Thyer and Comcare
[2005] AATA 281
•11 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 281
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/125 & S2004/120
GENERAL ADMINISTRATIVE DIVISION ) Re MATTHEW SEAN THYER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member WJF Purcell
Dr ET Eriksen (Member)Date11 March 2005
PlaceAdelaide
Decision The Tribunal sets aside the first decision under review (S2003/125), and substitutes a decision that:
(a) During the period 8 November 2001 to 3 December 2002, the applicant is entitled to compensation in respect of the condition of tenosynovitis/synovitis pursuant to ss 16 and 19 of the Safety Rehabilitation and Compensation Act 1988.
(b) Comcare is liable to pay compensation to the applicant in relation to the upper arm conditions of epicondylitis of the elbows, and tendonitis of the wrists, as and from 3 December 2002.
(c) Comcare shall pay the applicant’s costs of these proceedings, such costs in the absence of agreement to be taxed by the Registrar or a District Registrar of the Tribunal.
In relation to the second decision under review (S2004/120), the Tribunal affirms the decision under review.(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
COMPENSATION – claims for continuing liability and permanent impairment – synovitis and tenosynovitis bilateral – injuries resulting in incapacity – ongoing entitlement – medical expenses – first decision set aside – second decision affirmed
Safety Rehabilitation and Compensation Act 1988 ss 14, 16, 19, 24, 27
Rosillo v Telstra Corporation Limited [2003] FCA 1628
Pisani and Comcare [2004] AATA 441
REASONS FOR DECISION
11 March 2005 Senior Member WJF Purcell
Dr ET Eriksen (Member)1. This is an application for review of two decisions of the respondent (Comcare). The first, dated 28 February 2003, affirmed a determination of 4 December 2002, that on and from 3 December 2002, Comcare was no longer liable to pay compensation to the applicant in relation to his accepted condition of “synovitis and tenosynovitis (bilateral)” which occurred on 8 November 2001 (the first determination). The second, dated 5 April 2004, affirmed a determination of 19 March 2004, that the applicant was not entitled to compensation in respect of a claim for permanent impairment, pursuant to s 24 of the Safety Rehabilitation and Compensation Act 1988 (the Act), for “bilateral synovitis and tenosynovitis” (the second determination).
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and supplementary documents, together with exhibits tendered by the parties. The applicant, who was represented by Ms Chambers, gave oral evidence, and called Dr B Rositano, his treating General Practitioner, Dr D Cullum, Consultant Occupational Physician, and Dr W Hill, Rheumatologist, as witnesses. Mr Cole appeared as counsel for Comcare, which called Dr M Awerbuch, Consultant Physician in Musculoskeletal Disorders and Rheumatology, as a witness.
3. The applicant, who is 37 years of age, was born in Melbourne, and moved to South Australia as a child. He completed a Bachelor of Applied Science in Computer Studies at the South Australian Institute of Technology (now known as the University of South Australia). The course provided him with training in a wide range of computer studies areas, including computer graphics, artificial intelligence, information systems, design of integrated circuits, programming and systems administration. He completed the course in 1990, and was accepted into the Department of Defence in 1991, under a graduate admission scheme.
4. The applicant commenced work on 21 October 1991, in Canberra, as an Information Technology Officer Level 1 (ITO1), and his future wife followed him in the move. The work primarily involved systems administration for a small software development project team. He was also using the project management tool “Microsoft Project” on a weekly basis, assisting the project manager in keeping the project on track. The role of systems administrator required him to keep a network of UNIX and Windows systems operating for approximately 25 people. The work with the project management tool was a weekly task requiring him to produce reports, which the software development teams would update, whereupon he would perform data entry to reflect the new information in the project management tool. He would then assist the project manager with his use of the tool, in order to keep the project on track. The applicant was promoted to ITO2 in 1994.
