Rogers and Comcare
[2005] AATA 854
•2 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 854
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/396
GENERAL ADMINISTRATIVE DIVISION ) Re DIANNE BARBARA ROGERS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr D Weerasooriya, Member
Date2 September 2005
PlacePerth
Decision The Tribunal sets aside the reviewable decision of the respondent dated 21 August 2003, and, in substitution therefor, decides that:
· the respondent has been liable from 4 July 2003, and is presently liable, pursuant to ss 14(1) and 124(1A) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) to pay compensation to the applicant in respect of her injury, namely, right-sided cervicobrachial pain syndrome;
· the respondent has been liable from 4 July 2003, and is presently liable, to pay compensation to the applicant by way of incapacity payments in accordance with s 132A(2) of the SRC Act on the basis that:
· the amount per week that the applicant has been, and is, able to earn in suitable employment, for the purposes of subpara (i) of s 132A(2)(a) of the SRC Act, is nil; and
· the amount per week that the applicant has earned, and is earning, from any employment, for the purposes of subpara (ii) of s 132A (2) (a) of the SRC Act, is nil.
The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.
(sgd. S D Hotop)
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant commenced employment with Australian Taxation Office as data processor in June 1982 – applicant sustained repetitive strain injury to right arm in January 1985 – applicant claimed compensation in February 1985 – respondent accepted liability to pay compensation in March 1985 – applicant retired on incapacity grounds in August 1986 – applicant in receipt of pension under superannuation scheme – applicant commenced rehabilitation programme in September 1989 – applicant discontinued rehabilitation programme on medical advice in October 1989 – applicant has not sought employment – applicant continues to suffer from work-related injury diagnosed as right sided cervicobrachial pain syndrome – applicant partially incapacitated for work as a result of injury – respondent continues to be liable to pay compensation to applicant in respect of injury – incapacity payments – suitable employment – applicant capable of engaging in work – applicant not able to earn in suitable employment – respondent continues to be liable to pay compensation by way of incapacity payments to applicant – reviewable decision set aside
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 27 and s 29
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, s 14, s 19, s 123, s 123A, s 124, s 131 and s 132A
Commonwealth of Australia v Angel (1992) 34 FCR 313
Klinkert v Australian Postal Corporation (1992) 16 AAR 86
Martin v Australian Postal Corporation (2000) 32 AAR 199
Telstra Corporation Ltd v Warner (1994) 20 AAR 259
REASONS FOR DECISION
2 September 2005 Deputy President S D Hotop
Dr D Weerasooriya, MemberIntroduction
1. Dianne Barbara Rogers (“the applicant”) has applied to the Tribunal for review of a “reviewable decision”, dated 21 August 2003, which affirmed a determination, dated 25 June 2003, that:
“on and from 4th July 2003 Comcare is no longer liable to pay for medical expenses under s 16 or incapacity payments under s 131(4) of the [Safety, Rehabilitation and Compensation Act 1988]”.
2. At the hearing the applicant was represented by a friend, Ms L McLeod, and Comcare (“the respondent”) was represented by Mr B Morgan of counsel. The Tribunal had before it the documents (“T Documents, T1 – T121, pp 1-220) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and the following exhibits tendered in evidence by the parties:
Tendered by the applicant
·Statement of Evidence of the applicant (including Attachments A – D), filed on 16 November 2004 (A1);
·statement of Isla Duckmanton, filed on 16 November 2004 (A2);
·report of Dr J Quintner, dated 20 March 2004 (A3);
·Curriculum Vitae of Dr J Quintner, filed on 25 March 2004 (A4);
·Milton L Cohen; “Whatever happened to RSI?” in Medicine Today Vol 5, No 3 (March 2004), pp 75-77 (A5);
·Jane Greening and Bruce Lynn, “Possible Causes of Pain in Repetitive Strain Injury” in Proceedings of the 9th World Congress on Pain, Progress in Pain Research and Management, Vol 16, M Devor, M C Rowbotham and Z Wiesenfeld-Hallin (eds), Seattle, 2000, Ch 66, pp 697-710 (A6);
·report of Dr J Roddy, dated 22 December 2003 (A7);
·report of Dr P Cheah, dated 24 February 2004 (A8);
·report of Dr R Dalrymple, dated 20 February 2004 (A9);
Tendered by the respondent
· surveillance film (DVD and VHS) of the applicant in the period from 6 May 2004 to 28 May 2004 (R1);
· handwritten notes of Ms G Ronpotis regarding the applicant’s attendance at the Zest Gymnasium on 13, 17, 18 and 19 May 2004 (R2);
· report of Dr A Marsden, dated 25 February 2004 (R3);
· facsimile from Medical Board of Western Australia regarding Dr J Quintner, dated 6 December 1996 (R4);
· Curriculum Vitae of Dr P Hanrahan, filed on 14 January 2005 (R5);
· bundle of documents published by the Department of Consumer and Employment Protection, Western Australia, regarding wage rates prescribed by Awards relating to various clerical and other occupations in Western Australia (R6).
Oral evidence was given by the applicant and by Ms I Duckmanton and Dr J Quintner (who were called by the applicant), and by Ms G Ronpotis, Mr G Dobson, Dr A Marsden and Dr P Hanrahan (who were called by the respondent).
The Factual Background
3. The relevant background facts, about which there is no dispute between the parties, and as found by the Tribunal on the basis of the T Documents, are as follows.
4. The applicant, who was born on 13 January 1955, commenced employment with the Australian Taxation Office (“ATO”), as a data processor, in or about June 1982.
5. On 24 January 1985 the applicant consulted Dr A Waddell who issued a “First Medical Certificate” (for workers’ compensation purposes) stating a provisional diagnosis of “probable repetitive strain type problem” and a physical finding of tenderness in the muscles of the right forearm. (T4)
6. On 13 February 1985 the applicant made a claim for compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”) in respect of an injury described by her as “RSI right arm and shoulder” and claimed by her to have occurred “around 15th January 1985” while she was “operating computer keyset”. (T5)
7. On 5 March 1985 Dr G Galvin provided a report to the ATO regarding the applicant as follows:
“I reviewed this pleasant lass on the 27/2/85 at the request of her own practitioner (Dr A Waddell).
She returned to work on the 14/1/85 following holidays and a foot injury.
On the 15/1/85 at midday she developed some paraesthesia on the lateral side of the right elbow and in the second and fourth fingers with an associated ache and heaviness in the right shoulder and right upper arm.
She reported the symptoms on the 23/1/85 and attended Dr Waddell and was told to stay off keyboard activities for three months and to attend physiotherapy.
She was given a job working with the Welfare Development Officer which involved no repetitive activities and was mainly doing filing, messenger’s work and writing for thirty minutes per day.
The discomfort persisted on the right arm as a constant ache for four weeks and recently, for the last week was waking her at night and was present in the morning on waking.
There seemed to be no aggravating factors except driving and she had played no sport since November. There was some recent neck discomfort.
Prior to her holidays and foot injury she had had some aches in the dorsum of the right forearm and wrist which had settled with rest and caused no real problems.
On examination she was right hand dominant without any evidence of nerve compression.
She was tender over the radial styloid process with a positive Finklestein’s test signifying tendinitis of the abductor pollicus longus and extensor pollicus brevis of the right thumb (De Quervain’s Disease).
I contacted Miriam Rowe (Physiotherapist) to arrange physiotherapy and immobilization of the right thumb. This condition often settles with immobilization of the thumb or a steroid injection in the tendon sheath. Failing this a small surgical release operation is quite dramatic.
In the meantime she is to avoid keyboard activities, stapling, folding envelopes with the right arm and to continue wearing the splint.
I intend to review her early in March following one week off work.
P.S.
5 March 1985
Reviewed this a.m. with a general improvement in symptoms. Still some elbow and wrist discomfort and recent headaches following physiotherapy to her neck.
On examination the thumb tendons have shown a marked loss of tenderness.
There is some evidence of tenderness over the lateral epicondyle of the right humerus.
I have suggested she continue with the splint and physiotherapy and to return to work on the 6/3/85 but to avoid repetitive activities with the right arm.”
(T8)
8. On 8 March 1985 a delegate of the Commissioner for Employees’ Compensation made a determination accepting liability to pay compensation under the 1971 Act to the applicant in respect of “repetition strain injury”.
9. Progress Medical Certificates, stating that the applicant was unfit for work by reason of “RSI” from March to September 1985, were issued by Dr N Adele Thomas (T11 – T18).
10. On 1 October 1985 Dr J Quintner provided a report to Dr Adele Thomas regarding the applicant as follows:
“Thanks for asking me to see Mrs Rogers.
She has been employed as a data-processor for the Taxation Department over the last 3½ years.
She has been off work since March.
She described the onset of pain in and around her neck and right wrist in January, but kept working although on light duties for the next six weeks.
She has been treated by physiotherapists, Mrs Rowe, and Mrs Feighan.
Her other treatment comprises a splint which she wears on her right wrist when she drives.
The current situation is that she complains of a lot of stiffness and aching in her neck, aching pain in the right scapula region on the inner border.
She complains of the scapular ache when she is lifting the arm, and pain radiates into the axilla.
If she is gripping and pulling with her right hand, she describes pain over the back of the hand, which shoots up the forearm to the back of the elbow.
If she performs activities involving use of the right arm, such as peeling potatoes, she complains of a painful numbness in the index, middle and ring fingers of the right hand.
She also gets pins and needles if she sits for longer than 15 minutes with her arm placed across her abdomen. She does not complain of any nocturnal paraesthesia. Twice a week she complains of severe headaches on the left side, from the top of the neck to the temporal region which can last up to 4-6 hours. She tends to get relief of this pain by lying in a hot bath.
A few weeks ago, she developed on three occasions, some pallor of the distal portion of the right index finger. Her left arm has only bad (sic) slight pain at the front of the lower forearm.
I reviewed her past health and note this has been excellent. She had a congenital heart problem, operated on at the age of 3.
Family history was reviewed, and there is a family history of heart disease and hypertension which affected her father.
Mrs Rogers is currently on no medications, but has previously been on Sinequan.
System enquiry revealed that she is otherwise in excellent health.
