Sivewright and Telstra Corporation Limited
[2003] AATA 1091
•31 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1091
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos Q2002/470, Q2002/908
GENERAL ADMINISTRATIVE DIVISION
)
Re BARBARA ANN SIVEWRIGHT Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date31 October 2003
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
...................(Sgd).....................
R G Kenny
Member
CATCHWORDS
WORKERS’ COMPENSATION – whether the respondent is liable to continue to pay compensation to the applicant for incapacity or impairment – whether the respondent is liable to pay compensation for permanent impairment – assessment of impairment
Safety Rehabilitation and Compensation Act 1988 ss 4, 6, 14, 16, 19, 24, 27, 28
Australian Postal Corporation v Oudyn [2003] FCA 318
Re Carson and Telstra Corporation (2001) 33 AAR 351Lees v Comcare (1999) 56 ALD 84
REASONS FOR DECISION
31 October 2003 Mr R G Kenny, Member Background
1. On 23 January 2001, Barbara Sivewright (the applicant) completed a claim for workers’ compensation benefits in relation to what she described as “pins and needles in both hands – possible carpel tunnel syndrome”.. Initially, the claim was rejected by a senior claims officer from GIO Australia but, on 22 May 2001, a senior claims officer determined that Telstra Corporation Limited (the respondent) was liable to pay compensation to the applicant for aggravation of thoracic outlet syndrome. That decision was made in accordance with the terms of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
2. On 6 December 2001, the respondent determined that it was no longer liable to pay compensation in respect of aggravation of thoracic outlet syndrome and that liability for such payments was to cease on and from 6 December 2001. That decision was affirmed on 3 April 2002 and the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) on 3 June 2002.
3. On 1 August 2002, the applicant’s solicitor wrote to the respondent lodging a claim for lump sum compensation pursuant to section 24 of the Act. On 20 August 2002, a delegate of the respondent determined that there was no entitlement to compensation in respect of permanent impairment under sections 24 and 27 of the Act and that decision was affirmed by the respondent on 24 September 2002. On 22 October 2002, the applicant sought review of that decision by the Tribunal.
Hearing
4. The applicant was represented by Mr T Willis of Counsel and the respondent was represented by Ms C Heyworth-Smith of Counsel.
5. Statements prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) were taken into evidence as exhibit 1 (Q2002/470 – T1-T35) and exhibit 2 (Q2002/908 – T1-T12). In addition, the following material was taken into evidence:
§exhibit 3 - a statement, dated 29 August 2002, by the applicant;
§exhibit 4 - a report, dated 12 March 2001, of Dr Douglas Gray, consultant rheumatologist;
§exhibit 5 - a report, dated 24 June 2002, of Dr John Mison, orthopaedic surgeon;
§exhibit 6 - a North Coast Radiology report, dated 4 July 2001;
§exhibit 7 - a North Coast Radiology Report, dated 31 July 2001;
§exhibit 8 - a report, dated 7 July 2003, of Dr Wallace Foster, vascular surgeon;
§exhibit 9 - a report, dated 23 September 2003, of Dr Wallace Foster, vascular surgeon;
§exhibit10 - a Queensland Diagnostic Imaging report, dated 29 January 2002;
§exhibit 11 - a report, dated 7 August 2002, of Dr Richard Arnot, consultant general surgeon;
§exhibit 12 - a report, dated 21 August 2002, of Dr Richard Arnot, consultant general surgeon;
§exhibit 13 - a report, dated 24 July 2002, of Dr David Cannon, general practitioner;
§exhibit 14 - a report, dated 4 June 2002, of Dr G Douglas, Commonwealth Medical Officer;
§exhibit 15 - a report, dated 23 December 2002, of Dr Peter Millroy, orthopaedic surgeon;
§exhibit 16 - a further report, dated 23 December 2002, of Dr Peter Millroy, orthopaedic surgeon;
§exhibit 17 - an Email exchange, dated 2 June 1998, between the applicant and her employment supervisor;
§exhibit 18 - a report; dated 22 October 2002, of Dr Roger Parkington consultant orthopaedic surgeon;
§exhibit 19 - a report, dated 3 September 2003, of Dr John Sowby, specialist in occupational medicine, from Health Services Australia (HSA);
§exhibit 20 - a report, dated 19 June 1996, of Lesley Bazley, occupational therapist;
§exhibit 21 - a report, dated 1 August 1996, of Lesley Bazley, occupational therapist; and
§exhibit 22 - a North Coast Radiology report, dated 24 October 1996.
6. The issues for the Tribunal to determine are whether the respondent is liable to continue to pay compensation to the applicant for incapacity or impairment on or after 6 December 2001; and whether the respondent is liable to pay compensation to the applicant for permanent impairment. Relevant to the determination of those matters are the following provisions of the Act:
“4 - Interpretation
(1) In this Act, unless the contrary intention appears: …
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
6 - Injury arising out of or in the course of employment
(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a)…; or
(b) while the employee:
(i)was at his or her place of work, for the purposes of that employment…;
…
14 - Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
24 - Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
(7A) Subject to section 25, if:
(a)the employee has a permanent impairment that is a hearing loss; and
(b)Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a)the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000.
…
27 - Compensation for non-economic loss
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
(3) This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.
28 - Approved Guide
(1) Comcare may, from time to time, prepare a written document, to be called the ‘Guide to the Assessment of the Degree of Permanent Impairment’, setting out:
(a)criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b)criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c)methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.
(2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
(3) A document prepared by Comcare under subsection (1), and an instrument under subsection (2), have no force or effect unless and until approved by the Minister.
(4) Where Comcare, a licensee or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensed authority, the licensed corporation or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide.
(5) The percentage of permanent impairment or non-economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%.
(6) In preparing criteria for the purposes of paragraphs (1)(a) and (b), or in varying those criteria, Comcare shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non-economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed.
(7) When a document prepared by Comcare in accordance with subsection (1), or an instrument under subsection (2), has been approved by the Minister, Comcare shall cause copies of the document or instrument, as the case may be, to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives those copies.
(8) Comcare shall make copies of the "Guide to the Assessment of the Degree of Permanent Impairment" that has been approved by the Minister, and of any variation of that Guide that has been so approved, available upon application by a person and payment of the prescribed fee (if any).
(9) Sections 48 (other than paragraphs (1)(a) and (b) and subsection (2)), 49 and 50 of the Acts Interpretation Act 1901 apply in relation to a document, being the approved Guide or an instrument varying or revoking that Guide that has been approved by the Minister, as if, in those sections, references to regulations were references to such a document and references to a regulation were references to a provision of such a document.
(10) For the purpose of the application of the provisions of the Acts Interpretation Act 1901 in accordance with subsection (9), a document referred to in that subsection shall be taken to have been made on the date on which it was approved by the Minister under this section.”
Evidence of the Applicant
7. The applicant told the Tribunal that she has worked as a sales consultant with Telstra from 1994 to March 2001, having previously had a range of jobs of a secretarial nature and some two years working as a decorative baker. In relation to the work with Telstra, she said that she was mainly involved in working at a Call Centre where she was responsible for answering telephone calls and entering data by keyboard into a computer. She said that this was all done sitting at a desk with an attached headset so that her hands were free to operate the keyboard. She said that she worked on a full time basis, initially for 37 hours per week with perhaps an hour overtime on many occasions but she reduced this to 32 hours per week over four days during 2000 because she shifted her residence and had a longer distance to drive to work. She said that her day was structured in the sense that there were compulsory breaks which comprised 15 minutes for morning and afternoon tea and 30 minutes for lunch at set times. She said that her work was subject to quality performance measures on a daily basis and that this meant that her work was monitored. She said that there were standards that needed to be met and that, for example, in her last period of work with Telstra, she was required to deal with each individual matter in approximately 520 seconds and that, in the event that an employee was found not to be achieving the set goals, management would provide a “please explain letter” and work with the employee to improve performance. She said that she could recall receiving such a letter on an occasion.
8. The applicant said that her hands and arms, shoulders and neck were not providing her with any difficulties prior to 1994 and that she had been an active sports person in her youth, continuing to play netball until 1989 and squash until 1997 or 1998. She said that she had also been involved in walking and cycling and that she had not received any injuries in respect of those activities.
9. The applicant said that, towards the end of 2000, there was a change in work practices introduced by Telstra which was known as the STS System. She described this as being a more “click orientated” system which meant that there was greater use of the mouse as a device for entering information. She said it was introduced in December 2000 and they began using it in January 2001.
10. The applicant said that she began to experience tingling sensations and numbness in her right hand in late November 2000 and early December 2000, that it gradually got worse and became more intense after she began the STS system in January 2001. She said that, prior to STS being introduced, both hands were used about equally and that, after STS was introduced, she would change hands from time to time and this would ease pain in the other hand. She said that she spoke to her supervisor about this and was advised to use her left hand to manipulate the mouse. She found that, within a short time, her left hand began giving the same level of tingling and numbness that she had experienced in her right hand. She said that she felt the sensation going right up her arms, that she also tried going back to the pre-STS system for a time, that she felt better for a day or two but that the problem returned in each hand.
