Storey and Comcare
[2010] AATA 973
•3 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 973
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3749
GENERAL ADMINISTRATIVE DIVISION ) Re DIANNE STOREY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr J Chaney, MemberDate3 December 2010
PlacePerth
Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that the respondent is liable to pay compensation to the applicant, pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), on the basis of a 1% degree of permanent impairment under Table 9.8.1a in the second edition of the Guide to the Assessment of the Degree of Permanent Impairment.
Application may be made to the Tribunal in relation to the costs of this proceeding within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), that the costs of this proceeding incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
..........[sgd S D Hotop]........
Deputy President
.
CATCHWORDS
COMPENSATION – Commonwealth employee – applicant claimed compensation for carpal tunnel injury – respondent accepted liability to pay compensation for carpal tunnel injury – applicant subsequently claimed compensation for occupational overuse syndrome affecting upper limbs – respondent accepted liability to pay compensation for “tenosynovitis hand and wrist” – applicant claimed compensation for permanent impairment resulting from compensable injury – respondent rejected claim – applicant does not have impairment in respect of wrists or shoulders – applicant has permanent impairment in respect of left thumb and arms resulting from carpal tunnel injury – degree of permanent impairment – applicant has 1% impairment in respect of each arm and 1% impairment in respect of left thumb – degree of applicant’s permanent impairment is 3% – compensation generally not payable where degree of permanent impairment less than 10% – compensation payable where degree of permanent impairment constituted by “the loss of the use of a finger” is less than 10% – meaning of “finger” – compensation payable to applicant for permanent impairment constituted by partial loss of use of thumb – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 24, s 24(8)(a), s 27(1) and s 28
Guide to the Assessment of the Degree of Permanent Impairment (2nd ed)
Page v Telstra Corporation Ltd [2004] FCAFC 80
Thiele v Commonwealth of Australia (1990) 11 AAR 376
REASONS FOR DECISION
3 December 2010 Deputy President S D Hotop
Dr J Chaney, MemberIntroduction
1. Dianne Storey (”the applicant”) was employed by Medicare Australia (formerly known as the Health Insurance Commission) from 1975 to 10 January 2008 when she was medically retired on the ground of invalidity.
2. In April 2004 the applicant claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) for an injury or illness which she described as “chronic pain, hand, arm, shoulder weakness, chronic occupational overuse” affecting her “spine, neck, shoulders, shoulder blades, arms, hands, wrists” and which she claimed was contributed to by “29 years of repetitive keyboarding”. The claim form was accompanied by a medical certificate issued by Dr Robert Warner on 31 March 2004 in which the diagnosis of the applicant’s condition was stated as “overuse syndrome (keyboard operation)”.
3. On 17 June 2004 a delegate of Comcare (“the respondent”) made a determination accepting liability under s 14 of the SRC Act to pay compensation to the applicant in respect of “tenosynovitis hand and wrist” deemed to have occurred on 31 March 2004.
4. In March 2008 the applicant claimed compensation under the SRC Act for permanent impairment in respect of “spine, shoulders, arm, wrists, hands – L & R”. In Part C of the claim form completed by Dr Warner, the diagnosis of the applicant’s current condition was stated as “chronic pain syndrome, chronic overuse syndrome of arms” and the impairment resulting from that condition was stated as “both arms & hands”.
5. On 22 December 2008 a delegate of the respondent made a determination that the applicant was not entitled to compensation for permanent impairment under the SRC Act.
6. Following a request by the applicant for a reconsideration of the determination of 22 December 2008, another delegate of the respondent made a “reviewable decision”, dated 17 June 2009, under the SRC Act affirming that determination.
7. On 11 August 2009 the applicant applied to the Tribunal for review of the reviewable decision of 17 June 2009.
The Evidence
8. The evidence before the Tribunal comprised:
· the “T Documents” (T1–T215, pp 1–530) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1–A11 tendered by the applicant;
· Exhibits R1–R14 tendered by the respondent; and
· the oral evidence of the applicant and of Dr B Galton-Fenzi, Dr G Mastaglia, Dr R Warner, Dr M Wyatt and Dr D Bacvic.
The Applicant’s Evidence
9. The applicant’s witness statement dated 19 August 2010, which she confirmed was true and correct, is as follows:
“ …
Educational Vocational History
2 I have the following formal qualifications:
Diploma of Management 1988 – 2001
Health and Safety representative Course 1998
Training and Development Training Certificate 2000
Health Insurance Commission Management Training 1987
Vocational History
3I commenced employment with Medicare Australia in 1975. I was employed by Medicare Australia continuously between that year and 2008, a total period of 33 years.
4Between the years 1975 and 1978 I worked as a data entry operator in Medicare’s processing office in Fremantle. As a level DPO2 I worked full time Monday to Friday and my hours were initially from 7 am to 4 pm but later changed to 8 am to 5 pm. Working at the processing centre involved continuous and repetitive keyboard processing of doctor bulk billing vouchers into Medicare’s system for payment of benefits. No breaks were given between start times – lunch half and hour, and two tea breaks of 10 mins. Processing objectives were expected if (sic) characters per line were not met then the staff were demoted to DPO1.
5In 1978 I moved to branches and continued full time work in branches until 2001. In the branches I held the position of Customer Service Officer (CSO9) which involved data entry (mostly whilst concurrently dealing with a customer in person), providing information to customers, and desk based processing of claims, enrolments. I dealt with customers in person over the counter, I processed claim forms by inputting data into the computer system/database, and I accessed information and amended information in the computer system/database. On an average day a full time CSO had to process 400 claims which should average to 48 lines an hour. If this was not attained you would fail your performance as a branch CSO. A claim takes anything between 1 to 5 minutes to process, 1 minute being the usual time to process a standard claim. No breaks were given between start times in branches.
6In 1985 I successfully transferred to a permanent position as an assistant branch manager at Booragoon AO2-5 (Administrator Officer). As an assistant manager/branch manager/supervisor my duties and responsibilities changed from serving the customers to working with the branch manager, dealing with staff management, branch or section management and development, quality control, complex claims and dealing with difficult customers.
7In 1988 I enrolled in, undertook and successfully completed a Diploma of Management part time in 2000. I hoped that by gaining formal management qualifications, and because of my knowledge and experience within the organisation, I would be able to advance to supervisory and management positions with Medicare.
8In 1989 I successfully transferred to a permanent position as an assistant branch manager in the Wesley Centre branch (AO3-4).
9Between 1984 and 2002 I was always performing high duties as a team leader, supervisor, manager in SHQ, and branch manager when positions became vacant – positions would range from an AO4, EO1/2.
Carpal Tunnel Injury
10In 1990 I started to develop carpal tunnel syndrome symptoms in my hands and wrists bilaterally. I experienced pins and needles in my hands and fingers and pain particularly at night. During the days I was finding it hard to use one hand or another depending on how I had slept the previous night. I had a generally (sic) feeling of discomfort, lack of dexterity and numbness in my hands. I found the symptoms were generally worse after work and were better on weekends when I was not using my hands and wrists as much for repetitive keying type work. I did not notice any swelling, colour or temperature changes at this stage.
11On the 26/05/1990 I was diagnosed as suffering from carpal tunnel syndrome following EMG by Dr W Carroll, and I lodged a workers’ compensation claim in respect of my carpal tunnel syndrome. Liability for my workers’ compensation claim was accepted …. I underwent surgery by Dr P Hales to release the carpal tunnel to my right wrist in July 1996. I returned to work following the July 1996 surgery for about a month or two. I then had the other carpal tunnel released in October 1996.
12After the October 1996 surgery I returned to work on light duties. My return to work program involved doing all of my usual customer service duties but with a limited amount of keying each day. I had a limit of about 60-80 claims to process each day with regular 5 minute breaks every half hour.
13Immediately after the surgery the symptoms of pins and needles and numbness ceased. My wrist pain also resolved as I recovered from the surgery. I still had occasional numbness if I had slept on my arm during the night.
Symptoms 1998-2002
14Despite the resolution of the symptoms of the carpal tunnel syndrome, I continued to have pain in my left and right forearms and upper arms. Indeed some time after the surgery and soon after my recovery from surgery, my arm pain became at least more noticeable if it did not actually become worse.
15I had around this time also started to have problems with my neck for which I had various investigations including spine, right wrist x-rays, spine CT, and spine MRI by Dr Ecker on 13 April 1999, and I consulted with an orthopaedic surgeon privately about my shoulders in 2000.
16I began to increasingly notice pain in the back of my hand and wrist and around the base of my thumb. Initially the symptoms were in my right arm only but I then started noticing the same symptoms in my left arm. Sometimes the pain would be through my entire arm to my shoulder. I found it difficult to use my hands and sometimes my hands felt very weak. I cannot say whether these symptoms were present before I had the carpal tunnel release surgery but I certainly did not notice these symptoms prior to the surgery. The symptoms were very mild in the late 1990s but by 2001 were quite noticeable and were starting to impact on my ability to perform my work.
17I was unable to move my arms backwards (behind me) as this was causing pain in my shoulders (I had physiotherapy to my left side as I could not push it past my side, but was only temporary relief (sic)). I frequently felt a discomfort in my hands such that I could not move my fingers and wrists to grip or manipulate things. My hands felt weak.
18Although I considered that I had recovered from Carpal Tunnel Syndrome following surgery, I still had an open Comcare claim in respect of the Carpal Tunnel Syndrome and so treatment expenses I incurred (MRI, physiotherapy, CT scan, x-rays) for my upper limb symptoms continued to be paid by Comcare until liability for the condition was ceased on 9 January 2001.
19Meanwhile I struggled with work and with the arrangements that were being made for my rehabilitation. My pain adversely impacted on my productivity and prevented me from returning to the extent of keying duties I had previously performed. The fact that a significant period of time had passed since my Carpal Tunnel Release surgery and I was still in pain and unable to undertake normal duties made me depressed and resulted in friction with my supervisor and staff, which in turn made my mental state and physical pain worse. Some days I could not use my hands to key, hold, or get dressed. I would ring work but they told me to still come in they (sic) will find me something to do. After the first incident I just rang and did not go to work as I could not bear the pain, I stayed home in bed on pain killers.
