Robinson and Comcare
[2007] AATA 2035
•11 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2035
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/2560
GENERAL ADMINISTRATIVE DIVISION ) Re KAREN ROBINSON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr J D Campbell Date11 December 2007
PlaceSydney
Decision The decision under review is affirmed.
..................[sgd]..........................
Dr J D Campbell
Member
CATCHWORDS
WORKERS COMPENSATION – reporting of chronic pain right side of neck, right shoulder and right limb – liability accepted for neuralgia, neuritis and radiculitis, unspecified (cervical) (right) and synovitis and tenosynovitis (forearm) (right) – claim for permanent impairment of right upper limb – accepted diagnosis self reported chronic pain syndrome – condition accepted as permanent – on the balance of probabilities condition not demonstrated to have arisen out of or in the course of employment or the accepted compensable condition – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 – sections 16, 19 and 24
Comcare v Fielder (2001) 115 FCR 328
REASONS FOR DECISION
11 December 2007 Dr J D Campbell 1. Ms Robinson, an employee of the Health Insurance Commission, lodged a claim for compensation on 11 May 2000, having completed the claim on 3 April 2000. Ms Robinson stated in the claim that she commenced experiencing pain in the “cervical spine, right shoulder, elbow and wrist and forearm” on 2 August 1999, with the pain being experienced when performing work duties and after such activities (T3). Medical certificates issued by Dr Tarrant (the attending general practitioner) on 20 March 2000, 6 April 2000, 13 April 2000 and 27 April 2000 (T161) nominated that Ms Robinson was suffering from right cervical neuralgia and tendonitis right forearm.
2. Liability was accepted by Comcare in relation to the claim on 28 June 2000, after Comcare had received and considered a report from Dr Tarrant, dated 26 June 2000 (T9). In allowing the claim, Comcare detailed the accepted conditions as “neuralgia, neuritis and radiculitis, unspecified (cervical) (right)” and “synovitis and tenosynovitis (forearm) (right)” (T10).
3. Ms Robinson lodged a claim for permanent impairment on 27 January 2006, nominating the permanent impairment as “chronic pain right neck, shoulder, elbow and forearm and low back pain. Pain exacerbated with minimal use of right arm” (T126). The claim was rejected by Comcare on 8 June 2006 on the grounds that Ms Robinson did not qualify for an impairment rating of 10 per cent pursuant to Table 9.4 of the Guide to the Assessment of the Degree of Permanent Impairment (“the Impairment Guide”) (T134). On 22 November 2006 Comcare affirmed the earlier decision of 8 June 2006, and in so doing concluded that Ms Robinson, while continuing to report symptoms in the right side of her neck radiating to the shoulder and arm and then into the forearm, was not suffering from the effects of her compensable condition, and even if that finding was in error, any assessment of her right upper limb impairment was less than 10 per cent pursuant to Table 9.4 (T155).
Issues
4. The relevant issues in this matter are:
a)Is Ms Robinson suffering from a permanent impairment?
b)If so, does the permanent impairment arise out of the accepted work-related injury for which liability was accepted on 28 June 2000 and/or out of, or in the course of, her employment?
c)What is the assessment of any permanent impairment which may exist?
Decision
5. For the reasons stated later in this decision, I find that:
a)Ms Robinson is suffering from a permanent impairment, namely a self reported chronic pain syndrome, involving the neck (right posterior), right trapezius muscle, right shoulder, right upper arm, right elbow, right forearm, right wrist and right hand (not fingers).
b)I am not satisfied, on the balance of probabilities, that the self reported chronic pain syndrome is related to, or associated with, effects arising out of her compensable condition and/or out of, or in the course of, her employment.
c)On the balance of probabilities, I conclude that the assessment of the chronic pain syndrome impairment involving the neck and right upper limb is less than 10 per cent pursuant to Table 9.4, with the assessment being determined as 0 per cent.
Background
6. Ms Robinson told the Tribunal the following:
· She was born in 1959. After leaving school on the completion of year 10 she worked in a variety of clerical positions either full or part time, with duties involving office work, customer service, credit applications, use of a cash register and typing (minimal).
· In December 1983 she commenced work with the Health Insurance Commission as a customer service officer on a full time basis with duties involving customer service for both Medicare and Medibank Private, with some duties involving the use of a computer. She continued with such work activities until the birth of her first child in May 1993.
· She returned to work on a part-time basis (working some 15 hours per week) in October 1993, continuing such work until August 1994 when she ceased work upon the birth of her second child. She recommenced work in August 1995 and gradually increased her work hours to 48 hours per fortnight, until stabilising at three days a week up to August 1999. In February 2000 she was off work, she then participated in a brief return to work program (short term only) and a second return to work program of reduced hours commencing in late 2000 and ceasing in February 2002. Two further return to work programs were undertaken in 2005 (eight week teacher’s aid training program) and in March 2006 (three weeks only for three hours per day three days a week). Since that time there has been no further work, with Ms Robinson remaining an employee and receiving compensation payments pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act1988 (“the Act”).
· Prior to taking maternity leave, when her work activities involved customer service, a significant portion of her day’s activities would involve computer interaction. She enjoyed the normal standard breaks in the day’s work schedule, but was unaware of any other periods involving breaks from her prescribed duties.
· Following her return to work after the birth of her second child in August 1995, she worked on pharmaceutical benefits processing for two years, which involved data entry and computer interaction.
· Pain commenced in her right arm, neck and right shoulder in the late eighties, with the pain commencing as an ache/burn in the neck (in muscles postero lateral aspect of the neck on the right side) extending across to, and into, her right shoulder and over time to her right elbow (date unknown), right forearm and right hand.
· She also experienced pain in the right hip in February 2000, after she had left work and after undertaking a gym program in 2000. She has suffered from lower back pain for years while working.
