Ryan and Comcare (Compensation)

[2017] AATA 561

Ryan and Comcare (Compensation) [2017] AATA 561 (27 April 2017)

Division:GENERAL DIVISION

File Numbers:         2014/3507; 2015/5757

Re:Kerry Ryan

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:27 April 2017

Place:Sydney

The Tribunal affirms:

(i)the reviewable decision made on 9 May 2014, which affirmed the determination of 28 November 2013 denying that the applicant was entitled to compensation for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act in respect of “upper shoulder, upper arm, elbow, lower arm, wrist-hand”, and

(ii)the reviewable decision made on 15 July 2015 which affirmed the decision made on 16 May 2015 that determined that the applicant’s entitlements to medical expenses (section 16 of the SRC Act) and incapacity payments (section 19 of the SRC Act) had ceased on the basis that she did not presently suffer from the effects of the compensable condition.

............................[sgd]................................

Mrs J C Kelly, Senior Member

CATCHWORDS

COMPENSATION – claim for further compensation – permanent impairment and non-economic loss – medical expenses and incapacity payments - upper shoulder – upper arm – elbow – other conditions - whether applicant continues to suffer from the effects of the conditions compensable by respondent – conflicting medical evidence - decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16 24, 27

CASES

Barker v Australian Telecommunications Commission (1990) 95 ALR 72

Canute v Comcare (2006) 226 CLR 535
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253

SECONDARY MATERIALS

Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

Introduction

1. The applicant, Mrs Ryan, seeks review of two decisions denying her compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).

2. On 4 February 2011, the respondent accepted liability for the applicant’s medial epicondylitis (left) under section 14 of the SRC Act. On 13 May 2011, the respondent accepted the applicant’s secondary claimed condition of disorders of bursae and tendons shoulder region (left) under section 14 of the SRC Act.

3. On 28 November 2013, the respondent denied that the applicant was entitled to compensation for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act in respect of “upper shoulder, upper arm, elbow, lower arm, wrist-hand”. On 9 May 2014, the reviewable decision was made affirming the determination of 28 November 2013.

4. On 16 March 2015, the respondent determined that the applicant’s entitlements to medical expenses (section 16 of the SRC Act) and incapacity payments (section 19 of the SRC Act) had ceased on the basis that she did not presently suffer from the effects of the compensable condition. On 15 July 2015, the reviewable decision affirmed the decision of 16 March 2015.

   The issues in this case

5. The reviewable decisions raise the following issues for determination:

   (b)whether the applicant is entitled to compensation under sections 24 and 27 of the SRC Act for “upper shoulder, upper arm, elbow, lower arm, wrist-hand”; and

   (c)whether the applicant suffers from the effects of the compensable conditions such that she is entitled to compensation for medical expenses and incapacity.

   Summary of Mrs Ryan’s relevant medical history

6. Following is a summary of Mrs Ryan’s relevant medical history derived from the evidence before the Tribunal, including three sets of documents provided to the Tribunal pursuant to s 37 of the Administrative Tribunal Act 1975 (Cth). 

7. Mrs Ryan was born in 1958.  She began working for Centrelink on 16 January 2003.  On 21 May 2008 she filled out a claim for workers compensation for “work related stress and anxiety” which she claimed arose because she had asked for, but not been given, any training and could not ask anyone any questions. The date of injury was claimed to be January 2008.  Her role was Compliance Customer Service Officer.  She had taken Stilnox but had changed to Celapram for the condition.  The claim was rejected in a letter dated 29 September 2008.  The reasons given were that the decision-maker was not satisfied that the condition was significantly contributed to by her employment, and even if it was, considered that her condition resulted, at least in part, from reasonable administrative action taken in a reasonable manner and therefore was not compensable.  Various records show that Mrs Ryan felt that she was not treated fairly by her team leader.

8. On 28 September 2010 at 8:30am, Mrs Ryan lodged a ‘Report of Injury or Disease’ in respect of “pain in left thumb and arm”.  The date of the incident was 1 July 2010.   She was doing an “SSP review” at the time.

9. An X-ray report dated 5 October 2010 commented: 

   Bony spurring at the base of first metacarpal bone. Small ossified focus scene adjacent to the first metacarpal-phalangeal joint. This may be as secondary to degenerative change or old trauma.

10. During an assessment of Mrs Ryan’s workplace and upper limb and hand by a rehabilitation provider on 7 October 2010, Mrs Ryan reported the following symptoms:

    ·Left thumb CMC joint pain (bony spur growth)

    ·Burning and hot sensation in radial side of palm

    ·Swelling in left elbow

    ·pain in left cervical area

    ·Left Shoulder JROM is restricted in end range of abduction and internal rotation

11. The rehabilitation provider observed swelling in the left elbow and on the ulnar side of the left palm.

12. A report of an ultrasound of the left elbow dated 14 October 2010 showed no abnormalities. Another report of an unspecified investigation at the same facility dated 15 October 2010 found “some minimal bony spurring along the medial epicondyle”.

