Rajak and Comcare
[2008] AATA 957
•27 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 957
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2006/270
GENERAL ADMINISTRATIVE DIVISION ) Re MARICA RAJAK Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date27 October 2008
PlaceCanberra
Decision The decision under review is set aside and in place thereof the Tribunal decides that Mrs Rajak is entitled to compensation for incapacity and medical treatment expenses in relation to her accepted injury from 26 August 2006 to the present.
.............[Signed].................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - accepted left arm injury - decision to cease payment of compensation for incapacity and medical treatment expenses – symptoms not explained by organic pathology - musculoligamentous strain, left carpal tunnel syndrome, left ulnar nerve irritation - exaggeration of incapacity – unreliable evidence - cultural factors inhibit rehabilitation and re-entry to the workforce – injury continues to cause partial incapacity and require medical treatment – decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 16, 19, 67, 124
Compensation (Commonwealth Government) Employees Act 1971 ss 27, 29
Telstra Corporation Limited v Hannaford [2006] FCAFC 87
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.
Re Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797
Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310
REASONS FOR DECISION
27 October 2008 Mr S. Webb, Member 1. Marika Rajak worked as a cleaner at the Canberra Hospital for many years. She complained of pain in her right neck and shoulder, and pain radiating to her hand and fingers. The symptoms improved after treatment but continued intermittently until 1985 at least. In January 1988, Mrs Rajak complained of symptoms in her left wrist and hand. She was rendered unfit for work. Her symptoms persisted. She claimed compensation. Comcare accepted liability for “painful left arm and hand with muscular weakness”[1] injury. A rehabilitation program was initiated, including English language classes. Mrs Rajak does not speak much English. Writing exercises she undertook as a part of the rehabilitation program exacerbated her left hand and arm symptoms. She was unable to complete the program and no further rehabilitation was initiated. In 1991 retirement on grounds of invalidity was considered and rejected. She remained unfit for work and was paid compensation for incapacity and medical treatment expenses.
[1] T 8 folio 35.
2. Many years passed. Mrs Rajak continued to receive compensation payments. In 2005 Comcare decided to review her case, and determined that the effects of her previous injury had ceased. As a result, Comcare stopped her compensation payments. Mrs Rajak requested reconsideration of the determination, but the determination was affirmed. Mrs Rajak says that her symptoms have persisted since the injury and are presently ongoing. She is unhappy with Comcare’s decision and has applied for review.
3. At the outset it is important to note that the decision to accept liability for Mrs Rajak’s claimed injury is not presently before the Tribunal: that determination has not been reconsidered by Comcare. Nevertheless the Tribunal is not precluded from making findings for the purposes of ss 16, 19 and 124 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) (with regard to ss 27 and 29 of the Compensation (Commonwealth Government) Employees Act 1971 (the 1971 Act)) contrary to that determination if it is appropriate to do so on the present evidence.[2]
[2] Telstra Corporation Limited v Hannaford [2006] FCAFC 87 at [59].
4. Thus in order to properly address the issues that are in dispute, having regard to the evidence concerning Mrs Rajak’s alleged symptoms at the time the primary determination was made, the following questions must be answered:
(a)Are Mrs Rajak’s left arm and hand symptoms the result of a work-related injury?
(b)If so, does the injury cause incapacity for work or require medical treatment?
(c)If so, what is the quantum of compensation that Mrs Rajak is entitled to be paid?
Are Mrs Rajak’s left arm and hand symptoms the result of a work-related injury?
5. Comcare says that Mrs Rajak did not suffer a work-related injury, or if she did that injury resolved long ago. In Comcare’s submission, Mrs Rajak fabricated her symptoms for personal financial gain and withheld information about her previous neck and arm symptoms and related medical treatment. Comcare asserts that the distribution of Mrs Rajak’s alleged symptoms is not consistent with any reasonable diagnosis. This, Comcare says, indicates that Mrs Rajak has been untruthful in her representation of subjective symptoms. In Comcare’s submission, Mrs Rajak’s complaints of pain, stiffness and parasthaesia in her left arm and hand are not supported by objective evidence. The label ‘regional pain syndrome’, Comcare says, is not a scientific or proper medical diagnosis, but merely describes symptoms that are not explained by objective evidence: “the label is a chapter in the book where we put all those things that we do not understand or know about”, and for present purposes, it is a nonsense. Comcare says that the falsity of Mrs Rajak’s alleged symptoms is confirmed by the absence of evidence of wasting in her left arm, despite alleged inactivity over 20 years. In the alternative, Comcare asserts, that any present left hand and arm symptoms, about which Mrs Rajak complains, are the result of a previously existing degenerative condition that is not work-related. In Comcare’s submission, if Mrs Rajak has any real condition, it has worsened over time in a manner consistent with a progressive degenerative cervical spine disease. Finally, if Mrs Rajak did suffer an injury and the effects of that injury are ongoing, Comcare asserts that the relationship between the injury and any present symptoms or disability is, at the highest, de minimus, and that is not sufficient to establish any present entitlement to further compensation.
6. As will appear, I am not persuaded to the requisite degree of satisfaction that Comcare’s submissions are made out.
issues of credit
7. I accept that Mrs Rajak’s oral evidence is not reliable. There are three reasons for this. First, Mrs Rajak’s evidence was infected by inconsistency. On many occasions under cross examination she moulded and changed her evidence in chief, and then further modified her evidence when pressed. Secondly, as it appears to me, Mrs Rajak exaggerated the extent of her left arm and hand symptoms and any related incapacity in her oral evidence and when she was examined by Dr McGill. The video evidence clearly contradicted her oral evidence concerning tasks that she could not undertake or actions that she could not perform as a result of her claimed injury. Her explanation was she had good and bad days: on good days she could undertake tasks such as pushing a shopping trolley or a child’s stroller, and she could perform actions such as lifting and carrying bags in her left hand or on her left shoulder, whereas on bad days she could not even go out of the house. This evidence does not explain or excuse her earlier testimony that she could not and would not do these things at all. Thirdly, much of Mrs Rajak’s oral evidence in chief and in cross examination was directed to events, duties, symptoms and circumstances that occurred twenty years ago. She repeatedly stated, reasonably in my opinion, that she could not remember the particular details of events and circumstances now long passed, but then, curiously, she was able to recall specific events or circumstances in great detail. It is possible that such detailed recall about specific events and not others is a true function of her memory. It is more likely, in my opinion, that many of the specific details Mrs Rajak purported to recall were embellishments over and above the extent of her memory.