5. On 9 September 1996 the applicant, having returned to South Australia, commenced work in the UNIX systems support team of Corporation Information Systems (CIS), which is the in-house information technology support organisation of the Defence Science Technology Organisation (DSTO) within the Department of Defence. His new job was involved primarily with UNIX systems administration. CIS is now known as Science Corporate Information Systems (SCIS). He has remained in the UNIX systems support team since he started with DSTO, except for a couple of months after the injury in November 2001 (the injury). The ITO2 level later became known as Science and Technology, Level 4 (S&T4). In the wider public service, this is equivalent to an APS 6 position.
6. The applicant’s work with SCIS involves all levels of UNIX systems support, including setting up new desktop and server systems, installation and support of applications, programming of shell scripts for systems administration, printer support, and the preparation of high-performance computing clusters. He also works as part of the team that provides DSTO with secure internet access. He is often called upon to assist the more junior or less skilful members of the team with their duties. He continues to use both Windows and UNIX systems in his current duties. The key difference between Windows and UNIX systems administration is that the UNIX system can generally be administered from a central location. This central location can be any computer on the network, and in the applicant’s case, it is his desk. As a result, he would be seated at his desk for a higher proportion of time than would a Windows systems administrator. The main reason for this difference is that with Windows you need to travel to the computer to carry out the work. With UNIX systems, the user does not need to visit his clients as regularly, as he can do almost all of his work from his desk.
7. The applicant says that in about October 2000, he made a request to Mr Leicester, his immediate supervisor, for additional resources, because he felt the work was getting on top of him, and he was unable to satisfy his clients’ requests within a reasonable period of time. This request was denied at the time, but within a few months, the allocation of work was restructured, such that all UNIX support team members would not work for all of the clients. This, he says, was somewhat problematic due to the fact that each client division has their systems configured differently, the configuration of each group of systems was not documented, and UNIX support team personnel (the applicant included) tend still, to support the division they are most familiar with. Support of other divisions often requires reverse engineering to determine their configuration.
8. The applicant gave evidence that in early November 2001 he developed pain in his right forearm and wrist, and then as a result of using the mouse with his left hand, developed pain in his left arm, including forearm and wrist. He consulted Dr Rositano on 8 November 2001. Dr Rositano placed the applicant on modified working duties, and referred him for x-ray and ultrasound testing. On 13 November 2001, these tests, on both arms, were recorded as “normal”. The applicant was referred, on the same day, to a physiotherapist, at Physio Direct, and to Occupational Therapist, Ms Helen Moody. On 14 November 2001, the applicant lodged a claim for compensation for the condition of “tenosynovitis in both forearms”.
9. On 11 December 2001 Comcare accepted liability for “synovitis and tenosynovitis (bilateral)” in accordance with s 14 of the Act, which provides:
“(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.”
10. The delegate’s determination reads, in part:
“…
I therefore determine that Comcare is liable to pay compensation under the Safety Rehabilitation and Compensation Act 1988.
Your date of injury has been determined under section 7(4) of this Act. It states:
‘For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.’
Medical treatment claims resulting from this injury will be accepted up to and including 05/02/2002. Time off work claims resulting from this injury will be accepted up to and including 14/11/2001.
If you wish to claim compensation for medical treatment or time off work, beyond these dates, it will be necessary for you to provide further supporting medical evidence from your treating doctor or specialist as outlined in the attached ‘Additional Advice to Claimants’ and ‘Medical Review Certificate’.
Medical expenses related to your condition will be paid by Comcare to you or the provider of the services, as appropriate. Whether we are reimbursing you or the provider of the service for the cost incurred, the amount paid will be the amount set by various professional associations, such as the AMA. Please do not arrange for your medical accounts to be paid or bulk billed through Medicare or your Private Health Insurer as this may result in significant delays in you receiving payments from Comcare.