20In 1999 at the Cloisters Street branch as a 2IC my manager [KC] expected me to take on a greater volume of work. I started doing more keying work and made a concerted effort to increase the processing work I did. I was vigorously processing doctor bulk billing vouchers, spending 1 hour solid each morning processing them. I tried to keep up with the workload and I did stretching exercises for my hands and shoulders regularly throughout the day. After months of quite intensive and busy work involving a significant increase in the amount of keying I had been doing I noticed I had increased pain in the back of both my hands and aching in my forearms. The pain lasted throughout the day while I was at work, gradually subsiding somewhat after I returned home.
21In January 2000 my employer instructed me to attend a clinical psychologist for stress and pain management.
22In January 2000 I was transferred from Booragoon to the Fremantle branch to help the manager with training and mentoring staff. The manager of branch operations [RW] also requested me to help the manager [TB] with the activities and duties of running of the branch, because of my management skills, knowledge and experience. The Fremantle branch was not as busy, however I found that although the overall workload in Fremantle was not as high as Booragoon, Fremantle had less staff and so the individual workloads were not significantly different to what they were at Booragoon.
23I had been reporting my symptoms to my immediate supervisor and light duties had been arranged to accommodate my restrictions. In particular repetitive data entry/keying exacerbated my pain and I found I could not do this work for more than 20 – 25 minutes without requiring a break. The bulk of the work in any branch is keying and data entry in the form of processing claim forms and checking, auditing claims using computer screens. I was allowed to limit the amount of claims I processed during a day and to vary that processing work with other work such as sorting the mail, collecting over the counter claims from each work station, sorting claims into type, stationery ordering and restocking display counters.
24During this time I also had discomfort in my neck, shoulders and thoracic spine which I was informed were related to degenerative changes.
25In the branches the restrictions obviously impacted on my productivity at work. This in turn lead to resentment of other staff members towards me and frustration on the part of my immediate supervisor. I say this because I had many confrontations with my manager whereby they suggested to me that I ought to have been doing more work, meet key performance objectives and that it was not fair on other staff that I was not pulling my weight. As my Comcare claim had been closed my supervisor thought I should have been doing normal duties. I became depressed about the situation at work and the conflict that had arisen.
26In April 2002 my employer implemented a graduated return to normal duties plan after my medical certificate from Dr Siva on 1 August 2001 in the Fremantle branch with [WW]. The plan was I had to attain 375 lines daily, customer service, and off the counter duties to help the staff and manager every half hour. If unsuccessful I would have to seek alternate position with Medicare, as the office could not be expected to carry me in a limited capacity.
27At my performance feedback in November 2002 by my manager [WW] at Fremantle branch I was told that I had passed my key performance objectives (400 claims and 48 lines per hour). In our discussion I was accused of being a ‘bitch’ by 2 out of 6 staff about flexi time finishes. And that I had to fall in line with these two because they were friends of the manager. I explained that I had to work until 4.55 pm because it took me all day to do the allotted amounts of work because of my pain in my hands and arms. I stated we could compromise of (sic) a couple days a week doing both to suit everybody. I then contacted the manager of branch operations [RW] about my immediate manager, [WW], and manager of Medicare offices [DF] about their unprofessional conduct.
28On the November (sic) 2002 I was instructed to transfer because the manager had failed her performance feedback. I went to my doctor and was certified unfit on stress leave for 2 weeks because of the bullying and intimidation I received.
29In November 2002 I had a meeting in SHQ with [RW] the manager of branch operations and medical services that I would be allocated work there that involved less keying, and that I would be utilised more for supervisory and training duties. At that point in time the call centre was only dealing with telephone enquiries and no processing. I did induct new operators by demonstrating the system to them and checked their work for quality assurance. When the team leaders were on leave I would receive higher duties.
Call Centre Duties
30In December 2002 I was transferred to the medical services section in head office as a customer service officer in the call centre. The call centre was at that time the place where calls from members of the public and medical professionals were dealt with by customer service officers. Calls would be made for enquiries and requests such as issue of new Medicare cards, temporary or visitor cards, lost cards, change of name, adding and deleting people from cards. The CSO dealing with the call would be talking to the customer, providing information and accessing the Medicare database on the computer to input new details or request new cards. Sometimes the query could not be dealt with immediately and the customer would be called back with advice or information. We were seated at a desk with a computer while taking and making calls. The actual amount of keying varied depending on how much talking on the phone we did but if I was on the phones all day (8:00 am to 5:00 pm with a lunch break, morning and afternoon tea breaks) then about half that time on average was spent actively using the computer ie keying and moving through screens.
31I did experience pain in my hands and arms when I was actually doing keying work but I was coping because the work permitted regular breaks from keying.
32Shortly after I moved to the call centre Medicare underwent a restructure so that the call centre took up processing work again. This meant that customer service officers in the call centre were required to perform processing which meant keying. The work involved included processing stop cheque requests, reissue (sic) cancelled cheques, processing complex claims (like radiotherapy, surgery) and auditing claims (ensuring that all fields and payments were correct). This work was obviously computer based and involved keying in fields and mouse work.
33On a day in July 2003 my team leader [CL] allocated a large load of repetitive doctor bulk billing keying work to me. I explained to her that I did not feel capable of performing the work and that it would aggravate my injury. She said that if I did not perform this work I would not be able to retain my position in the call centre. I explained I could only do light keying – some input data and can (sic) help with the output pending vouchers. I stated that the manager of Branch Ops/Call Centre [RW] was aware of my workplace situation. [CL] my team leader had not been informed of the conditions of my transfer into the team by her manager [SH].
34I tried to keep up with the workload for a couple of weeks, but my symptoms in my hands, arms and shoulders (pain) increased and I consulted my General Practitioner, Dr Siva, on 13 August 2003 to report increased symptoms and treatment. On the 20 August Dr Siva wrote to my employer on my behalf requesting that my workload be eased as work was aggravating my symptoms.
35This correspondence resulted in Medicare referring me to Dr Pearce at HSA for a medical review to determine my fitness for work. I was reviewed by Dr Pearce on 11 September 2003.
36A CPSU person (KT) and I had a meeting with the manager of medicare programmes (DF), manager of call centre (SH), two HR people – one was my previous case manager/rehabilitation officer [PK] on 2 October 2003 following Medicare’s receipt of Dr Pearce’s report. I was told that because of my employer’s duty of care I was not medically fit to perform my duties, so I could no longer work in my position in Medicare. They stated that I had to take personal leave. My union representative queried why I cannot take miscellaneous leave, but I was to take personal leave only. I was told that there were no other positions available which I could perform, so I could no longer work at Medicare. I disagreed and explained that I had taken no sick leave and that I will be seeking a second opinion. I was instructed to pack my belongings and go home, clear my desk and not to speak to anybody about what was happening to me.
37My team leader [CL] would come over to me and check that I was not stealing anything that was Medicare property. On the 3 October a memo was sent to staff from management saying I was on indefinite personal leave and not to contact me.
38I did not return to work after the meeting on 2 October but instead sought medical treatment for symptoms related to stress. I remained off work receiving treatment for depression and anxiety from after 10 October 2003 for 12 months.
Lodgement of Workers’ Compensation Claim
39On 3 October 2003 I was certified totally unfit for work as a result of medical problems. As a result of my mental illness, I virtually remained in bed for 6 months from 3 October 2003. I withdrew from family, friends, colleagues and from life generally I didn’t go anywhere or do anything. I commenced counselling with Dr Fitch and started to become more organised and motivated again while being appropriately medicated on anti depressants. Dr Fitch issued a medical certificate for workers’ compensation certifying me unfit from 14 October 2003 to 14 October 2004. I lodged a separate workers’ compensation claim for my depressive/anxiety condition in July 2004.
40I first saw Dr Robert Warner about my physical symptoms on 4 December 2003. Dr Warner issued a Medical Certificate for Workers’ Compensation certifying me unfit from 3 October 2003 to 3 October 2004. In April 2004 I submitted a workers’ compensation claim to my employer for chronic overuse syndrome/chronic pain syndrome indicating that the injury happened or that I noticed the illness occurring in 2001, 2002 and 2003. I described my illness as chronic overuse and pain involving the hand, arm and shoulder weakness. I said the illness affected my spine, neck, shoulders, shoulder blades, arms, hands and wrists. I attributed the illness to overuse, particularly 29 years of repetitive keyboarding.
41Dr Warner encouraged me to do some volunteer work. He had certified me unfit for work but suggested that I would benefit from being involved in meaningful activity outside of work. So in 2004 I started doing volunteer work with the IPASA (Injured Persons Action and Support Association). On Tuesdays and Thursdays I would meet with injured people to provide them with assistance and information with managing their medical conditions, Medicare claims and entitlements, workers compensation legislation, and government services available them. From 2005 I only volunteered one day a week on Tuesdays at IPASA.
42On the 17 June 2004 I received notification from Comcare that liability had been accepted for my claim. Comcare’s letter referred to a claim being accepted for the condition ‘tenosynovitis hand and wrist’. I telephoned the claims officer upon receiving Comcare’s letter and discussed this diagnosis. I asked why there was a reference to Tenosynovitis. I reiterated that I made my claim in respect of chronic pain/occupational overuse. The claims officer explained to me that they had no classification for chronic pain or overuse and that the term tenosynovitis had been attributed (sic) because it was a classification that was in Comcare’s system. I was told that it would have no bearing on Comcare’s liability for my medical and treatment expenses. I said words to the effect that I had a lot more than tenosynovitis. Accordingly, Comcare commenced to pay my treatment expenses for treatment to both my left and right upper limbs.
43After the acceptance of my claims, my employer commenced a graduated return to work programme with rehabilitation providers Workfocus Australia in a position as a CSO in the Information Centre. The Information Centre deals with enquiries from members of the public and medical service providers mainly by telephone but also by email and facsimile. The rationale for placing me in the Information Centre was that it would involve a greater amount of telephone contact with customers and service providers and less processing of claims. I was told that I would be utilised for coaching and training work and supervisory positions wherever possible so that I would be moving around and doing very little keyboarding.