11. The applicant said that she had much less pain when she was not using her hands, that she noted a significant improvement on her days off and that her hands were much better when she was not working. She said she would be relatively symptom free at the beginning of the day after resting overnight and that this was also the case after a weekend. She said that, from January 2001 to March 2001, her symptoms at work gradually got worse, that, for the first two hours or so at work, the symptoms were not too bad but that they were worse after lunch and severe on the way home from work. She said that she did not have difficulty when she was resting and that her problems were mainly at work and whilst driving and that, by March 2001, she was having problems even at the start of the day and she felt she could not keep on going.
12. The applicant said that she had been subjected to physiotherapy treatment with conservative pain management practices being adopted and that this sometimes helped her and sometimes did not. She said that, in the end, she felt that there was no real benefit from that form of treatment and so she desisted with it. She said that the level of her symptoms was about the same in March 2001 as it was in December 2001 and that she still experiences pain with any activity especially if it involves using her arms in front of her body. She said that the less she does the better she feels and she avoids any activities involving her hands being in front of her body such as using the phone or washing the car. She said that she had ceased mowing her lawn because of the problem but had now moved to new premises where that was not problematical. She said that, in shopping expeditions, she had changed her practices by ensuring that her groceries were contained in small bags, that she minimises the amount of housework she does and that a family friend assists her with tasks such as vacuuming and any other heavy jobs around the house.
13. The applicant said that she went to her local medical practitioner, Dr David Cannon, in January 2001 and that he had sent her to a neurologist, Dr John Corbett, for nerve conduction studies and to orthopaedic surgeon, Dr John Mison. She said that she had been treated by vascular surgeon, Dr Wallace Foster, and that he had recommended that she do nothing which would irritate her hand conditions and had also prescribed anti-depressants. She said that the anti-depression medication assisted her.
14. The applicant said that she had liked her Telstra job, would like to be employed and that she may be able to undertake work involving the use of the telephone provided she had a headset. She said she could also act as a receptionist in that she is able to use her hands but only for a short time, that she would have problems working full time and that she would not be able to involve herself in activities such as child minding because she would not be able to lift young children.
15. The applicant was referred to her consultation with orthopaedic surgeon, Dr Roger Parkington, and to the history she had provided to him and it was put to her that she did not make any reference to experiencing pain. She agreed that she had told him that she had other symptoms in her hands and arms but she said that she believed that she had told him that she had pain in her arms as well but that she was not sure whether she had advised him of pain in her shoulders and neck. The applicant was also referred to a report from rheumatologist, Dr Douglas Gray, and, again, she said that she was focussed on her hands at the time and that she was not sure whether she had described shoulder and neck pain to him. She was referred to her consultation with sports medicine practitioner, Dr Richard Harvey, and could not recall whether she had made reference to him about pain in her shoulders and neck but said that she believed she had told him that she had pain in her hands and forearms. She was referred to a report of Dr Cannon in March 2001 and she said that she could not recall whether she had told him of any neck pain. She was also referred to a report, dated 14 May 2001, of orthopaedic surgeon, Dr John Mison, and said that she believed she had told him that she also had shooting pain up her arms at that time.
16. It was put to the applicant that she had not made any complaint of any neck pain to any medical practitioner until March 2002 and she responded by saying that her main concern in 2001 was with her hands. She said that, with all of these doctors, she had told them that she had pain “up her arms”. She said that she had referred to a “gnawing sensation” in her arms at times and felt that was much the same description that she had used on other occasions about “shooting pain”.
17. The applicant was referred to a break from work that she took in March 2001 and she could not recall whether it was a one or a two week holiday that she took on the Gold Coast. She said that it was a period when she had complete rest and that she felt a lot less in the way of symptoms during that period. She also said that she felt a return of the symptoms while she was driving her car from the Gold Coast to her home in Lismore but that, after the holiday, she went back to Dr Cannon and told him that the condition had improved and that she wanted to go back to work. She said, on the advice of Dr Cannon, that she did not return to work and has not worked since.
18. The applicant was referred to her work practices at Telstra and it was put to her that she had the opportunity to move from her desk from time to time during her normal day. While she conceded that she was able to go the toilet when she needed to, she said that she was not able to move around generally and did not need to. She said that it was not necessary for her to leave her desk to consult manuals because she had an array of available manuals within reach and that, therefore, she was sitting at her desk most of the time.
19. The applicant said that she had suffered from a low back pain problem in the mid-1990s but that this had been treated, that she had undergone a change in work environment which resulted in her back problem going away and that she had not taken any time off work. She said that she consulted the Commonwealth Rehabilitation Service for a workplace assessment and that they looked at her working arrangements. It was put to her that she had experienced lumbar pain for about 18 months but she said that she did not believe that it was for that long and she said that, if she had problems for that long, they would only have been slight in the early stages. She said that, at the time, there was a change to all of the chairs in the workplace and that this had assisted her back and that there was more opportunity to move around then but that things became more rigid in that regard as time moved on. She said that she could not recall whether she had been taking anti-inflammatory medication for her low back pain and could not recall whether she had told the doctors that this was so. She agreed that she had not told any of the doctors in 2001 about her back problems but she said that this was because it had been relatively minor. She agreed that she had told general surgeon, Dr Richard Arnot, that her left hand was now worse than her right hand and that there had been little improvement since she stopped working. She agreed that she had not told Dr Arnot that the condition settled over night but said that she had not told Dr Arnot that her hand problems were responsible for her giving up squash and she was not aware that he had drawn that inference.
20. The applicant agreed that she is able to do some things for herself but said she has difficulties with activities where she has to raise her arms and, as an example, she said that she has difficulty combing her hair. She said that she does not attempt activities such as vacuuming because of the discomfort and that she was not able to explain why there was no reference to any muscle wasting through lack of use of her arms in any of the medical reports.
21. The applicant said that she had agreed with the physiotherapist, Carmel Tepper, that the treatment that she got including rest from work and splinting of her hand did not ease her symptoms at all. It was put to her that she told Dr Cannon that she had benefited from using the splinting and she agreed but said that there were times when it helped and times when it did not and, in the long run, it was not beneficial. She said that there was no difference in the way that Dr Cannon reported on her symptoms compared with the way that Carmel Tepper did. The applicant said that she began anti-depressant treatment in June 2002 and she conceded that she had told Dr Arnot that the best relief that she got came from anti-depressants, but she believed that there was contribution to this benefit from Celebrex. She said she believed anti-depressant medication helped her because it enabled her to rest and to sleep better and she said this was beneficial.
22. The applicant agreed that she had been told that she had bad posture. It was put to the applicant that she was exaggerating her conditions but she denied this.
23. The applicant identified an email message from her supervisor at Telstra which she had received in respect of her work as part of the process of being monitored in day to day activity (exhibit 17).
Evidence of Dr W J Foster, Vascular Surgeon
24. Dr Foster said that he was the applicant’s treating doctor and that the matter was referred to him by Dr Williams because of his interest in thoracic outlet syndrome. He described the condition as one involving a combination of symptoms which flowed from an exaggerated narrowing of the thoracic outlet which could be due to compression affecting the arteries, the veins or the nerves. He said that he diagnosed this condition in the applicant and that he did so on the basis of what he believed to be objective signs or symptoms. He was referred to his report, dated 23 September 2003 (exhibit 9), where he said:
“On examination, at the time she appeared in obvious distress and became tearful during the interview. It was noticed that on abduction of her shoulders an audible systolic bruit is present over the infra clavicular regions, and as that bruit disappears with further abduction and external rotation, Ms Sivewright’s left radial pulse disappears. When exercising (repeated opening and closing of the hand) she develops discomfort and associated blanching of her hands. The discomfort in her forearms is consistent with forearm claudication. She was unable to continue with her arms elevated and had to rapidly put her arms down by her side.”
In relation to the systolic bruit, he said this was a “whooshing noise” which, on disappearance, indicated that there was a stoppage of blood flow. In relation to the disappearance of the left radial pulse, he said that, in certain positions of the arms, compression increases on the thoracic outlet which, again, prevents blood flow and therefore a loss of the radial pulse.
25. Dr Foster was referred to the report of Dr Millroy (exhibit 15) where it was stated that “thoracic outlet compression is a fairly rare condition causing disabilities in the upper limbs” and that it was “most unlikely that these conditions will be symmetrical and cause symmetrical problems in both upper limbs in one individual”. Dr Foster agreed that it was a rare phenomenon but he said that it does happen. He was also referred to Dr Millroy’s finding that the radial pulses of the applicant were strong when she was using a computer but that they diminished with elevation. Dr Foster said that this was what thoracic syndrome was.