· The level of pain experienced in the neck worsened over the years to 1999, when she was unable to move her head and neck. After that it plateaued over the last few years, with the neck pain now being described as constant and causing mild discomfort.
· The pain in the right shoulder has remained consistent in terms of evolution with the neck pain, and has plateaued over the last few years, with the pain now constant and causing moderate discomfort.
· The pain in the right hand comes and goes with use, but it is particularly there at night, when she is awakened by the pain; she also experiences numbness at night; the pain increases with writing or anything like that. The pain in the right hand has plateaued over the last few years and is now described as causing mild to moderate discomfort.
· In the late eighties she received treatment for her neck and right limb pain from an osteopath, together with massage; up to 1993 treatment was sought from a physiotherapist, with the first doctor to suggest that her condition might be work-related being Dr Tarrant in the second half of 1999.
7. Ms Robinson detailed the following difficulties she was currently experiencing with the use of her right hand and limb:
·Difficulty (pain) gripping and pulling the sheets up to make the bed;
·Holding her right arm above her head to wash and/or blow dry her hair caused her arm to ache;
·Making lunches for children, preparing meals at night and, in particular, exerting pressure using her hand on a knife to chop causes difficulty;
·Vacuuming causes pain in her right arm;
·Cleaning and scrubbing causes her right hand and arm to ache;
·Dusting, involving reaching upwards, causes discomfort;
·Hanging out washing, especially grasping a peg, causes tightness in the right hand and a cramping sensation in the forearm;
·Shopping involving removing weighty articles from a shelf causes discomfort, as does unpacking the trolley and carrying items (associated with gripping);
·Driving was possible only for short distances, because gripping the steering wheel causes her right arm to ache, as well as her hand, forearm and shoulder;
·Sweeping caused excessive pain in her right hand, arm and shoulder;
·Sewing – difficulty with gripping;
·Gardening – difficulty with gripping;
·Social Activities – difficulty with gripping a tennis racquet or canoe oar;
·Ironing – difficulty with gripping and pushing the iron;
·Tying up shoelaces – nature of movements is difficult;
·Mouse use with left hand caused pain in left shoulder and felt like it was moving across into her right shoulder;
·Computer keyboard – when keying she feels pain in her right forearm which moves into the shoulder, with the pain in the forearm causing the right hand to cramp (spasm); and
·Sleeping – right arm causes a lot of discomfort throughout the night.
Medical Evidence
a. Dr Tarrant - treating General Practitioner
8. Dr Tarrant, the treating general practitioner has provided a number of reports on this matter. In an undated report (T9), with a fax transmission date of 26 June 2000, Dr Tarrant stated that Ms Robinson has been attending at his surgery for four and a half years, and that the first work-related problem raised by Ms Robinson was that of “right wrist numbness, associated pain in the right forearm and right upper arm as well as a lump in the dorsum of her right hand”. This was at a consultation on 23 February 1999. Conservative treatment was rendered for what Dr Tarrant considered to be a ganglion of the right wrist, and by 11 March 1999 Dr Tarrant records that “the ganglion had reduced in size and the pain was improving” and he stopped her Voltaren tablets. Dr Tarrant records the next presentation on 2 August 1999 at which Ms Robinson was complaining of “recurrent right neck pain, which radiated to her right shoulder and right lateral elbow”. Dr Tarrant noted that Ms Robinson was “tender over the right paracervical muscles … the right trapezius and … the right lateral epicondyle”. Dr Tarrant recorded that Ms Robinson reported that her condition was made worse by her work, particularly typing, and “she felt much worse after doing large claims, with working up to five hours at a time”. Dr Tarrant noted that Ms Robinson was using Voltaren tablets as required.
9. At the next visit on 17 September 1999, Ms Robinson complained of “ongoing pain in the right anterior cervical region as well as in her right ear”. Dr Tarrant attributed the right ear pain to an acute viral illness.
10. On 9 November 1999, Dr Tarrant records that Ms Robinson presented complaining of pain in the right shoulder, right elbow, right forearm and right wrist, with the pain being “much worse on the days she was working” and causing her difficulty with sleeping. Dr Tarrant noted that there had been a history of constant pain for the last four months. Treatment with Voltaren was reinstituted.
11. The next presentation is recorded as being on 20 March 2000 in which Ms Robinson is recorded as having experienced constant pain in her right elbow, right wrist and right forearm, with the pain being relieved during her four week holiday over Christmas, and recurring within two weeks of starting work after the holiday. Dr Tarrant noted that Ms Robinson was receiving physiotherapy from Mr Tuckerman and that a workplace assessment should be undertaken.
12. On review on 3 April 2000, Dr Tarrant records that Ms Robinson had experienced “an increase in the right forearm pain and right medial upper arm pain”. He suggested that she reduce her work to three days per week and to continue physiotherapy.
13. Ms Robinson presented 3 days later, on 6 April 2000, reporting “an increase in her neck pain with radiation to her right lower arm”, with work aggravating the pain resulting in her not being able to undertake her normal home duties. Dr Tarrant considered that Ms Robinson may have a C6/7 cervical neuralgia, rather than a straight tendonitis. Dr Tarrant noted tenderness over the C5 and T2 paravertebral muscle area and the right forearm at times, but a good range of movement of the neck. Dr Tarrant commenced Ms Robinson on Epilim tablets and issued a certificate for unfitness for work from 6 April 2000.
14. On review on 27 April 2000, Dr Tarrant noted some improvement in the pain experienced by Ms Robinson, although she was unable to perform any home duties at all. On 11 May 2000, Dr Tarrant records little change in Ms Robinson’s pain symptomatology and continued Ms Robinson’s unfitness status for work for a further month.