44In October 2004 I returned to work 3 days per week for 3 hours a day at the Information Centre. I was conscious that my workers’ compensation payments were due to reduce after 45 weeks and so I was keen to increase my hours to 7.5 hours per day. On 28 February 2005 I increased my hours to 5 hours per day, 3 days per week, and in June 2005 I increased to 6.5 hours per day, 3 days per week. My symptoms remained but did not worsen significantly through my return to work. I tried working 7.5 hours per day on the 20 March 2006, increasing my medication to control my pain. However I could not cope. My pain increased and I was forgetting things so I asked Dr Warner to reduce my hours again to 6 hours per day on the 27 October 2006. I also discussed the situation with Dr Fitch.
45In 2005 I started using my left hand to move the mouse, and use my right hand for keying, which I discussed with my rehabilitation person. But after a while I noticed a swelling in the middle of the top of my left hand. This made my left hand very painful. I sought medical treatment with Dr Warner who referred me to Dr Goodheart on 17 August 2005. He referred me for an MRI on my left hand where the palpable swelling was confirmed as florid tenosynovitis of the extensor digitorum tendon sheath by the radiologist. Dr Warner referred the MRI results to Dr Mastaglia for a consult on 5 October 2005. After my visit I was then referred to a radiologist for an injection into the top of my left hand to bring down the inflammation. The procedure was very painful and I felt nauseous afterwards. This reduced the swelling down to a permanent lump on my left top of hand. It flares up from time to time depending on the tasks I have to do.
46My return to work involved the usual/normal duties of customer service including customer phone enquiries (complex claims, medicare enrolments, pharmaceutical enquiries, medical provider enquiries, Medicare benefits), processing (stopping cheques, issuing cards and registering Safety Net and tax statements). Mentoring and checking quality control of processing. I experienced a mild increase in symptoms in my hands when I returned to work despite taking 2 minute breaks every 10 to 15 minutes and 5 minute breaks after every hour of work.
47I continued to work at reduced hours until January 2007 – 6 hours three days a week. I had an exacerbation of my depression at that time related to events and stress in the workplace and was certified totally unfit for work. I last worked in January 2007.
48I was compulsorily retired on invalidity grounds by Comcare and my employer because of permanent impairment in January 2008, 1 month before my 55th birthday.
Treatment
49In April 2002 I commenced Bowen Therapy treatment for my shoulders and arms pain. I have continued Bowen therapy to the present date. I usually attend once a month or more frequently if I have increased pain or restriction in movement. The therapist massages my soft tissue/fascia in my arms, shoulders and my hands, neck and back. The therapy is very painful whilst it is being performed but I find that after the therapy I have greater movement and flexibility in my shoulders and my hands feel more comfortable. It also relieves the pain in my arms to some extent for a week to 2 weeks after the therapy.
50The Bowen therapist demonstrated to me a number of stretching exercises I can do myself to relieve pain and stiffness in my arms and hands.
51I underwent physiotherapy and hydrotherapy (3 months, 1 session per week) for a short period of time but did not get any benefit from it.
52I have undertaken various forms of exercise to assist with management of my symptoms. This included gym exercises (cardio and weights). I attend 2/3 days a week for one hour each session at a fitness centre. These exercises help me strengthen my arms, shoulders and back muscles. I feel these gym activities have strengthened my joints and improved my range of movement. I have to strengthen my legs as I cannot use my hands to lift myself up off the bed and floor. Also I sometimes attend yoga to strengthen my joints.
53On Dr Mastaglia’s recommendation I underwent an injection of the left wrist on 20 October 2005. This provided temporary relief of symptoms on the left hand. The swelling of soft tissue has gone down but not disappeared.
54I take Panadeine Forte for pain control. I usually take 1 tablet on 2 to 3 days each week. I limit the amount of pain medication I take because of my anti-depressant medication. I have been instructed that I cannot take pain killers when I take my depression tablets by my pharmacist. I take an anti-inflammatory, Brufen, 1 tablet every other day. I also use glucosamine, chrondroyton, fish oil, zinc, magnesium and other dietary supplements.
Current Symptoms
55My symptoms stabilised from about January 2007 when I ceased work. In this regard, I have had all the same symptoms as I had prior to January 2007 although the severity of the symptoms has abated slightly since I have ceased to perform keying work and since the stress associated with workplace issues has resolved. I notice that my symptoms do flare up from time to time when I engage in any repetitive use of my hands (for example with housework) and arms and when I am stressed.
56I have swelling around the base of my thumbs of my right and left hands. The swelling is more noticeable on some days and less on others and I am not able to identify any factors which influence the extent of swelling. The swelling is present constantly especially around the top of my hand of my thumbs.
57I experience sharp stabbing pains in my hands particularly around the base of the thumb, palm and wrist when I use my hands for activities for a period of 5 to 10 minutes or more. When my hands are at rest I have a dull ache which is present in both hands, my forearm and upper arm.
58I invariably wake with a feeling of numbness and pain in one or both arms and hands. My arms ache when trying to sleep when I have them at my side, so I have to sleep with my arms and hands straight out in front of me.
59My grip is weak and I find it difficult to do anything requiring manual dexterity. I find it hard to hang onto heavy objects.
60I am unable to move my thumbs freely and to their full extent. Everyday when I do my hand/finger/wrist exercises at home I am in great pain.
61I have great difficulty in raising my arms from my shoulders without experiencing significant pain. I find it difficult to reach above my head or behind my back. I can extend my arms out in front of me but find it difficult to raise them above shoulder height. I have difficulty in raising my arms behind my back from waist and up. Also I have difficulty using my hands to tie or clasp manipulating my fingers. I find it difficult to write for long, I have had to change the way I hold the implements.
Non Economic Loss
62My self confidence has reduced significantly. For a long time after October 2003 I had serious doubts about myself, whether I was strange or crazy. My IPASA voluntary involvement helped me regain some of my self confidence. I suffer from depression and anxiety because of the effects of living with constant pain and restrictions. I have a claim with Comcare for the depression and anxiety attributed (sic) by my employer. I don’t really go out much at all. I see my friends about once every three months and family once a month whereas before my injury I went out weekly. I find it difficult to have people over for dinner as often as I used to because of my injuries. I still try and organise a dinner as a bbq where everybody brings salads etc and helps prepare the meal.
63I try not to talk about my conditions, but I feel I have little to contribute to conversations without being depressing and morbid. I am scared of losing friends because they might see me as a ‘downer’. I find it difficult to give a helping hand to my family and friends when they are in need. I feel useless because I am unable to help others because of my injuries. It is a lot to ask a person to begin a relationship knowing they will have to help me with a lot of tasks.
64I have had to adapt different ways of grooming myself because my usual habits cause pain. Combing and brushing my hair is difficult, as is putting my hair up and tying it. It is hard to keep my hands up to plait my hair as I have no strength in my hands to do this as they begin to ache and are painful, so I have to put them down. When I apply makeup and creams I sometimes need two hands – one holding the other – to do the procedure. Cleaning my teeth is difficult even with a battery operated toothbrush and flossing is hard even with a battery applicator.
65I have difficulty in dressing myself as in doing up my bras with the hooks and zips in my clothing. I cannot do the bras up in the front and move them around to my back as I have no strength in pushing the back of my bras from the front to the back. It takes me longer to dress and sometimes I am stressing because I cannot do these tasks. I find I have difficulty in doing up clips, buttons, clasps with my hands. I find it difficult in doing household cleaning such as vacuuming (I do this with breaks after a half hour or a couple of rooms). This activity aggravates the pain in my hands and arms. Ironing is difficult as I have no power in my hands and they are painful and ache after several items. I suffer a lot of pain in hanging out washing, folding large items. The household cleaning such as cleaning the fridge, freezer, cupboards, mirrors, glass doors and windows have become very difficult and painful, and I have no power in my hands to do continuous rotation movements. Making the beds is difficult and shaking bedding and rugs. I find it difficult to clean my bathroom – shower, basin, walls and mirrors, as it causes me pain and I don’t have the strength in my hands to scrub, as it requires pressure on my hands, wrists and shoulders. I have difficulty turning on and off taps and opening some doors.
66I have a person come and do my lawn mowing, whipper snipping, gardening, and cleaning, sweeping, pruning, weeding, clearing. Most activities in the garden cause me pain and I don’t have the strength to do these chores.
67I have had to adapt the way I do cooking as I find it difficult to hold heavy items such as pots, pans, casseroles, baking dishes, frypans, jugs, bows, as I feel I am going to drop them as I do not have the strength to handle the heavy containers. I have difficulty chopping, blending, carving and cutting food. Also serving, draining, and mixing ingredients. Opening cans, lids, containers and jars. Also washing dishes as I have difficulty in holding and lifting heavy dishes to scrub and clean.
68When I do my shopping I have to limit the contents of the bags so as not to fill them to heavy because I have difficulty in carrying them as my hands go numb.
69I used to play basketball, tennis and golf but I have had to give up all of these activities as the overhead arm throwing and catching is difficult as I have now (sic) power/strength in this action. The swinging motion with my racket and golf club is too painful and I don’t have the strength in my hitting of the balls. As a result my recreational and leisure activities are virtually non existent. I walk my dog and do home exercises.
70I have increased pain and numbness in my hands when driving for a period longer than 30 minutes. I also have difficulty when filling the car with petrol – squeezing the hose lever and screwing the petrol cap lid on and off. I purchased a later model car with power steering to help me cope with my driving. I pay a person on a regular basis to vacuum and clean my car as I find it difficult to do this myself because of my hands, wrists and arms.
71I find it difficult to do sewing, knitting or crocheting because of my hands, fingers and wrists as it causes me pain and numbness.