26. Dr Foster said he had arranged for a CT angiogram to be conducted because this assisted in the diagnosis of the condition by providing an effective three dimensional image which enabled observations to be made of the veins and arteries in the area.He was referred to the CT angiogram performed by Dr Hunter (exhibit 10) and to the following finding:
“There is a very slow venous return with contrast layering in both internal jugular veins. There is evidence of compression of the left subclavian vein as it crosses the 1st left rib but there is no obstruction to flow.
The arteries are identified in coronal, axial and sagittal sections. There is slight flattening of the subclavian arteries as they cross the 1st ribs but there is no evidence of obstruction.”
27. Dr Foster said that he interpreted this as being evidence of the reduction of the calibre of a vein reduced by pressure and he said this could affect the flow of blood. He agreed that the report demonstrated that there was no obstruction to blood flow but said that this could be because Dr Hunter had not placed the applicant in the correct position on the examining table such that her arms were in a position which caused the obstruction that he had noted. He said that he recorded this in his report of 11 March 2002. He said that when he had seen the applicant on 24 January 2002 he had noticed claudication when she placed her arms above her head in the surrender position.
28. Dr Foster explained that claudication was a symptom of tiredness or weakness or a cramp-like feeling which is relieved by rest and he said that people with abnormal flow of blood get this feeling more quickly than others. Dr Foster agreed that thoracic outlet syndrome was prima facie a congenital condition and that the loss of radial pulse was a common characteristic in the community and that it probably affected about 40% of adults. He agreed that not all of those people would experience symptoms of thoracic outlet syndrome.
29. Dr Foster said that a person with thoracic outlet syndrome might display swelling of the arms because of compression of a vein, change in colour to the area, claudication or tiredness or nerve discomfort. He also said that there were sometimes automatic responses for example the presence of sweating but that there would not necessarily be any muscle wasting in the arms. He said that the condition was associated with posture and the forward use of the arms and shoulders and he said that it was the changing of the angle which caused the problem. He said it was the posture of the body, the arms and the shoulders rather than the use of hands which was relevant. He agreed that the onset of the symptoms was not associated with the use of the fingers themselves on the keyboard but, rather, the position of the shoulders although he said that if a person was simply sitting with their arms in a forward position doing nothing with their fingers, it would probably not cause it as there would probably need to be some activity. He said that it would occur more rapidly if the person was using the hands in some exercise activity.
30. Dr Foster agreed that the underlying causes of the condition can be venous, arterial or nerve related or a combination of these. He also agreed that there was no evidence of any nerve compression and he said that the presence of the noise bruit suggested that it was related to an arterial cause. He agreed that a bruit may be caused by other things but said that only with thoracic outlet syndrome would the noise come and go. He agreed that it was more common that the condition may be associated with a person’s continual involvement of arm movement above shoulder height, but he said that this was not always so and it could develop in circumstances where a person’s arms were projected forward. He agreed that, in the applicant’s case, there had been no objective signs or symptoms when she was projecting her arms forward and this only occurred when her arms were above her head.
31. Dr Foster was referred to his report of 7 July 2003 (exhibit 8) where he had said that it was likely that the applicant’s employment continued to be a contributing factor of her condition after March 2001. He said that sitting in the position with her arms forward of her body to use the computer would have been the relevant factor as this changed the angle between the collarbone and the first rib and changed the level of contraction of the muscles which, when tightened, would narrow the thoracic outlet. Dr Foster said that some people are born with the condition and that the applicant would always have some compression unless she underwent surgery to open the outlet. Dr Foster said that work circumstances would make thoracic outlet syndrome appear and he agreed that, at most, work circumstances would cause it to increase in the level of symptoms and also appear earlier than otherwise would be the case. He agreed that, as he stated in his report of 23 September 2002, the applicant’s CT scan confirmed bony and muscular factors contributing to the thoracic outlet compression and which would be present irrespective of vocation.
32. Dr Foster said that it was consistent with the presence of the condition that anti-depressive medication may assist in the easing of symptoms because it would enable the applicant to relax and to sleep better. He said that the first time that he saw her she was quite tearful but that on the second visit she had a much improved presentation. He said that he believed her tearful presentation was due to the fact that she had seen several doctors with several causes for her condition being described and, as a result, she had felt frustrated. Dr Foster said that he did not believe that physiotherapy treatment was beneficial to those who suffered from thoracic outlet syndrome because the mechanical nature of the exercises arranged by a physiotherapist often exacerbated the condition.
33. Dr Foster was asked to assume that the applicant was relatively free of symptoms after she had a break from work overnight, on weekends and during the period of complete rest on a holiday of either a week or two week’s duration in March 2001 but that the symptoms recurred while she was driving her car back from the holiday venue at the Gold Coast to Lismore. Dr Foster agreed that it was reasonable to propose that, when the need to adopt the posture associated with sitting at a desk and using a computer ceased, the exacerbation of the condition would cease thereafter. He also agreed with the proposition that any continuation of the symptoms could be as attributable to the driving as to work activities.
34. Dr Foster was also asked to assume that, since ceasing work in March 2001, the applicant had involved herself in a very limited range of physical activity and was asked whether he would expect to see a level of muscle wasting in the arms. He agreed that it was reasonable to assume that this would be so, that he had not noted any such muscle wasting and that this may have meant that there was a greater level of activity than the applicant had declared. Dr Foster also said that the lack of muscle wasting was not necessarily a significant finding as this would only be present if virtually nothing was done by a person.
35. Dr Foster was asked to consider the level of impairment under the tables in the Guide to the Assessment of the Degree of Permanent Impairment (the Guide). He said that he had based his rating on 30% under table 9.4 on his understanding that the applicant was not able to undertake a full range of self care activity such as combing her hair. He agreed that there had been no problems associated with digital dexterity or holding or grasping things and it was not the case that she was unable to do these things. He agreed that she probably did not meet the requirements of the 10% threshold in Table 9.4 and he said this was a problem with the structure of the table. He said that the problem was that the 30% threshold made reference to self care and, while he agreed she was able to do many things, he said this was with difficulty. He also said that the allocation of 30% of table 9.4 was based upon his clinical examination, the results of the CT angiogram and the history he had taken from the applicant.
Evidence of Dr Peter Millroy, Orthopaedic Surgeon
36. Dr Millroy examined the applicant on 19 December 2002 and provided two medical reports both dated 23 December 2002. In his examination, he noted:
“Ms Sivewright was pleasant and cooperative throughout the interview. She seemed to be sitting reasonably comfortably. Her upper limbs were quite mobile. Examination of her hands revealed no abnormalities. There was no swelling in the soft tissues. There was definitely no oedema. There was full mobility of all joints in both hands. There is no clinical evidence of osteoarthritis in the small joints of the hands including the thumbs. She can make a fist and straighten her fingers out without discomfort. There is definitely no wasting whatsoever in the small muscles of the right and left hands. Comment – these small muscles are supplied by the first thoracic nerve root and some degree of wasting of some of these muscles is seen in the type of thoracic outlet syndrome that causes some nerve compression in the neck. There is no evidence of this here. There is no swelling of the wrists. Wrist movements are normal. It is important to note that there is definitely no wasting of her forearm muscles due to disuse. Her forearm muscles are well toned up and have normal bulk in both upper limbs. Elbow movements are normal. The biceps and triceps muscles also have normal bulk and no evidence of disuse wasting. Shoulder movements through most movements are normal. Both shoulders are tight in internal rotation, that is getting her hands behind her back. Examination of the neck reveals a reasonable range of movement with some restriction of all movements at the end. There is moderate discomfort. There is definitely no tenderness over the brachial plexus region in the right and left supraclavicular fossae.
The hands seem to have normal circulation at all times. The right and left radial pulses are strong when her hands are down such as in the position of using a computer and for all such activities. Elevation of her arms produces variable diminution of the pulses in different positions. Comment – this is a very common finding in adults e.g. my wife’s pulses are completely obliterated when her arms are fully elevated and yet she does not suffer from any symptoms of thoracic outlet compression whatsoever.”
37. Also, in his report, Dr Millroy gave the following opinion:
“3.1 Diagnoses – Ms Sivewright’s symptoms in both upper limbs commenced two years ago. It is important to note that no definite abnormal physical signs have become apparent during this time to me and multiple observers. In other words there is no evidence of any definite nerve root compression. There is no muscle wasting whatsoever in the upper limbs. There is no specific sensory loss in the upper limbs. There is no definite evidence of arterial insufficiency in the upper limbs especially when she is sitting with her arms down in the position she normally has them to use the computer.
(a)Carpal tunnel syndrome – there is no clinical or electrical evidence that the patient suffers from carpal tunnel compressions of the median nerves and this diagnosis has not become apparent in the last two years.
(b)Thoracic outlet syndrome – As mentioned above there are no concrete physical signs which have developed in a two year period to indicate that this condition on both sides is the cause of her upper limb symptoms. Thoracic outlet compression is a fairly rare condition causing disabilities in the upper limbs. It is most unlikely that these conditions will be symmetrical and cause symmetrical symptoms in both upper limbs in one individual.