I asked her about her work station, and she told me she sits with her keyboard in front of her and her work on the left side. Consequently, she has long periods of typing with her neck flexed forward and rotated to the left.
On general physical examination, she was mildly overweight.
On musculoskeletal examination, I commented on normality in her hands, wrists, elbows, shoulders, hips, knees, ankles and feet. This examination includes joints, tendons and muscles.
Examining her spine, I note she was tight on forward flexion and extension of her neck and tight on both rotations and side flexions, with more restriction of movement to the right than to the left.
She had a vaguely positive Roos test on the right side. The erect military posture was negative, Adson’s test was negative. The test described by Bob Elvey for nerve root (brachial plexus) pressure was positive. The hyperabduction test was positive on the right side.
Sensation, power and reflexes were intact in all four limbs.
There was no evidence of any tenderness over the scalene muscles on either side of her neck. She was tender over the right levator scapuli muscle, and experienced pain in the scapular on active shrugging of the right shoulder.
I have arranged that Dianne have a PA view of her neck to exclude any cervical rib formation.
In terms of treatment, I have suggested that she perform a series of passive muscle stretching exercises for her neck.
I have shown her how to do these exercises, and have advised her to check with her physiotherapist to see if she is doing them properly.
The clinical picture suggests trigger points in her levator scapuli muscles, particularly on the right side.
She has some entrapment of her brachial plexus, which I believe produces the complaints of pain in the arm, together with pins and needles.
I am going to review her progress in 3-4 weeks’ time to assess her response to the muscle stretching program.”
(T19)
11. Progress Medical Certificates, stating that the applicant was unfit for work by reason of “RSI” or “cervico-brachial syndrome” from October 1985 to October 1986, were issued by Dr Adele Thomas and other medical practitioners. (T20, T22 – T27, T29 – T31)
12. In reports dated 15 July 1986 and 8 August 1986 addressed to Dr T Middleton, Commonwealth Department of Health, Dr Quintner opined that the applicant should be retired on medical grounds, with periodic reviews of her condition. (T30, T32)
13. On 15 August 1986 Dr T Middleton, Commonwealth Medical Officer, completed a “Medical examination for continued employment or retirement on invalidity grounds” form in which he stated that, after clinical examination, he considered that the applicant was suffering from “Overuse Syndrome (RSI) affecting upper spine and both upper limbs”, and that she was unfit for continued employment and should be retired on the grounds of invalidity. (T28, p41)
14. In August 1986 the applicant was retired from her Commonwealth employment on invalidity grounds.
15. Further Progress Medical Certificates, stating that the applicant continued to be unfit for work from October 1986 to August 1989, were issued by Dr Adele Thomas. (T34 – T38, T40 – T43)
16. Meanwhile on 13 September 1988 Dr K Ng, Rheumatologist, provided a report in relation to the applicant to a Commonwealth Medical Officer as follows:
“Thank you for referring Mrs Rogers along for my assessment. I saw her in the rooms today (13.9.88)
She was a data-process operator with the Taxation Department until she developed the overuse syndrome affecting mainly her neck and right upper limb. It started initially as numbness and tingling sensation in her right hand and gradually she developed pain which extended into the elbow and also radiated up to the neck. She was retired on the grounds of invalidity in June (sic) ’86 and since she stopped work her symptoms have improved. Presently she is able to perform housework provided she does so at her own pace. She can vacuum one room at a time and is also able to drive short distances. She is not taking any analgesics or sedatives. Physiotherapy did not help very much. She has not had any active treatment for quite a while.
On examination she did not appear depressed or overtly anxious. Measurement of forearm circumference revealed that her right proximal forearm is half a cm larger than the left side consistent with her dextrality. Hand grips are strong particularly on the left side. No significant muscle tenderness in the forearm. Elevation of her right shoulder was performed hesitantly but the range is normal. Movement of her neck is moderately restricted but on palpation her neck muscles do not appear to be tense or in spasm. Neurological examination is normal.
I am pleased to note that he has not suffered significant muscle wasting in the affected limb. Despite the pain she must be able to use her right upper limb sufficiently to maintain dominance of muscle bulk on that side. In my opinion she is currently fit to embark on a work rehabilitation program starting with a couple of hours on Monday, Wednesday and Friday, performing a mixture of light clerical duties not involving constant writing or keying. Noting that her residual sysmptoms are in the neck and that she cannot tolerate sustained neck flexion activity her duties should allow some freedom of movement to avoid prolonged sitting. Counter duties with minimal writing would be a good starting point. She seemed agreeable to the idea. Depending on her tolerance her hours can be increased slowly back to full time.”
(T39)
17. A Rehabilitation Plan for the applicant was prepared by Ms C Brennan, Rehabilitation Counsellor, on 27 July 1989 and, on 3 October 1989, Ms Brennan made the following progress report:
“Mrs Rogers commenced her return to work on 10 September, 1989. Since this time she has maintained a six hour week consisting of 8:00am – 10:00 am three days a week. Mrs Rogers has reported an increase in pain level since commencing work, however states that she is able to manage with her current hours and duties. Mrs Rogers states that using the manual stapler and repetitive opening and closing of binder files may have contributed to an exacerbation of pain. An electric stapler has been made available for her use.
Mrs Rogers continues to participate in hydrotherapy exercises and also reports to gain benefit from the use of the spa and sauna facilities. Mrs Rogers has been involved in counselling with regard to injury management and stress related to return to work. The use of relaxation techniques has also been introduced and Mrs Rogers is encouraged to incorporate these into her daily life.
Since the commencement of the rehabilitation programme Mrs Rogers has displayed a positive attitude towards returning to work. In discussion with Mrs Rogers she continues to demonstrate this commitment. Mrs Rogers has expressed some degree of fear regarding the change of lifestyle and the possibility of increasing her pain level. It is felt that these fears are realistic and that Mr Rogers will require ongoing support during the transition phase.
… ”
(T48)
18. On 3 November 1989 Dr Quintner provided a report regarding the applicant to Dr Adele Thomas which concluded as follows:
“…
I find that Dianne’s condition is still a very irritable one and I would categorize it as Occupational Cervico-Brachial Disorder or Pain Syndrome.
In my opinion Dianne is unfit for the performance of work of a remunerative nature. I do not see how her rehabilitation programme can proceed in the face of her increasing complaints of pain which are supported by the physical examination findings. In the absence of effective measures to manage this pain I recommend that Dianne cease her rehabilitation programme. I will review her progress in a month.”
(T55, p78)
19. On 1 December 1989 Dr Quintner provided a report regarding the applicant to Dr Adele Thomas as follows:
“I reviewed Mrs Rogers today.
Thank you for sending me the copy of my colleague, Dr K C Ng’s report to Dr J lee, Commonwealth Medical Officer dated 13 September 1988. Dr Ng has diagnosed ‘the overuse syndrome affecting mainly her neck and right upper limb’. However, he has also described a neural pain syndrome affecting her right upper limb as evidenced by complaints of numbness and tingling the right hand with later development of pain extending up the arm and to the neck. Dr Ng’s reported examination does not allow me to determine whether he utilized any examination techniques which might have allowed him to comment on the normality or otherwise of the neural tissues related to the neck and right arm. The other contentious issue in his report is the question of muscle wasting. According to the textbooks of neurology, muscle wasting detected clinically may not be a feature of brachial neuropathy and certainly wasn’t a feature of the neuralgic form of writer’s cramp described quite comprehensively in the 19th century neurological literature.
Dr Ng does comment on the moderate restriction of neck movement present on examination, but it is not clear from his examination whether such subjected movement was accompanied by complaints of pain. It is not clear why the movement of elevation of the right shoulder was performed with hesitation by Mrs Rogers. Was this because of pain or was there some weakness present?
Because of the discrepancies between the findings as outlined by Dr Ng in his report of last year and my findings on current examination, I am not prepared to alter my opinion regarding Mrs Rogers’ unfitness for work which I have expressed in my letter to you dated 3 November 1989.
I have also had discussions with Caroline Brennan, Rehabilitation Counsellor with ORS Rehabilitation Services Pty Ltd. Ms Brennan has found no reason to disagree with my assessment of Mrs Rogers. In fact, her assessment is confirmatory of my findings.
I note that Dr Cutler has referred Mrs Rogers again to Dr Ng. I am not sure why this is necessary, I would be very interested in his current findings. I would be also interested in Dr Ng’s suggestion regarding measures for pain management that Mrs Rogers might benefit from.
At the moment her right arm continues to be painful. She has recently developed hay fever and the sneezing has exacerbated the pain between her shoulder blades.
I deliberately did not perform brachial plexus tension testing on the last occasion because her condition is an extremely sensitive one. Previous examinations performed by myself, you and Bob Elvey have highlighted the adverse brachial plexus tension in the right arm. The findings as reported in my last letter to you have not changed. I would like to suggest that Dianne be included in the study on TENS that we have been doing this year and hope to continue next year.
I cannot conceive that Dianne is going to be fit to return to work until such time as her pain is better managed. I am going to review her progress in about three week’s time. By then I should have the copy of report of Dr Ng and be able to make appropriate recommendations regarding Mrs Rogers’ future management.”
(T58)
20. On 6 December 1989 Dr K Ng provided a report regarding the applicant to Dr S Cutler, Commonwealth Medical Officer, as follows:
“Thank you for referring Mrs Rogers back for my review. I saw her in the Rooms today (5.12.89).
Symptomatically the pain in her neck and right upper limb has worsened since she embarked on a work rehabilitation programme on 4th September this year, performing 3 hours of light clerical duties on Mondays, Wednesdays and Fridays. Her duties included photocopying, limited phone work, filing, sending out letters and some messengerial duties. In spite of the fact that she was not under any pressure to meet date lines, she is adamant that her symptoms have increased since she embarked on the Rehabilitation programme. She cannot pinpoint which duty aggravated her symptoms.
Since she has been working her ability to perform housework has been drastically curtailed. Driving to and from work is enough to aggravate her symptoms. She has a manual car with floor gears. Although in the past her left upper limb was not affected, of late she has started to feel twinges in the left arm. Currently she is not having any active treatment, although her treating specialist has mentioned the possibility of using a Tenz stimulator. The possibility of acupuncture treatment has also been discussed with her by her GP.