15. Dr Tarrant was of the opinion that Ms Robinson “appears to be [suffering from] a work-related overuse injury to her right neck and forearm”, as evidenced by signs at times of tendonitis and at times of a cervical neuralgia.
16. In a further report dated 9 October 2001 (T35), Dr Tarrant noted a continuance of Ms Robinson’s pain symptomatology which required further time off work, a return to work on restricted duties and shorter hours and fewer days. Dr Tarrant also records Ms Robinson complaining of pain in her right hip and knee following participation in a gym program. Dr Tarrant noted that workplace modifications had been done; that Ms Robinson was now working four hours a day (up from three), three days a week (up from two) on restricted duties; and that Ms Robinson was still experiencing an ongoing burning pain in the right shoulder and deltoid together with pain in the right forearm, with such pains being exacerbated by keying.
17. Dr Tarrant believed that Ms Robinson’s progress had plateaued and that she would be unable to increase her hours at work and productivity. Dr Tarrant continued to maintain his opinion as to a dual diagnosis of cervical neuralgia and an overuse injury to her right forearm and flexor muscles, both being due, in his opinion, to her work.
18. A CT scan of the cervical spine was undertaken on 5 October 2001 and reported as showing a small central disc osteophyte bar at C5-6 and C6-7 without any neural compromise (T34).
19. In a further report dated 4 March 2004 (T86), Dr Tarrant considered that Ms Robinson “has a chronic pain syndrome involving her right arm, shoulder and neck with a diagnosis of overuse tendonitis”. Dr Tarrant noted that Ms Robinson experiences “disabling pain, primarily in her right forearm and elbow, which is secondary to any minimal use of her forearm” including activities such as cutting vegetables or hanging out washing. Dr Tarrant also noted the report of Ms Grant, a clinical psychologist, which concluded that Ms Robinson’s “levels of depression, anxiety and stress were at normal levels”.
B. Dr Connolly - Consultant Orthopaedic Surgeon
20. In a report dated 2 November 2001 (T42), Dr Connolly, a consultant orthopaedic surgeon, detailed Ms Robinson’s history of pain symptomatology, including her difficulty in undertaking ironing, sleeping, cleaning and driving a car. Dr Connolly noted that at clinical examination Ms Robinson had a good range of movements of neck, shoulders and hips, although some discomfort was stated as being experienced in movements involving lateral flexion of the neck and extreme abduction and flexion of the right shoulder. Dr Connolly was unable to detect any neurological abnormality in Ms Robinson’s arms.
21. Dr Connolly concluded that “there is no evidence of any specific abnormality or any abnormality of tendon or nerve”. Dr Connolly considered that Ms Robinson did not have “any actual injury or specific diagnosable abnormality of any specific anatomical part”. Dr Connolly considered that Ms Robinson had “signs and symptoms which are not due to any medical or anatomical abnormality but rather her condition falls into the category of muscle tiredness”, with pain being experienced in the right shoulder and right arm as a consequence of heavy physical work, that is, pain with usage.
C. Dr Browne - Consultant Rheumatologist
22. In a report dated 11 February 2002 (T51), Dr Browne, a consultant rheumatologist, details a history of recurrent right neck and right trapezius pain commencing at least 10 years prior to his consultation and the development of right wrist pain and some paraesthesiae of her right hand in February 1999. Dr Browne reports that Ms Robinson’s right upper limb pain became severe enough to warrant six months off work in 2000, and while off work noted that she remained aware of her symptoms when undertaking activities of daily living. Dr Browne records that Ms Robinson’s symptomatology worsened somewhat on return to work, at which time she was undertaking four hours of branch work (customer claims) and two hours of pharmaceutical benefits work, both involving keyboard activity, for three days a week.
23. Dr Browne noted that at physical examination there was equal grip strength, no evidence of rotator cuff tendonitis, the cervical spine was mobile and a full range of movement of the shoulders. Dr Browne, in noting a strongly positive upper limb neural tension test on the right hand, concluded that Ms Robinson had “a neuropathic pain disorder associated with overuse”. Dr Browne observed that allodynia or hyperpathia, clinical features often associated with such a disorder, were not present at this stage. Dr Browne advised that Ms Robinson should cease work, unless a position was found that involved “minimal repetitive use of her right upper limb”.
D. Dr Overmeire - Consultant Occupational Physician
24. In a report dated 18 October 2002 (T64), Dr Overmeire, a consultant occupational physician, detailed a clinical history of Ms Robinson experiencing the gradual onset of right shoulder, neck and arm pain since the early nineties, with the pain becoming worse in August 1999. The increase was associated with any right arm use, but especially keyboarding. Dr Overmeire noted no wasting of Ms Robinson’s upper limbs or shoulder girdle, a full range of neck and shoulder movement with pain reported on left sided neck flexion and resisted shoulder movement together with widespread palpation tenderness over the mid-cervical spine and right upper limb.
25. Dr Overmeire considered that Ms Robinson was suffering from a right cervicobrachial syndrome, with a positive right upper limb neural tension, but no allodynia and no myotonal weakness or altered sensation. Dr Overmeire considered Ms Robinson’s condition to be chronic and that she was “not fit to perform work that [involved] keying as a predominant requirement”. However, he considered Ms Robinson fit for suitable duties.
E. Dr Connolly - Consultant Orthopaedic Surgeon (continued)
26. In a further report dated 29 November 2002 (T73), Dr Connolly noted that Ms Robinson had ceased work in February 2002 on the advice of Dr Browne. Dr Connolly recorded Ms Robinson as stating that she still has shoulder pain no matter what she does, and even if she does nothing, and that she continues to experience pain in the right forearm when writing. Dr Connolly also reports that Ms Robinson is able to do home duties if she spreads them out over the day, but experiences pain while so doing and afterwards. Dr Connolly records the right shoulder pain as the main problem, with the pain never getting much better, even at rest. Dr Connolly also noted that Ms Robinson “is able to drive her car without any problems”.