I think it is most important to take notice of the comments made by Dr W Foster in his report to Somerville Laundry Lomax dated the 23rd September, 2002. I refer specifically to the last six paragraphs and the p.s. I disagree with his comment ‘Those symptoms are exacerbated by certain postures and sitting using a keyboard is one such precipitating factor’. Ms Sivewright’s radial pulses are very strong in this position. I do not think there is any definite evidence that she suffers from claudication of her forearm muscles.
He notes that her symptoms seem to be exaggerated initially and have improved with the prescription of anti-depression medication.
In his p.s., Dr Foster notes that thoracic outlet compression is primarily a congenital abnormality which may be exacerbated by various activities or physical changes that occur in the body throughout life. These changes often occur in middle age. His last sentence ‘Ms Sivewright’s dynamic CT scan confirms bony and muscular factors contributing to the thoracic outlet compression and they would be present irrespective of the vocation one pursues’ – this seems to support the contention that the condition may not be work related.
(c)Cervical Spine – The patient suffers from significant degenerative changes in the cervical spine which may be contributing to her upper limb symptoms. However, there is no specific nerve root involvement. In any case there is no evidence that the condition of her neck is work related in any way.
3.2In my opinion none of the above conditions (a), (b) and (c) have been caused and/or materially contributed to by her employment.
3.3There is no compensable condition.
3.4There is no compensable condition contributing to her incapacity for employment.
3.5Ms Sivewright claims that she is incapable of working due to the condition of her upper limbs. However, the present clinical and ancillary evidence does not support this contention. I cannot detect any physical abnormalities in the right and left upper limbs which prevent her from doing some work.
3.6In my opinion the patient is probably fit to resume her normal duties on a graduated suitable duties programme with appropriate initial supervision by an appropriate Occupational Therapist who may advise suitable changes to her work station and equipment.
3.7In my opinion Ms Sivewright is fit for other types of clerical work and retail work. The only restrictions I would impose would be to restrict heavy lifting and overhead activities. This could be done occasionally but not repetitively.
3.8There has not been a compensable condition and there still is not a compensable condition. There is no need for any ongoing medical treatment as a result of any compensable condition. In my opinion there is no compensable condition. However, for her own well being I would advise Ms Sivewright to continue to do a suitable maintenance exercise programme indefinitely to mobilise and strengthen the muscles of her upper limbs, shoulder girdles and neck and to keep as generally fit as possible.
3.9The prognosis of the condition is probably poor.
3.10I do not think referral to any other doctors is necessary.”
38. In a report, dated 23 December 2002 (exhibit 16), Dr Millroy stated:
“6.1In my opinion Miss Sivewright does not have any permanent impairment arising from a compensable injury in the right and left upper limbs.
6.5Any alleged permanent impairment is as a result of non-employment factors. She does have degenerative changes in her cervical spine which may be contributing to her symptoms, but there is nothing specific. It seems that she is not suffering from right or left carpal tunnel compressions of the median nerves. It is possible she suffers from a degree of thoracic outlet compression which probably does not cause any loss of function or impairment when she is using her arms below shoulder height.
6.6As mentioned in the main body of the report under 3.9, the patient should keep her upper limbs and shoulder girdles as fit as possible.”
39. Dr Millroy was referred to the reference that an examination of the applicant’s hands revealed no abnormalities and he said that, by this, he meant there was no wasting in the small muscles. However, he said that if the thoracic outlet syndrome was due to a vascular cause, this would not be significant. He said that wasting can occur if there is nerve compression. He distinguished that form of wasting from that which applies following disuse of the limb, but he said this kind of disuse wasting was not necessarily related to any thoracic outlet syndrome. He said that, where there is nerve compression, wasting occurs because the nerve supply to the muscles in the hands is reduced and therefore weakness arises in those muscles.
40. Dr Millroy confirmed that the pulses in the applicant’s arms were strong when she was in the computer usage position although they were obliterated when she was in the hands up position. He said that this latter situation was a very common phenomenon and did not mean that the person had thoracic outlet syndrome. The presence of the pulses in her arms in the forward position meant that there was an ample blood supply to those limbs. He said that, if the flow was adequate, it was unlikely she would get symptoms of thoracic outlet syndrome. He also said that if the condition had a congenital basis it could be exacerbated by postural problems in the workplace but agreed that, once the work influence ceases or the posture change occurs there would be improvement in the symptoms or even resolution of them.
41. Dr Millroy agreed that he would not expect muscle wastage if the cause of the thoracic syndrome was vascular in origin but he said that it was uncommon to find vascular impingement unless in conjunction with nerve compression. He said that variation in the pulse rating which depended upon the position of a person’s arms could indicate the presence of vascular thoracic outlet syndrome but he also said that could just depend upon the position the person’s arm was in and that it was common for people to have lack of pulse in the hands-up position without any thoracic outlet syndrome.
42. Dr Millroy also agreed that objective signs on physical examination of a person are important for entering the diagnosis of a condition and he said he had seen no objective signs in the applicant of thoracic outlet syndrome. He was referred to the report of Dr John Mison, dated 14 May 2001, and to the following passage which refers to various tests which were conducted:
“I have now examined her on two occasions. The first time I was rather puzzled, but I repeated the examination today, I think she largely has thoracic outlet syndrome. Her Adson’s test today was positive bilaterally. The Roos test today, in which the hands are opened and closed with the arms elevated brought on pain and fatigue after about 30 seconds. Tinel’s sign was positive in the left supraclavicular region. She also has some tenderness, just distal to the lateral epicondyle and palpation here provokes a lot of pain into the dorsum of the forearm and the hand. I think she may also have some posterior intraosseous nerve entrapment. Provocation tests for this, however were normal. Neurologically, there was some drooping of the left eyelid, but no other features of Horner’s syndrome. I could not detect any objective sensory changes. Motor examination shows generalized Grade 4 weakness affecting all upper limbs motor groups.”
43. Dr Millroy described the Adson’s test as not being very worthwhile though he agreed it was an objective test, but he said that the Roos test and the Tinels sign testing procedures were both subjective in that they relied upon information provided by the patient. He also said that he had utilised the Tinels test and had referred to it in his report of 23 December 2002 when he said that there was definitely no tenderness over the brachial plexus region in the right and left supraclavicular fossae. In relation to the Adson’s test, he described this as testing for pulse and he said that it was not a worthwhile measure because many people in the community suffered from a loss of pulse when their arms were elevated in the hands-up position but without the necessary presence of thoracic outlet syndrome. He said, in that sense, the lack of pulse was not necessarily consistent with the syndrome.
44. Dr Millroy was asked to assume that Dr Foster had noted a bruit which disappeared with abduction of the arms. He agreed that this was an objective sign but said that this did not necessarily mean there was thoracic outlet syndrome. However, he said that Dr Foster was a vascular surgeon but he said that he agreed that the testing may be indicative of thoracic outlet syndrome. He said the evidence was suggestive of venous constriction rather than obstruction. He said a bruit had not been found on the CT angiogram and that a bruit would arise if there was compression of an artery which narrowed it and therefore caused the sound.
45. Dr Millroy said that the test conducted by Dr Foster did not reflect the workplace posture that the applicant had adopted. He said it was most unlikely that a person would develop thoracic outlet syndrome even after working with the hands in the computer usage posture for seven years; though he said that it was possible that it might happen. Dr Millroy said that there was no incapacity for employment in the applicant but conceded that he would consider the reports of any occupational therapists that had been prepared. Dr Millroy said that if the condition were present it would be likely to settle.
46. He agreed that fatigue in the arms was typical of thoracic outlet syndrome as was pain but he said the weakness would only be present if the condition was nerve-based in its origin. He said the difficulty in manipulating small or holding small objects was not specifically associated with thoracic outlet syndrome but it could interfere with the performance of domestic duties. He said the sensations of tingling or numbness in the arms would only be present if there was a neurological cause and this would also be the case with specific fingers. As to self care, he said that the condition would cause difficulties with undertaking tasks while the hands were elevated above the shoulder.
Dr Roger Parkington, Consultant Orthopaedic Surgeon
47. Dr Parkington prepared reports dated 16 February 2001, 21 March 2001, 15 October 2001 and 26 February 2002. In the first of those reports he said that the applicant had symptoms of a carpel tunnel syndrome but he did not think that she had thoracic outlet syndrome. He recommended investigation with nerve conduction studies. These were carried out by Dr John Corbett, neurologist, on 28 February 2001 and, in his second report, Dr Parkington used them to exclude the presence of carpel tunnel syndrome and he expressed the opinion that he was unable to find a physical basis for the applicant’s complaints. For his third report, Dr Parkington saw the applicant on 4 October 2001 and reported the following symptoms:
“1.Tingling in the whole of both hands, worse on the left, with numbness radiating up the folar side of both forearms.
2.A feeling of the arms being heavy.
3.Shooting pain radiating up the arms with activity.
