Smith and Telstra Corporation

[2005] AATA 1267

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1267

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1660   

GENERAL ADMINISTRATIVE DIVISION		)
Re		JENNIFER SMITH

Applicant

And   TELSTRA CORPORATION

Respondent

DECISION

Tribunal Dr MEC Thorpe, Member

Date20 December 2005  

PlaceSydney

Decision The decision under review is affirmed.

…………………….  

Dr MEC Thorpe   Member  

CATCHWORDS

COMPENSATION – assessment of permanent impairment – question before the Tribunal as to whether the Applicant is entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 – assessment of medical evidence – Applicant does not qualify – decision under review is affirmed.

Safety, Rehabilitation and Compensation Act 1988 – sections 24 and 27.

Re Liu and Comcare  (2004) AATA 617

Comcare v Fiedler (2001) 115 FCR 328

Whittaker v Comcare (1998) 86 FCR 532

REASONS FOR DECISION

20 December 2005 Dr MEC Thorpe, Member  

1.      The Applicant Mrs Jennifer Smith seeks review of a decision dated 27 November 2004 (T87/pp250-252) which affirmed a determination dated 4 October 2004 (T82/pp242-245). The reviewable decision declared:

“In accordance with the provisions of the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”):

(1.) The said Jennifer Smith has not suffered permanent impairment due to ‘repetitive strain injury to both arms’; and

(2.)    The said Jennifer Smith has no entitlement pursuant to Section 24 and 27 of the SRC Act.”

2.      Liability was accepted for ongoing incapacity and medical expenses on and from 8 July 1999 due to “Repetitive Strain Injury Left and Right Arm” occasioned during the course of her employment with Telstra. The date of injury was 19 February 1999. A further determination dated 27 September 2000 indicated that Telstra was no longer liable to pay for ongoing incapacity or medical expenses. An application to the Administrative Appeals Tribunal (‘the AAT”) appealing this application was settled by a consent determination dated 9 November 2000.

ISSUES

3.      My task is to determine if there is any entitlement under section 24 and section 27 of the Safety Rehabilitation and Compensation Act (“the SRC Act”) for permanent impairment due to “repetitive strain injury to both arms”. To qualify for permanent impairment she requires at least 10% impairment under Table 9.4 in the Guide to the assessment of the degree of permanent impairment which provides as follows:

“i.e. Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity.”

4.      Before proceeding with the permanent impairment application I am required to consider the effects of the previous consent determination of 27 September 2000. I do not consider there to be an estoppel which can be transferred from the 2000 consent determination into the present proceedings. She had taken a voluntary redundancy at the end of 2000, following termination of her compensation liability. In order to receive the voluntary redundancy Ms Smith needed to terminate any existing compensation liability. She accepted the voluntary redundancy to care for her husband who had developed mesothelioma, which was terminal.

5.      The consent determination, which concerns incapacity payments and medical expenses in relation to repetitive strain injury does not prevent an application being made for a permanent impairment payment. I agree with Mr Grey that that to the extent that the original determination which was affirmed states that "the effect of any such injury has now ceased", it can only have effect as at the date of the decision and cannot bind the decision maker or the Tribunal in the future Re Liu and Comcare  (2004) AATA 617. The Tribunal is not prepared to exercise its powers under section 33 of the Administrative Appeals Tribunal Act 1975 to decline to revisit the question whether the effects of the Applicant's accepted condition has resolved as at 27 November 2000.

Background

6.      She commenced work with Telecom Australia in 1979, initially as a typist. She resigned in 1983 to have a family. In 1988 she recommenced work with Telstra as a spam operator which involves data entry. In 1990 she transferred to a retail shop where she remained for 6 years. During this time she was exposed to a bomb threat by a customer, from which she said there were no after-effects. From 1996 she worked in the custom service area, where she worked as a recorder until she resigned in 2000. The work involved typing onto computer phone calls, applications for phone connections and account enquiries.

