59).
On 11 February 2000 Dr Richter provided a report, containing a prognosis "for the pain to persist" (T60, folios 137-139). He found a 20% impairment of the right arm. His diagnosis was cervicobrachial syndrome caused by neuropathic pain. He found a causal connection between the employment and the injuries sustained.
On 16 February 2000 the Respondent disallowed the Applicant's application for permanent impairment and non-economic loss, "as [the Applicant] does not suffer from a condition which is related to her employment" (T61, folios 140-141).
On 9 March 2000 the Applicant requested a reconsideration of the above determination (T62). She provided reports of Dr Champion and Dr Dent in support of the application.
On 19 April 2000 the Respondent affirmed the decision of 16 February 2000, refusing the application for permanent impairment (T63). The Respondent preferred the report of Professor Oakeshott to that of Dr Champion where he found that the condition was non-organic in nature. The determination noted that Dr Champion's report did not deal with Professor Oakeshott's opinion that the problems were non-organic in nature. The report of Dr Dent was not taken into consideration because there was no claim in respect of any psychological condition.
On 6 June 1999 Dr Crumlin provided a report on the Applicant's condition (Exhibit A4). She stated that the Applicant "suffered a long-term injury to her neck and shoulder related to her previous clerical duties." She also found that it affected the Applicant's ability to carry out domestic duties.
On 28 July 2000 the Applicant was examined by Dr Lewin, consultant psychiatrist (Exhibit R5). The Applicant stated that she returned to full time work after her maternity leave against her wishes. She found the conflict between mothering and work difficult. The pain symptoms that she felt towards the end of her pregnancy resolved completely during maternity leave. At the time of examination the Applicant was not reporting any pain symptoms. The Applicant spoke about "bitching" in the office and how she felt that people did not believe her complaints of pain. She also said a great deal over the breakdown of her marriage and disputes over custody. "Mrs Polder dated the onset of her complaints to the time when her husband started to flirt with her friends." Dr Lewin diagnosed no psychiatric or psychological condition. He stated that the symptoms "are…the result of emotional conflict", "there is no incapacity related to work" and "she does not require any medical treatment".
On 3 August 2000 Dr Bornstein, orthopaedic surgeon, reported that the Applicant is "in absolutely no discomfort whatsoever" and has a full range of movement (Exhibit R1). He stated that there is no objective evidence that the Applicant has any disability and that she is capable of carrying out any employment for which she is equipped. Dr Bornstein stated that "cervico brachial disorder" is "not a medical diagnosis and is meaningless" He assessed her as having zero impairment in regard to both tables 9.6 and 9.4.
On 4 August 2000 Dr McGill, consultant rheumatologist, found no impairment in relation to table 9.6 or 9.4 (Exhibit R3). He stated that her comments in regard to her relationships were in the "paranoid sphere" and that the Applicant required psychiatric intervention. He further found that "there is no abnormal physical condition" and "there is no condition related to her former work." Dr McGill stated that her carpal tunnel syndrome was more likely related to her pregnancy than to her employment. He assessed a nil rating under the Comcare permanent impairment tables (Exhibit R4).
On 14 March 2001 Dr Richter again reported on the Applicant (Exhibit A3). He stated that the Applicant started to feel paraesthesia in 1996 and from 1994-95 she had difficulty washing her baby because of the pain. The diagnosis he arrived at was of cervicobrachial syndrome caused by neuropathic pain. He stated a prognosis of the pain persisting and the cause as substantially contributed to by her employment. "I have never seen this pain arise other than by employment."
Relevant legislation
The following provisions from the Safety, Rehabilitation and Compensation Act 1988 are relevant: ss 4(1) "approved Guide", "disease", "impairment", "injury", "permanent", 14(1), 19(1), (2), (3), (4), 24, 27, 28.
"Section 4 Interpretation
4. (1) In this Act, unless the contrary intention appears:
…
approved Guide means:
(a) the document, prepared by Comcare in accordance with section 28 under the title "Guide to the Assessment of the Degree of Permanent Impairment", that has been approved by the Minister and is for the time being in force; and
(b) if an instrument varying the document has been approved by the Minister-that document as so varied;
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
…
permanent means likely to continue indefinitely;
…"
"Section 14 Compensation for injuries
14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…"
"Section 19 Compensation for injuries resulting in incapacity
19. (1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula:
  NWE - AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to earn in suitable employment.
(3) Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation:
(a) where the employee is not employed during that week-of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment;
(b) where the employee is employed for 25% or less of his or her normal weekly hours during that week-of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings;
(c) where the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week-of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 85% of his or her normal weekly earnings;
(d) where the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week-of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 90% of his or her normal weekly earnings;
(e) where the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week-of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 95% of his or her normal weekly earnings; and
(f) where the employee is employed for 100% of his or her normal weekly hours during that week-of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 100% of his or her normal weekly earnings.
…
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment-the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer-the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment-the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition-the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment-the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee-whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
  (g) any other matter that Comcare considers relevant.
…"
"Section 24 Compensation for injuries resulting in permanent impairment
24. (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a) the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000."
"Section 27 Compensation for non-economic loss
27. (1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
           ($15,000 x A) + ($15,000 x B)
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
Section 28 Approved Guide
28. (1) Comcare may, from time to time, prepare a written document, to be called the "Guide to the Assessment of the Degree of Permanent Impairment", setting out:
(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.
(2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
(3) A document prepared by Comcare under subsection (1), and an instrument under subsection (2), have no force or effect unless and until approved by the Minister.
(4) Where Comcare, a licensed authority, a licensed corporation or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or
the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensed authority, the licensed corporation or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide.
(5) The percentage of permanent impairment or non-economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1) (c) may be 0%.
(6) In preparing criteria for the purposes of paragraphs (1) (a) and (b), or in varying those criteria, Comcare shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non-economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed.
(7) When a document prepared by Comcare in accordance with subsection (1), or an instrument under subsection (2), has been approved by the Minister, Comcare shall cause copies of the document or instrument, as the case may be, to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives those copies.
(8) Comcare shall make copies of the "Guide to the Assessment of the Degree of Permanent Impairment" that has been approved by the Minister, and of any variation of that Guide that has been so approved, available upon application by a person and payment of the prescribed fee (if any).
(9) Sections 48 (other than paragraphs (1) (a) and (b) and subsection (2)), 49 and 50 of the Acts Interpretation Act 1901 apply in relation to a document, being the approved Guide or an instrument varying or revoking that Guide that has been approved by the Minister, as if, in those sections, references to regulations were references to such a document and references to a regulation were references to a provision of such a document.
(10) For the purpose of the application of the provisions of the Acts Interpretation Act 1901 in accordance with subsection (9), a document referred to in that subsection shall be taken to have been made on the date on which it was approved by the Minister under this section."