13. A report of unspecified investigations of the left shoulder dated 12 and 13 November 2010 stated that the glenohumeral joint appears within normal limits and there was slight subluxation of the acromioclavicular joint.

14. On 12 November 2010 Mrs Ryan consulted Dr Herald, orthopaedic surgeon. His handwriting is indecipherable.

15. A physiotherapist wrote a letter dated 26 November 2010 in which he stated that he felt that the injuries to Mrs Ryan’s cervical spine and left shoulder, left elbow and left thumb were work related, following discussion with her about her workplace and activity at work.  He did not specify her duties.

16. In a referral to Dr Herald dated 26 November 2010, Mrs Ryan’s general practitioner stated that the physiotherapist thought that the injuries to her left shoulder, left elbow and left thumb pain are related to her work activities and she was contemplating making a Work Cover claim.

17. On 11 December 2010, Dr Herald referred Mrs Ryan for nerve conduction studies with the comment:  “Kerrie has left elbow ? ulna neuritis”.  On the same day, he wrote a letter stating that Mrs Ryan had a work related injury to her left upper limb “as a result of occupational overuse she has medial epicondylitis and ulna neuritis”.  He did not specify her duties.

18. Mrs Ryan filled out a claim for workers compensation on 20 December 2010.  The “diagnosed condition” was “Left hand, elbow and shoulder”.  The part of the body most affected was “left hand”.  She first noticed the injury on 1 July 2010 at 07:45am at her usual workplace. Mrs Ryan noted that “Constant pain in left hand and pad” started the chain of events that led to the injury. It was caused by “constant keying in wage details”. Mrs Ryan also noted, “When I move my hand or pick something up something (sic) with my left hand & I use my thumb I get a sharp pain as well as up my arm.  And a burning feeling on the pad of my hand.”

19. Mrs Ryan’s then team leader completed an employer statement in which he stated the following.  Mrs Ryan had been a member of the Service Profiling Team (SSP) since 19 April 2010. Her duty is to compare and verify earnings which have been declared by the customer on mainframe. She was also required to send letters to various employers to verify the customer salaries if required.  Once the earnings have been verified any adjustments needed to be coded via the EAT tool. If the customer had incorrectly declared earnings, Mrs Ryan contacts the customer and assisted the customer to understand how to declare earnings correctly. The team had been working on clearing a backlog for some months and that was continuing. In August 2010, KPIs were introduced nationally to all SSP teams.  The SSP team were advised to gradually work towards completing 14 reviews per day. The October 2010 statistics showed that Mrs Ryan completed 12.3 reviews per day which was the highest score in the team for that month. The team leader had spoken to Mrs Ryan about having regular breaks and not doing any heavy lifting. Mrs Ryan adhered to her regular breaks from morning/afternoon tea and lunch and when required she would stretch and take a walk. She had displayed a good attitude towards her attendance.

20. Dr Herald wrote a report dated 28 January 2011 in which he stated the following.  Mrs Ryan consulted him first on 12 November 2010. She explained that in June of that year she had sustained an injury to her left elbow which she described as an overuse injury that related to constant typing. The pain began in the base of her thumb, radiating to the medial aspect of her left elbow and spreading towards a shoulder. Although the hand and her shoulder were painful, the elbow seemed to be the most painful of the three areas indicated. On initial examination, there was evidence of medial epicondylitis and the possibility of ulnar nerve symptoms. He was also initially concerned about the possibility of aggravation of underlying left thumb CMC joint arthritis and left shoulder acromioclavicular joint arthritis. After treatment with anti-inflammatory tablets and physiotherapy, on review on 10 December 2010 she seemed to have resolution of the shoulder and wrist symptoms however the elbow continued to be symptomatic.  He was continuing to investigate the diagnosis.

21. He referred to employment related factors such as repetitive computer use or typing or use of a mouse which may have contributed to her condition.

22. The respondent accepted liability pursuant to section 14 of the SRC Act on 4 February 2011.

23. A Neurologist reported on 14 February 2011 that the nerve conduction study revealed no evidence for a left ulnar neuritis. A report of an MRI of the left elbow dated 8 February 2011 comments that there was fairly significant olecranon bursitis, minor reactive ulnar neuropathy and longstanding low grade common flexor origin teninosis, “even lesser degeneration CEO”.