7.      Her evidence was that basically from the time she commenced work in the custom service area in 1996 she experienced pain in the arms. The exact time of onset was reported by others as 1998 and 1999. There was some debate as to the exact date of onset. My understanding was that it was of gradual onset and that it was at a time after she commenced work in the custom service are in 1996. The date 19 February 1999 would appear to be a time when she reached a level of discomfort sufficient to interfere with her work. There was no particular incident at that time.

8.      She was involved in a motor vehicle accident in 1998 when she was struck from behind but suffered no injury.

9.      On 1 April 1999 she made a claim for compensation relating to an incident on 19 February 1999 (T4/p7). The incident details were as follows “I experienced pain in the right arm at my work desk. I made a request for OHS to assess my work station. The pain was up my right arm and under the wrist area. I was experiencing difficulty typing and writing at the time”. The medical details on the application were “repetitive strain injury left and right arm, muscles down neck and shoulder”, as reported by Mrs Smith in Dr Chandran’s medical certificate dated 22 March 1999, the date of the initial medical treatment.

10.     Adjusting her work station was of some benefit but she said the only thing of assistance was rest. She was allowed to have breaks, perform other tasks and had physiotherapy but her condition was worse and she was taking pain killers prescribed by Dr Chandran. She married in August 1999. In November 1999 she went off computers, doing mainly filing with some improvement in the pain. She took a redundancy in October 2000, to care for her husband.

11.     After leaving Telstra the pain improved, but depended on the tasks performed. She worked for different employers including Cordon Bleue Cookware, Mortgage Advisory Service, a sales marketing job with Cash and Real Estate which involved driving for two to three hours weekly to and from Albion Park to Tuggeranong in the ACT. In December 2002 she entered into partnership of the Flames and Grill, where she has remained, buying out the partnership in September 2005. She has continued in this business which she attends regularly, employing about six staff.

Mrs Smith’s Evidence

12.     Her evidence was that basically from the time that she was transferred to the sales area in 1996 she started getting some pain in her arms and it progressively became worse, necessitating adjustment of the work station. Initially it was the right hand affected but by August 1999 the left hand also. She had physiotherapy, acupuncture, some relaxation and massaging and was taking pain killers. Outside of her work she said she was having less problems as she was resting. Her evidence was that at the time she left Telstra she was having some difficulty. This included dropping pots and pans and different things and difficulty vacuuming. She likes sewing using a sewing machine but she said nowadays she does not sew at all because she does not have the strength to push the material through. Outside her work between 1999 and the end of 2000 in her leisure time she liked to cook and read and do some gardening.  In 2001 she had intermittent pain in the arms, probably two to three times a week. The pain was brought on by activity like driving, carrying bags and was relieved with rest. She was taking pain killers at this time. At the end of 2001 she had intermittent pain in her arms.

13.     At the time of the purchase of the Flames and Grill her evidence was that she thought her arms were fine and she could not recall any problems as long as she did not do too much physical work. At the Flames and Grill she was able to count and handle money. She also became involved in food handling and lifting and carrying jobs around the Grill. She found cutting and chopping difficult. She was able to perform little things like preparing a whole meal, using knives and forks and cutting things and peeling vegetables, but with difficulty. The main reason for the difficulty was that she did not have the strength in her arms.  She no longer uses the sewing machine but is able to sew on buttons and sequins. She said she was able to pick up paper clips for Dr McGill and Dr Brown and that she could probably continue this task for ten or fifteen minutes before developing sharp pains. Her last treatment was “a fair time ago”.

14.     She agreed that the non economic questionnaire at page 227 of the T-documents (undated) and with the doctors section not completed (section 5) pretty much accurately describes the problems she continues to have at present. A letter dated 24 June 2004 addressed to GIO from Kells, The Lawyers, enclosed the completed questionnaire. Ms Smith had ticked the following boxes:

“Section 1:

Pain - Pain continuous and severe. Preventing activity. Largely uncontrolled by medication.

Suffering - Constantly focused on condition. Ruled by emotions. Symptoms predominate over thinking. Unable to cope. Activities severely restricted. Treatment of no real help.

Section 2:

Loss of amenities - Mobility - Restricted to home and vicinity. Can only travel with door to door transport. Needs assistance of others.  