Presently she has constant pain on the right side of her neck, which extends into the right upper limb ending in the last two fingers of the hand. The whole right hand feels numb and tingly all the time. Sleep at night is disrupted.
On examination both active and passive range of neck movements are markedly restricted in range. Light palpation of her trapezius muscles revealed no significant muscle spasm, although on the right side, even with the light palpation she complained of discomfort. She can actively abduct the left shoulder to 110º and on the right side only to 80º. Grip strength is normal in the left hand but weak in the right. She could hardly grip two of my fingers with her right hand. Measurement of proximal forearm circumference reveals a larger measurement on the right side by 1 cm, consistent with her dextrality. Mild tenderness in the proximal forearm and over the lateral epicondyle. Resisted extension and flexion of her right wrist did not provoke pain in the elbow. No evidence of carpal tunnel syndrome. However, pinprick sensation is impaired in a glove and stocking distribution involving the right hand. No muscle wasting of the right deltoid noted. Lumbar spine movements are very satisfactory in range, and pain free. General systemic examination is unremarkable. In particular, she is not depressed, agitated or nervous. In fact, she was quite relaxed whilst relating her symptoms.
The increase in symptoms following return to a work routine is not unusual. If she were my patient I would encourage her to persevere because I have patients who overcame their initial difficulty at work, and are now able to tolerate full-time duties because they had persevered. Her symptoms will also increase if she performs too much housework. It doesn’t mean that if she gets a flare up she must never perform housework ever again, even though there is no effective treatment available. I find no fault with her present rehabilitation programme. The duties given to her are light and varied, and permit freedom of movement, not to mention no deadlines to meet. Such working conditions are far from the normal situation of competitive working pace, with datelines and work pressures. The success of her rehabilitation programme depends on how well motivated she is for work, and the support she gets from her treating doctors. If prolonged rest is the solution to her problem, one wonders why she still has such poor tolerance to light clerical duties on such a limited scale, after not having worked for three full years.”
(T61)
21. On 13 December 1989 Dr S Cutler completed a “Medical examination for continued employment or retirement on invalidity grounds” form in which she stated that she considered that the applicant was fit to continue her rehabilitation programme comprising light mixed clerical work for 3 hours per day (with a ½ hour break half-way) on Mondays, Wednesdays and Fridays. (T62, p87A)
22. On 18 January 1990 Dr Quintner provided a report in which he again recommended that the applicant be retired on medical grounds, namely, “her ongoing and severe occupational cervico-brachial disorder”. (T67) Dr Quintner also issued Progress Medical Certificates stating that the applicant was unfit for work from January to April 1990. (T68 – T69, T71 – T72, T74)
23. On 3 April 1990 Dr E Stewart-Wynne, Neurologist, provided a report regarding the applicant to a Senior Commonwealth Medical Officer as follows:
“Thank you for your letter of March 1990, together with copies of various medical reports by other physicians. Mrs Rogers was interviewed and examined by myself on 2nd April 1990.
Her history goes back to 1984 when she was at work and experiencing intermittent pain in the right forearm, the pain remitting after a night’s rest. She then had a six week holiday and on returning to work found that the workload had increased and after approximately one week she was experiencing continuous pain in the right forearm, the pain then extending up the arm into the shoulder, neck and head. Her symptoms persisted but in September 1989 an attempt was made for her to return to work, on a part-time basis. Her symptoms became more severe and eventually she had to stop work. Currently she experiences pain in the right upper limb, the neck, the occipital region of the head, and the interscapular region, on the right. The pain is a continuous ache which is aggravated by activities and also by sitting for any length of time. At present she is unable to do housework such as cleaning a shower, scrubbing, hanging out washing, vacuuming, or remaking a bed. She can iron one garment at a time. She has difficulty peeling vegetables and tends to use frozen vegetables. She has difficulty lifting things into and out of an oven. Turning taps and even driving is difficult for her to do. If she does undertake any form of physical activity the pain as described above will become more intense. She has found that soaking in a hot bath will relieve the pain, temporarily.
Prior to the above she was in excellent health. She had surgery for a heart defect at the age of three. She does not have a family history of note. She is a non smoker and she occasionally drinks alcohol. She is on Sinequan 25 mg at night, on an intermittent basis.
On examination her weight was 72 kg. Her pulse rate was 80 per minute, her blood pressure was 120/70 and auscultation of her heart and neck was normal. She had marked limitation of neck movements in all directions. Tenderness was present over the right trapezius muscle. No muscle wasting was present, power was equal when getting her to contract muscles in both upper limbs simultaneously, the tendon reflexes were symmetrical and the plantar responses were flexor. Sensory testing was normal.
In my opinion Mrs Rogers has a condition with numerous names, one favoured term being the regional pain syndrome, also known as occupational overuse syndrome and so on. A recent leading article in the Medical Journal of Australia, 1990, Volume 152, pages 226-228 discusses the syndrome using the name fibrositis/fibromyalgia syndrome, and is in fact an excellent summary of our knowledge and understanding of this complex problem. Although there is an hypothesis that this syndrome is the result of brachial plexus dysfunction, the neurogenic hypothesis referred to by Dr Quintner in his report dated 12th December 1988, my own opinion is that this hypothesis is incorrect. Most researchers in the area are of the opinion that the symptoms are muscular in origin, that they are triggered by overuse of muscles and that following this simple muscular activity will cause muscle contraction and pain, the pain being mediated by peripheral nerves, most probably via the sympathetic nervous system.
From her description of those activities she is able and unable to do my opinion is that she is not fit for light duties and I doubt that a rehabilitation programme will be of benefit, until such time as she is able to undertake physical activities at home, without aggravating her pain. Hydrotherapy and swimming exercises are often of benefit, providing that the person learns very gradually to increase the amount of physical activity being undertaken. I have discussed all of these points with her and have said that it is possible for her to improve and become symptom free, in the fullness of time, although this is unlikely to occur in the short-term.”
(T75)
24. On 30 May 1990 Dr Quintner provided a report regarding the applicant to Dr Adele Thomas as follows:
“I reviewed Dianne today.
I have Ted Stewart-Wynne’s report dated 3 April 1990. He refers to a leading article in the MJA by Riley and Littlejohn on fibrositis/fibromyalgia syndrome. I have submitted a letter to the Editor of the MJA congratulating them on their article but also pointing out that they have totally ignored any reference to neuropathic pain states. Dr Stewart-Wynne is certainly not correct when he says that most researchers in the area are of the opinion that the symptoms are muscular in origin. I am aware that the hypothesis of muscular origin of symptoms has now been discarded by the most eminent researchers in this field.
I agree with Dr Stewart-Wynne that hydrotherapy and swimming exercises may be of benefit but only in patients where such exercise does not excite paroxysms of pain of a neuropathic type. Unfortunately, this is the case for Mrs Rogers and I doubt whether she could cope with any swimming exercises. There is no evidence that exercise is of any benefit to patients with the pain syndrome ‘RSI’.
I agree with Dr Stewart-Wynne that Dianne continues to be unfit for return to employment. I hope that it is possible for her to improve and become symptom free but I have been observing her progress for some 4½ years and do not see a trend towards such improvement.
Dianne continues to report high levels of pain in her neck and into her right arm. She can experience exacerbations of pain for no particular reason and these exacerbations often last for up to 4 days. She remains severely limited in her functional capacity. I have certified continuing incapacity for return to employment of any nature and will review her progress in about two months time.”
(T80)
25. On 22 August 1991 Dr J Whiteside provided a report regarding the applicant to the respondent following a referral by Dr Adele Thomas. That report contained a diagnosis of “chronic myofascial pain syndrome” and concluded as follows:
“Although Dianne has been declared unfit for work since 15 August 1986, the prognosis for full recovery should be quite good. She is a sensible woman, previously fit, a non-smoker, with a health lifestyle. She has a genuine desire to return to work and is keen to begin another program with ORS as soon as adequate improvement has been obtained.”
(T86, pp 119-120)
26. On 9 October 1991 and 4 November 1991 Dr S Torvaldsen (a colleague of Dr Whiteside) provided reports to the effect that the myofascial therapy treatment that had been given to the applicant had not been successful and that it was proposed to discontinue that treatment. (T94, T95)
27. On 6 January 1997 Dr J Quintner provided a report regarding the applicant to Dr D Jefferson (the applicant’s new treating general practitioner) as follows:
“Thanks for asking me to review Mrs Rogers. It was of interest to follow her up as she was first seen by me some 11 or so years ago. As you know, she was retired from the Taxation Department on invalidity grounds in 1990 (sic) or thereabouts. Subsequently she has failed to respond to treatment administered by Dr Whiteside and has relied on simple measures for pain relief including heat, massage and an analgesic preparation containing Panadol, Codeine and Doxylamine.
Mrs Rogers told me that she is never pain free. She is mainly aware of right sided neck and upper back pain. If she is not careful to avoid repetitive use of her arm she will experience a burning pain in the interscapular region, extending up the right medial scapular region which can be followed by pain in her right shoulder and upper arm and a tingling, cramping feeling in her hand. Her symptoms are mainly on the right side but on occasions similar symptoms can be felt on the left side.
On examination, I noted that cervical movements were grossly restricted in range in rotation and lateral flexion to the right and moderately restricted in all other directions. Local tenderness was obvious in the neck over the lower cervical segments on the right side.
On examining the right upper limb, I noted a hyperalgesic response on palpating the ulnar nerve in the region of the elbow but the median and radial nerve trunks did not appear to be tender.
I could detect no evidence of neurological deficit in the right upper limb but she did exhibit pronounced allodynia to vibration administered in the region of her right shoulder and right elbow.
On reviewing my file, it appears that Mrs Rogers has not improved since I first saw her in 1985. She has responded poorly to many forms of treatment and vocational rehabilitation attempts have been unsuccessful.
At this stage, I do not see that it would be possible for her to return to the work force in any capacity, even with further rehabilitation assistance”.
(T102) On the same date Dr Quinter also wrote to the respondent as follows:
“I enclose a copy of my report to Mrs Rogers’ General Practitioner, Dr Jefferson. Herewith my response to the Schedule of Questions raised by you.
1.Mrs Rogers’ current condition is encompassed by the diagnosis of refractory right cervico brachial pain syndrome of presumed neuropathic pathogenesis.