24. Dr Billett, Consultant Orthopaedic Surgeon, assessed Mrs Ryan at Comcare’s request and wrote a report on 17 February 2011. She was complaining of constant daily pain over the medial aspect of her left elbow and intermittent daily pain in her left shoulder, at the end of the day.  There was intermittent pain over the hypothenar eminence when using the computer.  He found definite evidence of ulnar nerve neuritis in relation to the left side of her elbow.  A test for epicondylitis at the elbow was positive. There was a decrease in active movements of the left shoulder and an indication of a possible SLAP lesion.

25. In his report dated 25 February 2011, Dr Herald said that Mrs Ryan had impingement syndrome with AC joint arthritis in her shoulder and associated medial epicondylitis. He recommended cortisone injections into her subacromial space, AC joint and medial epicondyle. He said that the ulnar nerve seemed to be resolving in addition to the olecranon bursitis. Those injections were administered in the middle of March 2011.

26. When Dr Herald reviewed Mrs Ryan on 6 May 2011 she was continuing to have left elbow and shoulder symptoms. He agreed with Dr Billett that the left shoulder injury was most likely part of her occupational overuse syndrome and that she may have a SLAP lesion. On 27 May 2011 he again reviewed Mrs Ryan and recommended surgery to her shoulder and elbow “in the same sitting”, which he undertook on 8 July 2011. Her pain did not improve post-surgery according to her general practitioner’s report dated 16 September 2011.

27. Dr Gray, Consultant Orthopaedic Surgeon, reviewed Mrs Ryan at Comcare’s request on 6 September 2011.  He noted, in his report dated 19 September 2011, that Mrs Ryan was significantly symptomatic in the left upper limb post-surgery.  He stated that there was no obvious relationship between her work activity or injury and any left shoulder problem or with her cervical spine symptoms.  He stated that there may have been a degree of ulnar neuritis on the left pre-operatively with continuing symptoms less marked than before. The burning sensation over the hypothenar aspect of the left was similar to pre-operation.  He thought she may be developing post-operative adhesive capsulitis (frozen shoulder).  Dr Gray noted that the time frame for returning Mrs Ryan to her full normal duties may be 12 to 18 months if frozen shoulder were confirmed.  He considered her attitude to rehabilitation positive.

28. Dr Sheh, Consultant Physician Pain Medicine, assessed Mrs Ryan on 30 September 2011.  In his report to the general practitioner, he noted the following:  abnormal clinical presentation involving the entire left arm which is disproportional to the original work related injury; pain is most likely sympathetic maintained pain; left adhesive capsulitis could be a secondary complication; left tension myalgia.  He said that it was essential to exclude brachial plexus injury. 

29. The Neurologist, Dr Rail, found no primary neurology and did not think Mrs Ryan had significant brachial plexopathy perse in a report dated 31 October 2011. Further, the Neurologist said that some Epilim may help her symptomatically.

30. In November 2011, Mrs Ryan was referred to Concord Repatriation General Hospital Pain Clinic.  Dr Hong, Consultant Specialist in anaesthesia and pain medicine recommended left stellate ganglion block in a letter dated 9 November 2011.  She noted some early changes suggesting complex regional pain syndrome type 1 (CRPS), that is, sympathetically maintained pain.

31. Upon review on 11 November 2011, Dr Herald noted that Mrs Ryan had had the ganglion block the previous day.  She felt that her shoulder movement was freer and less painful but still had end range stiffness. She had full range of movement in her elbow, but it was painful at end range.  She was continuing with physiotherapy.

32. Dr Sheh reviewed Mrs Ryan on 25 November 2011 after the stellate ganglion block had been administered.  He found that there had been a good response to the stellate block, persistent adhesive capsulitis would need more stretching exercise and she had more extensive tension myalgia.

33. An MRI of the left elbow on 6 February 2012 showed post-operative changes at the medial epicondyle at adjacent to the common flexor or tendon origin. There was no convincing evidence of common flexor tendinopathy or tear.

34. Dr Sheh reviewed Mrs Ryan on 24 February 2012. She reported that her pain had improved a lot, that the left shoulder pain had become intermittent but the elbow pain had been persistent. She said the fingers were still stiff more than painful. He stated that the CRPS had a good response to the stellate block, persistent adhesive capsulitis needed more stretching exercise, and there was “extensive tension myalgia – dull ache”.

35. Dr Herald reviewed Mrs Ryan on 11 May 2012. He said that she was having a gradual improvement in her left upper limb pain syndrome. She had end range tightness and frozen shoulder seemed to be resolving. She had full range of movement in her elbow however she had “mild irritability at the ulnar nerve at the cubital tunnel”.  She had wasting in her hand and some stiffness in the DIP joints, predominantly of the ulnar three digits. He referred her to another pain specialist because Dr Sheh had moved. He also referred her to a hand therapist. 