Hearing and appearances

The Tribunal convened a hearing in Sydney on 28-29 March 2001. Mr Leo Grey of counsel represented the Applicant. Mr Grant Elliott of counsel represented the Respondent.
The Tribunal had before it the following documentary material:

Exhibit TD1 – Section 37 Statement and associated documents, 2 May 2000.

Exhibit A1 – Report by Dr G D Champion, physician, 27 June 2000.

Exhibit A2 – Report by Dr M Richter, rheumatologist, 11 February 2000.

Exhibit A3 – Two reports by Dr Richter, 14 March 2001.

Exhibit A4 – Report by Dr E Crumlin, general practitioner, 6 June 1999.

Exhibit A5 – Clinical notes by Ms L Chin.

Exhibit A6 – Applicant's statement of facts and contentions, 15 December 2000.

Exhibit R1 – Report by Dr D Bornstein, orthopaedic surgeon, 3 August 2000.

Exhibit R2 – Single page report by Dr Bornstein, 3 August 2000.

Exhibit R3 – Report by Dr N W McGill, rheumatologist, 4 August 2000.

Exhibit R4 – Single page report by Dr McGill, 4 August 2000.

Exhibit R5 – Report by Dr R D Lewin, psychiatrist, 7 August 2000.

Exhibit R6 – Report by Dr Lewin, 12 December 2000.

Exhibit R7 – List of Comcare payments.

Exhibit R8 – Clinical notes, Prince of Wales Pain Management Unit.

Exhibit R9 – Report by Dr M Hogg, provisional fellow in pain management, 8 March 2000.

Exhibit R10 – Applicant's leave records from Department of Foreign Affairs and Trade.

Exhibit R11 – Determination issued by Medical Tribunal of New South Wales concerning Dr M R H Dent, 15 November 2000.

Exhibit R12 – Medical records, Eastgardens Medical Centre.

Exhibit R13 – X-ray report by Dr W K Wong, 7 July 1997.

Exhibit R14 – X-ray report by Dr C Levitt, 17 September 1997.

Exhibit R15 – Respondent's statement of facts and contentions, 18 December 2000.

Findings on material questions of fact with reference to the evidence and other material in support of those findings

From these applications the Applicant is seeking the following outcomes:
Compensation for the cost of her treatment expenses (Exhibit A6). (The Tribunal notes that she may also have some entitlement to incapacity payments if she succeeds in this application.) Success in this endeavour requires the restoration of liability for compensation under s 14 of the Act.

Compensation for permanent impairment in respect of injuries to her neck, back, and right and left upper arms (Exhibit A6).

Compensation for permanent impairment in respect of psychiatric injury or disease (application number N2000/1883).

The issues raised in respect of the desired outcomes are:

Issue 1 – Has the Applicant suffered an injury that has resulted in incapacity for work or an impairment (s 14(1) of the Act)? If the answer is yes then liability for compensation arises under s 14 of the Act.

Issue 2 – The answer to issue 1 depends on whether the Applicant has suffered an injury. This depends on whether the Applicant has had a disease, or an injury (other than a disease) being a physical or mental injury, or an aggravation of a physical or mental injury, arising out of, or in the course of, the Applicant's employment (s 4(1), definition of "injury", the Act).

Issue 3 – The answer to issue 1 also depends on whether the Applicant has lost, lost the use of, damaged, or had malfunction of, any part of the body, or any bodily system or function or part of such system or function (s 4(1), definition of "impairment", the Act).

Issue 4 – If the answer to issue 1 is yes, can the Applicant be compensated for medical expenses under s 16 of the Act?

Issue 5 – If the answer to issue 1 is yes, has the injury to the Applicant resulted in permanent impairment in accordance with s 24(2) of the Act (s 24(1) of the Act)?

Issue 6 – If the answer to issue 5 is yes, is the Applicant entitled to compensation under ss 24(3)-(7) and s 27 of the Act?