72My neighbour Sabrina helps me with some of my household chores such as folding and shaking large heavy sheets, doonas, and blankets. When I need some help with gardening, light bulbs changed, mattress turned and heavy objects moved. She also has me over for meals as she knows how difficult it is for me to cook.” (Exhibit A1)
10. It is unnecessary to refer to the applicant’s oral evidence in these reasons.
The Evidence of the Medical Witnesses
Dr Brian Galton-Fenzi
11. Dr Galton-Fenzi, Occupational and Environmental Physician, examined the applicant on 3 December 2009 at the request of her solicitors and he subsequently prepared a report, dated 5 December 2009, in which he addressed the matters requested of him by the applicant’s solicitors as follows:
“ …
1.My assessment of the overall percentage whole person impairment assessed in accordance with the relevant Tables of the Guide. Identify the table I have used to assess your client’s impairment; the tests and investigations carried out by me; and my findings on examination:
On clinical assessment, Ms Storey stated that she had a number of symptoms in relation to her disabilities. She states that the base of her left thumb (she indicates the thenar eminence) was swollen. She has ‘a lump’ on the back of her left hand, which has been ‘injected’ and she takes medications, so the swelling has reduced in this region. She states that this region is painful, experiencing a sharp and throbbing and aching pain which ‘hurts to touch’. She has difficulty in opposing the tip of the little finger to the tip of the thumb in a pinching motion, though can be quite variable in her ability to do this. She indicated on the day of her visit to my rooms it was ‘good’. As a consequence she may ‘drop items’.
She states that the base of the right thumb has the same symptoms though probably more severe. She states this area is always swollen (she points to the thenar eminence both dorsally and ventrally). She indicates that she sees ‘colour changes in this area, which look blue’. She stated this however was extremely variable in its presence. She describes the thenar region (base of thumb) as experiencing pain which was sharp, throbbing and aching and ‘it hurts to touch’. Occasionally she experiences sharp pains in her hands, some four days in a week.
She describes that both her wrists ‘hurt on most days’. This is a generalised pain and discomfort, rather than in any specific area.
She describes pains in both her right and left forearms, along the outer surface (extensor muscles) which is characterised as ‘dull and achey’. This occurs constantly all day.
She states that formerly she had experienced ‘problems with her shoulders’. Currently she states that she has ‘occasional soreness in her shoulders, if she lifts her arms’. She attends Bowen therapy for this condition regularly once every three months, though from time to time with any increased discomfort in her shoulders, she may attend monthly for some three months. She experiences difficulty in lifting her arms, feeling that she has no power in her hands. This causes her discomfort when hanging out the washing, because of an ache that radiates down her arms. She no longer braids her hair which she had done before, finding it difficult to ‘hold her arms up’. With any activities above her shoulder level, she needs to frequently drop her arms and shake her hands to reduce the symptoms. These symptoms also causes (sic) difficulty with vacuuming her house.
On detailed clinical examination she presents as a short-statured, morbidly obese lady. She was direct in her manner and forthcoming with her history being talkative. She was unsmiling in demeanour. She did not appear in obvious distress. She was carrying a large heavy plastic bag of x-ray plates without apparent difficulty.
The cervical spine exhibits a good range of motion on all planes, though she indicated that she experienced ipsilateral (same side) discomfort in her lower neck/upper shoulders when rotating her head to the left and right.
Examination of her shoulders reveals a reduction in range of motion on all planes indicating her discomfort in both shoulder regions was limiting these movements. She states that she does her bra up from behind (indicating that the range of shoulder movements is reasonably good). There were no areas of specific localised tenderness on palpation.
Both elbows exhibit a normal range of motion in extension and flexion and with supination and pronation. No discomfort was identified. There was no evidence of epicondylar inflammation.
Examination of her wrists reveals normal range of motion, though there was stated mild discomfort with flexion and extension. On palpation there was mild tenderness at the base of both thenar eminences (base of thumbs), though no obvious swelling seen and no changes in skin colouration. Generally the forearms, wrists and hands including the digits were ‘puffy’ reflecting her excess weight. Assessment of ulna and median nerve irritation using the Tinel’s sign were universally negative. The punctate scars from her carpal tunnel surgery previously were not readily visible.
Examination of her digits reveals normal range of motion with evidence of arthritis in the distal interphalangeal joint of the index finger of the right hand (she said this had been a longstanding issue resulting from a basketball injury in the past). There was tenderness throughout the thenar eminences at the base of the thumb, both dorsally and on the palmar surface as indicated above. Both hands and wrists were generally puffy throughout, though without evidence of obvious localised swelling. There was an area on the dorsum of her left hand just distal to the wrist with the subcutaneous venous plexus more prominent than seen on the right.
I utilised the opportunity to review the relevant radiological investigations that have been undertaken over the years. The MRI of the cervical spine(13/04/99) identifies significant degenerative changes of the intervertebral disc with endplate osteophyte formation, particularly anteriorly at the cervical C5/6 level. There are also degenerative changes at cervical C6/7 and to a lesser degree at C4/5 levels. The anterior vertebral body endplate osteophytes are most marked at cervical C6/7 level. There is associated broad-based intervertebral disc annulus bulges at all three levels though no evidence of disc protrusion. There is no evidence for neural impingement either. It was concluded that there is degenerative spondylosis particularly at levels C5/6 and C6/7 and to a lesser degree at C4/5. A localised dynamic bone scan of the neck and shoulders (31/08/00) identifies cervical arthropathy in the acromioclavicular joints, some enthesopathy in the tendons in the shoulder region, low grade facetal joint arthropathies in the cervical spine and changes in the mid-thoracic spine also. It was noted there had been a Celestone (steroid) injection into the left wrist (20/10/05) where there was noted to be thickened extensor tendon sheath justifying this injection indicating possible mild synovitis.
In presenting the overall percentage whole person impairment in accordance with the Guide to the Assessment of the Degree of Permanent Impairment – 2005, the process utilises the Part I (Principles & Assessment); Chapter 9 (the musculoskeletal system) – Part II (the upper extremities; hands and fingers, wrists, elbows and shoulders).
Section 9.9 wrists: and Tables 9.9.1A and 9.9.1B exhibit normal active extension, flexion, radial deviation and ulnar deviation.
Section 9.10 Elbows, along with Table 9.10.1A and 9.10.1B identify no loss of extension, flexion, pronation or supination.
Utilising Section 9.11 Shoulders, along with Table 9.11.1A and 9.11.1B reveals measurable loss of extension, flexion, external rotation, internal rotation, abduction and adduction of the shoulder joint. Utilising these tables 9.11.1A, B & C for each arm:
Active range of motion Right shoulder:
Extension: 30˚ = 1% WPI loss of extension;
Flexion: 55˚ = 5% WPI loss of flexion;
Abduction: 60˚ = 3% WPI loss of abduction;
Adduction: 20˚ = 1% WPI loss of adduction;
External Rotation: 50˚ = 1% WPI loss of external rotation;Internal Rotation: 25˚ = 2% WPI loss of internal rotation.
Total Right Shoulder – limits of active motion = 13% WPI
Active range of motion Left shoulder:
Extension: 30˚ = 1% WPI loss of extension;
Flexion: 65˚ = 4% WPI loss of flexion;
Abduction: 90˚ = 2% WPI loss of abduction;
Adduction: 25˚ = 1% WPI loss of adduction;
External Rotation: 40˚ = 1% WPI loss of external rotation;Internal Rotation: 25˚ = 2% WPI loss of internal rotation.
Total Left Shoulder = 11% WPI
There is no evidence for a pre-existing or underlying condition which requires assessment.
No other sections of Chapter 9 are relevant in regards to the assessment of shoulder motion.
It is noted that there are findings of degenerative changes in the cervical spine which are not assessable for the purposes of this application.
In reviewing the activities of daily living as per Figure 9-A there are some implications regarding self-care (grooming), hand functions (holding and pinching); travel (difficulties with holding the steering wheel) and social and recreational activities (participating in sporting activities at a social level that had been undertaken before the onset of her symptoms in 2003. She had played basketball at a social level, played golf once a month socially, and tennis now requires a two-handed hold of the racket).
In summary, the percentage whole person impairment for the right shoulder is determined at 13%, and for the left shoulder 11%. These are not to be considered as a single injury.
2.State whether in my view your client’s impairment is permanent and state my reasons for the conclusion regarding permanent:
These conditions of inflammation and impingement are generally not considered to be permanent. Adequate clinical management of the inflammatory process causing the pains and limited movements in the subacromial region of each shoulder is relatively simple. However, these conditions can be long-lasting and frequent aggravations are not uncommon in all members of the community.
Similarly, the pains and discomfort in her upper limbs, radiating through to her hands would also be deemed not to be a permanent condition. She has a generalised pain condition with stimulus from the peripheral musculoligamentous elements which is enhancing a sensitised pain system. These conditions can be adequately managed utilising appropriate medications and they will resolve with time. Her sensitised central nervous system and lowered pain threshold is the clinical condition.
3.Identify any factors affecting your client’s prognosis and in particular whether the impairment may be reduced by further medical rehabilitative treatment. If so, what treatment would I recommend and what effect would this have on your client’s impairment? Alternatively, if there are any factors which will cause the impairment to deteriorate significantly, identify these and indicate over what period of time I would expect the deterioration to occur:
The prognosis is for one of continuing symptoms of pain arising from intermittent inflammation arising from the use of both upper limbs, particularly with repetitive activities, physical loading of the regions.
The evidence indicates that the impairment can be reduced by further medical management. Appropriate medication using mild analgesics and intermittent anti-inflammatory medications have been shown to be effective with these conditions in the medium to long term. The effect of this treatment will be on reducing Ms Storey’s impairment particularly with intensity of symptoms and frequency of their recurrence. This should allow a return to normal function.
There are no factors that will cause the impairment to deteriorate significantly that can be identified. The condition is one of altered pain sensitisation in the nervous system, which is stimulated by normal levels of inflammatory chemicals in the muscles, tendons and joints, so triggering a noxious stimulus to be identified, whereas previously the nervous system had not identified these normal levels of inflammatory chemicals as being noxious.
…” (original emphasis) (Exhibit A4)
12. Dr Galton-Fenzi prepared an additional report, dated 20 August 2010 (Exhibit A5), but it is unnecessary to refer to that report, or to his oral evidence, in these reasons.