36. A hand therapy management plan was prepared on 6 June 2012.

37. Dr Dubossarsky, Rehabilitation Medicine Physician, reviewed Mrs Ryan on 28 June 2012. He noted that she had a Tens machine which was of benefit. He noted that her pain was steadily improving in her elbow and shoulder and that she continued to complain of a swollen elbow around the area of the middle epicondyle. He noted that she had been on a high dose of Endep, up to 75 mg, in the past that was excessively sedating.  Overall he thought that it appeared that her symptoms were steadily improving and she had a resolving phase of CRPS (complex regional pain syndrome). He was referring Mrs Ryan to a pain management psychologist and suggested that she continue with her physiotherapy and hand therapy.

38. Dr Dubossarsky reviewed Mrs Ryan again on 11 October 2012. He found that there was further improvement in her physical limitations. She was able to flex her fingers more than she could before and the range of movement in her shoulder had increased. He noted that she was seeing the pain management psychologist, her physiotherapist and a hand therapist.  On review on 7 February 2013 he found Mrs Ryan’s condition essentially unchanged. She had tried a course of acupuncture which was unhelpful and was no longer seeing the pain management psychologist. He did not think that she currently had CRPS. He suggested that she retry massage and hydrotherapy.

39. Dr Bodel, Orthopaedic Surgeon, examined Mrs Ryan for medico-legal purposes on 26 April 2013, 5 March 2015 and 6 April 2016. 

40. In his report dated 26 April 2013 he noted that Ms Ryan indicated that she could not recall having any real complaints about her shoulder until after surgery undertaken by Dr Herald.  She told Dr Bodel that she was doing normal hours and normal duties with the assistance of the modified workstation and Dragon Dictate. 

41. His diagnosis was:

    This lady has diffuse, poorly localised arm pain in the upper left arm. The exact underlying pathological process is a difficult issue. The initial complaint was a burning pain in the heel of the hand involving the hypothenar eminence and I would have thought an ulnar nerve lesion was the most likely diagnosis. Investigations including nerve conduction studies failed to demonstrate that  but she did increasing left shoulder and elbow pain and eventually had surgery on both areas. That surgical intervention has now been complicated by the development of a complex regional pain syndrome and her symptoms and signs of this are quite definite.

42. Dr Bodel measured Ms Ryan’s active range of motion of both shoulders.   He recorded an impingement in the region of the left shoulder and no restriction of elbow, wrist or hand movement in the left upper limb.

43. He made the following findings in response to questions from  Ms Ryan’s solicitor about particular Tables in the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 (the Guide):

    ·For the index and little fingers there is 4% Whole Person Impairment (WPI) for a functional ankylosis involving the distal interphalangeal joint of both of those fingers in the neutral position according to Table 9.8.1d.

    ·There is a 2% WPI for the functional ankylosis of the distal interphalangeal joint of the ring and little fingers of each hand according to Table 9.8.1d.

    ·There is a sensory loss in the little finger and this attracts a 2% WPI for a partial digital nerve sensory loss in both sides of the little finger and this attracts a 2% WPI in accordance with Tale 9.8.2C. Similarly there is a 2% WPI for the sensory loss on both sides of the ring finger according to the same table.

    ·There are positive ratings using Table 9.11.1A for the shoulder with a 2% WPI for the loss of flexion and 1% for the loss of extension.

    ·There is a 2% WPI for the restricted range of internal rotation and a zero per cent WPI for the loss of external rotation of the shoulder according to Table 9.11.1B.

    ·There is a 1% WPI for the 20 degrees of adduction and a 2% WPI for the 110 degrees of abduction according to Table 9.11.1C (shoulder).

    ·Mrs Ryan has 3% WPI for her non-dominant hand from Table 9.14.

1. Dr Bodel applied the Combined Values Chart (CVC) in the Guide to his findings in relation to the left hand (4, 4, 2, 2, 2 and 2) and found a WPI of 16%.  Applying the CVC to his findings on shoulder movement, he found a WPI of 8%. 

2. Dr Bodel combined those two findings to derive a 23% WPI for the left upper extremity.  He gave evidence before the Tribunal.

3. On 13 May 2013, Mrs Ryan underwent a left arm venous Doppler ultrasound which found no thrombosis.  On 14 May 2013 she underwent a bone scan which found no definite bone scan evidence of CRPS There was glenohumeral joint arthritis and rotator cuff enthesopathy involving the left shoulder. There was evidence of active left medial epicondylitis in the left elbow with mild left olecranon humeral arthritic reaction.  Very active left first carpometacarpal arthritic reaction with radioulnar and ulnocarpal joint arthritic reaction at the wrist. The right-hand had early similar findings of inflammatory osteoarthritis in the right first carpometacarpal joint and in the right radioulnar and distal radioulnar joint.