…” [T9/19]
11. On 13 December 2001, Ms Moody, Occupational Therapist, visited the applicant’s workstation. She recommended removal of the arms on his chair, the use of the mouse with the distal third of the forearm supported on the desk, and also gave him advice in relation to relaxing his wrist whilst using the mouse, alternating between left and right mouse use, and a Microsoft natural keyboard was also recommended. This keyboard encourages a less strenuous wrist position for keyboard use. The applicant also obtained a “3M Renaissance Mouse”, which requires a different action, which rests the muscles affected by typical mouse use, but it can only be used by the right hand. He said in evidence that the 3M Renaissance Mouse helped, but not the keyboard. He was supposed to take breaks – 15 minutes on, and 15 minutes off – but it was difficult to maintain, and he says that he spent more time working, and less resting. On 18 January 2002 Dr Rositano recommended that the applicant continue with physiotherapy treatment for another two months as required; and on 15 February 2002 he noted that as recommended by the physiotherapist, the applicant was to commence a twice weekly gymnasium programme.
12. The applicant said in evidence that he found that between December 2001 and March 2002, his symptoms continued to increase in severity, and he became very anxious and depressed at not being able to complete the tasks he had set for himself during the day. In early March 2002 he realised that he was dreading every single keystroke and mouse click, due to the pain that accompanied them. On 1 March 2002 he was referred to Mr Barry Whiteread, Psychologist, and Dr Silferskiold, an upper limb specialist. Dr Rositano recommended that the applicant not undertake any computer work or mouse work until reviewed, in April 2002. He was also seen by Ms Suzanne Caragianis, Hand Occupational Therapist. The applicant was transferred to the position of Problem Resolution Co-ordinator. He says that he was unfamiliar with the position and felt anxious and depressed that he was unable to keep up the demand and meet the expected productivity. He was provided with a voice recognition program, borrowed from a client, for a two month period. The review took place on 9 April 2002. Modified duties were to continue, and it was noted that voice recognition software was being utilised for email access.
13. On 2 May 2002 Dr Rositano recommended a course of hydro-therapy. The applicant’s Departmental Rehabilitation Case Manager recommended approval, as the gymnasium program was not proving to be beneficial. On 14 May 2002 Comcare accepted liability, and the letter of advice reads, in part:
“…
I refer to your accepted claim for synovitis & tenosynovitis (Bilateral).
As per medical certificate dated 2 May 2002 liability has been accepted for the above condition for hydrotherapy once per week.
Liability has been accepted up to and including 31 August 2002. If you need to claim compensation beyond that date, it will be necessary for you to provide further supporting medical evidence from your treating doctor or specialist.
…” [T28/43]
14. On 17 May 2002 Dr Rositano recommended that the applicant commence keyboard mouse work for 15 minutes, alternating with 15 minutes voice recognition. The applicant had minor sensory changes of the median and ulnar tissue, but Dr Rositano did not find them “helpful”, and did not change his diagnosis. In order to exclude a carpel tunnel syndrome, Dr Rositano referred the applicant to Dr Cullum, Occupational Physician, “for an opinion and management re bilateral forearm injuries” [T30/45]. Dr Cullum examined the applicant on 13 June 2002.
15. In early June 2002 Mr Whiteread, Psychologist, diagnosed the applicant as suffering from “an adjustment disorder with associated depressed moods”. Mr Whiteread provided the applicant with some cognitive and relaxation therapy, and the applicant says, assisted him with understanding the injury and the manner in which it was changing his mood. In late May/early June 2002 the applicant, at his own request, returned to his normal role of UNIX Systems Administrator.
16. On 6 June 2002 a follow-up review meeting was held, and Ms Moody reported the applicant’s current status as follows:
“…
I have outlined our discussion and recommendations as follows:
Current Status
·Matthew commenced 15 minutes x 2 of keyboard/mouse work on 18/5/02.
·He reports that he is managing well with this level of keyboard work and that his symptoms have settled.
·He is now working back in his original area on Unix help desk.
·Symptoms are now felt mainly at night in both forearms and right wrist when he stops activity. This is more of an ache than sharp pains. He reports less interference with daily activity and is able to push the buttons on his mobile phone without using a pen. He feels that he is continuing to improve.
·Treatment – Hand therapy will cease after one more session, continuing to attend hydrotherapy twice per week.
…” [T35/50]
Further modifications of the workplace were to take place, with a further review to be held on 23 July 2002.