27. Dr Connolly again concluded that Ms Robinson was suffering from pain in the absence of any “definite abnormal physical signs”. Dr Connolly considered that Ms Robinson “has an underlying predisposition to pain with excessive use of her right arm and shoulder but there is no definite evidence that her work is actually responsible for her underlying condition”, but that it may well aggravate “her underlying tendency to pain with maximum activity”. Dr Connolly considered that Ms Robinson was “not unfit for work in any capacity” at that time.
F. Dr Adams - Consultant Occupational Physician
28. In a report dated 18 August 2003 (T81), Dr Adams, an occupational physician, after conducting a physical examination, considered Ms Robinson “fit and capable to work”. Dr Adams concluded that Ms Robinson “demonstrated no impairment of function and described variable symptoms of pain and ache caused by variable conditions resulting in variable levels of discomfort at variable times after activity”. Dr Adams considered Ms Robinson fit for duties outside the Health Insurance Commission, noting that “not all the difficulties associated with increasing her hours [at the Grammar School where she was working] are due to her physical symptoms and constraints”.
G. Ms Grant - Clinical Psychologist
29. In a report dated 15 February 2005 (T94), Ms Grant, a clinical psychologist, concluded that Ms Robinson did not have a pressing need for counselling support although sessions should be made available “on an ‘as needed’ basis”, as symptoms of anxiety and/or depression may again arise. Psychometric testing for depression, anxiety and stress undertaken during the consultation were reported as normal.
H. Dr Kafataris - Injury Management Consultant
30. In a report dated 21 February 2005 (T95), Dr Kafataris, a general practitioner with specific interests in injury management, detailed a clinical history of the gradual onset of symptoms of pain in her right shoulder, neck and upper limb for 10 years prior to reporting her symptoms in August 1999 at which time her symptoms had become “almost unbearable”. Dr Kafataris detailed Ms Robinson’s symptoms in February 2005, as a “constant yet fluctuating pain over the right trapezius, shoulder and forearm”, and “numbness in the palm of her hand”. Such symptoms are “aggravated by repetitive use, writing, keying and vacuuming”.
31. Dr Kafataris noted on examination a normal range of movement of the cervical spine, a global reduction in sensation over the right upper limb, no convincing neural tension, preserved power in both upper limbs and muscular grip strength in the right hand measuring 26 kg and in the left 30 kg. Dr Kafataris found no evidence of significant tendonitis, no impingement and no epicondylitis.
32. Dr Kafataris concluded that there was no reason to support continued substantial work restrictions as Ms Robinson was, in his opinion, complaining of “chronic upper limb pain that is not classical of any discreet pathological entity”. Dr Kafataris considered that Ms Robinson was fit to “return to a full shift of office based duties” over a graded return to work over a two to three month period.
I. Dr Browne - Consultant Rheumatologist (continued)
33. Dr Browne reviewed Ms Robinson on 8 March 2005, and in his report dated 10 March 2005 (T101) Dr Browne detailed that Ms Robinson had not returned to work since February 2002. Further, Ms Robinson continued to experience pain (albeit with some reduction) “extending from the right neck to the forearm, which is aggravated after activity”. Such activities include carrying loads, writing or attempting any keyboard work, while she does not engage in craft activities, gardening or sport.
34. Dr Browne, at examination, noted a full range of movement of the cervical spine and shoulders, a grip strength of 16 kg (right hand) and 21 kg (left hand), no sensory impairment or allodynia of the right upper limb and a positive upper limb neural tension test.
35. Dr Browne concluded that Ms Robinson “continues to have right upper limb pain consistent with an overuse syndrome and neuropathic pain induced by years of repetitive office tasks and chiefly keyboard activity”. Dr Browne considered that the reason Ms Robinson’s pain was so long lasting was that she worked with symptoms for such a long period of time.
36. Dr Browne continued to conclude that Ms Robinson was not fit to return to her pre-injury duties and should not be returned to writing or keyboarding duties which aggravate the problem.
J. MRI Scan Examination
37. A MRI scan of the right shoulder was undertaken on 29 April 2005. This was reported as a normal examination (T109). A MRI scan of the cervical spine was undertaken on the same day. This was reported as demonstrating “C5-C6 and C6-C7 spondylosis without evidence of neural compromise” (T109).
K. Dr Kafataris - Injury Management Consultant (continued)
38. In a further report dated 5 September 2005 (T112), Dr Kafataris noted that Ms Robinson’s symptoms had not changed since his earlier assessment in February 2005. He noted that Ms Robinson had attended for two sessions of cognitive behavioural therapy and continues to have osteopathy every three weeks, which gives her temporary relief. Dr Kafataris noted that Ms Robinson was undertaking home duties, which included making beds, folding clothes, cooking etc, while not using computers at all.
39. On examination, Dr Kafataris found a normal range of movement in the cervical spine and shoulders, grip strength of the right hand was 26 kg and left hand 28 kg and tender areas along the forearm extensors, interscapular muscles and trapezius.
40. Dr Kafataris concluded that apart from a “possible ‘first rib syndrome’ there is no evidence of any significant pathology to explain her ongoing symptoms and disability”. Dr Kafataris could see no reason why Ms Robinson should be certified unfit for work.
L. Dr Browne - Consultant Rheumatologist (continued)
41. In a further report dated 26 October 2005 (T117), Dr Browne noted that, in February 2002 when he saw her, Ms Robinson “had a well established neuropathic pain disorder associated with overuse [and] with features of allodynia and hyperalgesia”. Dr Browne, on this occasion, noted that there was no restriction of shoulder, cervical or elbow movement. Dr Browne did report the presence of allodynia, principally of her right forearm, a positive upper limb neural tension test and a 5 kg grip strength reduction in the right hand.
