QX05/6 and Comcare
[2005] AATA 946
•29 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 946
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/283
GENERAL ADMINISTRATIVE DIVISION )
Re QX05/6 Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member P McDermott
Dr KP Kennedy, MemberDate29 September 2005
PlaceBrisbane
Decision
The Tribunal sets aside the reviewable decision of the respondent on 4 March 2004 which affirmed a determination on 2 October 2003 and substitutes the decision that the applicant has no entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 in respect of the period 18 October 2003 to the present date.
...................[Sgd]........................
P McDermott
Senior Member
CATCHWORDS
COMPENSATION - compensation claim under Safety Rehabilitation and Compensation Act - repetitive strain injury – whether injury further compensable – decision affirmed.
ADMINISTRATIVE LAW: - tribunal unable to affirm a nullity.
Safety, Rehabilitation and Compensation Act 1988 ss 16, 19
Rosillo v Telstra Corporation Ltd [2003] FCA 1628
REASONS FOR DECISION
29 September 2005 Senior Member P McDermott
Dr KP Kennedy, Member
Introduction
1. In 1984 Comcare commenced paying compensation to the applicant for a repetition strain injury that was sustained in 1983. In 2003 Comcare made a determination that the applicant is no longer incapacitated for work as a result of the injury. We have to decide whether the applicant is still incapacitated for work as a result of the injury.
Reviewable Decision
2. On 2 October 2003 Comcare determined that it was no longer liable to pay compensation to the applicant under s16 and s 19 of the Safety Rehabilitation and Compensation Act 1988 (the Act). The determination took effect from 18 October 2003. Comcare affirmed that determination on 4 March 2004. The applicant seeks to review that decision.
Original Determination Accepting Liability
3. On 17 0ctober 1984 Comcare accepted liability for the applicant’s “repetition strain injury” with a deemed date of injury of December 1983 (T30, folio 90).
4. Subsequent to 1984, the applicant was seen at intervals by various medical practitioners and other health professionals. Periods of rest, rehabilitation and modified work practices were arranged over the following three years but all attempts to return the applicant to regular work proved to be unsuccessful, as she complained that upper limb pain would recur within a short time of recommencing duty.
5. In 1985 Dr Baddeley a Darwin Orthopaedic Surgeon had considered the correct diagnosis to be chronic left lateral epicondylitis which he felt would probably have existed without her employment but conceded that persistent typing may have been an aggravating factor. He felt that there were then few contra-indications to her employment although she might experience some minor discomfort with persistent typing. He did not consider that she was incapacitated for her previous work (T42, folio 108).
6. On 12 August 1986, Dr Lyn Reid a General Practitioner expressed the view that it was not the repetitive strain injury that was preventing the applicant from working but her conviction that she was unable to work (T55, folio 132).
7. On 10 February 1988, Dr Anthony Millar, a Sydney Specialist Physician, gave the opinion that the applicant was suffering from an overuse syndrome due to repetitive work and expressed the view that the effects were of a temporary nature which could reasonably be expected to cease within 5 to 10 years overall (T98, folio 215)
Evidence Of Applicant
8. In June 1987 the applicant ceased work, left Darwin and moved to Sydney. She stated that she had moved to Sydney for financial reasons because she was no longer able to work because of her recurrent disability.
9. The applicant has not worked since that time and compensation payments had continued until the Comcare determination of 18 October 2003.
10. In the course of her evidence in chief, the applicant contended that the Department had been negligent in the handling of her case. She said that she had been ridiculed by her superiors and claimed that the Department would not listen to her problems.
11. The applicant claimed that she had been called a malingerer and a liar at her workplace. She had brought her problems to the attention of various changing personnel officers over a period without success.
12. The applicant said that she was emotionally fragile at the time but that if she defended herself she was regarded as belligerent. She also stated that other clerks had made judgments about her and vindictive reports had been prepared.
13. During the cross examination of the applicant she was referred to a report dated 4 May 1984 prepared by Ms Helen Buchanan, a Physiotherapist (T18). In that report Ms Buchanan had stated that the applicant had given a history of insidious pain onset about 4 months previously when doing heavy physical work at home. Later in the report the physiotherapist recorded that the strain injury had been initially caused by lifting rocks and concrete blocks but aggravated by typing. In her response to that report, the applicant claimed that she had in fact only been lifting small things in the yard and not heavy blocks or rocks.
14. In a letter that was written by the applicant to Commonwealth Employees’ Compensation on 26 November 1987 [T95], the applicant had stated that the pieces were not very large, being probably no more than 3 or 4 kilos apiece.