Dr Gino Mastaglia
13. Dr Mastaglia, Physician in Rheumatology, first saw the applicant in March 2004 following a referral by Dr Warner, and he provided a report, dated 19 March 2004, to Dr Warner in which he opined as follows:
“ She has occupation over use, which has affected both upper limbs. There are obviously mechanical factors in the neck and upper trunk. She has some underlying degenerative arthritis in the cervical spine of the following levels C5/6, C6/7 and C4/5 based on MRI Scan. She also has a degenerative change in the acromioclavicular joint with a chronic rotator cuff problem in the shoulders.” (Exhibit A6)
Dr Mastaglia subsequently reviewed the applicant on 5 October 2005 and he reported to Dr Warner, by letter dated 7 October 2005, that the applicant had “developed painful swelling in the dorsum of the left wrist” which had been confirmed by an MRI to be an “extensor tenosynovitis”. (T77)
14. In response to a request by the applicant’s solicitors for a report regarding the applicant, Dr Mastaglia provided a report, dated 8 June 2010, to those solicitors as follows:
“ Thank you for your request for a report dated 28th May 2010.
I confirm that:
1. Confirmation of the date of attendance;
I saw this patient on the 6th May 2010.
2. The history you obtained from our client;
The patient volunteered that she has officially retired as of January 2008 and is receiving Disability payments and has done so since 2004. She is now aged 57, she volunteers that she is living alone, she is having to get her gardening, lawn mowing and car detailing outsourced. She herself does not sleep well, she vacuums and then needs to rest. She has attempted to undertake an Exercise Program twice a week in an attempt to lose weight and to increase muscle tone.
She has difficulty using her hands when getting out of a chair, hanging out washing and doing this task is very uncomfortable. Doing up her bra, dressing and cooking are an effort and her hands often go numb despite the fact that nerve conduction study is apparently normal. She is aware that she clenches her jaw and has to use an Occlusion splint. She has in fact put on weight because of her stress, she acknowledges that she has sleep apnoea, but is not having treatment as yet. She has noticed a swelling of the dorsum of both hands. She is aware of throbbing in both upper limbs, her hand becomes quite discoloured (grey), there is a sensation of tearing at the back of the hand with paresthesia and numbness when holding objects and often worse at night and early morning.
3. The nature of her complaints;
I believe that this patient has had in summary an Occupational Overuse Syndrome resulting in a chronic pain syndrome and there has been previous documented evidence of tenosynovitis on Ultrasound. Her musculoskeletal problems have been compounded by a significant depression for which she sees a Psychiatrist.
4. The precise nature of her injury;
The nature of her injury relates to overuse.
5. Your findings on examination;
The patient has puffiness of both hands with no evidence of carpal tunnel, however marked tenderness throughout the entire upper limb on both sides and including the cervical spine and trapezius region. Thoracic spine is also tender. There is a full range of grip and pinch, but I thought the grip was weak in both hands. There was limitation of shoulder movement in rotation and abduction especially. There was a good range of movement of the cervical spine, but obviously with discomfort. Elbows flexed normally and she was tender over the epicondyle region. There was evidence of a Heberden’s node in the index finger of the right hand. There was tenderness at the base of both thumbs.
Review of her previous radiology revealed evidence of degenerative arthritis C4/5, C6/7 (MRI April 1999). Bone Scan of the cervical spine and shoulders showed evidence of degenerative arthritis in the acromioclavicular joints and evidence of rotator cuff degeneration in both shoulders. Facet arthritis in the cervical spine and thoracic spine.
6.Whether the injury is consistent with the history you obtained;
The injuries are consistent with the history I have obtained.
7.Whether she is incapacitated for work as a consequence of this injury and if so, to what extent;
The patient is totally incapacitated for work as a result of injury.
8.Treatment received by our client;
The patient is currently restricted to taking Brufen, Panadeine Forte, 60mgs Cymbalta and supplements, which include Zinc, Magnesium, Glucosamine Chondroitin, Fish Oil, Kelp and Iron.
9.Your general prognosis;
I am concerned by the chronicity of her symptoms and therefore this suggests a very poor outcome and prognosis.
10.Your assessment of the overall percentage whole person impairment assessed in accordance with the relevant tables of the Guide. Please identify the table you have used to assess our client’s impairment; the tests and investigations carried out by you and your findings on examination;
In assessing her overall who (sic) person impairment, utilising the guide to assessment of the degree of permanent impairment 2005;
Section 9.9 Wrists: Tables 9.9.1a, 9.9.1b. No impairment.
Section 9.10 Elbows: Including Tables 9.10.1a and 9.10.1b shows no impairment.
Utilising Section 9.11 Shoulders: Tables 9.11.1a and 9.11.1b
With reference to the right shoulder there is 1% WPI loss of extension, 5% WPI loss of flexion, 3% WPI loss of abduction, 1% WPI loss of adduction, 1% WPI loss of external rotation, 2% WPI loss of internal rotation leading to a total WPI of 13%.
With reference to the left shoulder there is 1% WPI loss of extension, 4% WPI of flexion (sic), 2% WPI loss abduction (sic), 1% WPI loss of adduction, 1% WPI loss of external rotation, 2% WPI loss of internal rotation with a total WPI of 11%.
10.Please state whether in your view our client’s impairment is permanent and state your reasons for your conclusion regarding permanence;
Impairment is permanent based on the chronicity of symptoms over a long period of time and lack of response to attempts of rehabilitation.
The guide to the assessment of degree of permanent impairment does not accommodate for the chronic pain syndrome that this patient is experiencing in the hands, wrists, forearms generally throughout the upper limbs and also the spine (cervical and thoracic spine). It does not accommodate for her depression.
Her response to treatment interventions have been poor and would be deemed as being unsuccessful leading to the chronicity of symptoms that I have alluded to in my initial paragraph.
11.Please identify any factors affecting our client’s prognosis and in particular whether the impairment may be reduced by further medical rehabilitative treatment. If so what treatment would you recommend and what effect would this have on our client’s impairment? Alternatively if there are any factors which will cause the impairment to deteriorate significantly please identify these and over what period of time would you expect the deterioration to occur.
The patient volunteers that she suffers from anxiety and depression, which would adversely affect her prognosis with reference to her musculoskeletal symptoms and attempt at rehabilitation. She is being treated for her depression as best possible and despite her depression and anxiety, attempts at rehabilitation have been unsuccessful and I find it unlikely that she will respond to any such rehabilitation intervention in the foreseeable future.” (Exhibit A8)
15. Dr Mastaglia provided a supplementary report, dated 31 August 2010, to the applicant’s solicitors as follows:
“ Thank you for your Fax regarding this patient and I confirm that I did undertake physical examination of the following:
Right Shoulder
Sagittal extension 30 degrees flexion 140 degrees
Rotation external 70 degrees internal 70 degrees
Abduction 120 degrees adduction 35 degrees
Left Shoulder
Sagittal extension 30 degrees flexion 70 degrees
Rotation external 50 degrees internal 40 degrees
Abduction 120 degrees adduction 35 degrees
…” (Exhibit A9)
16. In his oral evidence Dr Mastaglia acknowledged that his calculation of 13% “whole person impairment” in respect of the applicant’s right shoulder, as noted in section 10 of his report of 8 June 2010, is incorrect, and that the correct calculation is 7%. He also acknowledged that further rehabilitative treatment may be beneficial for the applicant and he added that an exercise program has been beneficial to her in the past and another exercise program would be “a good suggestion”.
Dr Robert Warner
17. Dr Warner, Occupational Physician, confirmed that he first saw the applicant in October 2003 and that he has continued to see her regularly since then, most recently in August 2010.
18. Dr Warner provided a report, dated 22 July 2004, regarding the applicant to the respondent as follows:
“ Thank you for your letter and questions regarding this lady.
§The patient’s history as given you;
When I saw Ms Storey on 13 November 2003 I found her very emotionally labile and referred her to a clinical psychologist Ms Lucy Dow.
She complains of an overuse syndrome of both her arms, shoulders and neck manifestly worse in the last two years of work.
In 1996 a bilateral carpal tunnel release of both wrists which has not been successful.
November 2002, she said she was removed from duties and was on sick leave for three weeks on Workers’ Compensation and two weeks holiday.
October 3, 2003 she was told she was unfit for duty. She then had severe reactive depression.
§Your diagnosis;
The above.
§The outcome of any relevant tests or other examinations;
I have not sent her for any relevant tests.
§Your treatment plan;
She is already attending a psychiatrist and you will have received her reports.
§Your prognosis for the condition;
Her prognosis, I believe for the overuse syndrome, depends on at the cessation of her depression her attending with the rehabilitation provider in the workplace to see if we can get her back on suitable duties.
In answer to your specific questions:
(a)What is the specific and accurate diagnosis of Ms Storey’s current condition? What is the relationship of this condition to her employment with the HIC?
She has overuse syndrome of both arms, shoulders and neck manifestly worse over the last two years of work. 1996 bilateral carpal tunnel release of both wrists which is not better. November 2002, sick leave for three weeks. October 3 2003, she alleges she was told she was unfit for duty, she then severe reactive depression. (sic)
(b)How does Ms Storey’s underlying and pre-existing condition impact on her current condition?
I have outlined all the conditions affecting Ms Storey and currently she has been certified as unfit for work on account of her depression. As mentioned previously the ability to get her back into some kind of duties in October, depends on the cessation of her depression.
(c)Has Ms Storey’s employment with the HIC aggravated, accelerated or caused a recurrence of her underlying or pre-existing condition? If so, what factors have contributed and when would you expect this aggravation, acceleration or recurrence to cease?
It would appear that Ms Storey’s employment with the HIC has aggravated her pre-existing conditions as outlined above. There appears to have been some kind of management/employee conflict but this has not ceased with her cessation of work.
(d)What factors within Ms Storey’s employment with the HIC are impacting to (sic) her current condition? Please provide details of the factors and how they are impacting?
The factors relating to her employment with the HIC have been detailed.
(e)What factors, if any, outside the scope of Ms Storey’s employment with the HIC are impacting on her current condition? Please provide details.
As far as I am aware Mss Storey’s private life is a very satisfactory one and would not impact on her employment.
(f)In relation to your medical certificate of 31 March 2004, can you please address the following:
(1)What dates did you consult with Ms Storey between 3 October 2003 and 31 March 2004?
I consulted with Ms Storey on 20 October 2003, 13 November 2003, 4 December 2003, 9 January 2004, 23 January 2004 telephone discussion, 27 January 2004, 6 February 2004, 11 February 2004, 15 March 2004, 31 March 2004, 28 April 2004, 19 May 2004, 31 May 2004, 18 June 2004, 2 July 2004 and 21 July 2004.