42. Dr Browne continued to conclude that Ms Robinson was unfit to return to her pre-injury duties and that Ms Robinson should be “considered for permanent certification of unfitness for repetitive duties”.
43. In a further report dated 20 February 2006 (T128), Dr Browne reviewed and assessed Ms Robinson’s condition over time. Dr Browne concluded that Ms Robinson has “a long standing cervicobrachial pain disorder chiefly involving the right upper limb acquired in the course of her carrying out repetitive keyboard tasks during her employment with the Medicare office”. Dr Browne concluded that Ms Robinson is “permanently unfit for her pre-injury duties” and that “she is likely to be fit only for light and non-repetitive duties in the long term”.
44. In a further report of the same day (T129) Dr Browne considered that Ms Robinson has a 10% whole person impairment pursuant to Table 9.4. In a further report dated 18 July 2006 (T139), Dr Browne explained this assessment on the grounds of Ms Robinson’s “incapacity to sustain repetitive use of her right hand in the course of carrying out keyboard and mouse tasks” because of pain.
M. Dr Couch - Consultant Occupational Physician
45. In a report dated 14 August 2006 (T145), Dr Couch, a consultant occupational physician, detailed Ms Robinson’s clinical history, including her consultation with various specialist doctors, and a final rehabilitation report by Ms Gleeson dated 25 March 2004 (not in evidence). Dr Couch noted that Ms Robinson’s pain symptoms were at their worst in 1999, with some improvement since then, although it aggravated very easily (for instance, on the train journey from Central Coast to Sydney). Dr Couch records Ms Robinson’s recent pain symptomatology “as a tight sensation in the right trapezius muscle with a burning sensation in the right shoulder and lateral part of the elbow and a burning and aching in the whole of the forearm down to the wrist but not extending to the fingers”. With right upper limb use, particularly when keying or handwriting, Dr Couch reported Ms Robinson as experiencing a sharp pain “down the medial aspect of the arm and forearm and also a cramped sensation in the middle of her right hand”.
46. Dr Couch reports that Ms Robinson was undertaking a reduced level of activities around the house, with modification to the home to assist. Ms Robinson is reported as finding it difficult to vacuum, to prepare vegetables, peel a potato, and to cook. Ms Robinson reports difficulty with sleeping, namely a tendency to wake after two to three hours and to become restless.
47. On examination, Dr Couch noted some restriction of forward flexion of the neck and bilateral moderate restriction of rotation, normal power in all muscle groups in both upper limbs, with no significant pain reported during testing, grip testing 30 kg (right) and 29 kg (left), full and painless movements of both elbows and wrists and light touch sensation was normal bilaterally.
48. Dr Couch considered Ms Robinson to be suffering from an “occupational overuse syndrome”. Dr Couch did not consider that Ms Robinson was deliberately exaggerating her symptoms and that Ms Robinson has a limited capacity for alternative employment, as he considered her unfit for pre-injury employment.
N. Dr McGill - Consultant Rheumatologist
49. In a report dated 26 September 2006 (T154), Dr McGill detailed a clinical history given by Ms Robinson, which included a 10 year history of experiencing symptoms involving “the right side of her neck, spreading down to the right shoulder, arm, forearm and across her upper back”, before she had difficulty with turning her head in August 1999. Dr McGill records a history of experiencing sleepless nights and being “in agony” after ceasing work in April 2000, with a slight improvement occurring gradually over the remainder of the year 2000. Dr McGill records that Ms Robinson considers her condition to be “somewhat better” than what it was in 2000, although Ms Robinson feels that her condition is “easily aggravated”.
50. Dr McGill noted that Ms Robinson’s current symptoms included “pain on the right side of her neck radiating to the shoulder and arm and then into the forearm, where the discomfort is a tightness”. The nature of the pain is recorded as “continual aching”. Dr McGill records that Ms Robinson “has reduced her home duties to about 25% of what she used to perform”, although she continues to do the washing, ironing (some limits) and shopping (small amounts).
51. At examination, Dr McGill found muscle development in the upper limbs consistent with dominant use of the right upper limb, a normal range of movements in the upper limb joints, excellent muscle power in all muscle groups in both upper limbs, normal sensation and the character of the light touch sensation normal in both upper limbs, tenderness to pressure over the right arm, right forearm, right upper trapezius and right upper back, a full range of neck movements, with an objective assessment of dexterity in the upper limbs being normal.
52. In summary opinion, Dr McGill concluded that Ms Robinson was suffering from a self reported chronic pain syndrome. Further, Dr McGill considered that although Ms Robinson had reported severe right upper limb symptoms that had interfered with her capacity to perform duties, there was no evidence of a physical disorder to account for her symptoms and no evidence of reduced use of her right upper limb. Dr McGill considered there was no impairment in accordance with the Impairment Tables, as digital dexterity was “specifically assessed and was entirely normal”. Further, Dr McGill considered that Ms Robinson’s answers to questions asked in the “Non Economic Loss Questionnaire are not in proportion to the lack of any physical evidence of disease”. Dr McGill concluded by stating that “I find it difficult to explain the alleged restriction of her activities which she claimed in the face of no evidence of reduced use of the right upper limb on any basis other than voluntary exaggeration/falsification.”
Consideration and Findings
53. I have been particular in detailing the clinical history of pain symptomatology as detailed by Ms Robinson and what doctors have recorded as being told to them by Ms Robinson. Apart from not declaring a previous history of pain difficulties in her claim form, I observe that Ms Robinson has detailed, generally, a consistent history of her pain complaints and the limitations to her activities caused by the pain to many doctors over time, although there is evidence to suggest an expanded list of limitations in the period prior to the hearing.