4. On 13 June 2013 Dr Dubossarsky reviewed Mrs Ryan and commented that her pain had worsened, the pain now extending over the midline of her chest to the sternal edge and pain radiating down her arm was worse. He commented that it appeared that her CRPS symptoms seem to have recurred and proposed various conservative treatments.

5. On 12 August 2013 Mrs Ryan completed a claim form for compensation for permanent impairment and non-economic loss.

6. Dr Dubossarsky reviewed Mrs Ryan on 5 September 2013.  He concluded that it appears that Mrs Ryan has improved, the pain had lessened significantly since the flare up earlier that year and it was now very minimal, at a manageable level, and he would not suggest proceeding with any injections at that time. He suggested further conservative measures.

7. On 13 November 2013 when Dr Dubossarsky reviewed Mrs Ryan again, he concluded that her CRPS symptoms seemed to have re-occurred. He recommended further conservative measures but if they did not help he recommended a repeat stellate ganglion injection block given the benefit the previous one had given.

8. The respondent sought an opinion from Associate Professor Hope, Consultant Orthopaedic Surgeon, for review of Mrs Ryan’s left shoulder, left elbow and left hand conditions.  He examined Mrs Ryan on 14 November 2013 and prepared a report dated 18 November 2013. He noted that she was right-handed.

9. Dr Hope found normal alignment of the left shoulder, no wasting, positive impingement signs (using the ‘Neer’ and ‘Hawkins’ tests), and moderate subacromial tenderness.

10. Dr Hope concluded that Ms Ryan had 9% WPI of the left shoulder resulting from:  (measured in degrees) flexion 110 equals 3%, extension 20 equals 1%, abduction 90 equals 2%, adduction 4 equals 0%, external rotation 0 equals 1%, internal rotation 20 equals 2%.

11. Dr Hope considered that the impairment was entirely work related and had stabilised. He recorded that Mrs Ryan had worked for ten years as a customer service operator which involved data entry.  Under the heading “Mechanism of Alleged Injuries”, Dr Hope wrote “On 5 October 2010 occupational overuse was caused by continual use of the computer mouse and keyboard inducing left shoulder and elbow pain”.

12. Dr Hope found normal alignment, no wasting, no tenderness, and full active pain-free range of motion in all planes, in the left elbow.

13. He examined Mrs Ryan’s left wrist and hand and found that there was normal alignment, no muscle wasting, no tenderness, and a full active pain-free range of motion in all planes.  He concluded that Mrs Ryan had a normal left wrist and hand.

14. He considered that Mrs Ryan’s attitude was good and there was no symptom of exaggeration and “all pathology has an organic basis”.

15. Dr Dubossarsky reviewed Mrs Ryan on 23 January 2014.  He found that she continued to have weakness in the left shoulder which was the main source of pain.  She had weakness in the left fourth and fifth fingers and some tenderness over the elbow region of the left ulnar nerve. He recommended further conservative measures and to follow up a repeat stellate ganglion injection.

16. Dr Dubossarsky reviewed Mrs Ryan on 22 May 2014. He reported that her pain was essentially the same and that she had “recommenced” working at Centrelink in a new role which had caused increased pain and swelling in her left arm “but this has subsided somewhat”. There had been a difficulty in relation to Mrs Ryan returning to Concord Chronic Pain Clinic and he referred her to another pain clinic in relation to a stellate ganglion block.

17. The respondent referred Mrs Ryan to Dr McGill, consultant rheumatologist, who examined her on 29 October 2014 and prepared a report of that date.  Dr McGill undertook a comprehensive review of the extensive documentation provided to him which set out Mrs Ryan’s relevant medical history.  He gave evidence before the Tribunal.

18. Dr McGill did not consider that the applicant’s work duties were of a type that could have caused the shoulder pathology and were unlikely to influence medial epicondylitis.

19. Dr McGill concluded:

    Her examination showed no evidence of complex regional pain syndrome. She demonstrated a minor reduction of active flexion of the DIP joints of the index to little fingers on the left hand. She offered a reduced range of left shoulder movement although the pattern of movement was not typical of adhesive capsulitis in that internal rotation was only minimally reduced compared with the right and active external rotation is only mildly reduced. Passive rotation was full.