8. Thus, I will proceed with caution when dealing with her uncorroborated evidence. I note in passing that Miroslav, Mrs Rajak’s son, gave evidence concerning his mother’s symptoms, activities and disabilities over time. Questions were raised about the impartiality of this evidence. I will proceed with caution when assessing his uncorroborated evidence.
9. Dr McGill’s conclusion that Mrs Rajak fabricated her alleged left hand and arm disability supports a finding that her evidence may be unreliable. It does not follow, however, that all of Mrs Rajak’s reported symptoms can simply be dispensed with as fabrications. Dr McGill stands alone in his assessment that Mrs Rajak fabricated her disability and does not suffer from a left arm medical condition. Other doctors and medical experts have all accepted Mrs Rajak as truthful. I accept that Mrs Rajak embellished and exaggerated her left arm and hand disability when she was examined by Dr McGill. I am satisfied that she did so in her oral evidence in chief. Such exaggeration and embellishment of disability serves to obscure the truth and to undermine her case. It does not follow, necessarily, however, that all of her alleged left hand and arm symptoms are false and can simply be dismissed as fabrications.
10. In 1991 Dr Henderson, an occupational psychologist, conducted an ‘initial psychology assessment’ of Mrs Rajak and reported “a generally low level of intellectual functioning”.[3] While not inconceivable, it is difficult to accept, and I do not, that a person of low level intellectual functioning could consistently fabricate symptoms in clinical examinations, including clinical tests such as the Phalen’s manoeuvre, Tinel’s sign and grip strength tests, to successfully deceive highly trained and experienced medical practitioners and specialists over a twenty year period. That is highly improbable. It is more likely that Mrs Rajak exaggerated her left upper limb complaints and her disability to some extent when she was examined by Dr McGill for the purpose of these proceedings. If that is correct, one must discern the kernel of truth from the cloak of her fabrication and embellishment. In my opinion the true picture can be seen when one considers the evidence and contemporaneous records of the doctors who have examined and treated Mrs Rajak over many years. There one finds a degree of consistency of symptom reporting, and reasonable consistency concerning clinical test results, although medical minds have differed on issues concerning diagnosis and causation.
[3] T51i folio 116.
initial injury
11. As it appears to me, the contemporaneous clinical evidence of Dr Taylor, Mrs Rajak’s general practitioner in 1988 (since retired), and Dr Wallner, a staff clinic doctor Mrs Rajak consulted at the Canberra Hospital, support a finding that Mrs Rajak suffered an injury in the course of or arising out of her employment at the Canberra Hospital, the requisite connexion between the employment and the injury being made out on the balance of probabilities.[4] Such a finding is not displaced by the opinions of medical experts concerning the retrospective diagnosis of Mrs Rajak’s left arm and hand condition, or the aetiology (or veracity) of her upper limb and neck symptoms, more than 20 years ago. Nor is it disturbed by the unreliability of Mrs Rajak’s oral evidence or the assertion that she withheld information from Dr Taylor and Dr Wallner about her neck and arm symptoms up to 1985.
[4] See Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323.
12. Careful consideration of the contemporaneous clinical notes of Dr Taylor,[5] the clinical notes and reports by Dr Wallner,[6] reports by Dr Lithgow, a consultant surgeon,[7] and Dr Danta, a neurosurgeon,[8] indicates that Mrs Rajak complained of symptoms in her left elbow, forearm and hand that purportedly commenced in or about October 1987 and persisted in variable degree and distribution thereafter. Reported symptoms included pain, stiffness and parasthaesia. There is evidence that Mrs Rajak previously suffered from symptoms in her neck and both arms, with symptoms radiating to her fingers, in relation to which she obtained medical treatment from Dr Taylor and Dr Newcombe in the period from 1976 to 1985.[9] I note that in the period from August 1985 to January 1988 she consulted Dr Taylor and Dr Wallner, but the relevant clinical records of those doctors do not reveal any complaint of arm symptoms. There is no reliable evidence that Mrs Rajak continued to experience debilitating neck or upper limb symptoms during this period, although that remains open as a possibility. There is no evidence that Mrs Rajak experienced left forearm, wrist or hand symptoms at that time. Mrs Rajak’s prior history of neck and upper limb symptoms is a matter to which I will return.
[5] Exhibit R 2.
[6] Exhibit R7 and T14, T18, T19, T22, T23, T25 and T48.
[7] T16 and T51c.
[8] T51e.
[9] Exhibit R2, clinical notes dated 26 February 1976, 19 November 1981, 28 July 1982, 18 August 1982, 20 May 1983 and 7 August 1985; Exhibit R6.
13. Mrs Rajak says that she experienced increasing symptoms of pain and stiffness in her left hand and arm from in or about October 1987, and that these symptoms caused her to consult Dr Taylor and Dr Wallner in January 1988. That account is consistent with the clinical notes of Dr Taylor and Dr Wallner. As can be seen from the following clinical records, there is no evidence that the onset or increase of symptoms from October 1987 was related to any particular event, although references are made by Dr Wallner to the symptoms being aggravated by use of a polishing machine. Mrs Rajak first consulted Dr Taylor about these problems on 11 January 1988. The Doctor noted “pain dorsum L hand 3/12, early morning stiffness, improved after 1-2 hours activity”, on examination “pain along ext dig longus tendon; L 3rd + 4th fingers; p[ain on extension against resistance” and diagnosed “tendonitis”.[10] Mrs Rajak first consulted Dr Wallner about the problem on 22 January 1988. Dr Wallner noted “Pain-tingling L wrist and fingers” and diagnosed carpal tunnel syndrome.[11] On 15 February 1988 Dr Wallner noted “Pain esp in L wrist keeps her awake now – about 5/12. Worked here 16 years. Had a bit of similar trouble when children small”; on examination the Doctor noted “L pain+ tingling 4+5 [digits]. Tendons palmar aspect tender – bruise ? cause. Medial aspect of L elbow aches – tender med epicondyle”.[12]
[10] Exhibit R2, clinical note dated 11 January 1988.
[11] Exhibit R7.
[12] Exhibit R7, clinical note dated 15 February 1988.