Social Relationships - Difficulty relating socially to anyone    

Recreation and Leisure activities - Unable to undertake any satisfying or rewarding activity

Section 3:

Other Loss - Moderate disadvantages.”

15.      In answer to Mr Kelly Ms Smith said she was not exaggerating when she ticked the boxes in the questionnaire and under cross examination she did not resile from her responses in the questionnaire. Dr Deveridge in his impairment assessment dated 10 May 2005 recorded under the heading Pain and Suffering: pain score 3; and suffering score - 3. Tables 3 and 4 were not applicable.           

16.     Ms Smith claimed that she had difficulty driving and in the non economic loss questionnaire recorded that she can only drive approximately 10 minutes before she experiences pain.  In July 2002 she commenced work with a company called Cash and Real Estate in Tuggeranong in the ACT that required her to drive from her home at Albion Park at the beginning of the week to Canberra and return at the end of the week. This drive was of about two and a half hours. She claimed this was difficult and required two or three pit stops.

17.     At this point during the hearing at the Tribunal, Mrs Smith was shown a video.

Video

18.     The video was taken on 13, 16 and 17 May 2005. It was of 131 minutes duration after 21 hours surveillance. It was taken principally at the Flames Grill and Carvery. Mr Kelly pointed out her ability to make patties with her hands that she was capable of chopping with a knife and also peeling using a knife. The video showed her pushing a shopping trolley, lifting trays both full and empty; sprinkling salad items between fingers and thumb; using tongs with her right hand to place potato scallops into a tray; giving customers change; cutting and wrapping a sandwich; opening the car door using her right hand; carrying a shoulder bag over the right shoulder, swinging freely when walking; and carrying a five year old child for a short distance. She adjourned to a Club where she played poker machines using the right and left hands.

19.     In answer to Mr Kelly, Ms Smith agreed that the video showed her pushing a shopping trolley using both hands, lifting items onto a food warmer, using both hands, lifting trays, both full and empty, placing food into food warmers, using both hands, sometimes with tongs and sometimes with her hand, sprinkling salad items between fingers and thumb, using tongs to lift a roast into a food warmer with her right hand, giving customers change using the right hand, carrying a shopping basket on both of her hands from time to time, carrying a child for a short distance, raising her arm to close the boot lid of a car, playing a poker machine with both her left and right hand, cutting and wrapping a sandwich. Ms Smith said she had difficulty making some hamburger patties and that she was uncertain as to what she was chopping as seen on the video and that she had difficulty twisting the cap off a milk bottle as seen on the video and that whilst seen making a milkshake, she in fact spilt it.

20.     In answer to Mr Grey, Ms Smith said that when she is seen to go out the back she will sit down and rest her arm, that she had difficulty chopping things and that she was doing the chopping because her husband was away and that whilst chopping she lifts her elbow up because she does not have the strength, that when cutting she gets cuts all over and when carrying a tray she can drop the whole thing on the floor.

21.     When Mr Grey recounted to Dr Deveridge the activities performed by Ms Smith on the video, Dr Deveridge replied that it was his experience that a lot of people afflicted by this condition can do most things, it is doing them constantly or repetitively or strenuously that is going to increase the pain symptoms.  

Other evidence

22.     Danniel McPhail, a nephew of Mrs Smith provided a written statement (Exhibit A1) dated 17 May 2005 and gave evidence to the Tribunal. Until recently he had worked for Mrs Smith at Flames. He said she dropped things at least three times a day which on occasions made her cry. She would ask for assistance with tasks 5 or 6 times a day On occasions when cutting she would ask for assistance .She had difficulty cutting shallots to put on the garnish as she had difficulty controlling the knife. The statement had been prepared with the assistance of Mrs Smith who had typed it, from his draft which he had prepared. He had no explanation for her clumsiness apart from her sore arms.

23.     There was also letter form the husband Anand Bose dated 17 May 2005 supporting his wife, but he was currently overseas and not available for cross examination, and therefore of limited value. The Tribunal gave little or no weight to the evidence from Danniel McPhail and Mr Bose as Ms Smith assisted Mr McPhail prepare his report and Mr Bose was not tested.