    …

    In that she has reported widespread diffuse symptoms in the left upper limb which are not explained by the abnormalities found on her imaging studies or at the time of surgery, I think the appropriate label is a regional pain syndrome. She does not have evidence of complex regional pain syndrome.

    As her symptoms did not follow the expected pattern for any physical disorder, I think it is likely that psychological factors were of substantial importance from the outset of her left upper limb symptoms.

20. Dr McGill considered the physical diagnoses that had been suggested:

    She has minor osteoarthritis of the left thumb carpometacarpal joint. That would be sufficient to cause pain localised to that area. Her work duties would not have influenced the development or progression of her thumb base osteoarthritis. Repetitive forceful gripping could cause increased discomfort and, although I think it is unlikely that her work influenced the symptoms derived from the thumb base, it is possible that there was a minor temporary increase in symptoms due to her work.

    She may have had medial epicondylitis. The ultrasound and MRI findings were unimpressive but pain at the common flexor origin is relatively common in the general community. The risk is increased by repetitive lifting in the palm up position or repetitive gripping. Based on the history of her work duties that she provided, neither was a major component of her work.

    Degenerative change at the biceps anchor is common in the general community. It can also occur as a result of trauma to the shoulder. Her work did not involve actions with the potential to damage the biceps anchor and there was no injury at work. I think there is no likelihood that her work influenced her shoulder.

    She may have had irritability of the left ulnar nerve but her nerve conduction studies were normal and the profound weakness in the left upper limb that was reported at times was clearly not explicable on the basis of ulnar neuropathy. Irritation of the ulnar nerve can occur in the setting of medial epicondylitis that as I am unable to relate any possible epicondylitis that she had to her work duties, I am also unable to relate possible ulnar nerve irritation to her work duties.

    I think it is unlikely that the physical aspects of her work played a significant role in regard to her left upper limb symptoms. She today explained that at least in 2008 she “hated work”. In the period immediately prior to reporting left upper limb symptoms she had several visits with her general practitioner related to sleep disturbance. I think it is probable that psychological disturbance (which may or may not have included a dislike of her workplace) influenced her symptoms.

21. Dr McGill explained why he did not think there was an indication for a further stellate ganglion block.

22. He continued:

    With respect to her current state, despite the atypical features, I think it should be accepted that she has some restriction of left shoulder movement on the basis of the problem that existed in her shoulder and the surgery which was attempted. If it is accepted that the surgery occurred as a result of the work-related condition (although I do not think that was the case) then it should be accepted that she has some impairment of left shoulder function as a result of the condition and surgery.

23. Dr McGill made the following findings in accordance with the Guide:

    ·Left shoulder. Loss of abduction 2%; loss of adduction 0%; loss of flexion 1%; loss of extension 0%; loss of external rotation 1%; loss of internal rotation 1%.

    ·Left elbow. No impairment.

    ·Specific nerve lesions. Nil percent. (She reported global sensory disturbance in the entire left upper limb. The pattern reported was not consistent with nerve or nerve root impairment).

    ·Left hand. Loss of flexion at DIP joint little finger 1%; loss of flexion DIP joint ring finger 1%; loss of flexion DIP joint middle finger 1%; loss of flexion DIP joint index finger 1%. It should be noted that the assessment of loss of flexion was based entirely on her active movements and that there was no apparent mechanism to explain the reduced DIP joint flexion which she performed and the symmetry of loss involving all of the fingers is as one would expect if reduced effort were the explanation.

    ·Complex regional pain syndrome. She does not have evidence of that disorder and does not have rateable impairment.

24. Dr McGill concluded: “allowing her considerable benefit of the doubt with respect to the range of active shoulder movement and active DIP joint movement, she has 9% Whole Person Impairment”.

25. Mrs Ryan underwent a left stellate ganglion block by Dr Bazina, neurosurgeon/pain specialist, on 18 November 2014.  On review on 19 December 2014, Dr Bazina reported that the block had not helped the shoulder or upper limb symptoms and recommended a left suprascapular nerve block to help with shoulder pain management. 

26. On 18 December 2014, Dr Paul, consultant occupational physician, assessed Mrs Ryan. He recorded that Mrs Ryan had no improvement in her pain following the stellate ganglion block. He recorded that she took telephone calls and used a keyboard and mouse, which could be used in the right or left hands. Dr Paul found reduced range of motion of the left shoulder, excellent range of motion in the elbow, wrist and hand and diffuse pain reported medially around the left elbow. He reported that her depression increased in symptomatology since 2010 associated with increases in pain and reduced coping.  He recommended an independent psychiatric assessment to determine whether or not there was a psychiatric diagnosis that required treatment and which might assist with her ability to tolerate pain. He considered that Mrs Ryan’s history of pre-existing depression was significantly complicating her recovery.