54. Before proceeding further with my analysis I note the verbal evidence of Dr Browne in which he confirmed that Ms Robinson was suffering from a neuropathic disorder and that Dr McGill was more concerned with a musculo-skeletal diagnosis, without exploring the underlying pain mechanism effectively. Dr Browne confirmed that Ms Robinson had a 10% whole person impairment pursuant to Table 9.4 because she had difficulty with digital dexterity as evidenced by Ms Robinson finding it troublesome to do the following:
· Tying her shoelaces - uncomfortable and not easy;
· Using a mouse and keyboard - manages short bursts but not sustained activity because of increasing discomfort;
· Opening jars - difficult because of pain, if having to do it on a number of occasions, not easy and potentially difficult;
· Writing - finds it difficult and not easy when done for a sustained period;
· Sewing - not easy to hold a needle for a sustained period;
· Gardening - difficult gripping tools and pulling weeds, movements which require gripping, twisting and rotating movements on a time-based activity;
· Lunches - difficult to cut lunches when gripping a knife on a time-based activity, also could be difficult chopping;
· Door knob - opening a single door should not be too much of a challenge, while opening a few may be;
· Steering wheel - gripping the steering wheel of a car, particularly when turning, may be difficult up to a point;
· Sweeping - may be difficult depending on length of activity (area);
· Ironing - gripping may be troublesome, depending on number of articles;
· Social activities - gripping a tennis racquet or an oar may be difficult over time;
· Hanging clothes - grasping a peg would be a particularly difficult task for her to sustain;
· Shopping - removing large items from the shelf or from the trolley would be troublesome because of repetitive nature;
· Cleaning - difficult to hold a brush for a sustained period;
· Dusting - an easier task than cleaning, but potentially troublesome;
· Vacuuming - repetitive nature and sustained pressure of vacuuming would create difficulty;
· Bed making - gripping and pulling sheets could be done for one bed, but for two or more, not easy; and
· Washing hair - would cause difficulty.
55. Dr Browne considered that “digital dexterity” reflects an ability to maintain a rapid sustained movement such as playing a piano, which involves maintaining a certain degree of sustained tension while performing the rapid movement of the fingers. Dr Browne agreed that the term encompasses the capacity to handle things skilfully and efficiently, or the ease of use of the fingers and hand without undue restriction, or a demonstrable restriction, in the use of the fingers.
56. I note that Dr Browne had not elicited or recorded a great many of the difficulties that Ms Robinson stated that she experienced despite seeing her on three occasions, and that his opinion was more of a theoretical nature than one of actually undertaking a test for each activity.
57. I also note that Dr Browne accepted that the theory underlying the diagnosis of cervico-brachial pain disorder (neuropathic pain disorder) remained hypothetical at this point in time, and is not necessarily accepted by all rheumatologists. I note that Dr Browne considered that common clinical features to be present for such a diagnosis included allodynia (a painful response to a non noxious stimulus, such as light touch), hyperalgisia (increased pain response to stimulus, for example, a pin prick) and a positive neural tension test, with, of course, the patient reporting pain. I observe that Dr Browne considered that the diagnosis of neuropathic pain disorder could be made when there is a relatively consistent presentation of such features. Despite what Dr Browne stated in his report of 26 October 2005 (T117) that Ms Robinson when examined in February 2002 “had a well established neuropathic pain disorder associated with overuse with features of allodynia and hyperalgesia”, it is clearly evident that this was not the case as evidenced by his report in February 2002 (T51) and again in his report of 10 March 2005 (T101). I also observe that Dr Browne recognises that there is a subjective element in the reporting of pain, with the necessity of a clinician to be fairly aware to look for evidence of fabrication.
58. I also acknowledge that Dr Browne was unable to define any evidence suggestive of a musculo-skeletal condition being present. This, he acknowledged, to include neuritis and any joint, muscle or tendon lesion in the neck and/or right upper limb. Further, Dr Browne acknowledged that the only two clinical features to support his diagnosis of neuropathic pain disorder in February 2002 were self reported pain and a positive right upper limb neural tension test, the latter test, in his opinion, being only a guideline and of some value but not infallible and not, as far as he was aware, established as a valid test by way of randomised control studies.
59. I also note that Dr Browne, when questioned on the issue of correlation between the worsening of symptomatology and work activities undertaken by Ms Robinson over time, coupled with the existence or non-existence of the clinical features necessary for the diagnosis of neuropathic pain disorder, was less than explicit in providing responses which are of assistance in understanding the clinical nature of the condition in issue. Similarly, I note that Dr Browne, while expressing an opinion as to a 10% whole person impairment pursuant to Table 9.4, made his assessment on what history Ms Robinson had reported and any examination conducted involved movement of her fingers, with time not allowing him to conduct tests as to Ms Robinson’s ability to sustain such movement.
60. I note that in oral evidence Dr McGill acknowledged that psychological influences can sensitise someone’s pain pathways, as evidenced by amputees continuing to experience pain after an ischaemic limb has been amputated. Nevertheless, Dr McGill denies that there is any evidence that repetitive activity within someone’s control leads to such a syndrome, although they often develop visible organic features such as tendonitis, localised muscle allodynia and a range of signs where the pathology can be identified, with in such situations the problem identified improving with rest.
61. Further, I observe that Dr McGill found no evidence of neuralgia, neuritis, radiculitis, synovitis or tenosynovitis. Dr McGill acknowledges that he found tenderness to pressure over the right forearm, right arm, right upper trapezius and right upper back (allodynia) on examination in September 2006. Dr McGill, when asked to comment on the neural tension test, did not consider the test a valid test, as he believes the underlying theory to be false in terms of the upper limb testing.