14. Dr Wallner referred Mrs Rajak to Dr Danta, a neurosurgeon, and subsequently noted “Dr Danta says EMG and neck Xrays NAD “not a nerve problem” certify 14-27 WC pain in L hand + arm overuse”. It is clear from Dr Wallner’s subsequent clinical notes that Mrs Rajak’s symptoms persisted in varying degrees:[13]
·On 25 March 1988 Dr Wallner noted “Pain in L hand lessening with rest. Reassured – nerves normal. R hand NAD. Certify 28 March-10 April. Much improved R hand, neck shoulders L elbow NAD… L wrist minimal pain → work 13th.
·On 14 April 1988 Dr Wallner noted “Phone call OT – pain – polishing machine”.
·On 18 May 1988 Dr Wallner noted “Pain L medial aspect of elbow and inner forearm. Tender L medial epicondyle. Pain L hand + wrist but no tenderness or sign. Sleeps OK. L shoulder OK. R arm (dominant) not too bad now. Am puzzled why L arm is the worst… Continue at work at present”.
·On 25 May 1988 the Doctor noted “L arm worse ? polisher… WC certify 25-31. Pain in L hand and arm overuse”.
[13] Exhibit R7, clinical notes dated 25 March 1988, 14 April 1988, 18 May 1988 and 25 May 1988.
15. On Dr Wallner’s notes it can be seen that Mrs Rajak complained of variable but ongoing symptoms in her left arm and hand thereafter.[14] On 7 October 1988 Mrs Rajak complained of an “[e]xacerbation of pain in L hand thumb and L upper arm”. It appears that the left arm and hand pain Mrs Rajak experienced varied from day to day and was “not always related to activity. Upper arm sl[ightly] better with rest. Pins and needles in L hand worse with heavy work”. On 2 November 1988 Mrs Rajak complained of “v bad pains in L arm and hand esp ulnar aspect + 4+ 5 fingers but pins and needles all over hand. Pain wakes her at night. Working ½ time does not seem to help but v. little improvement when she was off… WC certify 3-20”. On 24 November 1988 Dr Wallner noted “pain no different since having time off. Worked on 21st → pain much worse WC certify 22 Nov-22 Jan”. On 19 January 1989 Dr Wallner noted “Improvement with rest – sharp pain ulnar aspect of L wrist have stopped. Pins and needles still present. Pain on activity – not doing much housework”.
[14] Exhibit R7 clinical notes dated 1 June 1988, 6 June 1988, 22 July 1988, 31 August 1988, 7 October 1988, 2 November 1988, 24 November 1988 and 19 January 1989.
16. On the clinical notes of Dr Wallner and Dr Taylor, I am satisfied that there was a material and causal relationship between Mrs Rajak’s duties in employment in 1987 and 1988 and her left forearm, wrist and hand symptoms at that time; using a floor polisher on hard as well as carpeted floors, scrubbing and washing walls and other surfaces, and other cleaning duties in the Hospital. This conclusion is supported by the 1991 report of Dr Chase.
17. Weighing the evidence, I am reasonably satisfied, and find, that Mrs Rajak’s duties in employment as a cleaner at the Canberra Hospital materially contributed to cause or exacerbate the symptoms about which she complained to Dr Taylor and Dr Wallner in January 1988. It follows, therefore, that for the purposes of the 1971 Act, and with reference to the relevant provisions of the present Act, Mrs Rajak suffered an injury arising out of or in the course of her employment in relation to which she was entitled to be paid compensation. I so find. Although there are issues concerning the reliability of Mrs Rajak’s oral evidence, there is no persuasive evidence that Mrs Rajak was untruthful in her complaints of left arm symptoms to Dr Taylor and Dr Wallner.
18. Whether the onset or increase in symptoms in October 1987 is properly characterised as a new condition or the aggravation of a previously existing condition is moot, and I will return to that issue. In either case, I am satisfied that the onset or increase in left hand and arm symptoms in or about October 1987 is consistent with an ‘injury’ for present purposes, in relation to which Mrs Rajak was entitled to compensation. I so find.
previously existing conditions
19. It can be accepted that at various times from 1976 to 1985 Mrs Rajak experienced symptoms in her left arm prior to the claimed injury. That does not displace her claim. The clinical notes of Dr Taylor indicate that on 26 February 1976 she complained of “pain in left elbow (especially at night)” and that “her left hand also becomes cold”; Dr Taylor noted “[p]ain radiated over occiput to medial area of left orbit”.[15] On 19 November 1981 Mrs Rajak complained of neck and shoulder symptoms. It appears on Dr Taylor’s notes that these symptoms recurred in the period to 28 July 1982: “[h]as had a few episodes since last visit. Arms feel weak. Grip strength ↓”.[16] The symptoms recurred again on 18 August 1982: “[r]ecurrence of sore neck and pain down both arms to middle of fingers”.[17] Dr Taylor referred Mrs Rajak to Dr Newcombe, a neurosurgeon, who reported “mild changes at the C5-6 level” and recommended that “she continue to wear a collar”.[18] The symptoms recurred again on 20 May 1983 and 7 August 1985. Dr Taylor noted “Recurrence of stiff sore neck. Some pain ↓ L shoulder blade and L arm”[19] and “intermittent since last visit… radiates down both arms with parasthaesia”.[20]
[15] Exhibit R2, clinical note dated 26 February 1976.
[16] Exhibit R2, clinical notes dated 19 November 1981, 28 July 1982.
[17] Exhibit R2, clinical note dated 18 August 1982.
[18] Exhibit R6.
[19] Exhibit R2, clinical note dated 20 May 1983.
[20] Exhibit R2, clinical note dated 7 August 1985.
20. It is possible that Mrs Rajak experienced symptoms in her left arm and hand in the period from 1985 to the latter part of 1987, but there is no reliable evidence that she did. It is possible that the symptoms she complained about in January 1988 were a recurrence or an aggravation of her previous neck and arm problems. Even if they were, and that is far from clear (but cannot be ruled out), it does not dispose of her claim. All of the contemporaneous evidence supports a finding that her duties in employment caused or materially contributed to those symptoms in 1988. The more recent medical evidence and the expert opinions of Dr Whittaker, Dr Cassar and Dr McGill for example, do not compel me to a different conclusion.