Medical evidence with particular reference to digital dexterity

24.     Dr Browne, Rheumatologist had provided three reports dated 25 November 2002, 5 May 2005 and 9 June 2005. He reported her symptoms reflect ongoing central sensitisation of nociception as occurs in neuropathic pain disorders and results in some interference of activities of daily living. He had not found allodynia on physical examination which would have given further weight to his diagnosis. His explanation as to her capability to perform tasks seen on video was that these were very different tasks requiring a different sort of muscle action which she was capable if she was prepared to accept a degree of discomfort. Dr Brown was unable to find any pathological abnormality on the two occasions he examined her and his diagnosis was based on history alone.

25.     In his report dated 5 May 2005, Dr Browne commented: 

“ In the course of physical examination, Ms Smith was able to demonstrate an ability to write legibly and to rapidly pick up paper clips. She did not demonstrate any obvious loss of manual dexterity.”

Then he said:

“Unfortunately, table 9.4 doesn’t specify the nature of the tasks or duration of tasks which may influence manual or digital dexterity, but on the basis of a recent assessment and examination I do not consider there is assessable whole person impairment applicable under table 9.4 at this time.”

Subsequently in his report of 9 June 2005, Dr Browne changed his assessment to 10 based on viewing a report from Dr Deveridge and the history of her dropping objects, incapacity with food preparation sustained, writing and operation of a computer

26.     Dr Deveridge, General Surgeon in his report dated 10 May 2005, opined Mrs Smith had a moderate ongoing disability with bilateral arm, shoulder girdle and neck pain, weakness and sensory disturbance. On physical examination he had found a weakened right sided grip strength, widespread tenderness maximal in the forearm flexor compartment and around the volar surface of each wrist and tenderness around the shoulder girdle and para-cervical muscle attachments. These he did not regard as clinical signs, but consistent with the clinical entity of occupational overuse. He agreed the sensory loss was not anatomical. The tests he carried out for digital dexterity were just grip. (Not really an objective test) and pinch test – grip strength, two point discrimination (a test of sensation rather than digital dexterity). His assessment of 10% impairment was based on his history and as he said in evidence:

“Is there any other way of assessing inability with digital dexterity except by giving weight to history?”

27.     Dr Matheson, Neurosurgeon opined that a feature of patients with no pathology is that they receive a different diagnosis from different doctors, all of whom are trying to explain unexplainable symptoms. His opinion was that the clear implication of this situation was a somatised disorder. Dr Matheson did not specifically test for digital dexterity, relying on tapping the back of the hand and over and under. He did not get her to pick up paper clips, or handwriting or anything of that sort as he considers them to be subjective tests and not valid, rather he relies on the history. He considered Mrs Smith did not suffer any permanent impairment and she has a 0% permanent impairment of the upper limbs.

28.     Dr McGill, Rheumatologist did not consider any diagnostic label was appropriate. He could find no objective physical abnormality. To test digital dexterity Dr McGill observed her hand writing which he considered to be fluent and the picking up of five or six paper clips, in addition to rest of the full formal examination, in terms of moving fingers, and fine finger movements. He found no permanent impairment in accordance with the Comcare guide and that she has no permanent impairment in accordance with Table 9.4 in accordance with any or other Tables in Section 9. This lack of permanent impairment is true regardless of the cause of her symptoms. He thought the initial assessment by Dr Brown was correct and his decision to change his opinion was based solely on Mrs Smith’s history and assessment of herself and in the absence of any physical sign or physical evidence of impairment, was not valid. He commented that Dr Deveridge’s assessment of her capacity was apparently based on history, and this gave him no reason to change his opinion. 

29.     Mr Grey referred to the reaction of Dr Neumadon and Dr Reardon and Dr Mills who in 2000, whilst having some difficulty pinpointing a cause, were prepared to concede that there was a problem which may well need treatment, with which Dr McGill agreed on the basis that they were trying to treat her as opposed to his task of making an assessment.