2.This condition is directly related to Mrs Rogers’ employment with the Commonwealth as a data processor operator with the Taxation Department.
3.In my opinion, Mrs Rogers is totally incapacitated for any employment.
4.Not relevant.
5.The prognosis of Mrs Rogers’ condition must be a guarded one.
6.Mrs Rogers has been able to come to terms with her pain and consequent disability and I do not therefore recommend any further treatment.
7.The medication which Mrs Rogers is currently taking for her condition is in my opinion quite appropriate.”
(T101)
28. On 20 February 2003 Dr P Hanrahan, Rheumatologist, provided a report regarding the applicant to the respondent as follows:
“Thank you for asking me to see Dianne Rogers, she was seen at your request today, 20 February 2003.
Mrs Rogers is currently aged 47, is married with two adult children. Her husband is a plasterer.
Mrs Rogers tells me that she still has pain ‘24 hours a day’. She had been employed by the Taxation Department as a data processing officer, for approximately four years when she began to develop discomfort in 1984. This predominantly involved her arms and neck with pins and needles. This was initially intermittent, would resolve overnight and on weekends but gradually became more persistent, not resolving and she eventually retired on the basis of invalidity in 1986. She attempted to return to work several years later, she is uncertain of the time but believes she lasted at work for approximately three weeks, initially two hours per day and when the work hours were increased to three hours per day she could not cope and was told that she would not be able to work again. Other than this very brief return to work trial she has not worked since 1986.
She does not believe that her symptoms have changed but feels that, rather, she has learned to cope with her symptoms. She describes ‘headaches 24 hours a day’ with pain in the interscapular area, radiating into the neck and occiput. Symptoms are bilateral but most severe on the right. Although discomfort is present all the time, symptoms are aggravated by any form of activity, in particular repetitive activity and when severe pain radiates down the right arm into the forearm and hand.
She finds that symptoms are aggravated by eg vacuuming, unstacking a dishwasher. If the pain becomes more severe she will take a hot bath which can ‘calm it down’ after 2 to 2½ hours. She also has intermittent massage.
She does most of the housework with assistance from her husband. She does this by doing small amounts at a time eg vacuuming only one room at a time. She has difficulty peeling and if she has to peel more than one or two potatoes her husband does that. He does the bathroom scrubbing, hanging out the washing and washing the floors.
She is able to do most of the cooking otherwise.
She does not take any medication and has not taken any medication for many years. She has no other treatment other than occasional massage. She is generally well. She walks 30 minutes per day, more than that results in increased pain.
She is on treatment for hypertension and manages diabetes with diet and exercise.
On examination she is a pleasant, lucid woman giving a consistent and coherent history. She had reasonable posture. She was overweight. She had apparent significant reduction of neck movements with flexion approximately 10º, extension 20º with lateral flexion to the left resulting in pain down the right side of the neck and arm. Rotation was approximately 30º bilaterally, rotation to the left resulted in pain down the right side of the neck. Left shoulder movements were full but she was reluctant to abduct or flex the right arm beyond 90º, internal rotation was lateral to the thigh. She resisted passive abduction and flexion, there was a full range of passive external rotation.
Reflexes were symmetrical there was no obvious sensory abnormality, there was no wasting. She had give way weakness affecting all muscle groups in the upper limbs.
She was tender in the right trapezius, right paravertebral muscles, upper dorsal spine centrally and to the right.
With reference to your specific points:
1.…
2.I am unable to establish a specific diagnosis. I note that Dr Quintner, in his letter of 6 January 1997, diagnosed ‘refractory right cervicobrachial pain syndrome of presumed neuropathic pathogenesis’. Essentially he has described her symptoms and made a presumption of aetiology. There is no objective mechanism for confirming or refuting this diagnosis and essentially, in this context and with these examination findings, as described by Dr Quintner, it is essentially a matter of faith or perhaps dogma. I can do no more than say that she gives a history of chronic pain. There were no objective abnormalities, I am unable to postulate a reason for her chronic pain.
3.As noted, I am unable to arrive at a precise diagnosis. I can find no evidence of any underlying, pre-existing, constitutional or degenerative disease. Her symptoms don’t appear to relate to generalised degeneration, there appeared to be no significant health issues, it doesn’t relate to hobbies or sporting activities. Are her symptoms related to her employment with the Department of Taxation? On historical basis the symptoms originally developed while she was working, improved when she was not working and then recurred when she returned to work. This implies a causative effect from work. She has not worked significantly now for 17 years. Are her symptoms therefore still related to her employment? There is no structural abnormality that could account for her ongoing pain being related to her work, ie there is no obvious damage to any of the nerves, tendons, muscles or joints. A possible mechanism relates to a change in the pain processing mechanisms and I am sure that this would be explanation given by Dr Quintner. Once again this is a hypothesis which cannot be tested. Although the history was consistent and most of the examination was consistent, ie there was no overt discrepancy between neck movements during the history and during the formal examination, she had give-way weakness of the right upper limb. She clearly stated this is not due to pain but due to weakness. This was non organic in nature and implies a degree of non-organicity to her symptomatology. It was not due to allodynia, not due to hyperalgesia, not due to abnormal pain modulation. It was stated to be due to ‘weakness’. This is inconsistent and leads me to believe that there is room for considerable doubt about the organicity of her symptomatology.
I therefore conclude that her current symptomatology is not related to her employment with the Department of Taxation.
4,5,6 …
7. …
8.I believe that Mrs Rogers is fit for full time work. I believe that she would cope with reception work, clerical work performing a variety of tasks.
9.I do not believe that any rehabilitation program would be of assistance.
10.…
11.I do not believe that a vocational assessment would be useful.
12.Her employment history has been described.
13.Mrs Rogers is not taking any medication, she has not required or taken medication, other than for her hypertension, for many years. She found medication previously helpful. I agree that medication would probably not be helpful for her complaints of pain. Mrs Rogers does admit that she has regular massage, she finds this helpful, however it is performed by a friend who charges her apparently $5 a week for this. …
14.I do not believe that any form of treatment will be helpful.
15.Her pain symptoms will possibly continue.
16.I confirm that I do not believe that her current symptoms are related to her former occupation and that any diagnoses made previously are no more than speculation.”
(T109)
29. On 21 May 2003 Dr N Cook, Rheumatologist, provided a report regarding the applicant to the respondent as follows:
“Thank you for your letter of April 30, 2003 requesting a medical report on Mrs Dianne Rogers. I saw her today for the purposes of providing you with this report and confirm that I have received and read the case summary medical reports and relevant material attachments 1-20 in addition to the report by Dr Patrick Hanrahan dated 20 February 2003.
The history of her injury which now dates back some 17 years has been well documented by others but in brief is as follows:
Mrs Rogers had been working for the Taxation Department for around 5 years as a Data Processor prior to January 1985. She returned to work at that time after a 5-week period of absence, a combination of annual leave and sickness leave due to an ankle injury sustained at work. Within a few days of returning to work she experienced tingling and burning over the dorsum of the right hand radiating up the arm with an inability to move the fingers freely in addition to some swelling over the thumb and 1st ray. There was no obvious alteration in colour or temperature although she subsequently described blanching of the 2nd and 3rd fingers in association with cold which has pursued (sic) intermittently to date. There was a period of time off work and then a return to work on graduated light duties starting with three hours a day. She was not doing data entry but the clerical nature of the work involved repetitive use of the right arm and was not tolerated.
Physiotherapy, acupuncture and a number of medications were trialled without significant return to work and she was officially retired on medical grounds in August 1986. There has been a brief and unsuccessful attempt at returning to work in September 1989 (three hours a day three days a week, light duties).
Mrs Rogers’ current complaints are of what she describes as a continuous dull headache experienced in the right side of the neck and right upper trapezius in addition to an intermittent sharp pain from the elbow radiating to the shoulder and neck and into the interscapular region associated with activities involving use of the right arm particularly elevation of the arm above 90º.
Other activities which will aggravate her pain include typing, sweeping, cutting up vegetables or being on the phone for too long. She manages this by avoidance of such activities and the occasional use of Mersyndol 2-3 taken two times a week. She also gets relief from a hot bath or the use of heat pads. She also has a TENS machine which she uses on occasions and does some stretching exercises. In addition she has an occlusional dental splint which she uses from time to time although she is not of the opinion that it gives any benefit.
A number of medications were tried in the past but she states that the side effects were greater than the benefit. Her sleep pattern is poor, she sleeps for approximately 4 hours per night.
Mrs Rogers walks for around 30 minutes each day, enjoys reading, does most of the cooking and housework, avoiding heavier jobs such as scrubbing the bathroom. She can do the washing but doesn’t hang out heavy items, leaving this for her husband. She states that she has difficulty sitting for more than 15 minutes because of pain in the interscapular region. She enjoys going out with friends or her husband in the evenings but is unable to participate in activities such as playing darts.
Her past medical history includes recently diagnosed diet-controlled diabetes and mild hypertension. I note that she has two different GPs, Dr Graham who she sees for her general health and Dr Jefferson with regard to her worker’s compensation claim.
Examination shows a well looking lady who appeared to sit comfortably for the 30 minute interview. There was no spontaneous use of the right arm during conversation. There was no evidence of disuse of the right upper limb such as wasting and certainly no clinical features of reflex sympathetic dystrophy (no vasomotor disturbance, alteration in colour, temperature, skin texture or contractures). Formal examination of neck movements showed more than 40% loss of movement in all directions but was observed to be better than this on casual observation and during other manoeuvres. Examination of the left shoulder and arm was entirely normal. On the right internal rotation allowed movement to the lateral buttock only. She could reach behind her head but abduction was possible to 140º only and painful from 110º. Tests for upper limb neural tension were moderately positive on the right. Reflexes were symmetrical and equal. There was subjective alteration of sensation in the right outer upper arm, mild to moderate vibration allodynia over the right arm, maximal over the apex of the shoulder. There was give-way weakness in the right arm associated with some shaking of the right upper limb on formal assessment of power.