21. Comcare says that Mrs Rajak omitted to tell doctors who treated her and examined her after 1987 about her previous neck and arm symptoms and treatments from 1976. That proposition is only partly made out. Dr Taylor treated Mrs Rajak from 1976 and was plainly aware of her previous neck and arm problems; in his clinical note on 11 January 1988 he diagnosed tendonitis and did not refer to any link to her previous condition. It is possible that Dr Wallner was not aware of Mrs Rajak’s previous neck condition but that is not established by evidence. Dr Wallner was a staff clinic doctor who treated Mrs Rajak from 1986. Her clinical notes are silent on this question and she was not called to give evidence. It is not clear whether Dr Danta, Dr Lithgow, Dr Chase and Dr Boyapati were aware of her previous medical history of neck and arm problems; other doctors plainly were not until being informed by Comcare. Even if I accept that Mrs Rajak was less than frank about her previous history of neck and upper limb problems, it does not follow that she withheld such information with malign intent or to obtain personal benefit or financial gain. Mrs Rajak asserts that the neck problems she experienced prior to 1985 were qualitatively different than the left arm and hand symptoms she experienced in 1987 and thereafter. As I have said, it is highly improbable that a person such as Mrs Rajak could successfully initiate and maintain a subterfuge such as that suggested by Comcare over a twenty year period.
22. On the evidence of Dr Taylor and Dr Wallner it is similarly improbable that Mrs Rajak’s symptoms in 1988 were simple fabrications. I am satisfied that they were not. Furthermore, it is far from clear whether her upper limb symptoms in January 1988 and thereafter were related to her neck and upper limb conditions prior to 1985. Even if they were, I am satisfied that her duties in employment in the Obstetrics Ward in 1987 and 1988 contributed to cause her symptoms thereafter, whether by frank injury or by exacerbating or aggravating her previous condition, or causing it to recur.
23. Those symptoms in Mrs Rajak’s left wrist and hand which commenced, increased or recurred in 1987 did not resolve: the symptoms were variable from day to day and deteriorated over the period to 1991. Even if Mrs Rajak experienced left upper limb symptoms in the period from 1985 to 1987, there is no evidence that she was incapacitated or required medical treatment as a result until January 1988.
diagnosis
24. As will appear, I am reasonably satisfied that Mrs Rajak’s initial symptoms were consistent with a musculoligamentous injury and carpal tunnel syndrome, worse on the left. I am also satisfied that there was left ulnar nerve irritation. On Mrs Rajak’s evidence it appears that she also experienced symptoms of pain in both her upper limbs and shoulders, worse on the left. These symptoms have been described as a regional pain syndrome. On Dr Cassar’s evidence Mrs Rajak presently suffers from cervical spondylosis. I accept that evidence and so find.
25. Plainly enough, Dr Taylor, Dr Wallner, Dr Danta and Dr Lithgow had difficulty diagnosing Mrs Rajak’s left hand and arm condition. Dr Taylor diagnosed tendonitis.[21] Dr Wallner initially diagnosed carpal tunnel syndrome[22], but nerve conduction studies did not support this diagnosis. Dr Wallner subsequently changed her diagnosis to “bilateral regional pain syndrome in both arms but more severe in L arm with neuropathic pain”[23] and “upper limb regional pain syndrome as a result of occupational overuse and a consequent reactive depressive illness associated”.[24] Dr Danta reported that Mrs Rajak probably suffered an “initial minor injury… an element of tenosynovitis affecting the flexor tendons of the forearm”[25] and diagnosed subsequent “regional pain syndrome”.[26] Dr Lithgow diagnosed “occupational overuse syndrome”[27] and “regional pain syndrome”.[28]
[21] Exhibit R2, clinical note dated 11 January 1988.
[22] Exhibit R7, clinical note dated 22 January 1988.
[23] T22 folio 50.
[24] T48 folio 91, see also T14.
[25] T89 folio 211.
[26] T87 folio 205, see also T89 and T51e.
[27] T16.
[28] T51c, see also T51d.
26. In 1991 Dr Chase, an occupational health physician, diagnosed bilateral carpal tunnel syndrome[29] and observed that carpal tunnel syndrome “can often be caused by occupational trauma such as operating vibrating machinery or machinery which requires a hard grip or repeated gripping actions of the fingers. Mrs Rajak falls within this group with regards to her left wrist, but it should be noted that she has since developed symptoms on the right that strongly suggests an underlying constitutional cause of her condition”.[30] I note that Mrs Rajak regularly used a floor polishing machine, often holding and guiding the machine with one hand while moving items with the other. It appears likely that many of the doctors who have assessed her proceeded on the basis that she used her left hand more than her right to hold and guide the polishing machine. If that is correct, it is contrary to her oral evidence in these proceedings. I note that Mrs Rajak’s complaints of symptoms in the period 1988 to 1991 were not limited to her left arm and hand, but extended to both arms and shoulders although the focus of her complaints was on her left arm and hand.
[29] T51h folio 113.
[30] T51h folio 114.
27. Dr Boyapati examined Mrs Rajak in 1991, for the purposes of a total and permanent incapacity assessment. Dr Boyapati reported “no evidence of organic pathology other than mild restriction of extension of the non dominant wrist/hand” (Mrs Rajak is right hand dominant), finding Mrs Rajak was not totally and permanently incapacitated for all employment.[31] The result was confirmed by the Superannuation Board of Trustees No 2.[32]
[31] T51m folio 125.
[32] T56c folio 139.
28. In 1996 Dr Whittaker, a consultant rheumatologist, diagnosed “left carpal tunnel syndrome” and noted that “the relationship to her previous work is unclear”.[33] Dr Le Leu, an occupational physician, confirmed an earlier diagnosis of regional pain syndrome[34] in 1997, stating “She does have a chronic regional pain syndrome affecting principally her left upper limb. This may have been triggered, initially, by musculoligamentous strain – probably in the left wrist”.[35] Dr Le Leu reassessed Mrs Rajak in 2007 and then diagnosed “cervicobrachial syndrome which may have been triggered by an initial musculoligamentous injury in her forearm; it is probable that she also has carpal tunnel syndrome”.[36]
[33] T65 folio 157.
[34] T73 folio 169.
[35] T73 folio 171.
[36] Exhibit A3, p7.