(2)For each date you consulted with Ms Storey, can you please advise what her capacity for employment was at the time?
On each occasion that I saw Ms Storey I thought her to be unfit for work both from the point of view of her physical and mental capacity.
(3) Her non-compensable psychological condition?
She had the overuse syndrome of both arms, shoulders and neck and in addition had a severe reactive depression.
(4) Any other reasons? Please provide details.
As detailed above I saw her on first on (sic) 20 October 2003.
(g) What restrictions apply to Ms Storey’s capacity for employment due to:
(1) The employment-related aspects of her physical condition?
She would have to go into a rehabilitation program to ascertain her capacity for employment and before this could commence in October and I have communicated to the rehabilitation provider.
(2) Any underlying or pre-existing condition?
None.
(3) Her non-compensable psychological condition?
I believe her psychiatrist has now made her psychological condition compensable.
(4) Any other reasons? Please provide details.
There are no other reasons.
(h)In relation to the above restrictions, can you please advise when you feel that they will no longer apply to Ms Storey’s capacity for employment?
Once again, it is up to the rehabilitation provider in October 2004 to attempt a trial of work.
(i)What forms of treatment, if any, would you recommend for Ms Storey in relation to the employment-related aspects of her current condition? For each treatment recommended, can you please provide details of the expected benefits, along with the required frequency and duration?
Her form of treatment for the depression is being conducted by the psychiatrist, Dr Jane Fitch. For her overuse syndrome she is at the moment having exercises and rest.
(j)What is your prognosis of Ms Storey’s current condition?
My prognosis is, hopefully, that Ms Storey’s current condition she (sic) will get back to work in October 2004.
(k)Please provide any further comments or observations that you feel are relevant to Ms Storey’s compensation claim.
I have no further comments.
…” (T30)
19. Dr Warner also provided a report, dated 20 May 2010, regarding the applicant to the respondent as follows:
“ Thank you for your request for a medical report regarding Ms Storey.
In answer to your specific questions:
1.What in your opinion is the specific diagnosis and the contributing factors of the condition from which Ms Storey currently suffers? Please provide details.
I am of the opinion that Ms Storey suffers from chronic pain syndrome of hands and arms/tenosynovitis hands and wrists resultant from occupational overuse. This is ongoing since diagnosed October 2003 and was manifestly worse for the previous 2 years of work.
2.What is the relationship, if any, between Ms Storey’s current condition and the injuries suffered on 20 October 2003? Please provide details.
As specified in my previous answer.
3.Is the injury you are treating Ms Storey for now, still the same injury of 20 October 2003 or an aggravation, or a new injury? If a new injury, would you please explain the cause of the new incident?
As specified in my answer to question 1.
4.What form of medical treatments is indicated, for what period of time is the treatment likely to be required, and what benefits do you expect she will receive from those treatments?
Ms Storey will benefit from ongoing treatments of:
§ Bowen Therapy: 1 treatment every 1–2 months
§ Yoga: once a week, and
§ Gym: twice weekly.
§ Please refer to the attached Medical review form for a list of medication.
I expect these treatments will relieve her pain enabling greater use of her affected limbs and ongoing improvement of her condition although I expect this improvement to be limited in the future.
5. What is the prognosis of the result of the injury suffered on 20 October 2003?
The prognosis is poor.
…” (original emphasis) (Exhibit A11)
20. In his oral evidence Dr Warner said that, when he last saw the applicant in August 2010, she reported that her arms and wrists were still painful. He added that she has complained of “aching in the arms” but “not so much in the shoulders and neck since she stopped working”. He acknowledged that, in Part C of the applicant’s permanent impairment compensation claim form which he completed on 18 January 2008 (T153, p 366 – see paragraph 4 above), he had made no reference to the applicant’s shoulders and he explained that this was because her shoulders had “played less part after she ceased work”. He confirmed that, in Part C of that form, he had opined that the applicant had a “whole person impairment” of 20% in respect of each upper limb under Table 9.4 in the 1st edition of the Guide to the Assessment of the Degree of Permanent Impairment. He said that, as regards digital dexterity, the applicant complained of “difficulties” with “fine things, like doing up buttons etc”, and, as regards grasping and holding, he had “no details – just a generalised complaint”.
Dr Mary Wyatt
21. Dr Wyatt, Occupational Physician, assessed the applicant on 18 November 2009 at the request of the respondent’s solicitors and she subsequently prepared a report, dated 2 December 2009, as follows:
“ …
HISTORY:
History of Condition and Progress:
Ms Storey is a 56 year old right hand dominant lady who worked in an administrative capacity at Medicare for just under 30 years. She indicates that she began having problems with her arms in the 1990s and had numbness in her hands. She describes the numbness in her hands initially coming and going, but then becoming constant. Associated with the numbness, she had pain in her arms, including pain extending up into her shoulders. She also describes having intermittent numbness in her upper limbs.
Eventually Ms Storey was referred for nerve conduction studies, and advised that she had carpal tunnel syndrome. She proceeded to have carpal tunnel release to both hands in 1996, initially to the right hand and then the left hand. That resolved the numbness in her hands but Ms Storey says it did not make any difference to the numbness in her arms, nor to the pain in her arms. She indicates that she was nevertheless able to return to her job, having a month off work after each operation.
Prior to her operation it is understood that Ms Storey continued to do her normal duties. She indicates that following her surgery she returned to work and seemingly remained on restricted duties for most of the time. She says she was not necessarily on restricted duties when she was working on jobs that were less manually intensive. She continued at work on that basis, not returning to a lot of typing.
Some years after her surgery Ms Storey says a graduated return to work plan was put in place. She reports some frustration, unhappiness and resentment that the return to work program had been put in place at that point, as she felt it should have occurred following her initial surgery.
Nevertheless the return to work program endeavoured to move Ms Storey towards getting back to her normal job. Essentially she says this did not make much of a difference, and she feels that there was not a great deal of attention paid to her problem.
She says the return to work program eventually petered out, mainly because there was lack of activity on behalf of the case management approach. Nevertheless Ms Storey continued in that regard until 2002.
In 2002 she and her role were moved to head office. She anticipated that she would be doing training and supervisor work, but this did not eventuate. She advises that she had to do more keying-in than was expected, and the job turned out to be quite demanding on her arms.
Ms Storey reported the problem and she indicates that her supervisor says she would be unable to continue in that role and stay at work if that was the issue.
At that point Ms Storey was sent for medical review, and was formally diagnosed with an occupational overuse syndrome. It was declared that she could not do her job.
Thereafter there was a meeting between Ms Storey, the employer and the union, and she was advised to ‘pack her bags’ and not offered any other options if she was not able to get back to her normal job. Ms Storey says she remains hurt about the manner in which the process occurred, without any opportunity to talk to others and she was advisedly not allowed to tell others what had transpired.
Thereafter Ms Storey took 12 months of sick leave and sought a second opinion. She applied for worker’s compensation and her claim was accepted. She says the manner in which things occurred left her depressed, and she also had a depression claim accepted.
Subsequently Ms Storey developed panic attacks. Eventually her mental health problems gradually improved, and she returned to work in October or November 2004, once again on a graduated program. She was able to get to six hours a day three days a week, but trying to move beyond that resulted in increased symptoms. Her hours of work were reduced back to six hours a day, although Ms Storey says she remained stressed and indicates that there were a number of issues happening at work that left her unhappy and she was not coping.
In January 2007 she was dealing with telephone enquiries, doing supervisory work and helping out others with enquiries. She indicates that there were continued problems with the roster and she felt that she was not being treated fairly. There was an equal opportunity claim lodged.
Eventually in January 2008 Ms Storey indicates that she was medically retired. She has been placed on incapacity payments at 75% of her normal wages, and understands that this will continue until the age of 65 years.
Over the last two years since ceasing work Ms Storey says her problem has been worsening rather than improving. She wonders if she has arthritis, and in fact thinks that the natural progression of an overuse problem is to develop arthritis in the arms.
Current Status:
Ms Storey has pain at the base of the index finger, around the web space and between the index finger and thumb, and generally around the base of the thumb – at both the front and back of the base of the thumb. It is a dull aching pain, with occasional sharp pain.
The left hand is worse than the right hand. In addition, she has soreness and aching at the extensor aspect of both forearms. Her previous shoulder pain has improved with taking fish oil, magnesium and zinc supplements, but the shoulders can be sore at times. Ms Storey’s hands go numb when hanging on to goods such as grocery bag for long periods.
Aggravating factors include stress and a lot of upper limb use.
At home Ms Storey does cleaning less often and in a modified way. She spaces domestic tasks over the week and minimises the amount of ironing she does at any one time. Ms Storey has a gardener to maintain the garden. She develops numbness in her hands with driving for more than 30 minutes.
In terms of treatment, Ms Storey attends the psychiatrist every six weeks, and the occupational physician monthly for certificates. She has Bowen therapy as needed – typically every few months. She does strengthening exercises with weights at home, in addition to cardiovascular activities on the stationary bike and rowing machine at a fitness centre. Ms Storey walks the dog for 30 minutes most days.
Medical and Social History:
Ms Storey indicates her general health is good. She is endeavouring to lose the two stone in weight she has gained since ceasing work. She fractured her left arm in a motor vehicle accident in the 1970s.
Ms Storey lives by herself in a three bedroom house. She had played sport up until development of the carpal tunnel syndrome. Her usual interests are sewing and basketball, but she is not currently engaging in these activities.
Occupational History:
Ms Storey was employed with Medicare doing administrative, call centre and customer service work and training. This involved computer work and a variable amount of keyboard and computer mouse work over the years.
Ms Storey was previously employed doing administrative work.
PHYSICAL EXAMINATION:
Ms Storey attended as a pleasant 56 year old lady, right hand dominant. She was accompanied by a friend to the assessment.
Ms Storey was notably overweight and of short stature. I felt she was generally co-operative over the course of the assessment, although had some concerns about demonstrated strength.