The Tribunal will proceed to make findings in relation to these issues.
Issue 1 – Has the Applicant suffered an injury that has resulted in incapacity for work or an impairment (s 14(1) of the Act)? If the answer is yes then liability for compensation arises under s 14 of the Act.
On the basis of the findings made in answer to the questions raised under issues 2 and 3, the Tribunal finds that the Applicant has suffered both physical and mental injury which has resulted in impairment and possible incapacity for work.
Issue 2 – The answer to issue 1 depends on whether the Applicant has suffered an injury. This depends on whether the Applicant has had a disease, or an injury (other than a disease) being a physical or mental injury, or an aggravation of a physical or mental injury, arising out of, or in the course of, the Applicant's employment (s 4(1), definition of "injury", the Act).
It appears from T25 that the Respondent accepted liability as a result of the Applicant's claim for "upper back strain pain in right arm, repetitive action in course of work" (T5, 2 June 1997), however the Section 37 documents do not include a document as to such a decision. In T25 the Applicant records that on 28 May 1997 the Respondent decided to support her with treatment and rehabilitation. It is unclear how this ties in with the Applicant's later date of claim. In any event, on 30 October 1998 (T45) the Respondent decided in a favourable reviewable decision that "The weight of the medical evidence supports the conclusion that the employee is suffering a cervicobrachial syndrome or disorder, which is related to her employment." At that stage, therefore, the parties were in agreement that the Applicant had an injury as required under the Act.
Of course, the difficulty for the Applicant is that on 1 December 1999 the Respondent decided that it was no longer liable to pay compensation in respect of the Applicant's claim (T55). The reasons were based on a report by Professor Oakeshott (T49) who wrote, "at today's clinical examination, I could not identify any physical injury or underlying pathology in relation to her neck, shoulders or arms that would affect her ability to work without restrictions indefinitely. However, her ability to perform her normal duties is affected by her attitude and motivation." He continued, "at today's clinical examination, I could not identify any physical injury or pathology that was caused at work on or after 1992. I consider that her present symptoms are related to non-organic (non-injury) causes. I doubt whether these non-organic causes related to any condition at work. They are not related to any physical injury." In a reviewable decision dated 9 February 2000 (T59) the Respondent affirmed the primary decision for similar reasons. At the present time the Applicant says she has an injury under the Act. The Respondent says that she does not.
The Applicant has also claimed for a psychiatric injury under the Act. The Respondent has never accepted liability for this alleged injury (application N2000/1883, copy of reviewable decision). Liability was denied on 19 October 2000.
Ms Cittarelli, a psychologist, assessed the Applicant as suffering from chronic musculo-skeletal pain related to overuse (T39).
Dr Champion on 6 July 1998 (T40) diagnosed the Applicant as follows, "Mrs Polder has a complex regional right cervicobrachial pain disorder with pain referral also to the region of her right side of thorax. There are musculoskeletal and neuropathic components to this disorder. An important feature is a cervical spinal pain syndrome with somatic referred pain to the right suprascapular region. There appears to be a peripheral neuropathic component with abnormal mechanosensitivity of the right median nerve in the carpal tunnel and abnormal responses to brachial plexus stretch testing. In addition, she has a pattern of convincing deep secondary allodynia/hyperalgesia implying central sensitisation of nociception. Overall, the symptoms, complex and signs are highly characteristic of a work related cervicobrachial disorder, also called overuse syndrome. The disorder clearly, according to the history, arose in the course of repetitive work as part of her employment."
Dr Dent (T58) assessed the Applicant as suffering "chronic pain disorder", with both psychological features and a general medical condition.
Dr Lewin (Exhibit R5) found no evidence of a depressive disorder or of an anxiety disorder and stated that there was no psychiatric illness present at the time of his examination.
The Tribunal, therefore needs to make findings as to whether the Applicant on 1 December 1999 still suffered from a physical injury, whether any such injury is continuing and/or whether she suffers from a psychiatric injury.
As regards the presence of a physical injury, the evidence, especially after December 1999, is as follows.
Dr Champion (T56) on 6 December 1999 diagnosed occupational cervicobrachial disorder resulting from the nature and conditions of employment. He had not seen her since 6 July 1998. In Exhibit A1, dated 27 June 2000, Dr Champion, commenting on Professor Oakeshott's inability to identify any pain disorders in the Applicant allowed that "there may well have been significant improvement" (since July 1998). In fairness to Dr Champion and the Applicant it should be recorded that he also suggested that the nature of Professor Oakeshott's examination may have blinded him to any disorder. He also considered that Professor Oakeshott's dismissal of cervicobrachial syndrome as a diagnosis that could possibly exist demonstrated Professor Oakeshott's bias.
Dr Richter (T60 and Exhibit A3) on 11 February 2000 and 14 March 2000 prognosticated that the Applicant's pain would persist. She had cervicobrachial syndrome caused by neuropathic pain. There was a connection between the Applicant's work and her injuries. He had never seen that pain arise other than by employment.
Dr Bornstein (Exhibit R1) on 3 August 2000 reported that the Applicant was in no discomfort whatsoever and had a full range of movement. There was no objective evidence of any disability. She was capable of carrying out any employment for which she was equipped. He commented that cervicobrachial disorder is not a medical diagnosis and is meaningless.
Dr McGill (Exhibits R3, R4) on 4 August 2000 found no abnormal physical condition and no condition related to her former work. Her carpal tunnel syndrome was more likely related to her pregnancy than her employment. Although the Applicant demonstrated slightly restricted neck movement to the right (90% of normal) there was no evidence of any physical disease limiting her neck movement. The Applicant in cross-examination refused to accept this finding by Dr McGill. At the same time she suggested that her neck was mobile because the problem was with her muscles, not her bones. Reports of spinal x-rays seen by Dr McGill had been normal.
Dr McGill gave evidence by telephone at the hearing. In evidence in chief Dr McGill indicated that he was aware of the term cervicobrachial syndrome. He said it described the syndrome of pain in the arm associated with pain in the neck or derived from the neck. He went on to say that he does not think that there is a cause of cervicobrachial syndrome. He said the words sound fancy that they really stand for someone reporting pain in the arm which is either associated with pain in the neck, or the doctor or the person doing the assessment thinks that it may be coming from the neck. Mr Elliott asked Dr McGill the following question, "Do you believe the contention that such a syndrome being caused by physical injury is one that the majority of the medical profession in this country would accept ?" Dr McGill responded:
"Well, there are physical injuries that can cause a problem in the neck resulting in pain in the arm but I don't think there's any doubt that that occurs. In terms of whether people can suffer a physical injury to the neck that is not visible, you know not detectable by tests, that causes pain in the arm. I think that can occur as well. In terms of whether the normal activities or ordinary activities can produce a lesion in the neck that causes pain in the arm, no I don't think that's true." (Transcript, 29 March 2001)