Table 9.4

30.     To qualify for permanent impairment Mrs Smith must reach the threshold of at least 10% in Table 9.4 in the Guide to the Assessment of Permanent Impairment which provides as follows:

“Can use limb care AND grasping and holding BUT has difficulty with digital dexterity.”

31.     There was no debate that Mrs Smith can use her arms for self care and grasping and holding. The question was whether she has difficulty with digital dexterity. This meaning of difficulty with digital dexterity is as difficult for the doctors as it is in law. Mr Grey quoted the leading case on Table 9.4 as Comcare v Fiedler (2001) 115 FCR 328. In that case, the Full Federal Court rejected the approach in some previous Tribunal decisions that Table 9.4 required a level of difficulty with digital dexterity which was “very severe” or constituted a “very significant or substantial impairment”. He quoted the Full Court stating that “something more than minimal problems with digital dexterity is required. But, if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity, that will, adopting the approach to interpretation required by Whittaker v Comcare (1998) 86 FCR 532 at 544-545, justify a 10 percent impairment under par 1 of Table 9.4” 

32.     Furthermore, the Full Court made a number of criticisms of the Guide, similar to those previously made in Whittaker (supra).  It noted that Table 9.4 was directed  to assessing the level of impairment due to an injury involving the upper limb, not just the fingers, yet limited consideration to three matters, being the use of the limb for self care, use for grasping and holding, and difficulty with digital dexterity. Fiedler (supra) is clear that decisions dealing with Table 9.4 means there is no requirement that assessment under this Table should be taken purely by reference to a simple test undertaken on one particular day and that the overall history of the patient’s difficulties are entirely relevant to each doctors assessment. A difficulty with this case is that there is no demonstrable pathology and the diagnosis is descriptive rather than clinical.

33.     The hallmark of digital dexterity is as expounded in Fiedler where the Tribunal’s approach in that case was approved by the Full Court (means being able to handle things skilfully and efficiently or enjoy the use of fingers and hand without undue restriction). To assess difficulty with digital dexterity, I have the history of the difficulties experienced as described by the Applicant, the assessment by the doctors of the history obtained by them, together with the findings on physical examination and simple testing, using hand writing and picking up paper clips and the viewing of her activities on a video.  Taken alone Mrs Smith’s history would qualify her for 10% impairment. Dr Deveridge on his history alone would also qualify for 10% impairment. Dr Brown changed his mind from 0% impairment to a 10% impairment having seen Dr Deveridge’s report. Dr Matheson and Dr McGill both said 0% impairment.

34.     The video was taken on three separate days and was not seen by any of the doctors.  Mr Grey submitted a possible bias in that the video was for 131 minutes and the investigator undertook a surveillance of 21 hours and open to editing. He submitted that it was misleading to talk about "edit points" in the film. The investigator who exposed the film gave evidence and was cross examined and he conceded that he only exposed film when the film applicant was visible to him. We have no way of knowing with certainty of Mrs Smith's activities when she adjourned to the rear of the shop other than her own evidence that she sits down and rests her arm when she retreats to the back room. Mr Kelly submitted that at no stage was she seen to give any sign of difficulty in performing any activity in which she was engaged.

Reasons

35.     I do not consider Ms Smith to have 10% impairment under Table 9.4. as she does not satisfy the requirement of having difficulty with digital dexterity. The test here is impaired digital dexterity and in the absence of any pathophysiological basis one has to look to other causes, including pain and loss of strength in the arms. Dr Matheson reported that a feature of patients with no pathology is that they receive a different diagnosis from different doctors, all of whom are attempting to explain unexplainable symptoms.  He reported the differences in history she has given to other people including Dr Whittaker and Dr Mowbray. I am mindful of Fiedler (supra) who said the overall history of the patient’s difficulties is entirely relevant to each doctor's assessment and not just a simple test taken on a particular day. Dr Matheson reported the symptoms are poorly described.