17. On 23 July 2002, Ms Moody reported that the applicant stated that he was progressing very well with a steady improvement. He was doing basically most of his normal duties in the UNIX team, with up to 45-50 minutes of keying per hour. He was continuing to see Ms Caragianis, the Hand Occupational Therapist, once per fortnight; but had discontinued the hydro-therapy on the advice of Dr Cullum. He was trialling a joystick type mouse, with which he reported initial benefit. He said in evidence that Ms Caragianis had massaged his hands, talked about trigger points, and provided him with grip strengthening exercises. Subsequently she provided him with a 30 pound “gripper” to strengthen his muscles. He has been meticulous in undertaking these exercises, and continues now to use the “gripper”.
18. On 26 July 2002 the applicant commenced one month’s recreation leave for a family holiday in Thailand and the United States. He said in evidence that he did not access any of his emails whilst he was overseas, although he had access to his brother’s computer in the United States. He said in evidence that he felt better whilst on holidays. The pain in both forearms, wrists and inner elbows was constant, but it was reduced significantly as a result of him not using a keyboard and mouse. He said in evidence that he had expected that he would be able to return to full duties, but within the first few minutes of keyboard and mouse use, upon his return to work in August 2002, the pain returned to intolerable levels; and he found it difficult again, to keep up with his work.
19. Some time prior to 5 September 2002 the applicant lodged accounts for treatment by Mr Whiteread, Psychologist. Comcare on 5 September 2002 forwarded a letter to the applicant which reads, in part:
“We are unable to accept the attached account(s) for psychology treatment for payment.
To proceed with this claim further, medical evidence showing how the treatment relates to your accepted condition is required. Please return the account(s) with the evidence.
…” [T47/67]
20. On 17 September 2002 Comcare wrote to Dr Rositano. The letter reads, in part, as follows:
“…
I note that you referred Mr Thyer to Dr Whiteread for psychological treatment. In order for Comcare to consider liability for this treatment, could you please supply the following information:
1.How does this treatment relate to Mr Thyer’s accepted compensation claim for synovitis and tenosynovitis (Bilateral)?
2. Therapeutic value of the treatment;
3.What improvements can be expected in Mr Thyer’s compensable condition as a result of this treatment
4.What improvements can be expected in any work restrictions Mr Thyer may have; and
5. The recommended frequency and duration of the treatment.
…” [T48/68]
21. Dr Awerbuch, Rheumatologist, examined the applicant on 24 September 2002 at the request of Comcare. Comcare had written to Dr Awerbuch on 19 August 2002 requesting a report. In the course of her letter of request, Ms Bloomfield outlined the treatments the applicant had undertaken as follows:
“…
Treatment
Dr Rositano, General Practitioner of Melrose Park, 14 consultations.
Dr David Cullum, Consultant Occupational Physician of North Adelaide, 2 consultations.
SCHOT Pty Ltd, Occupational therapy of Daw Park, 5 treatments.
Physio Direct of Wayville, 66 treatments including 6 sessions of group hydrotherapy and 4 sessions of hydrotherapy by physiotherapist and 12 pool entry.
Mr Thyer has also seen Psychologist Mr Barry Whiteread of Melrose Park on 6 occasions, though these treatments have been rejected.
…” [T45/64]
22. The delegate wrote to the applicant on 10 October 2002. The letter reads, in part, as follows:
“…
From the medical and other evidence currently on file, I am not satisfied that ongoing liability can be supported.
In this regard Dr Awerbuch reported on 25 September 2002 that:
‘Mr Thyer does not suffer from any identifiable organic injury or medical disorder. Specifically he has no clinical signs to suggest the presence of tenosynovitis (nor synovitis). The likelihood of his having these conditions as a consequence of work-related activities is in my opinion sufficiently remote to be discounted. Mr Thyer has after all been performing exactly the same sort of work for at least 10 years. Moreover, for a period of 5 months prior to the onset of his symptoms he actually reduced the amount of time he spent on a keyboard and operating a computer mouse. This reduction in keyboard activity was occasioned by his no longer using his own personal computers at home apparently because he was having difficulty in dealing with large volumes of email. The problem in dealing with large amounts of email was a time management problem and not due to arm pain.’