4.No complaints relating to her shoulders.
5.Her arms become weak if they are elevated.
6.Her neck feels stiff.
7.There is no pain in her neck.
8.All her symptoms go completely if she lies down.
9.She cannot hold a book to read it with her hands supinated.”
48. Dr Parkington described the following social activities:
“She is comfortable lying down and sleeps well. She can walk normally. She does less lifting than before.
She can drive an automatic car but she cannot bear to have her left hand on the steering wheel. She does her cooking at home. She does less cleaning than before. She hangs out her laundry on a low clothesline. She is slow doing her ironing. She does not do any outside chores and activities such as vacuuming make her symptoms worse because of the vibration of the machine.”
49. Dr Parkington noted that the applicant had undergone an MRI scan of the cervical spine and he expressed the opinion that there was no physical basis for the applicant’s complaints. He said:
“There is no evidence to support the diagnosis of thoracic outlet syndrome.
She does have significant pathology in her cervical spine but I am not satisfied that this is causing her present symptoms.
There has been no specific incident on 4 January 2001. I do not consider Mrs Sivewright to be totally incapacitated for work.
I am not satisfied there has been an aggravation.
The only restrictions on Mrs Sivewright’s capacity for employment are due to emotional causes and from a physical point of view she is fit to work.
I do not think physiotherapy is appropriate.”
50. In his report, dated 26 February 2002, Dr Parkington said:
“I did not find any physical signs consistent with thoracic outlet syndrome, although some of her symptoms, particularly using her arms overhead, may be consistent with this.
I note that it has been recommended by Dr Foster that she should have a CT angiogram with her arms abducted and I would agree with this. If this investigation confirms the presence of thoracic outlet compression, then I think that there would be a reasonable chance that surgical treatment may benefit her. I note, however, that at no stage has she been found to have a cervical rib which is commonly associated with thoracic outlet compression.
Even if Mrs Sivewright is suffering from thoracic outlet syndrome, this is not necessarily attributable to her employment and I think it likely to have arisen spontaneously.
Mrs Sivewright has not worked for some time. If she was suffering from a thoracic outlet syndrome which was being aggravated by her employment, I would expect that aggravation to have ceased and her symptoms to have improved when she finished work. This has not proved to be the case and I am not therefore satisfied that even if she is shown to be suffering from a thoracic outlet syndrome, it can be considered to have been aggravated by her employment.”
51. In a report, dated 22 October 2002, Dr Parkington said that his clinical tests revealed no evidence to support a diagnosis of thoracic outlet syndrome and he said:
“The radiological report of the CT scan angiogram undertaken by Dr Hunter on 29.1.02 refers only to a venous obstruction and not to an arterial obstruction. These findings would be unlikely to produce symptoms of claudication in the arms, as this is due classically to arterial obstruction. The posture adopted by Mrs Sivewright, however, may have a direct effect on the nature and extent of any vascular compromise.”
52. Dr Parkington, in that report, continued:
“1. The diagnosis is possible thoracic outlet syndrome.
2.I am not satisfied, for the reasons stated in my report to you of 26.02.02, that her condition has been contributed to in a material extent by her employment.
3.Mrs Sivewright does appear to have an incapacity for employment. This may be due to thoracic outlet syndrome but I see no reason why it should be compensable. I think this condition would have arisen anyway, regardless of whether she was employed or not. If it was due to her employment it should have ceased when she ceased her employment and this had not occurred.
4.According to the more up-to-date reports provided by you, in her current state she is not fit for any form of employment. She does not seem to be able to use her arms, either in a resting position or with her arms elevated.
5.The only remaining feasible treatment for Mrs Sivewright is to have an exploration of the neck undertaken and excision of the first rib. From the tone of the many reports you have already received this operation is not considered to be a guarantee of a cure in her case. However, on the basis of investigations that have been undertaken, it would seem to be a reasonable thing to do but should [be] considered to be an operation of last resort.
6.At the present time her prognosis is not good. The prognosis after surgery depends upon the results of surgical treatment. In her case I am not optimistic that it would be of such benefit that she would be able to return to her previous employment.
7.I think Mrs Sivewright has now been examined by sufficient practitioners from other fields of medicine and I do not think that any further examination is necessary.”
Dr John Corbett, Consultant Neurologist
53. Dr Corbett provided reports on 28 February 2001 and 8 November 2001. In the first of those reports, he provided results of nerve conduction studies and he described them as being within normal limits with no neurophysiological evidence of a carpal tunnel entrapment on either side. In his second report, he again referred to nerve conduction studies he had done, this time for upper limb symptoms. He reported:
“The sensory method used depends on using the ulnar nerve as a control for the ipsilateral median nerve. When distal sensory latency is compared between these two nerves over an identical distance, the difference-figure should be less than 0.20 msec. As you will see, all of these results were within normal limits, with no neurophysiological evidence of a carpal tunnel entrapment on either side.
The F-ratio represents the ratio of conduction velocity in the proximal half of the nerve (from the elbow to the spinal cord) to that in the distal half of the nerve (elbow to write). This technique is useful in demonstrating diffuse proximal pathologies and some forms of distal delay. In the absence of any such pathologies, the ratio is normally close to unity, as in this case.
As she described the muscle weakness being ‘fatiguing’ in type, and there was no obvious muscle wasting, needle EMG studies were not performed. Repetitive stimulation was however performed, sampling the left APB pre-exercise, immediately post-exercise, 30 seconds post-exercise and two minutes post-exercise. Ms Sivewright mentioned that she was experiencing marked fatigue in her hand muscles during the exercise. All repetitive-stimulation recordings from her left APB were within normal limits.”
Dr David Cannon, General Practitioner
54. Dr Cannon was the applicant’s treating doctor. She saw him in January 2001 and, on 1 March 2001, Dr Cannon provided a report which stated:
“Barbara Sivewright presented on 22 January 2001 complaining of numbness in both hands.
She stated that her right hand was worse than her left. She felt the numbness was due to an increased use of a ‘mouse’ at work.
Examination of her hands revealed no abnormality. In particular, she had no evidence of muscle wasting. A preliminary diagnosis of bilateral carpal tunnel syndrome was made. She was referred to a neurologist for nerve conduction studies.
It is most probable that the increased workload with the right hand has produced Barbara Sivewright’s condition. At present she continues to work and is attempting to rest her right hand when possible.”
55. In a later report, dated 24 July 2002 (exhibit 13), Dr Cannon gave a history of treatment of the applicant and referred to a persistence of symptoms despite being treated by physiotherapy.
Dr Douglas Gray, Rheumatologist
56. The applicant was sent by Dr Cannon to Dr Gray and he prepared a report on 12 March 2001. There, he referred to a history given by the applicant of the onset of numbness of the hands, an ache in the forearms and soreness and stiffness in the thumbs around November 2000. He referred to her altering the use of the computer mouse by utilising her left hand but also developing, within two weeks, fatigue and tiredness in the left hand with aching in the left forearm muscular ligature. He continued:
“Since then Barbara has noted increasing fatigue and tiredness in the hands and forearms, weakness in the wrist and increasing pain in the thumbs and the forearms. This now interferes with a number of activities at home including combing her hair and drinking cups of tea.”
57. Dr Gray described the applicant as sleeping well at that time and awaking refreshed with no pain in the spine or the lower limbs. He said that the neurological examination, particularly in the upper limbs was entirely normal with the Adson’s test being negative. He noted mild tenderness of the thumb joints, at the base of the thumb and in the interphalangeal joints of both thumbs. He expressed the opinion that he did not think that she had thoracic outlet syndrome but continued:
“She has forearm pain exacerbated by her work activities and by other home activities that require the use of her wrist and forearm musculature. A precise diagnosis is not possible but the features are suggestive of an over use type problem and my suggestion would be that she adopt a rehabilitation approach with a stretching programme for the forearm extensor musculature as well as a strengthening programme which would involve both concentric and eccentric work. She should ice the forearms and wrists after her exercise programme and after any activity likely to inflame her condition.”
Dr Richard Harvey, Sports Medicine Practitioner
58. Dr Cannon sent the applicant to see Dr Harvey who provided a report, dated 17 April 2001. There, he described the applicant as having problems which were basically symmetrical limited to the hands/wrists and forearms without radiation above the elbows. He noted that, clinically, she had poor posture especially around her shoulder girdle/thoracic outlet. He expressed the view that he believed that she had bilateral carpal tunnel.
Dr John Mison, Orthopaedic Surgeon,
59. Dr Cannon sent the applicant to see Dr Mison. In his first report, dated 14 May 2001, Dr Mison referred to the presentation of symptoms as including pain in both upper limbs and weakness which is exacerbated with activities involving her upper limbs and which is particularly worse with any overhead activities but also with simple things such as holding her arms out in front of her when reading a book. He noted that her nerve conduction studies for medial and ulnar nerves were normal and said:
“I think that Mrs Sivewright’s problem is largely due to thoracic outlet syndrome. Unfortunately, there are no good objective diagnostic tests, beside clinically impression. I think she may also have radial tunnel syndrome and this may be causing a double crush phenomenon.