29. In 2006 Dr Cassar, a consultant physician, diagnosed “cervical discovertebral degenerative spondylosis with secondary left arm and hand pain from discovertebral pain generation”, and stated that “[t]his is a progressive condition which from the history began without any provocating injury in late 1987 and was never before investigated or deemed present until your approval of an MRI of the cervical spine to be undertaken in March 2006. The report is attached and the levels involved are consistent with the dermatone or area of pain distribution as described by the claimant since 1988 involving all fingers, palm and volar aspect of the forearm from at least C6 to T1”.[37] Dr Cassar was of the opinion that Mrs Rajak’s “condition is the natural progression of an underlying degenerative spondylosis” to which her previous Commonwealth employment did not presently contribute.[38]
[37] T95 folio 228.
[38] T95 folio 229.
30. In 2007 Dr McGill, a consultant rheumatologist, reported no identifiable medical condition affecting her left arm and hand but was of the opinion that Mrs Rajak “may have had and may, to some extent, continue to have fibromyalgia”, but noted that “[t]he false behaviour she demonstrated on examination however is not a feature of fibromyalgia and she did not display the typical widespread tenderness of fibromyalgia”; “I think her symptom reporting reflects falsification”.[39] Dr Browne, a consultant physician, also reported on Mrs Rajak in 2007, diagnosing “1. Regional pain syndrome. 2. Carpal tunnel syndrome. 3. Previous flexor tendonitis of the left forearm and wrist… She may also have had some degree of medial epicondylitis and ulna nerve irritation in view of the distribution of sensory symptoms in her left hand”.[40] In Dr Browne’s opinion these conditions were “strongly related to the nature and conditions of her employment as a cleaner”.[41]
[39] Exhibit R4, p6.
[40] Exhibit A3, p3.
[41] Exhibit A3, p4, see also Exhibit A4, p1.
31. In 2008 Dr Foo, Mrs Rajak’s treating general practitioner since 1999, reported that he “found that her symptoms and findings were more consistent with an overuse injury/regional pain syndrome ie a work related condition, rather than a degenerative neck condition”; “a degenerative neck condition will usually and progressively get worse with time but she has remained relatively stable during the period she consulted me, although her symptoms do fluctuate, depending on her physical activity, and the cold weather”.[42]
[42] Exhibit A2, pp 1 and 2.
32. The history of reported symptoms suggests that Mrs Rajak suffers principally from pain, stiffness and parasthaesia in her left wrist and hand of variable intensity. The distribution of sensory symptoms in Mrs Rajak’s left forearm and hand suggests that her left arm condition may be multifactorial, involving the medial and ulnar nerves. The preponderance of the medical evidence does not support Dr Cassar’s opinion that Mrs Rajak’s symptoms are attributable to cervicodiscospondylopathy or to ruptured disc toxicology that is unrelated to her previous Commonwealth employment.
33. I am reasonably satisfied that the symptoms about which Mrs Rajak complained to Dr Taylor and Dr Wallner in January 1988 are consistent with a musculoligamentous strain in her left forearm or wrist (possibly tendonitis or flexor tenosynovitis or medial epicondylitis) and probable bilateral carpal tunnel syndrome, worse on the left, despite this not being confirmed by nerve conduction studies.
34. There is no present evidence of tendonitis, tenosynovitis or epicondylitis in Mrs Rajak’s left arm. It follows that the musculoligamentous strain component of her initial injury in 1988 has resolved. I so find.
35. Comcare’s submission that a diagnosis of carpal tunnel syndrome is not established by probative evidence is not made out. It can be accepted that 10 percent of the population suffering carpal tunnel syndrome return ‘normal’ results from nerve conduction testing. Comcare says that such a diagnosis in Mrs Rajak’s case is a contrivance or a convenience without firm foundation. I do not accept that submission. Carpal tunnel syndrome has been a consistent diagnosis proffered by doctors over time. The clinical signs that have been reported appear to support that diagnosis. The ‘normal’ nerve conduction studies do not. There are three possible explanations: Mrs Rajak is fabricating symptoms of carpal tunnel syndrome; she has symptoms as the result of some other pathology or condition, such as suggested by Dr Cassar; or she has carpal tunnel syndrome, or recurrent irritation related to the carpal tunnel, despite ‘normal’ nerve conduction test results on three occasions.
36. For the first possibility to be made out there would need to be some evidence that Mrs Rajak understood the symptoms of carpal tunnel syndrome and related clinical tests prior to her presentations to Dr Taylor and Dr Wallner in January 1988. There is no such evidence. For the second possibility to be established there would need to be clinical or radiological evidence of pathology relating to some other condition sufficient to explain her symptoms in January 1988 and thereafter. Dr Cassar proffered an explanation based on cervical pathology he identified on an MRI scan, but that explanation is not supported by the evidence of any other doctor. The description ‘regional pain syndrome’ does not provide any explanation of her symptoms. Thus, even though there is no electrophysical evidence of neurological abnormality in Mrs Rajak’s left upper limb, the third possibility appears to be the most reasonable and probable explanation. This possibility is supported by clinical evidence over many years and it is supported by some expert opinion to which I have referred. Comcare’s assertion that one would expect to find significant signs on nerve conduction testing if carpal tunnel syndrome had persisted for 20 years may be true in most cases. Certainly the oral evidence of the medical experts would support that general conclusion. It does not follow, however, that the conclusion holds in all cases. If the person in question suffers from carpal tunnel syndrome but does not return positive results on nerve conduction testing, for reasons of congenital abnormality for example, I cannot see why that outcome on testing would be affected merely by the passage of time.
37. On the evidence of Dr Browne and Dr Chase, Mrs Rajak suffers from irritation of the median nerve and the ulnar nerve, thereby explaining some of the symptoms in the fourth and fifth fingers of her left hand which otherwise one would not expect to find in a person suffering from carpal tunnel syndrome. I accept the evidence of Dr Browne and Dr Chase. The causes of such ulnar nerve irritation, however, remain opaque. It is possible that the irritation is the product of cervical spine pathology as suggested by Dr Cassar, although the MRI scan did not produce evidence of any significant impingement.[43] Alternatively it is possible that Mrs Rajak is one of a small population (less than 5 percent) who have a congenital abnormality giving rise to ulnar nerve involvement in carpal tunnel syndrome complaints, or she has simply lied about these symptoms. If Mrs Rajak lied about these symptoms, one might expect to find evidence of complaints about consistently elevated symptoms without any support on clinical testing; yet Mrs Rajak has consistently complained of variable symptoms with a significant degree of consistency in clinical test results over a long period of years. That weighs in favour of those symptoms being real in some degree. Dr Cassar’s opinion points to cervical spine involvement, but his opinion is not supported by other medical evidence. Thus, it appears to me that the probable cause is one of congenital abnormality. In Comcare’s submission it is ‘very convenient’ for Mrs Rajak to assert that she is one of very few who have such an abnormality. That may be true. The evidence, however, is that 5 percent of the population may have the abnormality; that is a small proportion but a large number of people. The relative likelihood, or otherwise, of Mrs Rajak being one of this group is not a compelling factor that warrants an adverse finding on this point. As it appears to me, the likelihood that Mrs Rajak is one of this small group is increased by two other factors: the evidence of Dr Chase, for example, that points to the involvement of constitutional factors, and the relatively small size of her wrists.[44]
[43] T95c folio 234.