62. In relation to Ms Robinson’s reduction in capacity to perform home duties, Dr McGill considered that, if they were as described, it would be a severe disability, and that you would expect there to be an easily measurable diminution of right upper limb muscle bulk in comparison to the left, which was not evident on his examination.
63. In summary opinion, I note that Dr McGill was unable to nominate what condition was present in the circumstances where Ms Robinson is suffering pain in the absence of any evidence of disuse. I observe that Dr McGill was empathic in denying that there was any evidence of an overuse condition, despite the opinions rendered by Dr Tarrant (work-related overuse condition), Dr Browne (disorder arising from repetitive keyboard tasks), Dr Adams (a condition that would be aggravated by repetitive tasks), Dr Connolly (employment-related aggravation), Dr Overmeire (chronic condition aggravated by sustained repetitive use of the right arm), Dr Couch (a work-related condition) and Ms Grant (normal psychological testing profile for depression, anxiety and stress). Further, I note that Dr McGill believes there is clear evidence to suggest that Ms Robinson’s reporting of pain and what she is unable to do is inconsistent with the physical absence of evidence of disuse.
64. In moving forward with my analysis, I again note that Ms Robinson has presented a consistent history of reporting pain in the right neck radiating to the right shoulder, right upper arm, right forearm and right wrist and hand, but not to the fingers of the right hand. Further, I note that such a history involves Ms Robinson experiencing some pain symptoms since the late eighties, but being able to cope with same by way of massage and osteopathic treatment, while still working full time. Her evidence was that her pain symptomatology increased in August 1999 and progressively worsened over the ensuing months at a time when she was working part time. She also gave evidence that, at this time, absence from work ameliorated the pain symptomatology which, Ms Robinson noted, increased when undertaking keyboard or mouse activities with her right hand at work. A raft of clinical diagnoses were made by the treating doctor in the absence of definitive reported clinical signs (other than pain) and investigation. Such conditions were accepted as work-caused and compensation entitlements have been paid since. I further note that attempts have been made for Ms Robinson to return to work on two occasions prior to 2002, when she effectively ceased part time work and on two occasions thereafter, all attempts being unsuccessful. I further observe that Ms Robinson’s symptomatology seems to have plateaued in and around 2001/2002, and that her difficulties in undertaking many household activities have been evident, but perhaps in not such detail since that time, as has continuing symptoms of pain.
What is the condition?
65. From all the material in evidence and canvassed in this decision, I note that the features of Ms Robinson’s conditions are:
· A reporting of pain in her right neck, right trapezius, right shoulder, right upper arm, right elbow, right forearm and right wrist and hand;
· That such pain is constant and made worse by the use of the right limb in undertaking many work and domestic activities, and has continued for many years since work activities essentially ceased in 2002;
· That such pain has not really responded to any therapeutic endeavours although osteopathy treatment seems to render some temporary relief;
· That there are no current clinical examination features of a musculo-skeletal condition, nor has there been since at least February 2002 (Dr Browne);
· That there is no muscular wasting of the dominant right upper limb and shoulder musculature;
· That there has been no amelioration in the level of pain reported since 2002;
· That a positive neural tension test of the right upper limb has been present since February 2002 and allodynia since October 2005;
· That all investigations undertaken conclude cervical spondylosis at C5/6 and C6/7 with no neurological compromise.
66. I note the following diagnoses which have been suggested:
· “Chronic pain syndrome involving her right arm, shoulder and neck with a diagnosis of overuse tendonitis” (Dr Tarrant T86);
· “Signs and symptoms which are basically not due to any medical or anatomical abnormality” - her condition being one of predisposition to muscle tiredness with pain occurring because of usage (Dr Connolly T42), and aggravated by work activity (Dr Connolly T73);
· Neuropathic pain disorder associated with overuse (Dr Browne T51, T101, T117, T128)
· Right cervicobrachial pain syndrome (Dr Overmeire T64) ,(Dr Browne T117,128);
· “Symptom driven and not assessable from a conventional medical stand point” (Dr Adams T81);
· Complaints of “chronic upper limb pain that is not classical of any discreet pathological entity” (Dr Kafataris T95, T112);
· Occupational overuse syndrome (Dr Couch T145);
· Self reported chronic pain syndrome (Dr McGill T154).
67. After analysis of all their opinions, I conclude that Ms Robinson’s condition is diagnosed as self reported chronic pain syndrome. In reaching such an outcome I observe the absence of any evidence to suggest a musculo-skeletal condition involving the right limb and neck and the reporting of pain in the right limb that is constant and associated with most, if not all, domestic activity, without any evidence of muscular wasting in the right limb. Further, I acknowledge and rely upon the opinions of Drs McGill, Adams, Kafataris and Connolly in so far as they state that her signs and symptoms are not due to any medical or anatomical abnormality.
68. In so finding, I acknowledge that I have not accepted a diagnosis of neuropathic pain disorder (cervicobrachial pain disorder) as I consider that the underlying pathophysiology of the disorder has not been established, with such pathways currently suggested being hypothetical. Further, I noted the earliest clinical finding of allodynia by Dr Browne to be in October 2005 and that the purported clinical test for upper limb neural tension has not been properly validated.
69. Further, I note that the condition as diagnosed (self reported chronic pain syndrome) is a condition where Ms Robinson reports an increase in pain symptomatology with use of the right limb, whether it be at work prior to 2002 and briefly on return to work programs thereafter, or undertaking home activities as she has detailed.
Is the condition permanent?
70. I consider the condition, as nominated, to be permanent. In so finding, I acknowledge the following matters:
(a)Ms Robinson has been reporting pain for approximately 20 years, with more severe symptomatology since 1999;
(b)The clinical opinion of all specialists in this matter are certainly not optimistic of the likelihood of improvement in Ms Robinson’s condition;
(c)An analysis of all the clinical opinions rendered in this matter fails to elicit any avenue suggested for further rehabilitation treatment.