Dr McGill proceeded to say that he did not see cervicobrachial syndrome as a diagnosis. He saw it has a label used to describe a pattern of symptoms. He also said he did not believe that the Applicant had any condition present relating to her work.
Dr McGill was dissatisfied that Dr Richter had suggested that Dr McGill has no experience in relation to chronic pain. Dr McGill said, "It's the field of a clinical rheumatologist to deal with musculo-skeletal pain all day every day so that's incorrect. In terms of being familiar with people presenting with painful syndromes in the absence of organic-in the absence of any physical pathology that's also a very common scenario in any clinical rheumatologist's practice. Fibro-myalgia which is the description given to people presenting with musculo-skeletal pain in the absence of a physical disorder accounts for about 20 to 30 per cent of rheumatology referrals in the surveys to have been done covering rheumatologists in general. The concept of chronic pain is a key central issue in rheumatologist practice and that's what I do, I'm a clinical rheumatologist." (Transcript, 29 March 2001)
Dr McGill described his method of examination when he saw the Applicant. He was aware that the Applicant reported allodynia. He did not agree with Dr Richter that percussion allodynia helps above all other forms of examination. It was put to Dr McGill that at various times since mid-1997 the Applicant has reported pain in her right hip, right sole of foot, in her lower limbs, in the eye area, in her jaw, in her cheeks, in the face, in the left shoulder, in her chest and in her abdomen. Dr McGill was asked whether those sorts of symptoms fit a classical rheumatologist disorder known as cervicobrachial syndrome. Dr McGill responded by saying that they do not fit a diagnosis of cervicobrachial syndrome, that they fit a diagnosis of fibro-myalgia. He went on to say, "people with psychological distress which can be of a range of types of psychological distress, depression, anxiety and other psychological stresses will present with pains in a variety of places and they're often inconsistent in terms of the pain moves around and so that the description of pain occurring in many places is in keeping with pain derived from psychological distress and that's given the label fibro-myalgia. Characteristically in the condition people report tenderness in areas where there's no physical abnormality." (Transcript, 29 March 2001)
Dr McGill did not feel from the Applicant's history that the particular types of duties that the Applicant was doing at her work were likely to be a cause of any rheumatology condition in the Applicant. The only possibility that he could see was that her carpal tunnel syndrome may have been temporarily aggravated by her work activities. However, she had reported that there was no change in her carpal tunnel syndrome when she ceased work and on that basis it seems unlikely that her work duties played any role in her carpal tunnel syndrome. As for the Applicant's generalised other symptoms, Dr McGill did not believe that her work had any relationship to them.
In his medical report at Exhibit R3 Dr McGill commented that during his examination of the Applicant he conducted palm reflection and it resulted in the Applicant wanting to "crack her jaw" for relief. Dr McGill commented in his evidence that such a reaction is not a feature of organic disease and that it is the sort of response that people with psychological distress may report. He said it is a bizarre response. It could not be explained on any physical basis.
Dr McGill agreed with the proposition that it is a common experience that people attribute the cause of a particular feature of the situation where they feel pain and that that attribution may not be correct. Dr McGill said that many persons, if things go wrong, look for a reason why it has happened and look for a reason outside themselves as to why it has happened. He said it is absolutely the norm with people presenting outside the compensation setting that they have a tendency to attribute their symptoms to something, and it is almost always something external that they attribute the symptoms to. That does not mean that their attribution is correct.
In cross-examination Dr McGill agreed with Mr Gray that he is not of the school of thought that says "that one can have as a result of repetitive work the production of central sensitisation of nociception which results then in the experience of pain in the peripheral of the arms and so on". (Transcript, 29 March 2001) Dr McGill agreed that there are some rheumatologists who agree with the notion of central sensitisation but he thinks that there are more who do not agree with the notion. He commented that three or four years ago at a meeting of the Australian Rheumatologists Association a vote was taken and the vote was clearly in favour of people not believing that central sensitisation occurs.
Dr McGill told Mr Grey that the pattern of the Applicant's pain was not consistent with the pain having a source in her neck. He said that in terms of her psychological disturbance, that was the comments that she spontaneously made that he was referring to and he did not think that they were minor or insignificant. He said that he had recorded the comments that she reported. He recorded that she finds her current symptoms distressing and he attributed these symptoms to her psychological state rather than seeing them as in any way connected with work activity.
Mr Grey questioned Dr McGill extensively in an effort to ascertain whether, in his view, the Applicant was reporting symptoms which were a genuine concern to her. At one stage Mr Grey asked following question:
"So when this lady complained to you as she did that she wasn't just feeling distressed but she felt pain in the right neck, the right shoulder blade area, the right shoulder and she had headaches in the back of her head when she felt stress, she had pain in the neck which could be relieved by exercises, it's far to say isn't it that as far as you know that was a genuine statement about what she felt?"

Dr McGill responded:

"Yes I'm not-you know and my previous answer was only meant to agree with that. All I was adding is that the concept of pain versus distress, I mean the word 'pain' is one that's commonly made by people who have psychological distress and you know it's an adequate description as long as we don't think that it represents the same experience that someone with an arthritic joint trying to walk across the room feels. I mean they're probably different sensations and I make that comment on the basis of if you observe the people they react differently to that sensation. Now, I don't think it's possible for any of us to be sure of that." (Transcript, 29 March 2001)

Dr McGill said that when the Applicant told him that she had pain in her right neck, her right shoulder blade and her right shoulder, part that she was reporting only distress.
Dr McGill was definite too in his evidence that a person, such as the Applicant, who is suffering from what he would diagnose as fibromyalgia, is best advised to return to work. Experience has shown that sufferers of fibromyalgia improve with work, even if in the early stages the symptoms appear to worsen. Dr McGill agreed with Mr Grey that any return to work program involving a person such as the Applicant would need to be somewhat graduated. Tribunal Member Dr Campbell asked Dr McGill if there was any reason to think that the Applicant was other than genuine in explaining her symptoms to him. Dr McGill said that he thought that she had genuine distress.
Dr Richter (Exhibit A3) commented on 14 March 2001 that Dr McGill did not examine the Applicant for chronic pain and that he most likely has no experience in that area. He criticised Dr Bornstein in that Dr Bornstein apparently did not look for any evidence of neuropathic pain.
Dr Richter gave evidence by telephone at the hearing. He said that he had seen the Applicant three or four times since first meeting her on 27 January 1998. He had last seen the Applicant in October 2000. He confirmed that his diagnosis was of cervicobrachial syndrome. He said that this syndrome is in the scientific literature. He referred to the report by Dr Bornstein which is in Exhibit R1. Dr Richter found that report surprising. He commented that Dr Bornstein had probably not looked up cervicobrachial syndrome up in the literature. He spoke of the syndrome and referred to the "cervicobrachial insertion". He said this is an area where there is a multitude of pain fibres. These occur where the muscle inserts. Dr Richter referred to his report of 11 February 2000 (T60). In that report he had referred to neuropathic features such as allodynia. He commented that these observations suggest that there was nerve damage rather than muscle tendon insertion damage. Dr Richter was questioned about the Applicant's "bizarre constellation of symptoms". He replied that such a constellation of symptoms is commonly found where a doctor is not experienced with conditions such as cervicobrachial syndrome.
Mr Elliott exposed Dr Richter to somewhat rigorous cross-examination. Mr Elliott raised with Dr Richter the possible connection between the Applicant's carpal tunnel syndrome and tenosynovitis on one hand and her pregnancy on the other hand. Dr Richter was prepared to concede that pregnancy can cause carpal tunnel syndrome but he did not accept that it could cause tenosynovitis. He did accept, however, that tenosynovitis can occur after the birth of the child and seems to be caused by events after the birth. Dr Richter proceeded to suggest that there was a likely alternative hypothesis and that was that the Applicant had an overuse type syndrome which, for whatever reason, settled and what then followed was neuropathic pain. Thus, he said, she could have had a cervicobrachial syndrome caused by her neuropathic pain.
As regards his theory that it was Ms Polder's return to repetitive work that worsened her symptoms, Dr Richter conceded that perhaps he did not have full details of the repetitive nature of the tasks involved, however in his experience cervicobrachial syndrome has no cause other than a work-related factor. Mr Elliott suggested that it would make more sense to consult the clinical notes of doctors whom she did see at the appropriate time. Dr Richter did not accept this proposition unconditionally. He commented that it depends on the doctor taking the history. A doctor not used to dealing with chronic pain syndrome might miss issues in taking a history.