27. Dr Bodel examined Mrs Ryan for the second time on 5 March 2015. In his reports of 27 April 2015 and 25 May 2015, Dr Bodel declined to assess WPI because he thought there was a prospect of further improvement over time.  He noted in his May 2015 report that he had previously assessed impairment but said that “it appears clinically that things have changed and that there is the prospect of further improvement over time”.

28. Dr Bodel examined Mrs Ryan for the third time on 6 April 2016 and provided a report dated 10 May 2016. On the front page he described Mrs Ryan as “left-handed”.  At the hearing he said that was a typing error.  All his other reports recorded Mrs Ryan as right handed, which is correct.   On that occasion, he diagnosed “rotator cuff pathology in the left shoulder and ulnar neuritis in the region of the left elbow”.

29. In response to questions about percentage WPI referring to specific Tables in the Guide, Dr Bodel concluded the following in his May 2016 report:

    The restricted range of elbow movement constitutes a 2% Whole Person Impairment. (Table 9.10.1a and 9.10.1b)

    The restricted range of shoulder movement constitutes a 10% Whole Person Impairment. (Tables 9.11.1a, 1b and 1c)

    The upper extremity functional table attracts a 3% Whole Person Impairment.. (Table 9.14)

    There is overall therefore a 12% Whole Person Impairment for the left upper extremity.

30. There were 107 pages of workers compensation/medical certificates for Mrs Ryan before the Tribunal. 

    Consideration and findings

31. Ultimately, the question for resolution in this case is whether the Tribunal prefers the opinion of Dr McGill, contended for by the respondent, or that of Dr Bodel, contended for by the applicant.

32. The Tribunal has taken into account Mrs Ryan’s evidence.  However, the issues for determination are matters for expert opinion.  This matter has a lengthy history.  The contemporaneous records of Mrs Ryan’s complaints of symptoms are more reliable than her recollection many years later, which is not a criticism of Mrs Ryan.  Her evidence about her work duties was helpful.  She said that the typing required was predominantly numeric and she typed on a numeric keyboard using her right hand.  She typed words with both hands. She used computer-generated templates for letters which she completed using information she obtained, including by telephone.  She used a telephone receiver in her left hand until around the time of her operation in 2011 when she was provided with a headset.  She cradled the telephone receiver between her shoulder and neck when typing words when she was on the telephone. She placed documents she needed to refer to on the left side of her workstation and turned over pages using her left hand.  

33. The various copies of photographs of Mrs Ryan’s neck, arm and hand were not of assistance. The assessment of the appearance of Mrs Ryan’s upper left limb is for experts and not the Tribunal, and whether an assessment could be made from photographs was not explored in the case.  The assessments made in the expert evidence were made from direct observation.  

34. For the reasons that follow, the Tribunal prefers the opinion of Dr McGill to that of Dr Bodel.

35. Dr Bodel assessed Mrs Ryan as having 23% WPI when he examined Mrs Ryan on 26 April 2013.  The impairment included assessments for her ring and little fingers, her left shoulder and left hand.  He declined to make a WPI assessment when he examined her on 5 March 2015, explaining that “it appears clinically that things have changed and that there is a prospect of further improvement over time”.  He assessed a 12% WPI on 6 April 2016 in relation to her left upper extremity. He made no finding of WPI in relation to the fingers of her left hand or her left hand.

36. Such inconsistent assessments do not reflect the exercise of sound clinical judgment. Further, Dr Bodel’s assessments seemed to be in response to questions posed by the solicitor in relation to particular WPI tables rather than a result of the doctor’s independent expert assessment of WPI.

37. Under cross-examination, Dr Bodel was unable to explain the cause of Mrs Ryan’s ulnar neuritis.  He said that she reported that symptoms developed at work and he did not know the reason she developed it.  He accepted that Mrs Ryan did not have a problem in her left shoulder until she had surgery. The Tribunal did not understand Dr Bodel to explain satisfactorily in his reports or orally, how Mrs Ryan’s work had caused the underlying pathology in the shoulder. 

38. The Tribunal found Dr McGill’s evidence considered, well-reasoned and clear. Further, his clinical judgment that there was not an indication for a second stellate ganglion block was borne out.  Mrs Ryan reported no benefit from the second stellate ganglion block given after she had seen Dr McGill. 

39. The Tribunal takes into account that there is other medical evidence that supports Dr McGill’s opinions in part.  They are the reports of Dr Gray of 6 September 2011, Mr Sheh of 30 September 2011 and Dr Paul dated 18 December 2014.  There are other reports, such as Dr Hope’s and Dr Billett’s that attributed Mrs Ryan’s condition to her work.  However, the Tribunal does not consider that any medical report or evidence, including that of Dr Bodel, provides a clear persuasive consideration of Mrs Ryan’s work duties and how they caused the symptoms she has suffered.

