Reynolds and Australian Postal Corporation
[2005] AATA 286
•4 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 286
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/692
GENERAL ADMINISTRATIVE DIVISION ) Re STEVEN REYNOLDS Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member M D Allen Date4 April 2005
PlaceSydney
Decision The decision under review is affirmed.
(Sgd) M D Allen
..............................................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION - review of decision refusing payment of compensation for condition of “overuse disorder upper limbs” - Applicant suffered from chronic fatigue syndrome – recurrence of symptoms during his employment with Australia Post – symptoms of pain experienced not a new and separate condition – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 Division 1, Part II
REASONS FOR DECISION
4 April 2005 Senior Member M D Allen 1. By application lodged the 9th day of June 2004 the Applicant sought review of a reviewable decision that affirmed a prior determination that the Applicant was not entitled to the payment of compensation pursuant to Division 1 of Part II of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) for the condition described as “overuse disorder upper limbs”.
2. The Applicant commenced employment with the Respondent on 16 May 2001. Prior to that time he had been in receipt of a Disability Support Pension incapacity for work being caused by chronic fatigue syndrome.
3. It was whilst working for American Express Australia in 1999 as a call centre operator that the Applicant developed the symptoms of a chronic fatigue syndrome. He resigned his employment with American Express in February 2000 because of that condition and was granted a Disability Support Pension.
4. Initially the Applicant had lodged a claim for Workers’ Compensation with American Express but that company’s insurers had disputed the claim and the Applicant did not persist with it. In cross-examination he said that because of his chronic fatigue syndrome he did not have the will to continue to fight for any Workers’ Compensation payout.
5. Exhibit R5 in these proceedings is part of a psychologist’s report prepared for the Workers’ Compensation insurers of American Express. That report was tendered at this hearing from the summons material and for reasons given at the time of the preposed tender I restricted the admissible part of that report to the symptoms the author of the report recorded the Applicant as suffering.
6. Following his resignation from American Express the Applicant went to New Zealand. Whilst in New Zealand he began to recover from the symptoms of chronic fatigue syndrome and eventually was able to help a friend for 8 hours a week over one or two days carrying out farming work.
7. The Applicant stated that by the time he returned to Australia on 9 May 2001 he had to a large extent recovered from his chronic fatigue syndrome. He stated “physically I felt good”. He was however, still in receipt of Disability Support Pension.
8. In describing his chronic fatigue syndrome symptoms the Applicant likened them to having influenza in that he constantly ached all over and lacked energy. Both in this Tribunal and in a statement to the Workers’ Compensation insurers for American Express the Applicant described the onset of his chronic fatigue syndrome as being “like a syringe had sucked the life out of my body”.
9. Exhibit R5 describes the Applicant’s symptoms as including somnolence, problems writing and pushing computer buttons and pains in the legs. He said he was never pain free and had a “burning constant pain”. In a statement to the insurers the Applicant stated that he had muscle and joint pain.
10. On 16 May 2001 the Applicant commenced employment with the Respondent. His duties were in a call centre and involved investigating complaints by customers. For example if a letter or parcel had not been delivered or mail misdirected the customer would telephone the call centre where an operator would take the details of the complaint and then that complaint would be referred to the Applicant for further investigation and report.
11. At his desk the Applicant had a computer, a telephone, headphones and reference materials. His duties involved keying into a computer being the details of the of the complaint and the action taken, telephoning personnel in other Australia Post depots as part of the investigation process and sending and receiving faxes.
12. Initially the Applicant had no physical problems with his duties. He was familiar with computers and was not required to spend long periods keying. In cross- examination, he conceded that each complaint would require two to three sentences to be keyed into the computer and that he dealt with at maximum 25 to 30 such complaints a day. The average inquiry would be about 25 words. There was a variety of tasks, e.g. telephoning and periods when he would not be carrying out any activity as he was for example waiting for a telephone to be answered or information to be ascertained.
13. The Applicant then started to get pains in his lower arms and hands. There is some dispute as to when the Applicant first commenced to get symptoms. In evidence-in-chief he stated that the symptoms commenced in July and he complained to his supervisor and requested keyboard supports which were not supplied.
14. In cross-examination the Applicant said that the pain first started in his left hand then a few days later or perhaps a week later pains also started in the right hand.
15. On 11 July 2001 the Applicant was medically examined regarding his fitness for employment with the Respondent. He agreed in cross-examination that at that time he did not have pain in either his left or right arm. Further, when enlisting the support of his general practitioner Dr Bloch when his medical fitness for employment was in dispute, he did not mention any problems with his arms or hands.
16. Following the medical examination of 11 July 2001 the Applicant was judged to be medically unfit for employment with the Respondent. On 26 July 2001 his general practitioner reported:
“This letter is to confirm that he has been stable in his chronic fatigue syndrome over the past two months and has been fit for full time work.”
The Applicant agreed that on 26 July 2001 he had told his general practitioner he could do the job and did not mention any problems with his arms, and that if he had not mentioned arm problems to his general practitioner at that time he was not then suffering any such problems.