Mr Elliott put to Dr Richter that the Applicant's symptoms which occurred in the space of two or three months in mid-1997 went way beyond any classical description of cervicobrachial disorder. Dr Richter did not agree with this. He said that the explanation could be that she had chronic pain input from her arms which was then beginning to affect other parts of the body as well, and once the pain went centrally there would be a spread of pain which could then begin to appear to involve other areas of the body as well. He said he had seen people who have features of a neuropathic pain also in the legs, who first presented with it in the arms. This is because the person starts getting a spread of the messages which pain sets up to the central nervous system. Those messages suggest pain coming from many sites and it is recognised that the pain can spread, even though there is not actually a problem in that left arm, or maybe the left leg, or the abdomen, but this is partly related to the spread of chronic pain. They have pain. The person has not merely manufactured the reported pain.
Dr Richter did not accept Mr Elliott's proposition that this sort of widespread reporting of symptoms raises real questions about the reliability of the patient's account. Mr Elliott asked, "You don't seriously say, do you doctor, that a cervicobrachial syndrome could account for pain in the sole of the foot, do you?" Dr Richter answered,
"Yes, I do. Yes, I have no problems with the spread of pain. This is-it is recognised that in pain literature that this is a possibility that you can get pain which is being input from one side is now leading to what appear to people to be pain from other parts of the body as well due to the spread so, no, I don't regard these people as nuts.... I would certainly examine the sole of the foot and I'd certainly look for other sources of the pain, but because it is not for the GP fitting into anatomical distribution I don't say that this pain is-this person is therefore manufacturing it and I certainly feel-regard-I mean, if I had a patient with the diagnosis of neuropathic pain which caused-is part of the cervicobrachial syndrome and was also complaining of pain in the foot and I could examine the foot and find also consistent features sometimes of neuropathic pain, I don't say: look, you are making that up, it's not - that's not true." (Transcript, 28 March 2001)

Dr Richter went on to explain that practitioners such as those in the area of pain medicine examine using the technique of percussion allodynia in a quest for hyperalgesia. It became a theme in his evidence that doctors who do not accept the existence of cervicobrachial syndrome tend not to engage in this type of examination. Dr Richter's point of view was that patients find it difficult to manufacture symptoms of allodynia because they do not know what the correct answer is to particular facets of an examination.
Dr Richter was challenged with the proposition that cervicobrachial disorder is a controversial diagnosis in medical circles and is accepted only by a minority of experts in the field. It was put to Dr Richter that the Australian College of Physicians in 1988 released a statement about repetitive strain injury and occupational overuse syndrome. The College stated that diagnoses of this type should not be made in the absence of recognisable pathology. It was put to Dr Richter that a majority of rheumatologists would not accept the existence of cervicobrachial syndrome. Dr Richter was not prepared to concede those matters. He commented that if Mr Elliott were to attend a pain conference he would not be able to say what he had just said. Those at the conference might say that pain specialists are a rare group of people and that there are not many of them around. However, said Dr Richter, if you were to talk to pain specialists you would find they have no difficulty in recognising that there is acceptance of the existence of a syndrome such as cervicobrachial disorder.
Mr Elliott put to Dr Richter that on 27 January 1998 (T26) he had commented on amended work arrangements for the Applicant and had said that they were likely to be satisfactory at that time. Despite this, said Mr Elliott, the Applicant had still complained that she was having problems of the type she had described before. Mr Elliott asked Dr Richter how he could explain the discrepancy between his opinion and the Applicant's work problem. Dr Richter said that once a person has this condition it does not mean that the condition is just going to suddenly go away when repetitive tasks cease. Once the condition has occurred then there is a lower threshold for developing pain with any sort of repetitive activity.
Mr Elliott asked Dr Richter if he regarded Ms Polder as having any capacity to work. Dr Richter responded by saying that she could work if she could find jobs which do not require repetitive use of the arms. For example if she was in sales, or she had a system where she did not have to repetitively use her arms, then there was a possibility. He said that experiments need to be tried. He said that anyone who goes into chronic pain is not an easy person to live with and this in itself might create marital disharmony. Mr Elliott then queried an apparent assumption on the part of the witness that the Applicant had not been provided with rehabilitation. Dr Richter agreed that he had no real knowledge of the rehabilitation that had been offered to the Applicant.
At the end of his cross-examination Mr Elliott suggested to Dr Richter that when he says that he sees a lot of people with this condition and that he believes that it cannot be said the condition does not exist, that is purely subjective opinion on Dr Richter's behalf. Mr Elliott suggested that his opinion was a minority opinion at that. Dr Richter responded by saying:
"You can suggest that. I mean, I am recognising it as seeing it and I know that I recognise the pattern recognition of what these people present with them, what their findings are in examination and that's where you produce every time I see them. So it's not something which is a figment of their imagination of a figment of my imagination that it exists. The fact that we can' t do an investigation to prove is just something which unfortunately we just don't have the tools to do it but what you said in suggesting is that I'm treating a condition which is in my head and that's certainly is not my PHD, I' m doing scientific based research. I'm aware of what science is all about. It is not just not accepting this condition because it's convenient to pay my wages. There's more to it than the that." (Transcript, 28 March 2001)

Mr Grey re-examined Dr Richter. He asked Dr Richter for more information about cervicobrachial disorder. Dr Richter explained the mechanics again in the following way:
"Well, once it gets into the spinal cord and then heading up into the central nervous system, you are starting to get the possibilities that these messages are being sent by chemicals and, therefore, these chemicals can - when they are relying messages-can be picked up by other parts as well, so you can actually get this spread to involve...."