[44] T51h folio 114.
regional pain syndrome
38. Comcare asserts that the label ‘regional pain syndrome’ is not a diagnostic category but “is used when there is no organic or reasonable basis upon which one can conclude conventional diagnosis”.[45] I accept that the terms ‘regional pain syndrome’ and ‘chronic regional pain syndrome’ that have appeared in the medical evidence describe symptoms of pain that are not explained by manifest ‘organic’ pathology. It does not follow, however, that either term is used in this case without reasonable basis. I note in passing that these terms are to be distinguished from ‘complex regional pain syndromes’ that are recognised as disease entities.[46] The word ‘diagnosis’ is not a term of art and can simply be understood to mean:[47]
“1. The term denoting the disease or syndrome a person has or is believed to have. 2. The use of scientific and skilful methods to establish the cause and nature of a person’s illness. This is done by evaluating the history of the disease process, the signs and symptoms, and the laboratory data, and by special tests such as radiography and electrocardiography. The value of a diagnosis is to provide a logic basis for treatment and prognosis.”
[45] Comcare written submissions, 21 August 2008, p7.
[46] Dr Danta at T89; American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition, 2000, extract at T88.
[47] Tabers Cyclopedic Medical Dictionary, 18th Edition, 1997; see also Black’s Medical Dictionary, 40th Edition, 2002.
Thus, applying this definition, the process by which a diagnosis may reasonably be concluded involves an evaluation of the history of the disease process as well as the clinical signs, symptoms, and test results. The mere absence of certain test results in a particular case does not necessarily render the process of diagnosing a disease or a condition unreasonable if the disease or condition is established on other evidence. As it appears to me, it is the diagnosis of ‘regional pain syndrome’ as a disease entity that Comcare is seeking to attack. That is a matter of controversy which it is not necessary for me to resolve for present purposes.
39. Generally, once initial causation of symptoms is established by evidence, and an employment related cause is found in a material degree, if those symptoms are found to persist, without new events intervening to disturb the chain of causation and without other reasonable cause being properly established by probative evidence, the employment related injury may be said to persist. Whether compensation is payable is a matter to be determined under applicable sections of the Act. Of course, a reliable medical diagnosis that is supported by objective evidence is likely to be of significant assistance when determining issues of aetiology and causation.[48]
[48] Re Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797.
40. Mrs Rajak’s case cannot simply be dealt with and dismissed on the basis that her complaints of chronic symptoms are without reasonable medical explanation. In her case reasonable and rational medical explanations for her left wrist and hand symptoms, including pain, have been provided by doctors and medical experts over a long period, although the persuasiveness of such opinions is presently under challenge. Her claim in relation to those complaints is made out on the evidence before me. The same cannot be said, however, in relation to her complaints concerning chronic pain symptoms in her upper arms and shoulders that are without reasonable medical explanation. The cause of those symptoms is not adequately explained by any objective or clinical evidence. Thus, insofar as the label ‘regional pain syndrome’ relates to pain in Mrs Rajak’s upper arms and shoulders, the causal nexus to her previous employment is not made out.
progressive degenerative disease
41. Comcare asserts that all the medical evidence suggests that Mrs Rajak’s symptoms worsened over time in a manner that is consistent with a progressive degenerative condition that is unrelated to her previous employment. I am not persuaded to that conclusion. Dr Foo’s evidence is that Mrs Rajak’s left arm condition remained relatively stable during the period in which he treated her, from 1999 to 2005.[49] This evidence is consistent with Dr Le Leu’s evidence that “[t]here was no change in her symptoms” in the period from June 1993 to November 1997. The stability of her disability over a long period is demonstrated by grip strength test results from 1991 to 2007.[50] As it appears to me the only evidence that Mrs Rajak’s condition has worsened over time is her own. She reported to Dr Cassar that her pain had become worse.[51] She told Dr Danta that the stiffness in her left arm and hand had worsened.[52] She told Dr Whittaker, Dr Browne and Dr Le Leu that her left arm condition had not improved since ceasing work. Dr McGill reported that she told him that her “pain is the same, maybe worse” but the numbness in her left hand was worse.[53] In her oral evidence she said that her symptoms had become worse over time. I do not accept her evidence in that regard and I am reasonably satisfied that there has been no significant worsening of Mrs Rajak’s left arm condition since 1991. It is, however, clear enough that the intensity of her symptoms may vary from day to day. I am also satisfied, as I have said, that in her oral evidence Mrs Rajak may have embellished or exaggerated her symptoms and any related incapacity. I accept Dr Foo’s evidence that any worsening of symptoms may indicate the interaction of muscular pain with carpal tunnel syndrome.[54] Furthermore, as it appears to me, with advancing age and the progression of degenerative cervical spondylosis it is likely that Mrs Rajak has experienced increasing symptoms of pain and stiffness in different parts of her body, including her neck, shoulders and upper limbs. That is an unfortunately common experience that most people face in later years. These symptoms of degeneration and aging should not be confused or conflated with the symptoms of a previous injury that can readily be distinguished by evidence. For a person such as Mrs Rajak, with relatively low levels of intellectual functioning, symptoms may too readily be overlaid and represented as arising from injury. To proceed on that basis, however, is to proceed in error.
[49] Oral evidence and Exhibit A2, p2.
[50] See T51j folio 117, T95 folio 226, Exhibit A4, p3 and Exhibit A3, p7.
[51] T95 folio 225.
[52] T87 folio 203.
[53] Exhibit R4, p2.