Dr Awerbuch goes on to say 'I consider that Mr Thyer’s condition was neither caused by nor materially contributed to by his keyboard or computer mouse activities during the course of his employment with the Department of Defence. There are now extensive data indicating that job dissatisfaction of the sort articulated by Mr Thyer is at the heart of many complaints of upper limb pain in the workplace (Ryan A et al 1985; Linton SJ 1989; Dimberg : et al 1989; Bongers PM et al 1993). One other recalling upper limb discomfort in the workplace had far less to do with the physical elements of the tasks and “most to do with the perception that positive aspects of the psychosocial context in which they worked were lacking” (Hadler NM.J Hand Surg 1997;22a: 19-29)”.
In this regard, I cannot be satisfied that you continue to suffer from any medical condition materially related to your employment with the Department of Defence.
Therefore, this letter is to advise you it is my intention to determine that compensation including medical expenses will not be payable in respect of your claim on and from 7 November 2002.
…” [T51/80-81]
23. On 17 October 2002 Ms Moody, the Occupational Therapist, wrote to the applicant advising that she would be closing his Return to Work Plan, given that he was now back on full duties. She stated that this closure signified the end of his rehabilitation involvement, but did not reflect the status of his Comcare claim.
24. On 5 November 2002 Dr Rositano replied to Comcare’s letter of 17 September 2002, in the following terms:
“…
1) Mr. Thyer was quite emotionally distressed by his bilateral Synovitis and Tenosynovitis and I felt he needed some pain management counselling, hence the referral to Mr. B. Whiteread a Psychologist.
2) The treatment was valuable and enabled Mr. Thyer to remain at work.
3) He can improve in his mental response to the physical injury.
4) He will, as is the case, be able to return to normal duties.
5) He has seen the Psychologist on 4 – 5 occasions and no longer has any need to see him at this stage.” [T58/88]
25. On 26 November 2002 Dr Rositano wrote a further letter to Comcare in the following terms:
“…
In reply to your letter to my patient Mr. Matthew Thyer and in relation to Dr. Awerbuch’s report, I have continued reviewing Mr. Thyer, the last occasion being on the 26th November, 2002. Basically he is still experiencing symptoms of bilateral forearm tenderness (the right being worse), especially after repetitive computer use.
There is no doubt in my mind that he had bilateral forearm Tenosynovitis when seen in November 2001. Currently he is coping with full time modified duties and has improved significantly.
When seen by Dr. Awerbuch 10 months after the original injury, Mr. Thyer’s symptoms and signs were greatly diminished. However, there is absolutely no way Dr. Awerbuch can arrive at the conclusions he has, simply because he hadn’t examined Mr. Thyer when the injury occurred. In a court of law his evidence would be discounted.
Mr. Thyer has the right to attend me if he wishes me to monitor his condition and treatment and I expect my expenses to be met. This attitude by Comcare can only cause him more stress and potentially worsen his condition.” [T66/96]
26. On 4 December 2002 the delegate advised that she was satisfied that as and from 3 December 2002, Comcare was no longer liable to pay compensation for “synovitis and tenosynovitis (bilateral)”. In the course of her letter of advice she stated:
“…
I understand you were given the opportunity of having Dr Awerbuch add any omissions or correct any errors which you may have felt were present. You indicated your satisfaction with the clinical history dictated in front of you but said on reflection regarding possible theories as to why you had developed your symptoms when you did, that in fact you had not had any promotion since 1994 was a matter of concern to you. In addition you said that you could really see no future for yourself with the Department of Defence and that there appeared to be few opportunities for a person of your qualifications in South Australia to further a career.
With reference to Dr Cullum’s report of 19 November 2002, Occupational Physician, states ‘He clearly does suffer from a minor identifiable organic injury which is largely resolving but will be now complicated by the patient’s distress at the recent report given that he has already had the diagnosis of an Adjustment Disorder with depressed mood from previous psychologists’. With reference to an adjustment disorder with depressed mood, Comcare has never accepted liability for any psychological condition nor have we received any medical evidence to indicate that you are currently suffering from a psychological condition.