In specific reply to your questions:
1.…
2.Mrs Rogers’ complaint is best described as cervicobrachialgia or cervicobrachial syndrome. Both of these terms are essentially descriptive meaning pain affecting the neck/arm and usually implied to be of neuropathic aetiology after exclusion of specific neurological pathology such as specific nerve entrapment (for example, carpal tunnel syndrome) or prolapsed cervical vertebral discs.
3.In my opinion Mrs Rogers’ current condition is:
(a)not related to pre-existing constitutional or underlying degenerative conditions.
(b) not generalised degeneration as part of the natural ageing process.
(c) is related to the nature of her work at the Taxation Department.
(d) not related to some other aspect of Mrs Rogers’ employment.
(e) not related to other health issues.
(f) not related to hobbies or other sporting activities.
(g) not related to other factors unrelated to work.
(h)not related to underlying degeneration as part of the natural ageing process.
4.…
5.(a) Mrs Rogers developed a work-related upper limb syndrome (cervicobrachialgia) whilst in the employment of the Department of Taxation in 1986 (sic). I believe that her employment was the cause of the condition at that time. I believe that with the passage of time and the removal from the workplace her symptoms have improved to a significant extent.
5. (b) …
6.[Dr Cook opined that the applicant’s work-related condition had not ceased].
7.I found some discrepancy between informal observed range of movement of the neck and formal examination. I cannot state that this was voluntary. Similarly I felt there was sub-maximal effort demonstrated on formal examination of power.
8.Mrs Rogers is not currently fit for full time work.
9.I believe that Mrs Rogers has a work capacity. I believe that she continues to experience some symptoms in her right arm which are no longer of a severe or incapacitating nature.
10.I believe she would be fit for part-time work such as light clerical work (0.5 FTE) avoiding activities which involve movement of the right arm above the horizontal or repetitive actions of the right arm.
I do not believe that rehabilitation will have anything to offer.
11.A vocational assessment may be appropriate to assist Mrs Rogers to re-enter the workforce if she wishes to. I believe there are significant issues related to Mrs Rogers’ current age, skills and more particularly the fact that she has been out of the workforce for the last 17 years.
12.Mrs Rogers stated that she has undertaken no employment since she stopped working at the Department of Taxation in 1986.
13.Although Mrs Rogers had used a number of medications many years ago she states that the side effects outweighed the benefits. She stated however that she currently uses Mersyndol 2-3 tablets at a time once every few days. In addition she uses heat packs, occasional massage that she pays for herself, and hot baths. She also has a TENS machine which she finds helpful. I believe that if this gives her relief it is reasonable to continue to use the Mersyndol in this fashion. She buys her Mersyndol over the counter approximately once a month.
…
Mrs Rogers tells me that she sees two different general practitioners with regards to her worker’s compensation claim, Dr Jefferson who she sees rarely and secondly, Dr Dianne Graham with regard to any other health issue.
14.There is a new medication for neuropathic pain which has been on the market for only a few years. This is called Neurontin (Gabapentin). I believe it would be worth a trial of this medication and have provided her with a script and will
15.inform Dr Jefferson that I have done so. If she finds this helpful it can be continued long term at an appropriate dose. If not, it should be stopped and there are no other treatments that I would advocate since other appropriate therapies have been tried and were not helpful. Formal physiotherapy at this stage would be of no benefit although I would encourage her to continue her self-managed program of stretching and regular walking.
16.I believe it is probable that Mrs Rogers will continue to have symptoms relating to her right arm but, as stated above, they are no longer severe or incapacitating.”
(T114)
30. On 25 June 2003 an officer of the respondent made a determination that “on and from 4th July 2003 Comcare is no longer liable to pay for medical expenses under s 16 or incapacity payments under s 131(4)” of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). (T115)
31. On 21 August 2003 a Review Officer of the respondent affirmed the abovementioned determination. (T119)
The Applicant’s Evidence
32. A Statement of Evidence of the applicant, filed on 16 November 2004, was tendered in evidence (Exhibit A1). The contents of that statement, which were verified by the applicant in her oral evidence, are as follows:
“Before my injury in January 1985 I had a normal full life with my husband and 2 children. I was enjoying work and family activities which included helping out my daughter’s dancing teacher and taking both children to various sporting activities. My husband and I were working towards owning our home as well as giving our children the happiest upbringing we could.
I commenced working for the Australian Taxation Office as Clerical Assistant in 1982. After several months carrying out administrative duties in the mail room I commenced as a Data Processing Operator which involved repetitive keyboard duties. This was my position until I finished work. In late 1984 on my way to work I slipped on an oil spill in the under-croft of the ATO building injuring my ankle. I was taken to Royal Perth Hospital for treatment. I was not allowed to return to work for about a week which went into my holidays. Upon returning to work on 14/1/1985 after the ankle injury and holidays I developed pain and discomfort in my right arm. This had happened previously but would go away with rest and didn’t cause any problems but this time it was a constant ache and didn’t go away even after sleep. I reported this to my supervisor on the 23/1/85 and went to my GP where I was told to stay off keyboard activities and have physiotherapy. Whilst I was not doing keyboard tasks I was required to do filing, stamping, stapling and general administrative duties. My injury did not improve and the pain in my fingers, hands, arms and shoulders increased. I visited my doctor, Dr Waddell, who put me on sick leave until 6 March 1985. I went back to work on 6 March 1985 but the pain was still considerable. I was seen again by Dr Waddell on 13 March 1985 who referred me to a GP, Dr Adele Thomas, who was researching RSI at this time. I was examined by Dr Thomas on 22 March 1985. She put me on sick leave until 3 May 1985. Dr Thomas required me to have home help which I had from 23 March 1985 for about six months. After about six months or more I felt that with help from my husband and 2 children (aged 8 and 10 years old in 1985) I would be able to manage the housework. I felt it wasn’t right for the government to keep paying for home help. I was referred to Aids to Daily Living Centre in Shenton Park where I was given useful hints on how to minimise the effects of many general household chores. I found this helpful but still found I had to have my husband and children do many of the household duties.
During the next 12-18 months I was on sick leave I had numerous physio sessions and doctors visit. … I was having physiotherapy sessions about three times a week. The sessions included ultra sound, massage, stretching. During this time I was required to wear a splint and neck brace.
The pain in my arm became less severe but my neck and shoulder took over. The severe headaches and restricted movement caused me and my family a lot of distress. I was unable to do housework which included cleaning such as bathroom scrubbing, hanging out washing, vacuuming and washing floors. Ironing was a definite problem. Hot baths gave me temporary relief. Lifting heavy objects such as casserole dishes and turning taps or opening jars caused pain but also were difficult. Driving aggravated it also.
I was reviewed to be retired out in 1986 with annual review (this was done around 1990).
I was reviewed by Dr Ng and it was recommended that I return to work on a limited part time basis. I did this on the 10th September 1989 – 6 hours a week – 2 hours a day.
My pain level did increase but I did think I could manage it though there did have to be a few changes ie stapler and filing and did still go to therapy etc. I increased my hours and did hope this would continue as I was happy in thinking that I would be able to return to work even if it was part time with the outlook that eventually it would be full time. This was not possible as my pain increased to such a level that I couldn’t continue.
I was reviewed by both Dr A Thomas and Dr J Quintner and it was recommended that I cease the rehabilitation programme, though Dr Ng disagreed with this.
I continued to have physio and also now used my Tens machine for approx 2-3 hours a day as well as using Mersyndol and other painkillers depending on the severity of the pain.
Over the next few months I was able to get some relief wearing the tens machine as well as having physio.
I was reviewed by Dr Stewart-Wynne in April 1990.
My left arm had started to give me some pain though this never came up to the same extent as my right, for which I am eternally grateful.
I continued to see my physio and also Dr Adele Thomas often and Dr Quintner.
To say that all these examinations hurt are an understatement. To be honest I rarely let anyone see my pain. It is something ingrained into my character that to show pain is a weakness. I know this was and probably still is why some specialists and lay people do not realise just how severe my pain is but I can’t change that. There are only a few people who have seen just what this has done to my life and they include some of my family and one or two doctors/physios.
During a dental treatment for an abscess I had an increase in my pain due to not being able to open my mouth wide enough and also the position I had to hold my head.
I was reviewed by Dr Adele Thomas as well as Dr Quintner but with no decrease in pain levels.
In August 1991 I was referred to Drs Whiteside and Thomas Kennedy for assessment. Dr Whiteside diagnosed chronic myofascial pain syndrome and sent me to Thomas Kennedy who suggested I wear a mouth guard at night, which I did and sometimes still do but with no real success. Sessions of acupuncture were tried. These hurt like hell and didn’t have a significant effect for them to recommend it to continue, though they did recommend that I have therapeutic massage which I have found is beneficial over the years.
Due to Dr Thomas leaving the country I was referred to Dr Duncan Jefferson who is still my GP. He has reviewed me during then.
Over the years that followed I have continued to be reviewed by Comcare.
During all this time I have had good days and bad. Days where I have not stepped outside my door. Other days where I have done things I shouldn’t because I felt if I didn’t then I would cease to be a person. I still have these days and probably will for the rest of my life!
I still ask WHY ME? What did I do to have this problem? Why do some specialists understand and yet others have no idea?
My husband washes my hair and when I wanted he blow dried it, though normally if I needed it for a special occasion, I will go to the hairdressers. I find it difficult to sit for a long time and also it’s painful to hold my head forward etc. This makes going to the hairdresser painful but I have to do it, though sometimes it’s months in between because of this.
Cleaning my teeth was a problem so I asked my dentist and he suggested I try one of the electric tooth brushes which I did. It was a help but in the more recent times I have had to revert to the normal toothbrush more often as the vibration would aggravate my injury especially when it was already in a bad way.
Over the years I have tried not to drive and a lot of my friends and family have been really good about this and will pick me up when they can. Of course there have been times when I have had to drive or not be able to get where I had to go. Even bus travel can increase my pain especially if the journey has a lot of sharp turns or sudden stops. The new buses are much better as the vibration is less.
Over the years I have tried very hard to use my arm as I do not want to lose its capacity and also all my doctors and physio have explained to me that rest is required but also exercise so that my muscles continue to work.
I was walking at least 6 times a week but have found this has not been enough in helping me to lose weight. After consulting Dr Jefferson (GP) I joined a gym. I also felt that as Dr Hanrahan had said I was ‘cured’ or at least didn’t have ANY injury that I should be able to do this.