When I saw her originally three weeks ago, I referred her on for some physiotherapy in particular some scapula exercises and postural exercises. I did note that originally she has a very stooped posture, which tends to cause a dynamic compression of the thoracic outlet. She said that she has had some relief of the symptoms on the right side, but the left side is still the same. I think that for the time being she should just continue with physiotherapy. I will see her again in about 6 weeks to see how she is getting on. I would agree with you, that her problem is work related and should be covered with Worker’s Compensation.”
60. In a further report, dated 31 July 2001, Dr Mison referred to the MRI scan which had been performed and he stated:
“Her MRI scan has helped greatly. It showed severe neuro-foraminal stenosis on the left side at C3/4 which is compressing the C4 nerve root at the vertebral level. There is also right sided neuro-foraminal stenosis of a moderate degree at C4/5 level and at a lesser extent at C5/6. The brachial plexus itself had no structural lesions in the neck or in the posterior triangle.”
61. In a report, dated 6 August 2001, Dr Mison wrote:
“She had a bone scan and shoulder x ray which does not show an increased uptake and suggests that the area seen on the MRI not metabolically active and therefore of no cause of concern.”
62. In a report, dated 19 December 2001, Dr Mison stated that he had obtained a further opinion from Dr Richard Williams, spinal surgeon, and stated:
“At this point in time, my provisional diagnosis is thoracic outlet syndrome. Mrs Sivewright has been referred to Dr Wallace Foster, Wickham Terrace, Brisbane, who is a vascular surgeon with a special interest in thoracic outlet syndrome. In my opinion if he agrees with the diagnosis of thoracic outlet syndrome then there should be no doubting that Mrs Sivewright’s complaints are real and of a physical nature.”
63. In a further report from Dr Mison, dated 24 June 2002 (exhibit 5), he referred to the opinion of Dr Williams and a referral to Dr Foster and to their assessment that the applicant had thoracic outlet compression. He said that he had left the matter of treatment to the applicant and Dr Foster because it was more appropriate to his speciality. Dr Mison continued:
“In my opinion, the work place is a significant contributing factor of Mrs Sivewright’s condition. However, there is likely to be a contribution from Mrs Sivewright’s underlying anatomy which makes her susceptible to this problem.
My opinion is that Mrs Sivewright should currently be capable of working, if appropriate modifications to the work pace such that she was able to avoid provocative positions. Her ultimate prognosis is impossible for me to state at present as it may evolve that Mrs Sivewright eventually requires surgery for her condition. This will ultimately come down to consultation between herself and Dr Wallace Foster, as the ultimate outcome of surgery and her final prognosis is something of which I am not in a position to provide an opinion.”
Dr Richard Williams, Consultant Orthopaedic Surgeon
64. The applicant was sent to Dr Williams by Dr Mison. He prepared several reports including those dated 26 November 2001 and 4 June 2002. In the first of those reports, he said that he agreed with Dr Mison’s initial assessment of thoracic outlet syndrome as being the most likely diagnosis and he referred the applicant to Dr Foster, vascular surgeon, whom he knew to have a special interest in the condition. In the later report, he stated:
“CLINICAL EXAMINATION:
The cervical spine was non-tender to examination.. There was restricted lateral flexion bilaterally and a full range of rotation. She had pain on extension in the cervical region. There was reduced sensation on the left side in a global distribution in a non-dermatomal pattern. There was bilateral reduction in power grip and otherwise her upper limb findings were unremarkable. She had absent supinator jerks bilaterally.
RADIOLOGICAL EXAMINATION:
An MRI scan of the cervical spine demonstrated mild narrowing of the spinal canal at C5/6 and C6/7 and I concluded that there was no obvious neurological cause for her upper limb symptoms including the ‘dead arm’ sensation affecting the left upper limb.
I suggested that she seek the opinion of a neurologist and nerve conduction studies were performed.
SUBSEQUENT REVIEW:
25/11/01: Nerve conduction studies previously performed were normal and it evolved that the history and consolation of symptoms were most in keeping with thoracic outlet syndrome. To this end I referred the patient to Dr Wallace Foster for further investigation and management and I enclose a copy of correspondence from Dr Foster.
DIAGNOSIS & PROGNOSIS:
The diagnosis is thoracic outlet syndrome.
The prognosis is of discomfort and sensory disturbance in the neck and upper limbs over a protracted period.”
Dr J C Hunter, Queensland Diagnostic Imaging
65. Dr Hunter provided a report which referred to an examination of the applicant on 29 January 2002 whereby a CT thoracic outlet angiogram was performed. There, Dr Hunter stated that there was evidence of compression of the left sub-clavian vein as it crossed the first left rib but there was no obstruction to flow. He concluded:
“There is very slow venous return with layering of contrast in the jugular vessels. I do no see any evidence of any obstructing lesion. In particular, I do not see any evidence of subclavian artery obstruction.”
Dr Richard Arnot, Consultant General Surgeon
66. Dr Arnot provided reports dated 7 August 2002 and 21 August 2002 (exhibits 11 and 12, respectively), in which he described, under table 9.4 of the Guide, an impairment of 30% in relation to the applicant’s right upper limb and 10% in the left upper limb.
67. Dr Arnot also prepared a report, dated 26 June 2002 where he gives a history of the presentation of symptoms. He described the limitations imposed on the applicant as:
“Work history
…
She is adamant that until the onset of the present symptoms she had no symptoms whatsoever in relation to any activities. Prior to her disablement, she actively enjoyed walking and playing squash, but since the onset of her symptoms, she has been unable to play squash, and walking is uncomfortable due to the weight of her arms.
Disability
She cannot do any activity for more than a few moments holding her arms above shoulder height. She cannot hold a book, she cannot do any washing of clothes or such activities for more than five minutes, and she also notices that scrubbing floors, etc is impossible.
She has difficulty making beds, and finds it impossible to lift the mattress. She has difficulty buying groceries, in particular the weight of carrying bags, with a dragging feeling on both shoulders.
Even carrying a handbag she finds uncomfortable and she has now resorted to a small backpack. She has difficulty holding a telephone up to her ear for more than a minute or two at a time, and any activity which involves pressing her hands on a vibrating surface causes difficulties, such as using a lawnmower, riding a pushbike or driving a car.
Since her disability, she has had to sell her house because she was unable to manage the housework or the gardening. She lives alone now with her son, but is about to move into a smaller house. Prior to this, she had to rely on help with her housework from members of her family.
Her symptoms are greatly relieved by taking the weight of her arms on a pillow which she holds on her lap, and she also finds that relaxation exercises are helpful. The best relief of all has been from taking an anti-depressant medication called Tryptanol and she takes 100mg at night, she also has had some relief from the exercises associated with yoga. From time to time, she takes Celebrix tablets which help.
Recreation
She can no longer play squash, but she walks for up to 5 kilometres two or three times a week along the beach, but has to be very careful with her walking posture and has to walk with her shoulders braced back because she finds that any form of forward stooping causes the weight of the arms becomes intolerable.
She has not found it possible to undertake any employment whatsoever since she stopped work in March last year.
Physical examination
There is no evidence that I could detect of any muscle wasting in the upper limb; both radial pulses became significantly weaker when the arms were raised above the head, the grip of both hands is reduced, especially on the left side and her symptoms overall were aggravated by pronating both arms.
There was no sensory loss in either upper limb.”
68. Dr Arnot referred to the reports of Dr Mison, Dr Williams and Dr Foster and expressed the opinion that the applicant was suffering from a form of thoracic outlet syndrome which was based on an underlying disease condition which had been aggravated by her work as a Telstra call operator. Dr Arnot continued:
“In my opinion she is unfit for employment in the pre-injury duties as a Telstra call operator or any activity involving a keyboard.
I note that your client ceased employment duties on 3 March 2001 as a result of her injury and has not worked since, nor have the symptoms that she complained of at that time significantly improved.
In my opinion the effect of your client’s injuries have reduced her overall enjoyment of life with regard to sport, in that she has ceased to play squash, she has also had to sell her house, which she found too large to maintain and is about to move into a smaller house with a strata title that does not involve her in any gardening activities.
In my opinion your client’s injuries have significantly reduced her ability to perform domestic activities such as general house work, cooking and so forth.
In my opinion your client’s injuries have stabilised and I estimate her level of impairment at 15% of whole body impairment.
Referring to Table 9.4, which was enclosed with your letter, I estimate that her percentage permanent level of impairment of the upper limb function at 25%.”
Carmel Tepper, Physiotherapist
69. In a report dated 20 November 2001, Ms Tepper said that she first assessed the applicant on 1 May 2001 and referred to the diagnosis of thoracic outlet syndrome by Dr Mison and she wrote:
“She reported bilateral (left greater than right) forearm and hand weakness and ‘gnawing’ made worse on using the hands to type, write, drive, ulna deviate (using computer mouse), to hang freely (as when walking briskly) and any elevated position.