[54] T81 folio 183.
42. I am satisfied that the symptoms of left carpal tunnel syndrome and ulnar nerve irritation can readily be distinguished on the available medical evidence from other symptoms in Mrs Rajak’s presentation.
43. Comcare points to the absence of evidence of wasting in Mrs Rajak’s left arm and hand as a reliable indicator of falsity in her claim. I do not agree. Mrs Rajak’s evidence was that she experiences numbness in her left arm and hand and relieves this by using the arm, although to do so may increase her pain. I accept that the intensity of her symptoms may vary from day to day; she has good days and bad days. There is clear evidence that she can use her left hand and arm without much restriction, at least on good days; the video material makes that clear. As it appears to me, the bad days occur from time to time, and on those days I accept that she experiences greater disability. Furthermore, there is ample medical evidence of doctors encouraging her to use her left arm and hand.[55] Thus, it is not surprising that there is no evidence of significant wasting in her left upper limb.
[55] see Dr Browne’s report, for example.
44. Comcare says that the fact that Mrs Rajak did not proceed with carpal tunnel decompression surgery indicates that her ‘carpal tunnel’ complaints and related symptoms are not real. I do not agree. Overwhelming medical evidence shows that carpal tunnel decompression surgery would not be recommended in Mrs Rajak’s case, as the absence of definitive nerve conduction test results and her clinical presentation with complex symptomatology render Mrs Rajak an unsuitable candidate for such surgery.[56] It appears likely that Mrs Rajak did not pursue Dr Boyapati’s recommendations concerning carpal tunnel decompression surgery. Dr Boyapati assessed Mrs Rajak for the purposes of possible invalidity retirement. It is reasonable to expect a person in Mrs Rajak’s circumstances to rely on the advice of her treating doctors. Even so, I do not accept the proposition that simply declining surgical treatment for a particular medical condition indicates that the medical condition is not present or is not symptomatic in the person.
[56] See evidence of Dr Chase, Dr Lithgow, Dr Danta, Dr Whittaker, Dr Le Leu and Dr Browne.
45. Finally on this point, Comcare says that any relationship between Mrs Rajak’s present symptoms and her previous injury in employment is no more than de minimus and is merely insignificant. I do not agree. Mrs Rajak has not obtained relief from the symptoms of carpal tunnel syndrome in her left arm as a result of medical treatment. Surgical release of the carpal tunnel has not been undertaken. I am satisfied on the weight of the medical evidence that the symptoms of left carpal tunnel syndrome persist and appear, presently, to be entrenched. Prior to injury in 1988 Mrs Rajak may have experienced similar symptoms in her left arm and hand, in 1983 or when her children were young, for example. There is no evidence, however, that she experienced any left arm symptoms in the period from 1985 to 1987. I have found that her duties in employment materially contributed to render her left arm symptomatic, causing incapacity for her previous employment, in varying degrees, from January 1988 to the present. Her left arm condition has been largely stable since 1991. There is no compelling evidence or reason to conclude that the contribution of her previous employment has been diminished by the passage of time or by other intervening events or injuries. I am reasonably satisfied that it has not.
Are the effects of the injury ongoing – does it cause incapacity for work or require medical treatment?
46. In Comcare’s submission, at the date of the primary determination to cease payment of compensation to Mrs Rajak, her previously accepted injury did not cause any incapacity and it did not require medical treatment. Comcare says that the effects of the injury for which liability was previously accepted ceased a long time ago and that Mrs Rajak has maintained a façade ever since, pretending to have debilitating symptoms when in reality she did not. In Comcare’s submission, if Mrs Rajak suffers debilitating symptoms in her non-dominant left upper limb, those symptoms are not the result of any injury in her employment. Thus, as of 26 August 2006 Comcare says that Mrs Rajak does not suffer any incapacity for work and she does not require medical treatment as a result of an injury in her employment.
47. As will appear, I do not agree.
48. Under the Act, if an injury results in incapacity for work or requires medical treatment, compensation is payable unless the person was not entitled to receive compensation under the 1971 Act.[57] For the purposes of the Act the term ‘incapacity for work’ refers to an incapacity to engage in any work, or an incapacity to engage in work at the same level at which the employee was engaged immediately before the injury happened.[58]
[57] Safety, Rehabilitation and Compensation Act 1988 sub-section 124(6) and (8).
[58] Safety, Rehabilitation and Compensation Act 1988 , sub-section 4(9) .
49. As it appears to me Mrs Rajak is presently experiencing a degree of incapacity for work. That conclusion is supported by the evidence of Dr Browne,[59] Dr Le Leu,[60] Dr Foo,[61] Dr Danta,[62] Dr Cassar,[63] and Dr Whittaker.[64] Dr McGill stands alone in his assessment that Mrs Rajak has no incapacity for employment.[65] As it appears to me, Dr McGill’s conclusion concerning incapacity is based on his conclusion that Mrs Rajak’s complaints of pain and symptoms in her left arm and hand were false. I have said that it is likely that Mrs Rajak may have exaggerated and embellished her symptoms for the purposes of these proceedings, but I am not persuaded that the entirety of her complaints or her symptoms are fabrications. Thus, as it appears to me Dr McGill did not accept that any of her symptoms were real and, on that basis, concluded that she was fit for her previous employment. That conclusion is not supported by the great weight of the evidence before me. For these reasons Dr McGills’ evidence is not preferred.
[59] Exhibit A4, p4.
[60] Exhibit A3, p9.
[61] Exhibit A2, p2.
[62] T87 folio 205.
[63] T95 folio 229.
[64] T65 folio 157.
[65] Exhibit R4, p6.