I explained to my trainer about my problem but also explained that I wanted to not only lose weight and increase fitness but to rehabilitate. We decided to do exercises and slowly increase exercises and some weights.
I have 1 session a week for 30 minutes and then increased it to 2 a week when I can. I also went to Splash Class twice a week.
Even though some of the exercises did cause pain I wanted to do as much as I could as Dr Hanrahan had said ‘that maybe I couldn’t distinguish between injury pain and normal pain from exercise’. I cannot do anything where I raise my arms above my head without it causing sharp pains which then lasted for days. Yes sometimes I still try to do movements that do this but find pain comes on from the time my arm passes shoulder height. On the occasion I have done this but ALWAYS pay for it after with blinding headaches and pins and needles down my arm as well as sharp pains around my shoulder blades and up to my neck. These last not only for hours but days.
I was able to increase my exercises by taking Mersyndol approximately 30 minutes before my sessions and then coming home and getting into a hot bath for around 30 mins. I have also taken more tablets after the bath depending on the level of pain. I also get my husband to put on my tens machine in the afternoon which can give me some relief. Around June/July 2004 I did too much and this has set me back to the beginning. I am not sure which exercise or if it was just the combination of the exercises or just that it was just the whole lot over the previous months added together. I had set backs before but this time it was worse. I am still going to my sessions but have had to curtail the amount of days as I go as well as the exercises. But still hope I will be able to get to a point where I can do more. With my trainer’s help I will keep trying to strengthen my muscles which hopefully will decrease my pain level.
At first I was walking to the gym but found that the walk home in the colder weather increased the level of pain. So I decided the lesser of 2 evils was to drive there and back. The drive takes approximately 3 minutes where the walk would take 10 minutes. It meant I could be back and in my bath quicker which seemed to help.
The increase in my pain is probably also caused by driving my husband to work. His licence has been cancelled for 6 months and due to his sub-contracting work needs someone to drive. As I have previously said I find driving difficult but my husband has been so good to me over these years and helps me so much with the activities I find difficult that I couldn’t say no. His brother, who lives south of the river does pick him up and bring him home as often as is possible depending on where they are working. They are plasterers. My husband takes the cement etc while his brother takes the tools (cement mixer etc). If the Ute didn’t have power steering it would be impossible for me to drive but it does.
The stress of this Appeal has also caused an increase in my pain level and to be honest I don’t understand that after 18/19 years of accepting their liability Comcare can now decide they don’t. I have had to ask for an extension of time to enable me to complete this statement as I can only type at the most for about 5 minutes at a time and have to have long rests in between.
I find small repetitive movements are the most painful ie peeling potatoes, typing, writing, brushing hair, sorting through papers or washing, wiping down glass, showers. I can’t hold books or cards for longer than a few minutes at a time. Turning pages or even dealing cards, sweeping or vacuuming more than one room at a time also aggravates. Washing my hair, brushing it and even putting on make-up has similar problems.
I can do small amounts of housework ie sweeping, dusting, packing dishwasher, vacuuming and hanging out clothes. These all have to be done slowly and with rest times in between. I can only hang out small loads as lifting anything above my shoulders is very difficult. Normally only about 4-5 items at a time. And nothing too heavy though on occasions I have hung out a towel and paid for it later.
I used to love having a game of ten pin bowling or play cards with friends on a Friday night. Can’t do the bowling and the cards are also a problem though I do still try to do this but cannot deal as this activity is repetitive so my husband deals for me. I have to hold cards in my left hand and sitting is a problem but all my friends are used to me standing up in the middle of a game and stretching.
Going to the cinema is something I have always loved but once again this is a problem now. I try to go about 3 times a year but always know to sit at the back on the end of the row so I can stand up when needed. The trouble with taking Mersyndol before these outings is that the darkened room and the drowsiness from the tablets can be a problem. Most of the time we hire videos so I can stop them and walk around.
In summary my injury has severely impacted on my ability to live and enjoy life fully. I am not a malingerer. I wish I didn’t have the pain I experience which I know is a direct result of my work with the Australian Taxation Office. It is also very distressing to experience the pain I feel everyday and then to be not believed by the Comcare doctors. As explained the stress of this appeal is causing me more pain but as a matter of principle I do not believe it is fair or ethical that Comcare can cease to accept liability for my genuine incapacity. I fear that my incapacity is permanent as I have tried so hard to find ways of finding a ‘cure’ and have now learnt to live as best I can by modifying my life to accommodate my work related incapacity.” (Attachments A – D omitted).
33. The applicant was subjected to a lengthy and vigorous cross-examination, during which surveillance film of her in the period from 6 May 2004 to 28 May 2004 (Exhibit R1) was shown, but the Tribunal does not think it necessary to refer in any detail to that part of the applicant’s evidence in these reasons.
The Evidence of the Lay Witnesses
Isla Duckmanton
34. Ms Duckmanton, who gave her occupation as “personal trainer”, confirmed that she had prepared a statement for the purpose of these proceedings. The contents of that statement, which was filed on 16 November 2004 and which was tendered in evidence (Exhibit A2), are as follows:
“Dianne Rogers has been training with me since January 3rd 2004. Initially once per week and more recently twice per week; with the duration of the workout being thirty minutes.
I observe that Dianne has difficulty, appears to experience pain and has limited range of movement when doing exercises that involve arm movements eg dumb-bell lateral raise. During the course of Dianne’s exercise program I have included some exercises to try to improve the function and use of the arm and shoulder area; eg shoulder rotation exercises, barbell and dumb-bell upright rows and dumb-bell lateral raises; all of which focus on using the deltoid and trapezius muscles, this however has failed to have any effect and served only to aggravate the area, causing more pain.
Dianne’s ability to perform even modified exercises remains limited and she reports that the pain through the area persists. If she performs any arm related exercises including just holding dumb-bells while working her legs, eg performing lunges with the added weight of the dumb-bells; during the course of her workout, it affects her ability to perform day to day tasks.
Dianne has had to cancel personal training sessions on occasion due to the severity of the pain in the injured area.”
35. In her oral evidence-in-chief Ms Duckmanton said that the applicant’s main goal when she commenced training was to lose weight but that she had also said that she wanted to increase the strength and mobility of her arm and neck. Ms Duckmanton said that the applicant had said that she was able to do the particular exercises but that they caused her a lot of pain – not so much at the time but later in the day when she found that her arm was a lot more painful and that she was experiencing numbness and headaches as a result of having used the arm. She said that the applicant had cancelled training sessions on at least 6-7 occasions because she was complaining of headaches, numbness in the hand, pain through the shoulder, and the like.
36. Ms Duckmanton said that, in consultation with the applicant, she increased the weights used in the applicant’s training sessions but that, although it appeared that her arm was getting stronger, she was complaining of increased pain, and, accordingly, the use of weights was discontinued in late May, or early June, 2004. Ms Duckmanton said that, from her observation, the applicant appeared to be experiencing pain when performing exercise activities such as using “lap rate level raisers” (which involve the use of the arm in an upward motion), “any sort of pulling or even just holding on to dumbbells”.
37. In cross-examination Ms Duckmanton said that the applicant’s complaints of pain related to the right side, and the back, of the neck and shoulders. She said that she had asked the applicant to put her hands behind her head and pull her elbows back, but the applicant said that she was unable to do that.
38. Ms Duckmanton said that the applicant first cancelled a training session with her in late May (although she acknowledged that it might have been in late June/early July), and that she subsequently cancelled a session in early August and “maybe 2 or three in September”. Ms Duckmanton reiterated that she had never seen the applicant stretch her arms and place them behind her head.
Golfo Ronpotis
39. Ms Ronpotis, a licensed private investigator, confirmed that she carried out surveillance on the applicant when she attended a gymnasium during May 2004. She also confirmed that she had made handwritten notes of her observations of the applicant, and those notes were tendered in evidence (Exhibit R2).
40. Ms Ronpotis said that she observed the applicant performing exercises at the gymnasium on 13, 17, 18 and 19 May 2004, and she referred to her observations of the applicant’s activities (as set out in her handwritten notes) as follows:
·13 May – the applicant used the “cross-trainer” for about 20 minutes, using both arms to push/pull handles on the side; she the used the treadmill for about 10 minutes, at times swinging her arms by her side, and then returned to the “cross-trainer” for about 5 minutes; she then engaged in “low intensity” aerobic exercises in the pool, including pushing against the side of the pool with each hand, and placing her hands behind her neck and twisting her arms;
·17 May – the applicant used the “cross-trainer” for about 15 minutes, moving both arms and pushing/pulling side handles; she then used the exercise bicycle for about 6 minutes, with her hands holding the handlebars; she then performed stretching exercises, leaning against a wall using one arm at a time;
·18 May – the applicant used the treadmill for about 10 minutes, her arms swinging by her side for most of the time; she then used the “cross-trainer” for about 16 minutes, using both arms to push/pull side handles; she then used the exercise bicycle for about 6 minutes, before returning to the “cross-trainer”;
·19 May – the applicant used the treadmill for about 16 minutes, her arms swinging by her side for most of the time; she then used the “cross-trainer” for about 10 minutes, using both arms to push/pull side handles; she then, under the supervision of a trainer, used the “cross-trainer” at high speeds for 3 short periods of about 1 minute each, and then performed arm exercises with dumbbells for 3-4 minutes and raised and lowered a bar with weights using both hands for 2-3 minutes; she then stretched her arms, placing her hands behind her head/neck on one occasion.
Glynn Dobson
41. Mr Dobson said that he was formerly employed as an investigator and that, in that capacity, he took a substantial amount of video footage of the applicant. He gave brief oral evidence regarding his observations of the applicant when she was in her motor vehicle. It is unnecessary to set out his evidence here.
The Evidence of the Medical Witnesses
Dr J Quintner
42. Dr Quintner, Consultant Physician in Rheumatology and Pain Medicine, confirmed that, although he is not presently in “consultant private practice”, he is presently Locum Consultant Physician in Rheumatology at Royal Perth Hospital. A copy of Dr Quintner’s Curriculum Vitae was tendered in evidence (Exhibit A4).