71. In summary I find that Ms Robinson has an impairment, namely pain (self reported) involving her neck (right posterior), right trapezius muscle, right shoulder, right upper arm, right elbow, right forearm, right wrist and right hand (not fingers). I further find that the condition is permanent, pursuant to section 24(2) of the Act.
Does the Permanent Impairment arise out of the accepted work-related condition and/or from work-related activities?
72. The conditions for which liability was accepted were “neuralgia, neuritis and radiculitis, unspecified (cervical) (right)” and “synovitis and tenosynovitis (forearm) (right)”. I note that the current clinical opinion (Drs McGill, Browne, Couch, Adams, Kafataris, Overmeire and Connolly) are unable to elicit evidence, either by way of clinical examination or clinical investigations, to support that such diagnoses are in evidence.
73. I have already concluded that the appropriate permanent impairment in this matter is self reported chronic pain syndrome. From the history, as defined by Ms Robinson, I note that the pain in the right neck, right shoulder and right arm commenced in the late eighties and that she continued to work full time until the birth of her first child in 1993, albeit seeking therapy from an osteopath. Following the birth of the first child, Ms Robinson never returned to work on a full time basis, with the pain symptomatology becoming worse in 1999, progressing in 2000/2001 and stabilising in late 2001/2002 to its current state - a state, Ms Robinson details as, constant pain, made worse by use of her right limb, with such symptoms causing much difficulty in undertaking a wide range of domestic, social and work activities.
74. In the absence of any clinical findings indicative of the presence of a musculo-skeletal disorder and in the absence of any clinically significant findings relating to the loss of muscle bulk in the right limb and shoulder musculature, there is clearly a lack of correlation between such findings and the history of significant impairment defined and experienced by Ms Robinson since 2001/2002. Such a lack of congruency does suggest a significant degree of overstatement by Ms Robinson as to the effects of her pain impairment. I note that Dr McGill is of a similar view, a view reinforced by the effects of the impairment nominated by Ms Robinson when completing her Non-Economic Loss Questionnaire for permanent impairment (T127).
75. In making the diagnostic finding that Ms Robinson was suffering from a self reported chronic pain syndrome, I made such a finding on the balance of probabilities. In doing so, I considered and ruled out the diagnosis of neuropathic pain disorder, being satisfied that the hypothesised pathophysiology of the condition was no more than a hypothesis with the suggested diagnostic criteria questioned as to validity (neural tension test - upper limb) and presence (allodynia and hyperalgesia not present until October 2005).
76. In such circumstances, there remains great difficulty in finding that Ms Robinson’s self reported chronic pain syndrome is an injury arising out of or in the course of employment, which includes an aggravation of an injury. In so stating, I acknowledge that the accepted compensable injury relates to a number of musculo-skeletal conditions, all of which having been found to no longer exist. Further, while noting the opinion of Ms Grant, a clinical psychologist, that psychometric testing at that time did not demonstrate test scores indicative of Ms Robinson then suffering anxiety, depression or stress symptoms, I further note that Ms Grant is mindful that counselling should be available if such symptoms were in evidence.
77. In summary, I find that Ms Robinson’s permanent impairment associated with a self reported chronic pain condition has not been demonstrated on the balance of probabilities to have arisen out of or in the course of her employment or the accepted compensable condition.
Assessment of Impairment
78. In the event that I am in error with my earlier findings, I turn to address the assessment of the permanent impairment. I note the evidence of Drs McGill and Browne as regards their assessment. I also note the evidence given by Ms Robinson as to the restrictions imposed on her social, domestic and work activities as a consequence of her chronic pain.
79. I note that Table 9.4 describes the following level of impairment:
10%Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity
80. I note that the word “difficulty” has been considered by the Full Federal Court in Comcare v Fielder (2001) 115 FCR 328 and concluded at paragraph 22:
[22] Something more than minimal problems with digital dexterity is required. But if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity…
81. During the course of this decision, I have noted that Dr Browne, in making his assessment, did not have the time to effectively test for digital dexterity, particularly as regards the sustained use. Further, in giving his opinion on each activity as stated to cause difficulty to Ms Robinson, such opinion was of a theoretical nature given in keeping with his professional expertise.
82. Further, I have already noted my difficulties with the growing scope of nominated circumstances which Ms Robinson described as causing difficulty. I have already expressed my reservations concerning overstatement of such matters by Ms Robinson, and I will not repeat such.
83. I conclude that Ms Robinson does not have a whole person impairment pursuant to Table 9.4. In so finding, I prefer the assessment undertaken by Dr McGill, who undertook some tests for digital dexterity. Further, I express concern with the nature of Dr Browne’s assessment in the face of his evidence about his initial assessment. I have detailed in the previous paragraph my concerns as regards the evidence of Ms Robinson.
84. I would also note that there has been no evidence addressed of Ms Robinson having difficulty with the use of the fingers on her right hand. In so finding, I would acknowledge that much, if not most, of the material given in oral evidence by Ms Robinson and commented upon by Dr Browne appeared to have more to do with grasping and holding. I note that the word “difficulty” is not applicable to such circumstances. Further, it is evident that Ms Robinson was able to grasp and hold, but experienced difficulty with sustained activity – the last phase not necessarily being an intrinsic part of the given assessment.
Determination
85. The decision under review is affirmed.
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, member
Signed: ................[sgd]................................................................
AssociateDates of Hearing 6 and 7 August 2007
Date of Decision 11 December 2007
Counsel for the Applicant Mr D Richards
Solicitor for the Applicant Mr D Williams, Slater and Gordon
Counsel for the Respondent Mr G Elliott
Solicitor for the Respondent Ms B Audsley, Australian Government Solicitor
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