50. The incapacity for work Mrs Rajak presently suffers is, I am satisfied, the result of her previous injury in employment. That incapacity is compensable. Simply put, Mrs Rajak’s compensable incapacity is the result of her left arm and hand condition, and the variable symptoms of pain, stiffness and parasthaesia she experiences in her left forearm, wrist and hand. Those conditions and symptoms are the persisting effect of her injury. That conclusion is supported by the evidence of Dr Browne, Dr Le Leu, Dr Foo and Dr Danta. Dr Cassar is of the opinion that her incapacity for work is the result of cervical spondylosis or ruptured disc toxicology and is unrelated to her previous employment. I have found that Dr Cassar’s diagnosis stands alone and is not preferred. Dr Whittaker’s report from 1996 indicates that he thought that Mrs Rajak suffered from carpal tunnel syndrome and was unfit for work as a result, but he was uncertain whether that condition was causally related to her previous employment. I am reasonably satisfied, however, that it was. On the evidence of Dr Wallner and Dr Chase, in particular, it appears that Mrs Rajak’s left carpal tunnel syndrome is likely to be related to her use of floor polishing machines and other repetitive tasks in the course of her previous employment. I accept the evidence that repetitive use of heavy vibrating machines, such the polishing machines Mrs Rajak used, over an extended period may contribute to cause carpal tunnel syndrome in some people. I also accept that Mrs Rajak may have had a predispositional vulnerability, being female in middle age with small wrists. However, such vulnerability does not disentitle her.[66]
[66] Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310.
51. The extent of Mrs Rajak’s incapacity for work as a result of her injury is more difficult to ascertain. I am reasonably satisfied that Mrs Rajak has an incapacity preventing her from engaging in her previous work as a cleaner. However, I am not satisfied that she is totally incapacitated for work as a result of her injury. Dr Le Leu’s evidence is that “Mrs Rajak is incapacitated for duties of a moderate to high physical component” but she would be fit for light forms of work. The Doctor stated that “[t]he problem here though is her lack of fluency with English and limited educational background”.[67] Dr Browne agreed to the extent that he concluded that Mrs Rajak “could, however, be trained in other areas, but… the prospects of alternative work are poor”.[68]
[67] Exhibit A3, p9.
[68] Exhibit A4, p4.
52. With regard to medical treatment, carpal tunnel release surgery is not indicated or supported by any evidence before me, although it appears that such treatment may have been suggested to Mrs Rajak as a possibility in 1991. Mrs Rajak declined to undergo such surgery, and it appears that Dr Roberts did not consider her to be a suitable candidate. Issues concerning Mrs Rajak’s obligation to mitigate her claim were not agitated in these proceedings.
53. I accept the assessments of Dr Le Leu and Dr Browne concerning medical treatment. Dr Le Leu is of the opinion that mild analgesics, use of a TENS machine and periodic immersion of her left hand in warm water are appropriate treatments, and that other treatments, at this late stage, is “extremely unlikely” to be of value.[69] Dr Browne reports that ongoing medical management, symptomatic treatment and encouragement to use the left upper limb are appropriate.
[69] Exhibit A3, p10.
54. Comcare asserts that there is no reliable evidence to corroborate Mrs Rajak’s unreliable reporting of disability, especially concerning her purported difficulties using her left arm. I do not agree. Objective clinical tests administered by experienced doctors, such as Dr Le Leu, reveal a consistent diminution of left hand grip strength over many years. These, I accept, are not tests that can readily be faked. For example, Mrs Rajak’s grip strength test results reveal a level of consistency, on Dr Le Leu’s evidence, that points to truth rather than fabrication. I accept, however, as I have said, that the extent of Mrs Rajak’s disability is not as great or as severe as she has made out.
what is the quantum of compensation that Mrs Rajak is entitled to be paid?
55. It is plain enough on the evidence of Dr Le Leu and Dr Browne that there are impediments to Mrs Rajak’s retraining and re-entry into the workforce. These include her limited fluency in the English language, the low level of her education, the low level of her intellectual functioning, her age and the extended period of time during which she has been out of the workforce without rehabilitation or vocational retraining support. Clearly, these factors will have an effect upon her capacity for rehabilitation and re-entry into the workforce, especially in a competitive labour market. This is consistent with the failed effort to rehabilitate Mrs Rajak in 1991.[70] While these factors are not determinative of the extent of Mrs Rajak’s incapacity as a result of her injury, they are, however, relevant matters to take into account when determining the amount of incapacity payments to which she is entitled and for that purpose the amount, if any, that she is able to earn in suitable employment.
[70] T 45.
56. The term ‘suitable employment’ is given meaning by definition at subs 4(1) of the Act.
57. On the present evidence, I am reasonably satisfied that Mrs Rajak has no ability to earn any amount in suitable employment, and so find. I note that Mrs Rajak has not received any rehabilitation or vocational retraining support since 1991. There has been no recent assessment of her vocational capacities for the purposes of determining what may constitute ‘suitable employment’. Of course, it is possible that if she is properly assessed for that purpose and provided with appropriate rehabilitation and vocational retraining support, she may be assisted to rejoin the workforce and her ability to earn in suitable employment may be increased, although on the present evidence that appears unlikely.
58. Those are matters for Comcare to consider in due course.
59. The amount of compensation to which Mrs Rajak is entitled remains to be determined. There is, however, insufficient evidence before me for that purpose and the particularities of her normal weekly earnings amount and specific entitlements were not ventilated in these proceedings. Thus, those matters will be remitted to Comcare for determination.
conclusion
60. Mrs Rajak suffered a left arm and hand injury in her previous employment as a cleaner at the Canberra Hospital. She obtained medical treatment, but her injury persisted. She attempted rehabilitation unsuccessfully. She was deemed to be unfit for any work, but she was not medically retired on invalidity grounds. She remained out of the workforce from 1991, receiving compensation payments. No further efforts were made to provide rehabilitation or vocational retraining to assist her return to the workforce. In August 2006 Comcare determined to stop her compensation entitlements. On the evidence before me, I have decided that from 26 August 2006 to the present day Mrs Rajak suffers an incapacity for work at the level of her previous employment as a cleaner, and that she requires medical treatment, as a result of her injury. The quantum of her compensation entitlements is to be determined by Comcare on remittal.
61. It follows that the decision under review is set aside and in place thereof I decide that Mrs Rajak is entitled to compensation for incapacity and medical treatment expenses in relation to her accepted injury from 26 August 2006 to the present.
62. As the matter is resolved in her favour, orders in relation to costs can be expected pursuant to subs 67(8) of the Act. The parties have not been heard on this point. Thus, the parties have fourteen days in which to file submissions in relation to costs. If no submissions are filed within that period, Comcare will be ordered to pay Mrs Rajak’s reasonable costs of these proceedings as agreed or taxed.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member.
Signed: ...........[Signed]........................................
Demelza-Rose Gale
AssociateDate of Hearing 28-29 July 2008
Date of Decision 27 October 2008
Representative for the Applicant: Mr W. Sharwood
Representative for the Respondent: Mr. M Gollan
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