36.     Dr Deveridge who supported Ms Smith relied on the history he obtained to assess inability with digital dexterity to come up with a 10% impairment an opinion eventually supported by Dr Browne without further examination. Dr Browne had initially given 0% impairment after his examination which included writing and lifting paper clips, testing for digital dexterity. Dr Browne reported the Table does not specify the criteria upon which difficulty with digital dexterity are based and due weight must be given to the history and due weight has to be given to statements by Ms Smith with regard to carrying out activities of daily living, incapacity with food preparation sustained and operation of a computer.

37.     I agree with Dr McGill that the initial opinion of Dr Browne was correct and his decision to change based solely on Mrs Smith's history and assessment of herself, in the absence of any sign or physical evidence of impairment, is not valid. She was quite capable of activities of daily living, no longer uses a computer in her work and appeared quite capable of food preparation on the video. Drs Matheson and McGill who also took a history from Ms Smith and each gave 0% impairment after also taking the lack of physical findings into account. In the case of Dr McGill he also did the simple test for digital dexterity. Both of these doctors included the history in their assessment. Dr Deveridge was the only doctor to record any altered physical examination, but concluded there are few if any positive clinical signs. In the absence of clinical signs and a definitive diagnosis one is dependent on the history provided by the applicant and what you observe.

38.     Major problems for Ms Smith were inconsistencies in her history as indicated by Dr Matheson. Mr Kelly submitted there were inconsistencies concerning the clinical onset of the condition and the circumstances of her redundancy, including her poor recall of legal representation at the time of the previous Consent Orders. There are gross discrepancies concerning her ability to drive and the non-economic questionnaire as completed by Ms Smith does not measure with her presentation and her activities as seen on the video. She has not sought treatment since 2000 and has been, and is currently in the work force. She said that she could not push material through the sewing machine because of lack of strength in the arms, yet no doctor on examination commented on loss of power in the arms and there was no evidence of muscle wasting. The video shows her performing different manual tasks requiring digital dexterity without apparent difficulty. In particular she is capable of food preparation. The defence that these tasks cannot be sustained and that she requires frequent rest periods is noted, but again this is entirely dependent on Ms Smith's account. On video she spilt or dropped the milk shake. This was the only viewing of her possibly dropping things and as pointed out by Mr Kelly, is open to interpretation.

39.     The video is useful. It shows that she is capable of tasks that are not troublesome or not easy, requiring digital dexterity. I have noted Mr Grey's objections, but the video is not isolated to one day and shows Ms Smith very capably performing her work without video evidence of impaired digital dexterity. Whittaker (supra) noted that Table 9.4 was directed to assessing the level of impairment due to an injury involving the upper limbs, not just the fingers. Apart from her evidence that she raises and supports her arm during rest periods at the Flames and Grill and her evidence of weakness in the arms which was not collaborated by the doctors, there is nothing else to implicate her arms as contributing to impaired digital dexterity.

40.     Whilst accepting Fiedler's (supra) view on the limitations on a simple test on a particular day, Ms Smith has been capable of writing and lifting paper clips on two occasions, carried out by two very experienced health professionals. Whilst accepting Mr Grey's submission that it may give a false impression that the assessment is the result of the application of "scientific method", it is a method used by doctors to help assess digital dexterity, in conjunction with the history and the physical findings. It is only her assessment of herself, that not only does she have difficulty with digital dexterity but that when challenged against self reports that she is unable to sustain these activities over an extended period. The inconsistencies in the history do not validate her own self assessment.

41.     In conclusion taking the history, the examination, the simple testing and the video into account, there is no impaired digital dexterity and this taken together with the inconsistencies in the histories obtained by different doctors and the history provided to the Tribunal and the difficulties with her own assessment of herself, persuades me that she does not satisfy the requirements of Table 9.4 and that she has 0% impairment according to the Table. It then follows that under the provisions of the Act there is no permanent impairment.

Decision

42.     The decision under review is affirmed.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Dr MEC Thorpe, Member

Signed:         Associate

Dates of Hearing                   20 and 21 October 2005
Date of Decision  20 December 2005
Counsel for the Applicant                          Mr L Gray
Solicitor for the Applicant                           Mr D Potts, Kells – The Lawyers
Counsel for the Respondent                     Mr B Kelly
Solicitor for the Respondent                      MS N Fisher, Henry Davis York