Upper Limbs/Shoulder Girdles:
Scars were noted consistent with the described surgery. She had normal movement at her shoulders and elbows and normal movement at her wrists. She had mild loss of flexion of the left thumb, with loss of 10˚ of flexion at the carpometacarpal joint and further loss of 10˚ at the metacarpophalangeal joint of the left thumb. Grip strength was demonstrated to be between 6–8 kg on the right, and between 3–5 kg on the left using a Jamar dynamometer.
Tenderness was advised over the base of the thumbs, wrists and forearms. There was mild tenderness generally around both elbows, particularly on the left. Ms Storey demonstrated a weakened pincer grip in the left hand but had a normal pincer grip in the right hand. In the left hand she was unable to oppose her thumb and little finger.
SUMMARY AND ASSESSMENT:
Ms Storey advises a long history of upper limb complaints, with her symptoms initially occurring in the mid 1990s, although she indicates that the numbness in her hands resolved with carpal tunnel release in 1996.
She has had further soreness in her arms over the years, and a diagnosis of an overuse syndrome has been made. Ms Storey returned to work on restricted duties. Initially she indicates that there was little in the way of aids provided, although in the last five years did have a number of aids such as an automatic stapler, appropriate workstation setup, special mouse, etc.
In answer to your specific questions:
3.1The history given to you by Ms Storey, including current symptoms and complaints.
Ms Storey indicates more troublesome upper limb symptoms dating from 2002, although symptoms obviously predate that. She has had continued soreness in her arms, with described numbness extending up the arms. She also describes weakness in her hand since her carpal tunnel release in the 1990s.
Her current symptoms are continued soreness in her upper limbs, particularly at the base of her thumbs and around the web space extending to the base of the index finger. She describes a dull aching pain in her forearms, particularly over the extensor aspect of the forearms. Ms Storey does modified activities at home, such as cleaning in a modified fashion.
3.2Your findings on clinical examination.
The examination findings are scars consistent with the described carpal tunnel surgery. There was normal movement at the shoulders and elbows and normal movement at the wrists. Mild loss of flexion of the left thumb was noted, with loss of 10˚ of flexion at the carpometacarpal joint and further loss of 10˚ at the metacarpophalangeal joint of the left thumb. Grip strength was demonstrated to be between 6–8 kg on the right, and between 3–5 kg on the left using a Jamar dynamometer. The loss of strength using the Jamar dynamometer suggests non functional weakness, in addition to the organic weakness.
Tenderness was advised over the base of the thumbs, wrists and forearms. There was mild tenderness generally around both elbows, particularly on the left. Ms Storey demonstrated a weakened pincer grip in the left hand but had a normal pincer grip in the right hand. In the left hand she was unable to oppose her thumb and little finger.
3.3Whether the current symptoms and physical restrictions Ms Storey reports to you are consistent with your findings on clinical examination.
Ms Storey’s clinical symptoms are consistent with the examination findings.
3.4Your diagnosis of Ms Storey’s condition with respect to her upper extremities.
Ms Storey’s diagnosis is continued arm pain. Reasonably this has caused an overuse problem although my preference is to use the term arm pain.
3.5 The factors that are contributing to Ms Storey’s condition.
Long term or chronic arm pain is a multifactorial problem. It is a common problem in the community, more common than is perhaps recognised. It is more common in people who do a lot of repetitive work and reasonably Ms Storey’s work has contributed to her arm pain.
Tension also tends to play a role, and people with this problem will often say that the symptoms are more troublesome when they are tense.
“ The total whole person impairment percentage for the assessed condition caused by this injury (tenosynovitis) is: 0%.”
26. In her oral evidence Dr Bacvic said that she did not find any functional impairment of the applicant’s hands.
Additional Medical evidence
Dr John Pearce
27. Dr Pearce, Consultant Occupational Physician, examined the applicant at the request of her employer on 11 September 2003, 2 February 2004 and 23 November 2006, and he subsequently prepared reports in respect of those examinations.
28. In his report (undated) regarding the examination on 11 September 2003, Dr Pearce opined that the applicant’s presentation was consistent with:
“ • multi-level degenerative change/spondylosis in her neck
• chronic pain syndrome
• impingement syndrome/degenerative rotator cuff injury in her shoulders
• hand weakness post carpal tunnel surgery
• chronic occupational overuse syndrome”. (T16, pp 71–77)
In his report of 11 February 2004 (T45, pp 153 – 157) Dr Pearce expressed the same opinion, and in his report of 1 December 2006 (T115) he listed the applicant’s physical conditions as follows:
“ • Hand weakness post-carpal tunnel surgery
• Bilateral Impingement Syndrome of her shoulders
• Mechanical neck pain
• Chronic Occupational Overuse Syndrome
• Chronic Pain Syndrome”.
In the latter report, Dr Pearce set out his examination findings in respect of the applicant’s “upper limbs and shoulder girdles” as follows:
“ Right arm dominant she struggled to complete the overhead clap test. She demonstrated a coarse tremor of the outstretched hands with moderate incoordination as tested by the nose/finger test. She was tender to palpation in the shoulders, upper and lower arms and wrists. She demonstrated a weakened grip bilaterally and had difficulty repetitively opening a door with either hand. The provocation tests of the shoulders and wrists were equivocal, the Phalen’s test was positive more so in the left arm than the right arm. Radiculopathy and dystrophic change were excluded.”
The Relevant Legislation
The SRC Act
29. The SRC Act relevantly provides:
“ 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.
…
(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.
…
27Compensation 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.
…
28Approved 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 Guide prepared by Comcare under subsection (1), and a variation or revocation under subsection (2) of such a Guide, must be approved by the Minister.
(3A)A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, is a legislative instrument made by the Minister on the day on which the Guide, or variation or revocation, is 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 licensee 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%.
…”
30. Section 4(1) of the SRC Act contains the following relevant definitions:
“ approved Guide means:
(a)the document, prepared by Comcare in accordance with section 28 under the title ‘Guide to the Assessment of the Degree of Permanent Impairment’, that has been approved by the Minister and is for the time being in force; and
(b)if an instrument varying the document has been approved by the Minister—that document as so varied.”
“ impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”
“ non‑economic loss, in relation to an employee who has suffered an injury resulting in a permanent impairment, means loss or damage of a non‑economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware.”
“ permanent means likely to continue indefinitely.”
The approved Guide
31. Because the applicant’s claim for compensation for permanent impairment was received by the respondent after 28 February 2006, the second edition of the Guide to the Assessment of the Degree of Permanent Impairment (“approved Guide”) applies in relation to the determination of that claim (see p iv of the approved Guide).
Analysis and Findings
32. The matters in respect of which the Tribunal is required to make findings, for the purposes of s 24 of the SRC Act, are as follows:
·whether the applicant has an “impairment” in respect of her hands/fingers, wrists, arms and/or shoulders resulting from a compensable injury;
·whether any such impairment is “permanent”; and
·the degree of any such permanent impairment.
Does the applicant have an “impairment” in respect of her hands/fingers, wrists, arms and/or shoulders?
Hands/fingers
33. The most recent relevant medical evidence may be summarised as follows:
·Dr Warner opined that the applicant has an impairment in respect of her hands resulting from the compensable tenosynovitis injury and occupational overuse;
·Dr Galton-Fenzi found “mild tenderness at the base of both thenar eminences (base of thumbs)” and “normal range of motion” in respect of her “digits”;
·Dr Mastaglia found a “full range of grip and pinch” although he “thought the grip was weak in both hands”;
·Dr Wyatt found “mild loss of flexion of the left thumb” which, she opined, resulted from the applicant’s previous carpal tunnel syndrome;
·Dr Bacvic did not find any impairment in respect of the applicant’s hands.
34. The Tribunal found Dr Wyatt to be a most impressive witness and regards her abovementioned reports as objective and very comprehensive. She was, furthermore, the only specialist medical witness to have examined the applicant more than once in recent years, namely, on 18 November 2009 and 20 August 2010, and on each occasion she found mild loss of flexion or mild reduction of movement at the base of the applicant’s left thumb which, she opined, was related to her previous carpal tunnel syndrome. The Tribunal attaches the greatest weight to her reports and evidence.
35. On the basis of the reports and evidence of Dr Wyatt, the Tribunal finds that the applicant has an “impairment”, within the meaning of s 24(1) of the SRC Act, in respect of her left thumb resulting from her previous carpal tunnel syndrome (which, the Tribunal understands, is a compensable “injury” for the purposes of s 24(1) of the SRC Act).
Wrists
36. The most recent relevant medical evidence may be summarised as follows:
·Dr Warner opined that the applicant has an impairment in respect of her wrists resulting from the compensable tenosynovitis injury and occupational overuse;
·Dr Galton-Fenzi found a “normal range of motion” in respect of the applicant’s wrists, although he noted that there was “stated mild discomfort with flexion and extension”;
·Dr Mastaglia opined that there was no impairment in respect of the applicant’s wrists;
· Dr Wyatt found “normal movement at the wrists”;
· Dr Bacvic found a “full range of movements” in the applicant’s wrists.
37. Having regard to the abovementioned medical evidence, the Tribunal finds that the applicant does not have an “impairment”, within the meaning of s 24(1) of the SRC Act, in respect of either of her wrists.
Arms
38. The most recent medical evidence may be summarised as follows:
·Dr Warner opined that the applicant has an impairment in respect of her arms resulting from occupational overuse;
·Dr Galton-Fenzi found a “normal range of motion in extension and flexion and with supination and pronation” in the applicant’s elbows, with no discomfort and “no evidence of epicondylar inflammation”;
·Dr Mastaglia noted “marked tenderness throughout the entire upper limb on both sides”, and tenderness over the epicondyle region, but he found that the “elbows flexed normally”;
·Dr Wyatt noted that the applicant complained of persistent pain in her arms and she opined that the applicant has an impairment in respect of each arm resulting from her previous carpal tunnel syndrome, although she found that there was “normal movement of the elbows”;
·Dr Bacvic found a “full range of movement in the elbows”.
39. Having regard to the abovementioned medical evidence, the Tribunal finds that the applicant has an “impairment”, within the meaning of s 24(1) of the SRC Act, in respect of her arms, and it finds, on the basis of Dr Wyatt’s reports and evidence, that the impairment in respect of the applicant’s arms results from her previous carpal tunnel syndrome.