Rest from work, splinting and local forearm treatment did not ease her symptoms at all.”
70. In a report dated 4 June 2002, Ms Tepper indicated that she had treated the applicant on twenty-seven occasions between April 2001 and December 2001. In another report dated 30 May 2002, she summarised the treatment as being:
“Treatment consisted of posture advices, bracing and taping, tissue releases to the neck and arms, plus neck, thoracic spine and rib mobilisation and cervical traction, together with exercises to strengthen her upper limb retractors and stretch tight structures.”
Applicant’s Submissions
71. Mr Willis submitted that it was not in dispute that the applicant was a witness of truth, that she was not exaggerating her symptoms, that she had pain in her hands, thumbs, forearms and upper arms and that she is no longer fit to perform her pre-injury duties with the respondent. He referred to the acceptance by the respondent of a causal association between the applicant’s condition and her employment in the period in which the respondent had paid compensation to her for the condition from 4 March 2001 until 6 December 2001. He also submitted that the condition had either been caused by the applicant’s computer usage activities or a pre-existing condition had been aggravated by those activities and that, in either case, it constituted an injury or disease under the Act.
72. He submitted that the level of symptoms that the applicant experiences has remained the same since December 2001 and that, in part, this was due to the effects of physiotherapy treatment on her and, in that regard, he referred to the medical evidence of Dr Foster. He submitted that Dr Foster was the best qualified of the medical specialists that the applicant had seen and provided medical evidence. He submitted that Dr Foster not only is a specialist vascular surgeon but one who deals with thoracic outlet syndrome and has treated the applicant for the condition. He noted that Dr Williams, Orthopaedic Specialist, had referred the applicant to him for that purpose. He referred to Dr Foster’s report (exhibit 8) as to the causal association between the condition and her employment activities as being due to a structural change to the thoracic outlet and the relevant structures and that, once this had been established it became permanent. He submitted that, on Dr Foster’s evidence, it was shown that the aggravation experienced by the applicant as a result of her work activities had continued beyond 6 December 2001 and would continue into the future.
73. Mr Willis made reference to the medical evidence relied upon by the respondent. He referred to the report of Dr Parkington dated 22 October 2002 in which he indicated that there was a possibility that the applicant did suffer from thoracic outlet syndrome. He submitted that Dr Parkington had initially made an incorrect diagnosis although he did indicate that he believed that her work would have aggravated her complaints of pain but that any aggravation would cease when she stopped working.
74. He referred to the evidence of Dr Millroy and to his acknowledgment that Dr Foster was eminent in the field as a vascular surgeon and also to Dr Millroy’s evidence that he had not dealt with a patient with thoracic outlet syndrome for treating purposes since 1990. He also referred to his evidence that his speciality was in relation to neurological causation of thoracic outlet syndrome rather than vascular. He noted Dr Millroy’s evidence that the applicant did not have concrete physical signs related to thoracic outlet syndrome and the fact that he disagreed with all the other doctors’ diagnoses in that regard. He referred to Dr Millroy as the only doctor who considered that further evidence was needed of her inability to carry out employment activities and to his reference to the need for her to see an occupational therapist. Mr Willis submitted that she had already seen Dr Sowby (exhibit 19) who was specialised in that field and who had said that she was not fit for work. He submitted that the evidence of Dr Millroy should be rejected in relation to diagnosis, causation and fitness for employment.
75. Mr Willis noted the report of orthopaedic specialist Dr Williams who deferred to Dr Foster in relation to further management of the condition because it fell outside the realms of spinal or orthopaedic surgery.
76. Mr Willis referred to Dr Foster’s evidence that a lack of any finding of wasted muscles was not of significance and to the presence of other objective signs as to the presence of the condition.
77. Mr Willis submitted that the applicant suffers from permanent incapacity which is reflected in the assessments provided by both Dr Arnot and Dr Foster and that she also suffers from permanent impairment.
Respondent’s Submissions
78. Ms Heyworth-Smith submitted that the applicant’s evidence in relation to her symptoms and their seriousness should not be accepted because she had engaged in clear exaggeration of these. She referred to her evidence that she was suffering from annoying pain up her arms into her shoulders and neck areas when she finished work in March 2001 and submitted that this was not consistent with the statements she was giving to doctors at that time as she did not make complaint of that form of pain until 3 May 2002, more than a year later.
79. Ms Heyworth-Smith submitted that the descriptions given to the various doctors and the physiotherapist differed significantly from each other. She referred to the distinction in the description given by Ms Tepper which suggested no improvement in comparison with that of Dr Cannon who was able to note improvements in her symptoms. She submitted that this was also the case with statements by the applicant to them about the effect of rest upon her symptoms.
80. Ms Heyworth-Smith submitted that the applicant’s reports about her symptoms were amplified by her psychological status at the time. She referred to the best relief she was able to obtain as being in response to the taking of anti-depressants which were prescribed in 2002.
81. Ms Heyworth-Smith submitted that it was significant that no muscle wasting had been found. She referred to both Dr Millroy and Dr Foster who were of the opinion that the alleged level of inactivity reported by the applicant would have resulted in some wasting of the forearm muscles, biceps and triceps due to disuse although she conceded that the lack of muscle wasting in the small muscles of the hands was of less significance because there was no neurological compression which would have caused this. She submitted that the applicant described symptoms of tingling and weakness which could only have their origin in a neurological source and she submitted that the evidence showed that there was no neurological basis for thoracic outlet syndrome in her case.
82. Ms Heyworth-Smith referred to the reports and evidence of Dr Foster and to the material he relied upon in order to come to his conclusion about the diagnosis. She submitted that all investigations and clinical examinations had involved the applicant’s left side and that the objective signs were not consistent in their presentation of thoracic outlet syndrome. She submitted that Dr Foster had noted a supraclavicular arterial bruit which was louder on abduction and which disappeared in shoulder abduction beyond 90 degrees. She submitted that this was a sign relating to the artery rather than a vein which would suggest an arterial cause for the condition. However, she referred to the CT angiogram which had been performed and which concluded that there was no evidence of sub-clavian artery obstruction. She referred to Dr Foster’s conclusion about positive Adson’s test but submitted that this was of no relevance because the evidence was that more than 40% of adults lose their radial pulse when their arms are abducted.
83. Ms Heyworth-Smith submitted that it was significant that the applicant did not lose her radial pulse while she was in a seated position with her hands in front of her as she would have been when using a computer. She said this had been the clear evidence of Dr Millroy and that Dr Foster had not performed this test.
84. Ms Heyworth-Smith also referred to the CT angiogram in relation to its reference to venous obstruction and submitted that the testing had not displayed such obstruction but rather concluded that there was evidence of compression of the left sub-clavian vein as it crossed the first left rib but without obstruction to flow. She referred to Dr Foster’s report of 23 September 2002 in which he referred to the CT angiogram as confirming the presence of thoracic outlet stenosis with compression of both venous and arterial structures but she said that this had not been revealed in the test.
85. Ms Heyworth-Smith submitted that, when Dr Foster had been provided with a summary of the applicant’s evidence concerning the improvement in her symptoms during or after rest, he had agreed that the symptoms may not have related to her work or that her present presentation of symptoms was not now related to the work.
86. Ms Heyworth-Smith submitted that the applicant had exaggerated her symptoms and that there was insufficient evidence to conclude that she suffers from thoracic outlet syndrome. She also submitted that, in the event that a diagnosis of thoracic outlet syndrome could be made, then it was a congenital abnormality and that her work at Telstra had nothing to do with her symptomatology. In any event, even if it were the case that her Telstra work contributed to her symptoms, she submitted that this could only have been temporary in nature and would have subsided when she stopped working for Telstra. Further, she submitted that any impairment that the applicant had was not sufficient to reach 10% under table 9.4 of the Guide.
Consideration
87. A determination under section 14 of the Act makes the respondent liable for compensation payments in relation to medical expenses in accordance with section 16 of the Act and in relation to incapacity for work under section 19 of the Act. Such a determination may also make the respondent liable, under section 24 of the Act, for further compensation where permanent impairment has resulted and, in turn under section 27 of the Act, for compensation for non economic loss which results from the permanent impairment.
88. The respondent, on 22 May 2001, made a determination that it was liable under section 14 of the Act to pay compensation for aggravation of the condition of thoracic outlet syndrome. That determination was to pay compensation in accordance with the Act and, as the Full Federal Court said in Lees v Comcare (1999) 56 ALD 84 at 92:
“Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an "employee" at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.”
89. Having accepted liability under section 14 of the Act, the respondent made a series of further determinations whereby it reimbursed the applicant for various medical expenses in accordance with section 16 of the Act and paid compensation to her in accordance with section 19 of the Act. In this matter, there are two reviewable decisions, dated 3 April 2002 and 24 September 2002, respectively. The first of those brought compensation payments to an end with effect from 6 December 2001. The second decision is in relation to sections 24 and 27 of the Act and it denied liability for compensation for permanent impairment.