17. Further cross-examined the Applicant stated that it must have been August when his pain started adding he could never be specific. He also agreed that he saw his general practitioner on 7, 8 and 10 August and if he had pains in his arms on those dates he would have mentioned it to the doctor. I note that Dr Bloch’s clinical notes of 21 August 2001 are the first record of the Applicant suffering from pain in the forearms. Dr Bloch also notes that the Applicant was to see Occupational Health and Safety.
18. Document ST2 is a workplace assessment by an occupational therapist carried out on 23 August 2001. The occupational therapist took a history of the Applicant feeling pain in his left wrist “three to four weeks ago” . This is in direct conflict with the Applicant’s evidence that if he had been experiencing pain in his arms when he saw Dr Bloch on 7, 8 and 10 August he would have mentioned it to him.
19. Given the first record of the Applicant’s alleged injury is the report to his general practitioner on 21 August and the workplace assessment took place on 23 August I find that if the Applicant did have symptoms of an overuse disorder the first manifestation thereof was in mid August 2001.
20. The Applicant’s evidence was that the symptoms were at first only uncomfortable but then “flared up” and since that time he has been in “unremitting pain”.
21. The Applicant’s symptoms were of a loss of power in his arms and a burning pain. Because he was unable to use a keyboard due to pain, he resigned his position at Australia Post with effect from 21 September 2001. He reclaimed his Disability Support Pension and has not worked since. The Applicant was adamant that his symptoms have not abated since he left his employment.
22. Although an attack was made on the Applicant’s credit, generally speaking I accept his evidence. In particular, I find that he disclosed to Centrelink that he was going to New Zealand and did all that was required of him to enable his Disability Support Pension to be paid overseas. He disclosed his chronic fatigue syndrome at his Australia Post medical examination and I accept that having disclosed that he suffered from chronic fatigue syndrome the Applicant was not required to nominate the various individual parts of his body in which he had experienced pain.
23. I am also impressed by the fact that when the Applicant considered himself fit enough he sought employment rather than continue to receive a Disability Support Pension. At the time his medical fitness to continue in employment was being questioned, his supervisor supported his retention describing him as “one of our good workers”.
24. Following a consultation with Dr Bloch in August 2001, the Applicant was referred to Dr May, a Rheumatologist at St Vincent’s Clinic Sydney. In a report to Dr Bloch dated 10 September 2001, Dr May took a history of right and left upper limb pain present since July 2001. She also noted “Symptoms are related to work but improving after a period of rest.” This is quite contrary to the Applicant’s evidence to the Tribunal.
25. After examination and noting the prior history of chronic fatigue syndrome, Dr May reported that the Applicant had a non-specific myalgia aggravated by the nature of his occupation.
26. In forming that opinion Dr May referred to a history of:
“…He is working in the customer contact centre answering telephones and mainly working on the computer. He takes breaks every hour for 10 minutes. His pain tends to develop within 15 to 30 minutes of typing. He has been doing computer type work for at least 10 years and enjoys the kind of work that he is doing.”
27. Cross-examined Dr May stated that her diagnosis was on the basis of the history given namely of repetitive movements over and over again, although she qualified that statement by saying that the Applicant’s work was not exceptional being an average type of clerical job.
28. Dr May in evidence was critical of Dr McGill’s diagnosis of “fibromyalgia” stating that “fibromyalgia” is a label rather than a diagnosis. In her opinion the Applicant was suffering from a “complex regional pain syndrome type I”.
29. Dr May was however equivocal as to whether or not the Applicant’s employment had caused or contributed to his regional pain syndrome. In cross- examination she stated “I could not say whether work was a material contribution or not”. Re-examined she referred to the lack of studies into the link between work and a regional pain syndrome.
30. All I can deduce from Dr May’s evidence is that she is of the opinion that the Applicant suffers a regional pain syndrome and on the history given to her by the Applicant she accepts that its onset was while he was employed by the Respondent.
31. Surgeon Dr Deveridge first examined the Applicant on 28 November 2002 at the request of the Applicant’s solicitors. Although in his report Dr Deveridge states that he took a detailed history from the Applicant it became clear in cross- examination that he envisaged that the Applicant was performing far more keyboarding activity than he was in fact performing. Dr Deveridge stated that in his reports he had been talking about someone using a keyboard rapidly and repetitively. On it being put to him that the Applicant was not engaged in rapid and repetitive keyboard activity he stated that the probability of a work caused condition was reduced.
32. Dr Deveridge however adhered to his diagnosis and stated in re-examination that the Applicant’s history and symptoms were typical of an occupational overuse syndrome. He also stated that if the Applicant’s symptoms of chronic fatigue syndrome were settling but he then did a job that made his arms ache, it was fair to diagnose an overuse syndrome.