Mr Grey interrupted by saying, "so is it the case then that, in effect, it can cross over to nerve fibres that make the brain think the pain is coming from other parts of the body?" (Transcript, 28 March 2001) Dr Richter said yes. He went on to say that that does not indicate there is any pathology in those parts of the body.
Tribunal Member Dr Campbell asked Dr Richter to comment on the fact that the Applicant had demonstrated to the Tribunal a range of movements that she does during hydrotherapy exercises which involved extensive movement of both upper limbs in all directions. Dr Campbell said it looked as if she was moving through a fairly full range of movement. Dr Richter suggested that she may be able to perform such movements because they were one-off movements. They were not repetitive activities.
Dr Hogg, provisional fellow in pain management, (Exhibit R9) on 8 March 2000 wrote that Ms Polder had been doing well in the pain clinic. Pain in her shoulders had significantly improved. She had a good range of movement in examination on 8 March 2000 and had no tenderness in her right shoulder. He discharged her from the pain clinic while prescribing medication that she might gradually reduce to phase out.
There was considerable oral evidence from the Applicant pertaining to the period prior to the cessation of Comcare's liability. For the purposes of the present inquiry much of this is irrelevant. However, the Applicant's evidence about her history in 1999 and later is worth considering. On 21 May 1999 the Applicant accepted voluntary redundancy from DFAT. She said that she accepted redundancy because she was embarrassed working in the passport office because of the pain she was experiencing. Her husband opposed her taking the redundancy. The Applicant looked after her daughter. She found herself disabled in almost everything she did including combing her daughter's hair, reading to her daughter, playing with her daughter, walking to the park, preparing food, washing, tidying toys, vacuum cleaning, cleaning floors, collecting her daughter from school, pushing her daughter's stroller and holding an umbrella. The Applicant rested as much as possible after the redundancy. She decided whether to leave her husband. She chose to seek a divorce. He did not want her if she could not work. Thus, she rested, saw friends, shopped with her daughter. The pain remained but was less serious than when she worked. She stopped treatment for a time. She swam and did exercises undirected. She stood to demonstrate her exercises to the Tribunal and showed a considerable freedom of movement in her arms. She had massages and went for walks. She took prescribed medications. She worked voluntarily as a teacher's aid at her daughter's school but found it difficult to pin items to the wall so she stopped in the third semester. In 2000 she commenced hydrotherapy. It "makes [her] feel even stronger". She has two sessions a week.
The Applicant described her current symptoms as an ache in the shoulder blade, an ache in her arm and an ache in her neck. The pain reduced after hydrotherapy. The shoulder blade pain is a deep, pulling pain. The arm pain is an ache. The wrist and hand have "deep aching". The neck feels like it is being pulled to her right ear. She confirmed with her counsel that her pains in sites other than her upper right body region stopped in about February 2000. However, she later told Mr Grey that her only real persistent problem is in her shoulder.
In cross-examination the Respondent's counsel sought to suggest that she had not complained to any extent of pain in 1996 when she said that her shoulder blade pain first came on. The Applicant refuted this. However, as was said earlier, there seems no direct dispute between the parties until events leading up to the Respondent's decision to cease liability in December 1999. The point of counsel's approach may have been to suggest that Ms Polder's physical difficulties were never substantial. The Applicant and Mr Elliott also disagreed as to whether there was a genuine variety in the tasks required of the Applicant in the passport office. There appears to have been a variety, however the Applicant insisted that on any one day she was confined to one particular task. By 1997, the Applicant agreed, she was performing a range of functions each day but she then complained of over-work. She considers that she was required to do too much keyboard work.
In cross-examination Mr Elliott put to the Applicant that, contrary to some of her evidence, she had been able to move her hands freely in the Tribunal witness box. The Applicant replied that this was because she was not at work.
In cross-examination Mr Elliott relied on materials from the Prince of Wales Pain Management Clinic (Exhibit R8) to connect Ms Polder's symptoms in October 1997 with her unhappy marital situation. Her husband had kicked her in the thigh in April 1997. The police had been called and an apprehended violence order taken out. She had placed a caveat on the title to prevent her husband from selling the marital home. The Applicant's husband had been charged and found guilty of assault. The Applicant's husband was of the view that the Applicant should not be resting. He said she was lazy and should be helping him to dig in the garden. The marital relationship had suffered from the time when the Applicant became pregnant as her husband had wanted the Applicant to continue working. Despite this the Applicant had told Dr Bleasel (neurosurgeon, 28 May 1999, T51) that she had a happy marriage. She explained to counsel that the notes in Exhibit R8 painted a grimmer picture than she believed to be accurate. She had felt too that things had begun improving when her husband began to accept that she had pain. He said he was sorry he had not believed her.
The Applicant told Tribunal Member Dr Campbell that she takes the anti-depressant, Nortriptyline, every second day. She has not taken painkillers since ceasing her work as teacher's aid. She told him also that her right shoulder pain is constantly present. It can be worse if she has no rest or if she engages in "lots of activity". The weather does not affect it, however swimming in cold weather can increase the shoulder pain. She discussed eye symptoms with Dr Campbell. She has eye pain, especially in the right eye, from reading for an extended period and she finds that it hurts if she presses above the eye.
The Applicant, in fact, described various bizarre symptoms, some of which have been ventilated earlier. These included a report by Dr Ryan in 1997 that straight leg raising during an examination caused the Applicant to have pain behind her ears.
The Tribunal finds that the Applicant suffers from cervicobrachial syndrome or fibromyalgia or some other disease of indeterminate characterisation. The ICD-9 recognises cervicobrachial syndrome as attracting code number 723.3.
Mr Grey cited to the Tribunal the earlier decision in Re Labi and Comcare (AAT 13560, 21 December 1998), a case involving an applicant with a condition described in somewhat similar terms as Ms Polder's. In that case Senior Member M D Allen and Member Dr J D Campbell quoted in paragraph 24 the remarks of Deputy President Todd in Re Jeremic and Comcare (AAT 5975, 20 June 1990):
"... The condition nevertheless remains something of a mystery, but when all is said and done I believe the evidence of the applicant and accept the other evidence called on her behalf as to the existence of pain, there is very little assistance that can be gained from medical evidence which if accepted at its full stretch involves the conclusion, although it seems never to be fully acknowledged by such doctors that this is so, that a claimant is in truth what they would call a 'malingerer', a word which I take to mean someone who is contriving symptoms that do not exist. Once I accept, on the evidence and from my own observations of an applicant, that the pain is real, evidence based on the proposition that a condition does not exist because it cannot be medically diagnosed is in my opinion of limited value."

The Tribunal in Labi (supra) proceeded to state in paragraph 25:
"That pain itself can be a disease, as that term is defined in s. 4 of the SRC Act, is not controvertible. As was pointed out by the Tribunal in Re Grey and the Commonwealth (1985) 7 ALN N317):
'The failure to observe pathology or the perception of different pathology is also irrelevant in determining incapacity. In Commonwealth Banking Corporation v Percival 82 ALR 54 at 57, a full bench of the Federal Court (presided over by Davies J) referred to a submission that Commonwealth of Australia v Beattie (1981) 53 FLR 191 had been wrongly decided, and that the disease of which the old Act spoke was constituted by its underlying pathological condition and not by the symptoms thereof. The Court referred to this as "a brave submission"'. It went on to say –
"No doubt, for many medical purposes, it is useful and often necessary to distinguish between the underlying pathology of a disease and mere symptoms of the disease. For some legal purposes, eg s 104(2) of the Act, the distinction is also pertinent. See Johnston v Commonwealth (1982) 150 CLR 331 at pp 341-3. But that is not to say that the symptoms of the disease are not part of the disease. It is indeed fundamental to compensation law that a symptom of an injury or disease is a part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity."