43. A report of Dr Quintner addressed to the applicant, dated 20 March 2004, was also tendered in evidence (Exhibit A3). The contents of that report are as follows:
“RE: SCHEDULE OF QUESTIONS, AS FORMULATED BY COMCARE
I confirm that you attended for a medical examination on 18th March 2004, having been referred to me by Dr Duncan Jefferson, your family medical practitioner. Thank you for supplying me with copies of my various medical reports over the years.
Herewith my report, as requested:
1.As you know, I have examined you on a number of occasions since Dr Adele Thomas initially referred you to me in October 1985.
I note that you continue to complain of pain of an aching and constant nature in your right upper back and neck, as well as in the right shoulder and upper arm (outer aspect). When pain is severe in these regions, it is also described as being ‘burning’ in nature and can spread into the occipital region as well as into the right forearm and hand, often accompanied by pins and needles in the index and middle fingers.
You have consistently complained to me of similar symptoms on each occasion that I have reviewed you since 1 October 1985.
Your pain developed in an occupational context when you were employed as a data processor operator for the Taxation Department. I note that you had not sustained a previous injury to your neck or right arm. Evidently no other cause for your symptoms, apart from occupational factors, has been elucidated.
On physical examination, I noted the following significant abnormalities:
ØPainful & limited neck movement in all directions.
ØPainful and limited abduction/elevation (to 80 degrees) and internal rotation (to the lower lumbar region) of the right shoulder.
ØDiminished sensibility to blunt pin over the right shoulder, right upper arm laterally, extensor aspect of the right forearm, and over the radial three digits of the right hand.
ØUpper limb tension test on the right side was positive for the pain experienced in the right shoulder and upper arm.
ØAllodynic responses to gentle manual percussion over the right shoulder girdle and right elbow regions.
ØAllodynic response to cold temperature over the right upper trapezius region.
ØAntalgic weakness of right shoulder girdle musculature, but no obvious muscle wasting.
Radiological examination of the cervical spine and of the right shoulder performed on 20 February 2004 did not reveal abnormalities in either region.
2.In my opinion, the condition from which you suffer can be termed a right-sided refractory cervicobrachial pain syndrome of presumed neuropathic pathogenesis. You exhibit clinical examination findings both of sensory neurological deficit and of a hypersensitivity state known as ‘central sensitization’ of nociception.
3.In my opinion, on the balance of probabilities, your current condition:
(a)is not a pre-existing, constitutional or underlying degenerative condition;
(b)is not generalised degeneration as part of the natural ageing process;
(c)is directly related to the nature of the work you performed with the Department of Taxation;
(d)is not related to any other aspect of your work with this Department;
(e)is not related to other health issues;
(f)is not related to hobbies or other sporting activities;
(g)is not related to any other factors unrelated to your work;
(h)is not related to underlying degeneration as part of the natural ageing process.
4.In my opinion, it was the particular nature of your work as a data process operator that has caused your current disability.
5.In my opinion there is an ongoing nexus between your current medical condition and your employment with the Department of Taxation. As mentioned above, there is clinical evidence (derived from my pain-focussed examination) supporting a permanent state of central sensitization of nociception (neurosensitisation) that has been evident since I first examined you in 1985.
There is good scientific evidence available from psychophysical studies that lend support to my hypothesis. I have provided you with a copy of a recent paper by Associate Professor Milton Cohen that appeared in ‘Medicine Today’, which lists some of these relevant references.
Division 2—Transitional provisions
124 Application of Act to pre-existing injuries
(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2)A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act—under the 1912 Act;
(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c)in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.
…
Division 3—Special transitional provisions relating to certain former employees
131 Former employees under 65 who are in receipt of superannuation benefits and are unable to engage in any work
(1)This section applies to a former employee who:
(a)on the commencing day, was under 65 and in receipt of a pension under a superannuation scheme; and
(b)is not capable of engaging in any work.
(2)Subject to this Division, if the former employee’s total benefit immediately before the commencing day was equal to or more than 95% of his or her normal weekly earnings as at that day, the amount of compensation payable per week to the former employee under this Act is the amount that, when added to the former employee’s superannuation amount, results in a combined benefit equal to 95% of those normal weekly earnings.
(2A)If, as a result of an increase in the amount of a former employee’s normal weekly earnings, the amount of combined benefit payable to the former employee under subsection (2) is less than 70% of those increased normal weekly earnings, the amount of compensation must be increased or further increased (as the case may be) until it is equal to 70% of those increased normal weekly earnings.
(3)Subject to this Division, if the former employee’s total benefit immediately before the commencing day was equal to or more than 70%, but less than 95%, of his or her normal weekly earnings as at that day, the amount of compensation payable per week to the former employee under this Act is an amount equal to the employee’s 1971 amount.
(3A)If, as a result of an increase in the amount of a former employee’s normal weekly earnings, the amount of compensation payable to the former employee under subsection (3) is less than 70% of those increased normal weekly earnings, the amount of compensation must be increased or further increased (as the case may be) until it is equal to 70% of those increased normal weekly earnings.
(4)Subject to this Division, if the former employee’s total benefit immediately before the commencing day was less than 70% of his or her normal weekly earnings as at that day, the amount of compensation payable per week to the former employee under this Act is the amount that, when added to the former employee’s superannuation amount, results in a combined benefit equal to 70% of his or her normal weekly earnings for the time being.
(5)Whenever the superannuation amount of a former employee referred to in subsection (2), (3) or (4) is increased, the amount of compensation payable under that subsection shall be reduced, or further reduced, as the case requires, by:
(a)an amount equal to the amount of the increase; or
(b)an amount that will result in a combined benefit equal to 70% of the former employee’s normal weekly earnings as at the date of the increase;
whichever is less.
(6)Subsection (5) does not require a reduction or further reduction in the amount of compensation payable to a former employee under subsection (2), (3) or (4) where the reduction or further reduction would result in a combined benefit of less than 70% of the employee’s normal weekly earnings as at the date of the increase in the superannuation amount.
…
132A Former employees under 65 who are capable of engaging in any work
(1)This section applies to a former employee who:
(a)on the commencing day, was under 65; and
(b)is capable of engaging in any work.
(2)Where a person to whom this section applies was in receipt of a pension under a superannuation scheme on the commencing day, then, subject to this Division, the amount of compensation payable per week to the former employee is:
(a)the amount of compensation per week that would have been payable under section 131 if that section had applied to the former employee, less an amount that is the greater of the following amounts:
(i)the amount per week (if any) that the employee is able to earn in suitable employment;
(ii)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week; or
(b)the amount of compensation per week that would have been payable under section 20 if that section had applied to the former employee;
whichever is greater.
…
(4)In determining, for the purposes of this section, the amount per week a former employee is able to earn in suitable employment, Comcare must have regard to the factors mentioned in paragraphs 19(4)(a), (b), (c), (d), (e), (f) and (g) as if those paragraphs referred to the former employee.”
The Tribunal notes that the “commencing day”, for the purposes of Part X of the SRC Act, is 1 December 1988.
65. The 1971 Act relevantly provided:
“27(1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.
…
29(1)Where —
(a)an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b)any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether nor not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect.
29(2)If —
(a)the death of the employee;
(b)a loss to the employee of a kind referred to in section 39 or 40;
(c)facial disfigurement to the employee;
(d)a loss to the employee of the sense of taste or smell; or
(e)the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears —
(f)the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and
(g)the date of the death, the date of the loss, the date of the disfigurement, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury.
…”
Consideration and Findings
Is the respondent liable under the SRC Act to pay compensation to the applicant?
66. The answer to the above question depends, fundamentally, on whether the applicant is continuing to suffer from an “injury” within the meaning, and for the purposes, of the SRC Act.
Does the applicant presently suffer from an “injury” within the meaning, and for the purposes, of the SRC Act?
67. The recent medical evidence before the Tribunal, in relation to this issue, is in conflict. On the one hand, Drs Quinter, Cook and Cheah opined that the applicant’s present condition (which Drs Quintner and Cook diagnosed as right-sided cervicobrachial pain syndrome, and Dr Cheah diagnosed as chronic regional pain syndrome predominantly manifest as right-sided cervicobrachial pain) is related to her employment with the ATO in 1985, whereas Drs Hanrahan and Marsden opined that the applicant’s present condition (in respect of which Dr Hanrahan was unable to make a diagnosis, while Dr Marsden was prepared to accept a diagnosis of non-specific chronic regional pain in the arm) is not related to her employment with the ATO in 1985. Dr Roddy was somewhat equivocal but appeared to accept that the applicant’s present condition (which she said was best classified as a right cervicobrachial pain syndrome) was related to her employment with the ATO in 1985; she certainly did not express a contrary opinion.
68. Having regard to the whole of the material before the Tribunal – including the abovementioned factual background, the applicant’s evidence and the medical evidence – the Tribunal finds, in accordance with the preponderance of the recent medical evidence, that the applicant presently suffers from a right-sided cervicobrachial pain syndrome which was contributed to in a material degree by her former employment with the ATO and which, accordingly, constitutes an “injury” within the meaning, and for the purposes, of the SRC Act.
Has the applicant’s injury resulted in impairment or incapacity for work?
69. On the material before it, the Tribunal has no difficulty in finding that the applicant’s injury has resulted in impairment (as broadly defined in s 4(1) of the SRC Act).
70. As regards the question whether the applicant’s injury has resulted in incapacity for work, the applicant has conceded that she is not totally incapacitated for work. The Tribunal is of opinion, having regard to the medical evidence before it, that that concession was rightly made. Accordingly, the Tribunal finds that the applicant’s injury has not resulted in a total incapacity for work.