33. In his report of 2 December 2002 Dr Deveridge stated:
“I anticipate that his condition could slowly improve with complete rest, but he is going to relapse with rapid or repetitive arm action in future. The condition is likely to wax and wane in the future depending on his level of manual activity. The prognosis is somewhat guarded.”
34. At the request of the Respondent’s solicitors Rheumatologist, Dr McGill examined the Applicant on 23 August 2004. Apart from a history of chronic fatigue syndrome Dr McGill noted that the Applicant informed him that he was only doing a relatively small amount of keying and that he was not required to do any rapid or continuos keying at any stage.
35. The Applicant denied giving Dr McGill this history of his work activities however it accords with the facts of his employment and I have no reason to doubt the accuracy of Dr McGill’s note taking.
36. Dr McGill also recorded a history of the Applicant’s symptoms getting “worse and worse” after he ceased work.
37. In preparing his report Dr McGill had access to Dr May’s report of September 2001. He noted :
“The examination findings at that time were recorded to include normal power and reflexes, normal sensation, no evidence of synovitis, tendonitis or definite enthesitis and a full range of joint movement. The only reported abnormality was tenderness of the forearms, upper arms, lateral and medial epicondyles and a report of pain with resisted extension of the wrists…”
Following his own examination of the Applicant, Dr McGill opined that the Applicant was suffering from fibromyalgia and that the symptoms were not related to his employment with the Respondent.
Dr McGill linked the Applicant’s current fibromyalgia with his chronic fatigue syndrome. In his report he states:
“Chronic fatigue syndrome and fibromyalgia are very similar disorders with considerable overlap and it is common for people to predominantly express symptoms of fatigue at one stage and of pain at another stage. I enclose a copy of the brief article on the management of fibromyalgia by Drs Guymer and Littlejohn (Medicine Today 2002;3:58-59). It can be noted that ‘chronic fatigue affects approximately 80% of fibromyalgia sufferers and contributes greatly to the subsequent impairment and disability. Many patients also meet criteria for chronic fatigue syndrome.”
A study by McBeth et al was also included in Dr McGill’s report.
38. The study by McBeth et al referred to by Dr McGill contains the following passage at page 514:
“About 75 percent of patients meeting the diagnostic criteria of chronic fatigue syndrome also meet the diagnostic criteria for fibromyalgia.”
39. Cross-examined Dr McGill stated that having looked at the notes of the Applicant’s general practitioner in his opinion the Applicant’s symptoms prior to employment with the Respondent were the same as when he examined him. More significant however was the concession by Dr McGill that the Applicant could have experienced an increase in symptoms while carrying out his work activities at Australia Post. He was however of the opinion that having ceased those activities they could not have influenced the Applicant’s symptoms.
40. I find that the Applicant at the time he commenced employment with the Respondent had to a large extent recovered from the symptoms of chronic fatigue syndrome. During the course of his employment he started to experience symptoms of pain in his wrist and forearms.
41. I am not satisfied that these pains were any new and separate condition. The evidence of Dr May was that she could not say that work was a material contribution and the opinion of Dr Deveridge was clearly based upon a false premise as to the amount of keying work undertaken by the Applicant.
42. Dr Deveridge also anticipated in his original report that the Applicant’s condition should improve with complete rest. The Applicant has not been in employment since ceasing work with the Respondent yet his evidence was that his symptoms were the same as at the hearing date as when he left Australia Post.
43. To my mind the only explanation for the Applicant’s complaints at the time he left Australia Post is that Dr McGill is correct in applying the liable of fibromyalgia to his collection of symptoms. The Applicant’s symptoms from his chronic fatigue syndrome may have been in remission when he undertook employment but as the papers relied upon by Dr McGill point out there is an overlap of symptoms between chronic fatigue syndrome and fibromyalgia.
44. There was a temporal connection between the recurrence of symptoms of the Applicant’s fibromyalgia and his employment at Australia Post. As conceded by Dr McGill it is possible that the activities at work led to an increase in symptoms while working but work activities ceased to influence symptoms after ceasing work. In this opinion Dr McGill is to some extent supported by the report of Dr Deveridge who states the Applicant’s condition could slowly improved if he rested.
45. It does not appear that the Applicant took any significant time off work because of his fibromyalgia, electing instead to resign. There is no evidence before me as to when the exacerbation of his symptoms due to work ceased. In making this statement I am aware that the Applicant’s evidence is that his symptoms have remained constant since leaving work. I am however more convinced by Dr McGill’s evidence that work merely caused an increase in symptoms while the Applicant was performing work activities.
46. As I am satisfied that any ongoing symptoms now experienced by the Applicant are a result of his non work caused illness of chronic fatigue syndrome (or fibromyalgia), then the decision under review is affirmed.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: (E.Pope) .....................................................................................
AssociateDate/s of Hearing 9 & 10 March 2005
Date of Decision 4 April 2005
Counsel for the Applicant Mr J Wilson
Solicitor for the Applicant Lamond Howard & Associates
Counsel for the Respondent Mr G Elliott
Solicitor for the Respondent Forners Solicitors
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