To counter the Labi decision (supra), Mr Elliott referred the Tribunal to Re Wood and Comcare [1999] AATA 263 which dealt with fibromyalgia. However, in that case the Tribunal did accept that the applicant suffered from fibromyalgia (see paragraph 9). The applicant failed in that case because the Tribunal because the Tribunal was unconvinced that her condition was as serious as she asserted. The Tribunal also held that the condition was not work-related. That case is not authority to the effect that fibromyalgic-type conditions are not capable of being injuries under the Act.
The Tribunal was impressed by Dr McGill's clear evidence that he accepted that the Applicant was suffering from genuine distress, a description he preferred to straight out pain. In the Tribunal's view, if it was distress that the Applicant was suffering, it manifested in the form of physical pain.
The Tribunal finds that the Applicant's work history contributed, at least to an extent, to the Applicant's condition. This flows from the Respondent's acceptance of liability in the early stages and from the plentiful medical evidence that accepts a connection. The Tribunal found some of the evidence suggesting a connection between the Applicant's pregnancy and certain of her symptoms fairly convincing, however the effects of the pregnancy should, on the medical evidence, have abated long ago. The Applicant worked after the birth of her daughter. It is reasonable to accept that her presence at work at that time played some part in the continuation of her symptoms. The Tribunal was also impressed by the evidence of the marital discord between the Applicant and her husband. It is feasible that it was this discord which contributed to her symptoms. However, the Tribunal finds it difficult to exclude all reference to her previous employment as a contributing cause of her problems. This is especially so given Dr Richter's repeated evidence that he has never seen a cervicobrachial syndrome arise in any context outside work.
The Tribunal notes, however, that on the Applicant's own evidence, by February 2000 she had symptoms in only the upper right part of her body.
The Tribunal has also to consider whether the Applicant suffers from any mental injury arising out of or in the course of her employment. The medical evidence on this matter consists of the following. Professor Oakeshott (T49) saw the origin of the Applicant's symptoms as non-organic. He recommended a treatment plan avoiding medical and paramedical interventions. He recommended psychological consultation concerning the Applicant's attitude and motivation to work. These were her only problems in his view.
Dr Dent (T58) diagnosed the Applicant as suffering from chronic pain disorder under DSM-IV. Indeed, his description was for condition number 307.89, "pain disorder associated with both psychological factors and a general medical condition". Dr Dent relied on Dr Champion to identify the "general medical condition" involved. Dr Champion agreed with Dr Richter that the Applicant suffers from cervicobrachial syndrome. Dr Dent went on to say,
"From my viewpoint, there is a description of some depression clearly evident and particularly in the earlier stages; this commented upon by [Ms Polder] but also in those reports I have perused. However, from my viewpoint what is now evident is more the affect [sic] of anger and protest, rather than any formal diagnosis being allowable of any depressive illness.... The psychological features of anger in relationship to her perception and circumstances are now her[e] being reinforced by her being in the sick-role and the perception of herself in that sense, where her daughter's attitude towards her I think also affirms that - and I emphasise I am not in any way being pejorative; one should also emphasise that this diagnosis indicates there is no element of Factitious Disorder or malingering in any way evident."

Dr Lewin (Exhibit R5) found on 28 July 2000 that the Applicant was reporting no pain symptoms. She complained of bitching in the office and that no one believed her complaints of pain. She was also greatly exercised by her marital breakdown and custody disputes. However, in Dr Lewin's view, there was no psychiatric or psychological condition. Her symptoms result from emotional conflict. She has no work incapacity and requires no medical treatment.
The Applicant's own oral evidence before the Tribunal was that she did not believe that she has a psychiatric disorder.
Dr McGill (Exhibit R3) considered that the Applicant's comments as regards her relationships were in the paranoid sphere and that she required psychiatric intervention. Dr McGill is, of course, a rheumatologist, so his views on psychiatric issues are less cogent than those of specialist psychiatrists.
The Tribunal is inclined to prefer the opinion of Dr Dent in this instance. The Tribunal has found that the Applicant genuinely experiences pain, in accordance with Dr McGill's assessment, although the Tribunal is somewhat unclear as to the diagnostic tag to be attached to that pain. As Dr Lewin found the Applicant asymptomatic, his conclusion is probably flawed. The Applicant has consistently mentioned to those whom she has consulted about her family disruption and the scepticism of those in DFAT about her condition. Both of these phenomena seem to contribute to the Applicant's condition of pain disorder associated with both psychological factors and a general medical condition. This would appear to qualify as a "disease" under s 4(1) of the Act, and such a disease is an "injury" under the same section if "contributed to in a material degree by the employee's employment by the Commonwealth". As the full Federal Court said in Treloar v Australian Telecommunication Commission (1990) 97 ALR 321 at 328, "The causal connection [between the disease and employment] must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small". The Tribunal took into consideration the Applicant's own assessment that she has no psychiatric disorder, however the Tribunal takes the view that the Applicant's own insights were a less reliable guide than the objective assessment of Dr Dent and, arguably, the assessment by Dr McGill.
The Tribunal acknowledges the Respondent's submissions to the effect that Dr Dent's opinion should be discounted because he has been removed from the register of medical practitioners in New South Wales (Exhibit R11). The basis of Dr Dent's problems was apparently the conduct of sexual relations with at least one patient. There was also some attempt at later deception when the allegations were investigated. Serious as such matters are in their context, there is no reason to believe that anything untoward occurred in Dr Dent's dealings with Ms Polder or that his report is anything other than an honest report by a competent medical practitioner. The report on its face appears a serious, responsible effort which, with some allowances for doubtful English expression, made sense to the Tribunal.
The Tribunal therefore finds that the Applicant suffers from a mental injury that arose out of or in the course of her employment in that her employment made a material contribution to the psychiatric disease that constitutes the injury.
Issue 3 – The answer to issue 1 also depends on whether the Applicant has lost, lost the use of, damaged, or had malfunction of, any part of the body, or any bodily system or function or part of such system or function (s 4(1), definition of "impairment", the Act).
On the basis of the Applicant's own evidence her only lingering physical disability is in her right shoulder. This is the location of the pain condition found by the Tribunal to exist. In the Tribunal's view the Applicant has sustained a malfunction of a part of the body. The Tribunal therefore finds that the Applicant has suffered an impairment of a physical nature under s 4(1) of the Act.
The Tribunal also finds that the Applicant has suffered a malfunction in her mental function as an incident to its finding that she has suffered a mental injury. The Tribunal therefore finds that she has suffered a mental impairment in addition to her physical impairment.
Issue 4 – If the answer to issue 1 is yes, can the Applicant be compensated for medical expenses under s 16 of the Act?
The answer is yes. Under s 16(1) of the Act, because the Applicant has suffered injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it is reasonable for her to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
There is no decision before the Tribunal for it to review involving a refusal to pay any particular sum by way of the Applicant's medical expenses.
Issue 5 – If the answer to issue 1 is yes, has the injury to the Applicant resulted in permanent impairment in accordance with s 24(2) of the Act (s 24(1) of the Act)?
The major issue here is whether the Applicant's impairments are permanent. Section 24(2) of the Act requires that regard be had to the following matters in assessing permanence:
duration of the impairment;