15. The applicant was presented with a report of Dr Douglas dated 30 January 2003, in which he had commented that the thickening of the skin on the palmar surfaces of each thumb was consistent with some form of manual work (T126, folio 268). The applicant said that the changes were due to housework. She also said that the lack of any muscle wasting in the upper limbs was due to the fact that she had continued regular exercises as advised.
16. In her written statement [Exhibit A1], the applicant stated that she continues to suffer pain as a result of the repetitive strain injury and that while her injuries had improved over time her fine motor movements remain affected. She further stated that when she undertakes activities which require such skills then she suffers pain, spasms and cramping in her hand, sometimes immediately and sometimes some hours later.
17. The applicant states that she continues to suffer from a burning sensation in her forearms with her left arm being worse.
18. The applicant also said that she suffers spasms in both hands after lifting or carrying as little as one to two kilos after a few minutes. She is unable to type or write for long periods of time. After 15 minutes writing the pain cycle starts. Her left hand feels like it has been crushed, this feeling lasts for several hours and she starts dropping things if her hand is not rested.
Medical Evidence
19. The first medical witness was Dr Kathleen Bankhead who has been the applicant’s General Medical Practitioner since 1997. Dr Bankhead had also provided a written report dated 26 February 2003 (T128). Dr Bankhead is based at the Albany Care Medical Centre and copies of the clinical notes of the Albany Care Medical Centre were also made available.
20. Dr Bankhead in her evidence confirmed that she held to the views expressed in her written report. In that report Dr Bankhead recorded that the applicant had suffered a Repetitive Strain Injury in 1982-1984 although she recorded that typing had not been a large component of her job. Dr Bankhead suggested that in all probability the applicant had excelled in typing with exceptional speed and accuracy although no where in the records has such a suggestion been made. Dr Bankhead also made a number of assumptions about the applicant’s workplace at the time in question which she related as fact. She also stated that it was probable that when the applicant had returned to work for four hours per day, that both Workcover and the Department had failed in their duty of care to the applicant
21. Dr Bankhead considered that the initial damage had caused chronic damage to tendons (adhesions) and to the muscles (shortening and lengthening with fibrosis) and to the nerves (adhesions in the sheaths of brachial plexus and the brachial nerves). She then claimed that these poorly treated problems had led to a permanent Chronic Pain Syndrome in the left arm, neck and shoulder girdle.
22. In the course of her evidence, Dr Bankhead said that based on the applicant’s work trial there was no work that she can do. Dr Bankhead regarded her as totally disabled.
23. During her cross-examination Dr Bankhead pointed out that none of the three medical specialists who had examined the applicant over the last 2-3 years had found any abnormality on physical examination and none of the three had been able to make a diagnosis on the basis of her symptoms and their findings. This included Dr Coyne to whom Dr Bankhead had referred the applicant. Dr Bankhead said that there could be microtrauma to tendons and nerves with micropathology and micro–scarring with the absence of physical signs.
24. Dr Bankhead noted that Dr Coyne had seen the applicant at only one period in time and expressed the view that: “Specialists do tend to have tunnel vision towards their own specialty, and they cannot see outside of the tunnel”. She disagreed with the failure of the specialists to make a diagnosis. In relation to the applicant she said that the more time she puts into movement the more pain she will have. She could manage well perhaps one day or two days but on the third day she might not be able to function at all according to Dr Bankhead.
25. Counsel for Comcare brought to the attention of Dr Bankhead that although the applicant had seen her on a number of occasions since 1997, there had been no reference to the neck or shoulder or arm until June 2000. Dr Bankhead claimed that the failure of the applicant to mention this earlier had been due to her embarrassment because of the treatment that she had previously received from Comcare.
26. A review of the clinical records of the Albany Care Medical Centre not only confirms that no mention had been made of symptoms referable to the shoulder, neck or left upper limb prior to June 2000 but at the time in June 2000 no reference was made to the symptoms experienced in earlier years.
27. The next reference to upper limb symptoms was recorded in the clinical notes in September 2000. On that occasion it was recorded that the applicant had fallen on both knees and elbows in the shower. She complained of pins and needles in both arms and a diagnosis of cervical spondylosis was made and the applicant was reassured.
28. In August 2002 the applicant attended the Medical Centre in relation to an operation on her toe and it was recorded that she had RSI and was unable to work but no complaint relative to RSI was recorded. On 9 January 2003 when she attended with a complaint of burning feet and swollen ankles, it was recorded that the respondent required a report. On 15 January 2003 it was recorded that material for the report had been obtained from the patient and on 4 February 2003 there were some X-ray reports, a record of a brief musculoskeletal examination and further reference to a report for Workcover. There was no notation to indicate that the applicant had attended that day complaining of any symptoms relative to her current claim.