Shoulders
40. The most recent medical evidence may be summarised as follows:
·Dr Warner did not refer to the applicant’s shoulders either in Part C of the applicant’s compensation claim form (see paragraph 4 above) or in his report of 20 May 2010, and in his oral evidence he explained that the applicant’s shoulders had “played less part after she ceased work”;
·Dr Galton-Fenzi found a “reduction in range of motion on all planes” in respect of the applicant’s shoulders, although he noted that she stated that “she does her bra up from behind (indicating that the range of shoulder movements is reasonably good)”;
·Dr Mastaglia found a “limitation of shoulder movement in rotation and abduction especially”;
·Dr Wyatt found, on 18 November 2009, that the applicant had “normal movement at her shoulders” but, on 20 August 2010, she found the applicant’s shoulder movements to be “quite variable”, with movement on the first attempt being “significantly more” than on the second attempt; she opined that the applicant did not have a “specific impairment in relation to the shoulders”;
·Dr Bacvic found that the applicant “demonstrated a good range of movements of the shoulders”, and she noted that abduction was “limited by the size of her upper arms”;
41. The Tribunal notes the substantial inconsistency in the ranges of movements of the shoulders demonstrated by the applicant when examined by Dr Wyatt on 20 August 2010 (as noted by Dr Wyatt in her report of 27 August 2010), and the comment by Dr Galton-Fenzi (in his report of 5 December 2009) that the applicant’s statement that she “does her bra up from behind” indicates that the “range of shoulder movements is reasonably good” (a comment with which Dr Wyatt expressed agreement in her report of 27 August 2010) although she demonstrated substantially reduced ranges of shoulder movements when physically examined by him. The Tribunal accepts Dr Wyatt’s opinion (expressed in her report of 27 August 2010) that, when she examined the applicant on 18 November 2009, the ranges of movements of the applicant’s shoulders were “normal for her” having regard to her excessive weight, and that the applicant does not have an impairment in respect of either of her shoulders. The Tribunal does not accept that the substantially reduced ranges of shoulder movements demonstrated by the applicant to Dr Galton-Fenzi, Dr Mastaglia and Dr Wyatt (on her second attempt on 20 August 2010), as recorded in their reports, represent a true indication of the ranges of shoulder movements which she has the physical capacity to achieve.
42. The Tribunal, furthermore, regards it as very significant that Dr Warner, who has treated the applicant from October 2003 to August 2010 and who supported her claim for permanent impairment compensation, did not refer to the applicant’s shoulders either in his report comprising part of the applicant’s compensation claim form or in his most recent report dated 20 May 2010, and notes his explanation (as stated by him in his oral evidence) that the applicant’s shoulders had “played less part after she ceased work”.
43. The Tribunal finds, on the basis of the evidence of Dr Wyatt, Dr Bacvic and Dr Warner, that the applicant does not have an “impairment”, within the meaning of s 24(1) of the SRC Act, in respect of either of her shoulders.
Does the applicant have a “permanent impairment” of her arms or left thumb?
44. Dr Galton-Fenzi opined that the pains and discomfort in the applicant’s upper limbs are not permanent because they represent a “generalised pain condition” which “can be adequately managed utilising appropriate medications and … will resolve with time”.
45. Dr Wyatt opined that the impairment in respect of the applicant’s left thumb, and the impairment in respect of each of her arms, are permanent because it is expected that she will have “ongoing residual symptoms that will continue into the long term” and it is not expected that those impairments will be reduced by further medical or rehabilitative treatment.
46. Dr Mastaglia also opined that the applicant’s impairment (as found by him) is “permanent based on the chronicity of symptoms over a long period of time and lack of response to attempts of rehabilitation”.
47. The Tribunal finds, having regard to the matters referred to in s 24(2) of the SRC Act, and on the basis of the evidence of Dr Wyatt and Dr Mastaglia, that the applicant has a “permanent impairment”, within the meaning of s 24(1) of the SRC Act, in respect of her left thumb and each of her arms.
What is the degree of each of the applicant’s permanent impairments?
Arms
48. Dr Wyatt opined that the applicant has a “grade 4 motor impairment of the median nerve below the mid forearm” and, applying Table 9.13.2b in the second edition of the approved Guide, she assessed the degree of permanent impairment in respect of each of the applicant’s arms as 1%.
49. The Tribunal does not accept Dr Warner’s assessment, in Part C of the applicant’s compensation claim form, that the applicant has an impairment of 20% in respect of each upper limb. In the Tribunal’s opinion, the basis on which he made that assessment (as stated in his oral evidence – see paragraph 20 above) was inadequate and unconvincing. Furthermore, that assessment was made under Table 9.4 in the first edition of the approved Guide which is inapplicable in this case.
50. None of the other medical witnesses made an assessment of the degree of impairment in respect of the applicant’s arms.
51. The Tribunal accepts Dr Wyatt’s opinion and assessment and, on the basis thereof, it finds, pursuant to s 24 of the SRC Act, that the degree of permanent impairment in respect of each of the applicant’s arms is 1%.
Left thumb
52. Dr Wyatt found a “mild” loss of movement (flexion) at the base of the applicant’s left thumb and, applying Table 9.8.1a in the second edition of the approved Guide, she assessed the degree of permanent impairment in respect of the applicant’s left thumb as 1%.
53. As previously mentioned, the Tribunal does not accept Dr Warner’s assessment of the degree of impairment of the applicant’s upper limbs (including hands and digits), and none of the other medical witnesses made an assessment of the degree of impairment in respect of the applicant’s hands or digits.
54. The Tribunal accepts Dr Wyatt’s finding and assessment and, on the basis thereof, it finds, pursuant to s 24 of the SRC Act, that the degree of permanent impairment in respect of the applicant’s left thumb is 1%.
Is compensation payable to the applicant under ss 24 and 27 of the SRC Act?
55. The Tribunal has found that:
·the applicant has a permanent impairment of 1% in respect of her left thumb and 1% in respect of each of her arms – that is, a total permanent impairment of 3% – resulting from a compensable injury, namely, carpal tunnel syndrome;
·the applicant does not have an impairment in respect of any other part of her upper limbs, including her shoulders.
As regards the applicant’s shoulders, if, contrary to the Tribunal’s abovementioned finding, the applicant does have an impairment, the Tribunal finds, on the basis of the evidence of Dr Wyatt and Dr Bacvic, that such impairment does not result from a compensable injury and that any reduction in the normal ranges of movements of her shoulders is entirely due to the large size of her arms by reason of her excessive weight.
56. As regards the permanent impairments in respect of the applicant’s left thumb and arms which, the Tribunal has found, result from a compensable injury, the question arises whether compensation is payable to the applicant under ss 24 and 27 of the SRC Act.
57. If s 24(7) of the SRC Act is applicable in this case, compensation is not payable to the applicant under s 24 (and s 27) because the degree of her permanent impairment is less than 10%. Section 24(8), however, provides that subs (7) does not apply to, amongst other specified impairments, “(a) the impairment constituted by the loss, or the loss of the use, of a finger”. The respondent conceded that, in the event that the Tribunal were to find (as it has), on the basis of Dr Wyatt’s reports and evidence, that the applicant has a 1% permanent impairment by reason of the restriction of the movements of her left thumb resulting from a compensable injury, compensation would be payable to her under s 24 of the SRC Act by reason of s 24(8)(a). That concession was presumably made on the basis of Page v Telstra Corporation Ltd [2004] FCAFC 80.
58. In Page the Full Court of the Federal Court of Australia held (by majority) that the phrase “the loss, or the loss of the use, of a finger” in s 24(8)(a) of the SRC Act is not limited to the total loss, or the total loss of the use, of a finger and includes the partial loss, or the partial loss of the use, of a finger.
59. In the present case the relevant impairment is constituted by the partial loss of use of a thumb. Does the word “finger” in s 24(8)(a) of the SRC Act include “thumb”.
60. The noun “finger” is relevantly defined in Macquarie Dictionary (5th ed) as:
“ 1 any of the terminal members of the hand, especially one other than the thumb”
and in Oxford English Dictionary as:
“a One of the five terminal members of the hand; in a restricted sense, one of the four excluding the thumb”.
In Dorland’s Medical Dictionary “finger” is defined as:
“ one of the five digits of the hand”.
In Thiele v Commonwealth of Australia (1990) 11 AAR 376 the Federal Court of Australia (Hill J), referring to the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (a predecessor of the SRC Act), said (at 380):
“ The present legislation is socially remedial legislation intended to benefit workers and should be given a construction which advances its purposes as such. Thus where two constructions are possible, that which is favourable to the worker should be preferred…”
Accordingly, the word “finger” in s 24(8)(a) of the SRC Act should be broadly construed, in favour of the applicant, to include “thumb”.
61. It follows that the present case is relevantly indistinguishable from Page and, being bound by the decision of the majority in that case, the Tribunal accepts the abovementioned concession of the respondent.
62. The Tribunal concludes, therefore, that the respondent is liable to pay compensation under s 24 of the SRC Act to the applicant on the basis of a 1% permanent impairment constituted by “the loss of the use” of her left thumb, within the meaning of s 24(8)(a) of that Act. It follows, pursuant to s 27(1) of the SRC Act, that the respondent is liable to pay additional compensation to the applicant in accordance with that section. Pursuant to s 24(7) of the SRC Act, however, the respondent is not liable to pay compensation to the applicant for permanent impairment in respect of her arms.
63. The Tribunal is unable, on the basis of the evidence before it, to assess the amount of compensation payable to the applicant under s 24 – and, consequentially, under s 27 – of the SRC Act for permanent impairment in respect of her left thumb, and the matter is remitted to the respondent for the purpose of making such an assessment.
Decision
64. For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that the respondent is liable to pay compensation to the applicant, pursuant to ss 24 and 27 of the SRC Act, on the basis of a 1% degree of permanent impairment under Table 9.8.1a in the second edition of the approved Guide.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member
Signed: ...............[sgd D Brodie]........................
Associate
Dates of Hearing 7 – 9 September 2010
Date of Decision 3 December 2010
Counsel for the Applicant Ms R Cosentino
Solicitor for the Applicant Gibson & Gibson
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Sparke Helmore
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