likelihood of improvement in the employee's condition;

whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

any other relevant matters.

In Ms Polder's case, the impairment emerged about six years ago, according to her evidence in chief. She told Dr Richter in T28 that she had pain in her shoulder and a finger as early as 1994 when pregnant. Dr Champion (T40) thought pain commenced in 1993. In any event, it seems that the Applicant has right shoulder pain from as early as 1993 and certainly from late 1995. It is unclear how long the Applicant has suffered from her mental impairment, however she saw Dr Dent in January 2000 and it was established by then.
As regards the likelihood of improvement, in relation to the physical aspects of the Applicant's injury, Dr Richter in oral evidence said:
"… the pain seems to ease down as they reduce the work conditions and then they try and go off in a different direction and it just comes back, so I usually warn people that: beware, that although this pain may settle, if you then start to try and going back into repetitive-type workplace that it will come back, and people often come back and say: yes, you're right, it's come back again. So even though they have received all their compensation and they have tried to get out and rehabilitate themselves, it just becomes a permanent situation." (Transcript, 28 March 2001)

This would suggest that the pain is permanent in that it is likely to continue indefinitely (as per the definition of "permanent" in s 4(1) of the Act). However, the Tribunal notes several matters to the contrary. First, the Applicant's reported areas of pain have reduced in recent years. If her condition is work-related this improvement could reflect the beneficial effects of her time away from work. It could also reflect some benefit from her work with the pain management unit. Second, when Dr Dent's report (T58) is considered, he recommends a pain management program that he considers would be beneficial. He wrote, "The reality is that without this form of treatment the likelihood is she will remain at her present sub-optimal degree of recovery indefinitely in to the future, compared with a very good expectation of substantial relief from modalities of treatment one is recommending". He had some doubt as to the degree of improvement that could be expected in the foreseeable future but he certainly foresaw improvement.
In Ms Polder's case, the connection between her psychiatric condition and her physical pain symptoms is so close that it should perhaps come as no surprise that therapy for one condition seems likely to assist the other condition. The Tribunal is conscious of Dr Richter's assessment that cervicobrachial syndrome cases are never cured. However, he saw the recurrence of pain as caused by a patient's return to pre-injury work. There is no suggestion here that the Applicant will return to any type of repetitive work. There would appear to be a significant likelihood of improvement in Ms Polder's condition.
The Tribunal notes that Dr Dent recommends a different pain management course from that in which Ms Polder was engaged. While he considered her then current program useful, in his view it was more likely that a course run by the University of Sydney at the Royal North Shore Hospital would be more beneficial (T58). This may suggest that the answer in relation to the third item for consideration in s 24(2) of the Act, the extent of rehabilitation undergone, should be in the negative. The sense of Dr Dent's opinion is that the Applicant's interlocking physical and psychiatric conditions has not stabilised because further improvements can be expected if she undergoes certain treatment at the Royal North Shore Hospital.
The Tribunal therefore finds that the answer in relation to issue 5 is no, the Applicant's impairments are not permanent under the Act. The Applicant's condition has improved in recent times. The prognosis is that it can improve further.
Issue 6 – If the answer to issue 5 is yes, is the Applicant entitled to compensation under ss 24(3)-(7) and s 27 of the Act?
The answer in relation to issue 5 was no. The Applicant is therefore not entitled to compensation under ss 24 and 27 of the Act.
Conclusion
The Tribunal has found that the Applicant has suffered work-related injury. This injury has both physical and psychiatric manifestations. The Respondent is therefore liable to compensate the Applicant under s 14 of the Act.
It appears that the Applicant was receiving incapacity payments when the determination under review as part of application number N2000/379 took effect. The implications of the Tribunal's decision are that those payments should have continued for as long as the Applicant could establish an incapacity for work of a total or partial character.
If the Applicant can show that she has had medical treatment generating s 16 compensation she is entitled to compensation under that section also. In view of Dr Dent's opinion, and the Tribunal's findings that Ms Polder's impairments have not stabilised, it would be curious if she could not qualify for payment of compensation in accordance with s 16 of the Act. The Applicant may be able to claim compensation under other sections also.
However, she is not entitled to compensation for permanent impairment under ss 24 and 27 of the Act because her condition may improve within the foreseeable future and has not stabilised.
Decision
The Tribunal's decision is as follows:
In relation to the reviewable decision in application number N2000/379, the decision is set aside.

The Tribunal substitutes its decision that the Applicant is liable to pay compensation to the Applicant in respect of the injury described by Drs Richter and Champion as cervicobrachial syndrome and the psychiatric condition, "pain disorder associated with both psychological factors and a general medical condition".

The matter is remitted to the Respondent for assessment of any compensation amounts payable to the Applicant under any section of the Act in accordance with this decision.

In relation to the reviewable decisions relevant to applications N2000/680 and N2000/1883, the decisions under review are affirmed.

The Respondent is liable to pay the Applicant's costs associated with application number N2000/379, in accordance with the Tribunal's General Practice Direction.

I certify that the 154 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  28-29 March 2001
Date of Decision  12 September 2001
Counsel for the Applicant  Mr Grey
Counsel for the Respondent  Mr Elliott