29. The only other reference to her left upper limb in the clinical notes was on 15 March 2002 when the applicant was seen by a Doctor Damodar complaining that her left arm had got twitchy and pulsating and that she was worried that she might have blocked vessels in her arm. By the time of the consultation, the symptom had settled and she was reassured.
30. In seeking information from Dr Bankhead, one of the questions put to Dr Bankhead in the letter from Comcare dated 27 August 2002 was:
“For each symptom please advise
(i) when the symptom was first complained of;
(ii) whether the description of the symptom has changed since that time;
(iii)whether the symptom has been complained of at each subsequent attendance.”
31. Dr Bankhead replied that the symptoms had remained unchanged since 1985. In relation to 22(iii) Dr Bankhead stated that symptoms had been complained of on 23/06/2000, 14/09/2000, 08/ 2002, 11/01/2003 and 04/02/2003.
32. The applicant had also seen a Chiropractor, Dr Louis Zylstra, at various intervals since 1995. The notes of Dr Zylstra were obtained on summons. Dr Zylstra was not called to give oral evidence. Although the Tribunal finds much of his notes difficult to interpret, it is clear that only a smaller proportion of the visits related to her neck and left upper limb while the majority of visits had related on separate occasions to virtually any part of her musculoskeletal system.. He has recorded at various times upper back pain, lower back pain, thoracic pain, hip pain, lower limb pain, groin pain, ankle pain, headache, foot pain and other symptoms involving the lower limbs.
33. While the applicant appears to have seen Dr Zylstra at approximately monthly intervals between 1995 an 2003, subsequent to March 2003 she did not see him for 6 months and subsequent to October 2003 she did not attend for 9 months. When she did see him at the end of the 9 months in July 2004, it was because of neck and shoulder symptoms following a fall – apparently a mower accident.
34. The applicant at her request had also been assessed by a Physiotherapist, Mr David Roberts of Bundaberg on 19 and 20 January 2005. Mr Roberts had provided a written report and he also gave evidence by telephone.
35. Mr Roberts reported that he had conducted an upper limb functional evaluation. He did not find any reduction in her range of movement. He found that she could perform fine motor movements but that there was evidence of inability to perform tasks over a period of time. There was evidence of greater fatigue on the left side. During cross examination he said that the applicant had come to him to obtain assistance with her claim. He agreed that under these conditions there could be a capacity to show greater weakness either consciously or subconsciously. He also agreed that developing fatigue over time could be influenced by poor physical condition.
36. The first medical specialist to give evidence was Dr Terry Coyne who is a registered specialist Neurosurgeon. Dr Bankhead had originally referred the applicant to Dr Coyne in December 2003. Dr Coyne also issued a further written report dated 17 November 2004 and he gave evidence by telephone.
37. Dr Coyne reported that on examination, there was no abnormality detected in relation to examination of the cervical spine, shoulders or upper limbs. He was unable to offer a specific diagnosis for her symptoms. In his report of 17 November 2004, he reported that on the basis of the applicant having reported that symptoms had persisted without significant change since their onset, it appeared that her current condition was essentially the same as that which had originally accepted as compensable. When cross examined, he said that if the history given by the applicant was wrong, then he would change his opinion.
38. The next medical witness was a specialist physician, Dr William Douglas. Dr Douglas is also a specialist rheumatologist. Dr Douglas had provided a written report dated 30 January 2003 and a further report dated 3 March 2003. The latter report was in response to the report of Dr Bankhead. Dr Douglas also gave evidence in person.
39. Dr Douglas reported that he was unable to find any organic explanation for the applicant’s disability. His only abnormal finding was a suggestion of chronic muscle tension around the base of the neck, extending into both trapezii muscles of a non-specific nature. He did not consider that finding to be in any way related to her work with the Department of Employment and Youth Affairs. He was unable to provide any specific diagnosis to explain her symptoms. He believed that the condition for which the respondent was liable would have ceased shortly after December 1986.
40. In February 2003 Dr Douglas was sent a copy of the report of Dr Bankhead, to which reference has already been made. During his evidence, Dr Douglas disagreed with Dr Bankhead on a number of issues. He did not agree that the applicant has neuropathic pain or a chronic pain syndrome. He also disagreed with her theory that RSI is associated with pathological changes in the tendons, muscles and nerves of the arms. He indicated that biopsies in the 80s involving thousands of people had failed to reveal any pathology in those diagnosed with RSI. He did agree with Dr Bankhead that the applicant does carry some feelings of anger and he suggested that this anger may manifest itself as increased muscle tension around her neck and shoulders.