90. In relation to the first reviewable decision, a distinction must be made between a decision which revokes a determination under section 14 of the Act and one which merely brings liability to an end because the condition no longer attracts payments for medical expenses or for incapacity. In Re Carson and Telstra Corporation (2001) 33 AAR 351, the Tribunal observed that a revocation decision under section 14 of the Act would be rare as it would involve revisiting the five matters described in Lees v Comcare: see also Australian Postal Corporation v Oudyn [2003] FCA 318 at para [32]. The Tribunal pointed out that a cessation of liability decision may frequently arise in reconsidering matters under sections 16 or 19 of the Act. Where it has been determined that liability is to cease in that way, a further determination may still be made in relation to permanent impairment in accordance with sections 24 and 27 of the Act: see Australian Postal Corporation v Oudyn at paras [33-37].
91. In the initial decision of 6 December 2001 and the first reviewable decision of 3 April 2002, there are references to matters which might be seen as reflecting both revocation and cessation of liability. The delegate, on 6 December 2001, noted that Dr Parkington had expressed the opinion that there was no evidence to support the diagnosis of thoracic outlet syndrome. In the reviewable decision, the delegate referred to the possibility of the condition being present but again referred to Dr Parkington’s opinion that it was not necessarily related to the applicant’s employment. However, the actual decision was that the respondent was “no longer liable to pay compensation”.. On balance, I am satisfied that that decision was one relating to cessation of liability rather than to a revocation of the initial decision. Therefore, the first issue for determination is whether, at 6 December 2001, there was a continuing liability to pay compensation to the applicant under sections 16 or 19 of the Act for the effects of a work-related injury.
92. The evidence of various specialists who have seen the applicant indicate that the condition of thoracic outlet syndrome is difficult to diagnose. This is demonstrated in the applicant’s circumstances. The condition is one which may have a neurological, veinous or arterial basis and, while the evidence as a whole is not unequivocal, that of the applicant’s treating vascular surgeon, Dr Foster, is that she does have this condition. The diagnosis is supported by Dr Williams, in his report of 4 June 2002, by Dr Arnot in his report of 26 June 2002, and by Dr Mison, in his report of 24 June 2002. Accordingly, I am satisfied that the applicant suffers from thoracic outlet syndrome.
93. Dr Foster described thoracic outlet syndrome as being a congenital anomaly which is present in about 45% of the population. In his report of 7 July 2003, he said that the applicant’s employment had contributed to her condition but he also referred to various lifestyle activities as having a role in contributing to the presentation of symptoms and he included in that certain bodily postures including that applicable to keyboard operation. He also said that any continuation of the symptoms could be as attributable to activities such as driving a car. Dr Foster also agreed that, when the need to adopt the posture associated with sitting at a desk and using a computer ceased, the exacerbation of the condition would cease thereafter.
94. Dr Arnot expressed the opinion that the condition was based on an underlying disease condition which had been aggravated by work and I read his report as a recounting of the history provided by the applicant. Significantly, he refers to the condition as being a reason for the applicant’s cessation of playing squash but her evidence was that this occurred long before the symptoms of the condition began.
95. Dr Harvey, in his report of 17 April 2001, noted that the applicant had poor posture and Dr Mison, in his report of 14 May 2001, also made reference to her very stooped posture and commented that this tends to cause a dynamic compression of the thoracic outlet.
96. The report of Dr Millroy, while denying the presence of thoracic outlet syndrome, is focused on whether or not there is a compensable condition in the applicant or whether there are physical abnormalities which would prevent her from working. Nevertheless, he does refer to the applicant’s “upper limb symptoms” even though, on his examination, he was unable to find any physical cause for them.
97. The description given by the applicant of her symptoms has not been consistent over time. In her evidence, she said that, from November 2000 to March 2001 her condition gradually deteriorated but she also said that, during that period, she had relief from symptoms with overnight and week-end rest and, in particular, during the holiday period she had immediately before she ceased working. The medical report prepared by Dr Gray shortly after her ceasing work in March 2001 described her symptoms as “increasing fatigue and tiredness in hands and forearms, weakness in the wrist and increasing pain in the thumbs and forearms”. Dr Gray reported that she did not experience neck, shoulder or upper arm pain and there were no pins and needles in the arms. When she saw Dr Foster on the first occasion in January 2002, she gave a history of hand, arm and shoulder discomfort, numb and stiff fingers and pins and needles. Dr Foster also referred to neurological symptoms in the region of her shoulders and upper limbs. This continuing presentation of symptoms and, indeed, the worsening of symptoms over some nine months when she was not in employment with Telstra implicate activity other than her employment as being causally associated with her symptoms. That is consistent with Dr Foster’s evidence that the continuation of symptoms could be attributable to other activities and that the exacerbation of the condition would cease when the need to adopt a particular posture changed.
98. The prevalence of the condition in the community has been noted by Dr Foster and he also referred to various lifestyle activities as being of significance in causing the condition. The applicant gave evidence that, since ceasing work, she has effectively undertaken very little physical activity. The medical reports have noted an absence of muscle of wasting in her upper limbs. I am satisfied that this is not consistent with a lack of physical activity and that the applicant has understated the extent to which she has involved herself in physical activities.
99. In his report, dated 22 October 2002, Dr Parkington expressed the opinion that the condition would probably have arisen in the applicant regardless of whether she had been employed or not and Dr Foster, in his report of 23 September 2002, referred to bony and muscular factors in the applicant which contributed to her thoracic outlet syndrome and stated that this would have been present irrespective of vocation. Dr Parkington also expressed the opinion that, if the condition had been due in some way to her employment it should have ceased when she ceased her employment and that is consistent with Dr Foster’s evidence that, when the need to adopt the posture associated with sitting at a desk and using a computer ceased, the exacerbation of the condition would then cease. The evidence of the applicant was that she did obtain relief when her employment activities finished each day and that the period of the holiday, whether it be one or two weeks before she stopped working, was characterised by relief from her symptoms.
100. I am satisfied that, whilst the applicant was employed with Telstra from December 2000 until February 2001, she experienced symptoms of thoracic outlet syndrome which was an underlying pre-existing condition and which was aggravated by her physical activities. Her cessation of employment each day and on week-ends during that period brought relief of her symptoms although there was also a steady worsening of the extent to which she experienced these when they returned each day. She had a holiday after which she did not return to employment and, during that holiday, she was relatively symptom free. A comparison of the medical reports completed in March 2001 with in 2002 reveal descriptions by her of symptoms which continued to increase in intensity and effect even though she had not been in employment and avoided activity of a kind that she was undertaking while working for Telstra.
101. I am satisfied that, to the extent that there was contribution to her condition from employment activities with Telstra, this was merely temporary and that the continuing presentation of any symptoms in the applicant from her thoracic outlet syndrome by and after 6 December 2001 is unrelated to her employment with Telstra. On that basis, I am satisfied that the respondent is not liable to pay compensation to the applicant for medical expenses or for incapacity for work from 6 December 2001. I am also satisfied that the respondent is not liable to pay, in accordance with sections 24 and 27 of the Act, compensation for permanent impairment from an injury associated with her employment.
102. Even if it were the case that the applicant suffered permanent impairment from a work-related thoracic outlet syndrome, I am satisfied that the medical evidence does not support a level of such impairment that reaches the threshold of 10% under the Guide as required by sub-section 24(7) of the Act. The relevant table reads:
“TABLE 9.4
Limb Function - Upper Limb
%
DESCRIPTION OF LEVEL OF IMPAIRMENT
10
Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity
20
Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding
30
Retains some use of limb BUT has difficulty with self care
40
Cannot use limb for self care”
103. Dr Arnot purported to recommend a rating of 25% under Table 9.4 of the Guide; but this is not an available option. Dr Foster recommended a rating of 30% under that Table on the basis that the applicant has difficulty combing her hair. However, he agreed that she did not meet the requirements of the 10% level in the Table. The Tables in the Guide provide descriptions of levels of impairment in a progressive manner with each level reflecting a greater level of impairment than the level below it. It follows that, an allocation of 30% cannot be made without the satisfaction of the 10% and the 20% descriptions in the Table. Dr Foster said that the applicant did not meet the requirements of the 10% level in Table 9.4 of the Guide and I am satisfied that, therefore, the relevant threshold required by sub-section 24(7) of the Act would not be met by the applicant in the event that she had permanent impairment.
Decision
104. The decisions under review are affirmed.
I certify that the 104 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Sarah Oliver
AssociateDates of Hearing 15 and 16 September 2003
Date of Decision 31 October 2003
Counsel for the Applicant Mr Willis
Solicitor for the Applicant Sommerville Laundry Lomax
Counsel for the Respondent Ms Heyworth-Smith
Solicitor for the Respondent Sparke Helmore
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