71. The question whether the applicant’s injury has resulted in a partial incapacity for work is more problematic. The recent medical evidence is also in conflict in relation to this issue. Drs Hanrahan and Marsden opined that the applicant is fit for full-time work – Dr Hanrahan opined that she could cope with reception work or clerical work performing a variety of tasks, and Dr Marsden opined that she is fit to work, on a full-time basis, in general clerical duties or duties such as those of a shop assistant. The remainder of the recent medical evidence, however, supports the proposition that the applicant is not fit for full-time employment, and may be summarised as follows:
·Dr Cook opined that the applicant “would be fit for part-time work such as light clerical work (0.5 FTE) avoiding activities which involve movement of the right arm above the horizontal or repetitive actions of the right arm”;
·Dr Cheah opined that the applicant “would not be fit to partake in her pre-accident employment as a data processor operator either on a full or part time basis”, but that she “would … be capable of part time mixed clerical/office type duties with the exclusion of involvement in any prolonged keyboard work as well as all activities involving sustained use of her right arm above shoulder height”;
·Dr Quintner, although in his most recent report he appeared to be of the view that the applicant is totally incapacitated for work, in his oral evidence acknowledged that the applicant does have a capacity for appropriate kinds of employment not involving typing and keyboard work, for example, as a motel receptionist, perhaps even on a full-time basis;
·Dr Roddy did not express a clear view on this issue – she opined that there is no “objective physical reason” why the applicant cannot return to work, but she acknowledged that the pain symptoms experienced by the applicant would limit her capacity to return to work.
72. The Tribunal generally accepts the applicant’s evidence regarding her ongoing pain symptoms resulting from her compensable injury, and the limiting effect of those pain symptoms on her capacity to undertake physical activities (including employment activities). The Tribunal regards the reports of Dr Cook and Dr Cheah, both specialist rheumatologists, as most accurately describing the extent of the applicant’s capacity for work as a result of her compensable injury, and, accordingly, it attaches the greatest weight to those reports. Having regard to the applicant’s evidence, and the whole of the recent medical evidence before it, the Tribunal is satisfied, and finds, that the applicant does not have the capacity to undertake work on a full-time basis, and that the applicant is partially incapacitated for work as a result of her injury.
The respondent is liable under the SRC Act to pay compensation to the applicant
73. It follows from the abovementioned findings that, for the period from 4 July 2003 (being the date of effect of the reviewable decision) to the present date, and as at the present date, the respondent continues to be liable under the SRC Act to pay compensation in accordance with that Act to the applicant in respect of her injury, namely, right-sided cervicobrachial pain syndrome: see ss 14(1) and 124 (1A) of the SRC Act and ss 27 and 29 of the 1971 Act.
What amount of compensation is the respondent liable under the SRC Act to pay to the applicant in respect of her injury?
Medical expenses
74. The respondent is liable to pay to the applicant compensation in respect of medical expenses, pursuant to s 16 of the SRC Act. There was, however, no evidence before the Tribunal regarding particular medical expenses incurred by the applicant in relation to her injury since 4 July 2003. Accordingly, the Tribunal is unable to make a finding regarding the amount (if any) of compensation presently payable to the applicant by the respondent pursuant to s 16 of the SRC Act.
Incapacity payments
75. Given that the respondent was liable under ss 27 and 29 of the 1971 Act to pay compensation to the applicant in respect of her injury, the amount of compensation to which the applicant was entitled, as from 1 December 1988, fell to be determined, pursuant to s 124(1A) of the SRC Act, in accordance with the SRC Act, not the 1971 Act: Commonwealth of Australia v Angel (1992) 34 FCR 313; Klinkert v Australian Postal Corporation (1992) 16 AAR 86.
76. As regards compensation by way of incapacity payments, relevant provisions of the SRC Act include ss 19-21A and ss 131-132A. in the present case it is common ground that the applicant is a “former employee” (as defined in s 123 of the SRC Act) and that she was in receipt of a pension under a superannuation scheme on 1 December 1988 (the relevant “commencing day” (as defined in s 123 of the SRC Act)). It is a fact that the applicant is under the age of 65 years (having been born on 13 January 1955), and the Tribunal has found that she is capable of engaging in appropriate work on a part-time basis, but not on a full-time basis. Accordingly, the relevant provision of the SRC Act to be applied for the purpose of determining the amount of compensation (if any) by way of incapacity payments to which the applicant is entitled is s 132A: see Telstra Corporation Ltd v Warner (1994) 20 AAR 259.
77. In Telstra Corporation Ltd v Warner (above) Heerey J noted (at p 264) that, for the purpose of determining the amount that a former employee is “able to earn in suitable employment”, within the meaning of s 132A(2) of the SRC Act, reference must be made to the definition of “suitable employment” in s 4(1) and, as required by s 132A(4), to the factors mentioned in paras (a)-(g) of s 19(4) of the SRC Act.
78. In the present case, it is common ground that none of the factors mentioned in paras (a)-(c) of s 19(4) of the SRC Act is applicable.
79. As regards para (d) of s 19(4), the applicant was referred by the Commonwealth to a rehabilitation provider on 6 July 1989 and commenced a return to work rehabilitation programme on 10 September 1989 but, on medical advice, she discontinued that programme on 30 October 1989. In those circumstances, the applicant’s failure to compete that rehabilitation programme was, in the Tribunal’s opinion, not unreasonable (see para (f) of s 19(4)).
80. As regards para (e) of s 19(4), it is common ground that the applicant has not sought any employment since she became incapacitated for work. In the Tribunal’s opinion, however, the applicant’s failure to seek employment was, having regard to the abovementioned unsuccessful attempt at rehabilitation, the pain symptoms which she was continuing to experience, and the medical advice she was receiving from her general practitioner and from Dr Quintner, not unreasonable (see para (f) of s 19(4)).
81. As regards para (g) of s 19(4), a relevant matter in determining the amount that the applicant is “able to earn in suitable employment” is the actual availability of such employment to her: Telstra Corporation Ltd v Warner (above), at p 264; Martin v Australian Postal Corporation (2000) 32 AAR 199 at 204 -205.
82. There is some evidence before the Tribunal regarding the kinds of work that would be appropriate in the applicant’s case:
·“reception work, clerical work performing a variety of tasks” (Dr Hanrahan);
·“light clerical work (0.5 FTE) avoiding activities which involve movement of the right arm above the horizontal or repetitive actions of the right arm” (Dr Cook);
·“general clerical duties”, “duties such as a shop assistant” (Dr Marsden);
·“mixed clerical/office type duties with the exclusion of involvement in any prolonged keyboard work as well as all activities involving sustained use of her right arm above shoulder height” (Dr Cheah);
·Dr Quintner in his oral evidence acknowledged that reception work or similar work which did not involve typing or keyboard work would be appropriate in the applicant’s case.
The Tribunal accepts that each of the abovementioned kinds of work, performed on a part-time basis, would be suitable employment in the applicant’s case. In particular, the above-quoted descriptions of employment by Dr Cook and Dr Cheah represent, in the Tribunal’s opinion, the most appropriate descriptions of suitable employment in the applicant’s case.
83. There is, however, very little in the way of evidence before the Tribunal regarding the actual availability of such kinds of work to the applicant. Although the respondent provided to the Tribunal material regarding wage rates prescribed by Awards relating to various clerical and other allegedly suitable occupations in Western Australia (Exhibit R6), it did not provide to the Tribunal any material, such as labour market research reports, regarding the actual availability of such occupations either generally or having regard to the particular personal circumstances of the applicant (see subparas (a) (i) – (iv) in the definition of “suitable employment” in s 4(1) of the SRC Act). On the other hand, some of the medical reports tendered in evidence by the applicant do touch on this matter. Dr Cook, in her report of 21 May 2003 (see paragraph 29 above), stated:
“I believe there are significant issues related to Mrs Rogers’ current age, skills and more particularly the fact that she has been out of the workforce for the last 17 years”.
Dr Roddy, in her report of 22 December 2003 (see paragraph 61 above), stated:
“Statistically once an individual hasn’t been working due to chronic pain for two years it is unlikely that they are going to return to gainful employment. Perhaps more importantly in Dianne’s case is whether or not she would be able to find work after having received compensation for this many years given her age and her experience …”
Dr Cheah, in his report of 24 February 2004 (see paragraph 62 above), stated:
“She has been out of the workforce over a very prolonged period of time and any return back to gainful employment will necessitate a period of training as well as rehabilitation.”
84. There being no evidence before the Tribunal that any of the abovementioned kinds of suitable employment have been, are, or would be likely to be, actually available to the applicant, the Tribunal, having regard to the above-quoted opinions of Drs Cook, Roddy and Cheah, is not satisfied that any of the abovementioned kinds of suitable employment has actually been available to the applicant since 4 July 2003. Accordingly, the Tribunal finds that, since 4 July 2003 (being the date on which the applicant’s incapacity payments under the SRC Act were discontinued by the respondent), the applicant has not been “able to earn [any amount] in suitable employment”, within the meaning, and for the purposes, of s 132A(2)(a)(i) of the SRC Act.
85. It is common ground that, since 4 July 2003, the applicant has not earned any amount from any employment, within the meaning, and for the purposes, of s 132A (2)(a)(ii) of the SRC Act.
86. As regards incapacity payments, therefore, the conclusion of the Tribunal is that the respondent has, since 4 July 2003, been liable, and is presently liable, to pay compensation to the applicant in an amount to be determined in accordance with s 132A(2) of the SRC Act on the basis that, for the purposes of para (a) of s 132A(2), the amount referred to in subpara (i), and in subpara (ii), of that paragraph is, in each case, nil.
Decision
87. For the above reasons the Tribunal sets aside the reviewable decision of the respondent dated 21 August 2003 and, in substitution therefor, decides that:
·the respondent has been liable from 4 July 2003, and is presently liable, pursuant to ss 14(1) and 124(1A) of the SRC Act, to pay compensation to the applicant in respect of her injury, namely, right-sided cervicobrachial pain syndrome;
·the respondent has been liable from 4 July 2003, and is presently liable, to pay compensation to the applicant by way of incapacity payments in accordance with s 132A(2) of the SRC Act on the basis that:
·the amount per week that the applicant has been, and is, able to earn in suitable employment, for the purposes of subpara (i) of s 132A(2)(a) of the SRC Act, is nil; and
·the amount per week that the applicant has earned, and is earning, from any employment, for the purposes of subpara (ii) of s 132A(2)(a) of the SRC Act, is nil.
88. The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr D Weerasooriya, Member.
Signed: (sgd June Rainey)
AssociateDates of Hearing 4, 7–9 February 2005
Date of Decision 2 September 2005
Advocate for the Applicant Ms L McLeod
Counsel for the Respondent Mr B Morgan
Solicitor for the Respondent Phillips Fox
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