41. During cross-examination the applicant suggested to Dr Douglas that her original symptoms had not settled because she had received inappropriate treatment at the time. In reply, Dr Douglas referred to the fact that she had had physiotherapy for about 12 months, which she did not deny, and further he said that based on what she had told him and what he had read, she had received appropriate treatment.
42. The final medical witness was a specialist neurologist, Dr John Cameron. Dr Cameron had provided a written report dated 28 October 2004 and he also gave evidence in person. Dr Cameron reported that the applicant had poor shoulder and neck posture but a full range of neck movements. He could not detect any neck spasm. She demonstrated fluctuating weakness and “give” in both upper limbs particularly on the left. With encouragement her strength appeared normal. He noted that findings on examination were not always reproducible.
43. Dr Cameron also reported that he had been unable to find any underlying medical condition on examination. There were in his opinion some features of a non-organic disturbance. He did not consider that her current condition had been caused by her employment. He also indicated that he found it difficult to attribute her original complaints to her working activities. Further, he considered that the applicant was capable of doing fulltime work in her normal duties as an employment officer.
44. During his evidence in chief, Dr Cameron said that there was no scientific basis for the suggested pathology included in the report of Dr Bankhead. Dr Cameron said that one cannot cause injury to tissues with typing although one can get temporary discomfort. Further he emphasized that soft tissue injuries do heal naturally.
Review of Evidence
45. The three medical specialists who have examined the applicant were unable to diagnose any current organic condition and no specialist was of the opinion that the applicant currently has evidence of a repetitive strain injury. Having regard to the fact that no organic condition could be diagnosed, it is also relevant to note that no claim was made that the applicant might suffer from a psychiatric condition arising out of her work with the former Commonwealth Employment Service.
46. While Dr Bankhead had provided some support for the applicant, the Tribunal finds places no weight on the opinions of Dr Bankhead.
47. Dr Bankhead clearly presented as an advocate for the applicant and did not present an objective report. In fact Dr Bankhead in her evidence in chief made statements concerning the effect of s 14 of the Act. This is quite outside the area of her expertise.
48. Another example where Dr Bankhead presented as an advocate was when counsel for Comcare was asking Dr Bankhead about the applicant’s windsurfing activities. Counsel indicated that he would ask the applicant how much windsurfing she did. On that occasion Dr Bankhead, in the presence of the applicant, said: “And with a body mass index of 38 and the amount of grip strength that you would need to actually get up on a windsurfer I doubt even if she would have done any more than sit on it”. After that comment there was no point in counsel asking her that question.
49. Dr Bankhead also made assumptions not based on fact. She overstated the number of times that the applicant had sought consultations for the alleged repetitive strain symptoms and she advanced her own theories, which according to specialist evidence, were contrary to known scientific fact.
50. Apart from the information obtained from the clinical notes of the Albany Care Medical Centre, the notes of the chiropractor also reveal that the applicant had sought relatively little attention for symptoms which could possibly be attributed to a repetitive strain injury. These notes provide further support for the weight of specialist opinion.
Conclusion
51. For all the reasons set out above, the Tribunal finds that the applicant ceased to have any disability due to a repetitive strain injury or to any condition arising out of her earlier employment with the former Commonwealth Employment Service subsequent to 18 October 2003.
Form Of Reviewable Decision
52. The Tribunal observes that the reviewable decision of the respondent on 4 March 2004 concludes with the words “on and from 18 October 2003”.
53. If the Tribunal were to affirm this decision the Tribunal would be affirming a nullity. The respondent cannot fetter its discretion to reject any future claim for compensation based on the same injury.
54. In Rosillo v Telstra Corporation Ltd [2003] FCA 1628 it was pointed out that this Tribunal cannot affirm a nullity. As Madgwick J explained, at [20], this Tribunal “cannot affirm a nullity and then purport to say in its reasons that the affirmation has no practical effect for the future”. His Honour pointed out that such an option is certainly not open to the Tribunal.
55. It is for this reason that we will set aside the decision of the respondent and substitute a decision that the applicant has no entitlement to compensation pursuant to the Act for the period of 18 October 2003 until the date of this decision.
Decision
56. The Tribunal sets aside the reviewable decision of the respondent on 4 March 2004 which affirmed a determination of 2 October 2003.
57. The Tribunal determines that the applicant has no entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 in respect of the period 18 October 2003 to the present date.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott and Dr KP Kennedy, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 27 June 2005
Date of Decision 29 September 2005
The Applicant appeared in person
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Sparke Helmore
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