40. The applicant argued that Dr McGill’s evidence did not support the view that Mrs Ryan’s current symptoms were not caused by her work.  The Tribunal does not accept that that submission accurately reflects Dr McGill’s evidence. 

41. The applicant argued that the Tribunal should not accept Dr McGill’s opinion that it was probable that psychological disturbance influenced her symptoms because he is not a psychiatrist. 

42. Dr Paul, Consultant Occupational Physician, considered that Mrs Ryan’s history of pre-existing depression was significantly complicating her recovery and recommended an independent psychiatric assessment. He is also not a psychiatrist.

43. However, it is not necessary for the purposes of this decision for the Tribunal to make a finding in relation to any psychological influence on Mrs Ryan’s condition.  It is only necessary to determine on the evidence the questions in issue which relate to her accepted conditions which are physical conditions. In any event, Dr McGill was not purporting to give expert evidence as a psychiatrist but based on his experience and expertise as a rheumatologist. 

44. For the above reasons, the Tribunal accepts Dr McGill’s expert opinion that it is unlikely that the physical aspects of Mrs Ryan’s work played a significant role in regard to her left upper limb symptoms. 

45. Based on the evidence of Dr McGill, the Tribunal does not accept that Mrs Ryan continues to suffer the effects of the accepted conditions and does not accept that she is entitled to compensation for medical expenses and incapacity payments.  In making that finding, the Tribunal has taken into account Dr McGill’s concession at the hearing that it was reasonable for Mrs Ryan to take some medication for her claimed symptoms.  However, Dr McGill did not accept that those symptoms were a consequence of Mrs Ryan’s work.

46. The Tribunal does not accept that Mrs Ryan has a permanent impairment arising from the accepted conditions entitling her to compensation.  It does not accept Dr Bodel’s assessment for the reasons set out above. 

47. Dr McGill’s approach to the assessment of Mrs Ryan’s WPI was qualified. While assessing a permanent impairment of 9%, Dr McGill did not accept that the surgery for the surgery occurred because of a work-related condition and allowed Mrs Ryan “considerable benefit of the doubt” with respect to the range of active shoulder movement and active DIP joint movement. In any event, that assessment would not entitle Mrs Ryan to compensation pursuant to section 24. It is therefore unnecessary for the Tribunal to consider the competing submissions based on the decisions in Telstra Corporation Limited v Hannaford (2006) 151 FCR 253 and Barker v Australian Telecommunications Commission (1990) 95 ALR 72.

48. The applicant sought to rely on Dr McGill’s assessment of 4% WPI of the left hand and fingers and to add that to the WPI found by Dr Bodel.  In addition to not accepting Dr Bodel’s assessment, the Tribunal declines to do that because Dr McGill found no apparent mechanism to explain the reduced DIP joint flexion, and the symmetry of the loss involving all of the fingers was one that would be expected if reduced effort were the explanation.  He explained that he made the WPI assessment because the Impairment Table requires active movements to be assessed.  Clearly, his opinion was that the movements were the result of reduced effort. That Dr Bodel made no assessment of WPI of the hand or fingers in 2015 or 2016 is consistent with Dr McGill’s assessment of the effort Mrs Ryan made when he saw her in 2014.

1. Given the Tribunal’s findings, it is unnecessary to consider the competing submissions in relation to the High Court decision of Canute v Comcare (2006) 226 CLR 535.

2. For the above reasons, the Tribunal affirms:

   (iii)the reviewable decision made on 9 May 2014, which affirmed the determination of 28 November 2013 denying that the applicant was entitled to compensation for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act in respect of “upper shoulder, upper arm, elbow, lower arm, wrist-hand”, and

   (iv)the reviewable decision made on 15 July 2015 which affirmed the decision made on 16 May 2015 that determined that the applicant’s entitlements to medical expenses (section 16 of the SRC Act) and incapacity payments (section 19 of the SRC Act) had ceased on the basis that she did not presently suffer from the effects of the compensable condition.

I certify that the preceding 93 (ninety -three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

............................[sgd]............................................

Associate

Dated: 27 April 2017

Dates of hearing:	5 and 6 December 2016
Date final submissions received:	15 December 2016
Counsel for the Applicant:	Mr T McKenzie
Solicitors for the Applicant:	Ms G Giunta, Slater and Gordon Lawyers
Counsel for the Respondent:	Ms R Henderson
Solicitors for the Respondent:	Mr P Lehmann, Lehmann Snell Lawyers