I am in receipt of a medical report from Dr Bruno Rositano dated 5 November 2002 in which he states ‘He has seen the Psychologist on 4-5 occasions and no longer has any need to see him at this stage’.
…” [T67/98]
27. The applicant requested a reconsideration of the determination; and on 28 February 2003 the Review Officer affirmed the determination by the decision under review, and stated, in part:
“…
6Reasons
The determination of 4 December 2002 finds that the effects of the compensable condition have ceased and ceases entitlement to compensation on and from 3 December 2002. The determination did not revoke the determination that found liability initially.
I reject the assertion that Mr [sic] Awerbuch’s opinion should be rejected because he is a rheumatologist and has well known views on repetitive strain injuries. Mr Awerbuch is a consultant physician in musculoskeletal disorders, rheumatology and medical director of Pain Management Unit Inc. There is no suggestion that he is not qualified to perform the examination that he did. No evidence has been provided that refutes Mr Awerbuch’s clinical findings that the employee does not suffer from any organic condition of his upper limbs.
Dr Cullum indicates that the employee has greatly improved, and opines that the employee has a minor organic injury, however this injury is not specified. Also, he states that the employee is now suffering from an Adjustment Disorder with depressed mood. Comcare has not accepted liability for any psychiatric condition, and any physical manifestation of a psychiatric condition is not compensable.
Dr Rositano says that the employee had tenosynovitis in November 2001, that he has improved significantly and now has symptoms of forearm tenderness.
The weight of the evidence strongly suggests that the employee does not suffer from any identifiable organic condition affecting his upper limbs, and no longer has synovitis or tenosynovitis and therefore the determination of 4 December 2002 should be affirmed.
…” [T74/108-109]
28. The applicant stated [Exhibit A1 paragraph 70] that after Comcare declined liability, Dr Rositano reduced the frequency of his reviews from monthly to three monthly. He stated, also, that between March 2003 and June 2003, he spent approximately $1,000 on Chinese traditional acupuncture therapy, massage and herbal medicine. He ceased that treatment, as his budget could not absorb this in the long-term, and also because he was advised that it was unlikely that these moneys would be reimbursed, because of the alternative nature of the treatment. He said in evidence also, that since 2003 the pain has radiated to his upper arms, into his biceps and shoulder regions. This upper arm pain, however, is not something that he has raised with his treating general practitioner, Dr Rositano, nor with any of the other medical experts.
29. On 6 June 2003, at the request of his solicitors, he was examined by Dr William Hill, Rheumatologist. Dr Hill reported on 10 June 2003 that his diagnosis was:
“… arm symptoms due to occupational over usage with multi factorial input. Sensitivity to symptomatology has developed, background muscle tension has most likely increased, psychological consequences of impaired physical performance at work have occurred with their own input back into the pain experience …” [ST78/120]
30. Dr Hill considered that at that stage, although the symptoms had been entrenched for 18 months, he would hope that with a properly implemented program the applicant would not have a permanent impairment, and if there was a permanent impairment, the impairment should only be assessed after a program had been put in place.
31. The applicant gave evidence that in August 2003 his supervisor, Mr Leicester, approved the purchase of the voice recognition software, which is licensed to allow the applicant to install it in his home (at his own expense of $2,000 for a sufficiently powerful home computer). This enables him to use the computer, out of hours, for web browsing, word processing, pursuit of his hobby (open source UNIX and open source software), and general interaction with the ever expanding online community. He says that his symptoms have slightly reduced, and that he believes that he has come to terms now, with his injury.
32. The applicant says that he accepts that he will not attain the high degree of productivity he had previously. He has adjusted his work behaviour so that he no longer accepts as much work, because he realises now that he cannot get through the work in a timely manner. As a result, he is less anxious than he was during the first year after the injury. Prior to these realisations, he would still attempt a similar level of work, which was leading to client dissatisfaction with the length of time he was taking to fulfil their requests. He is performing now more project work, and he would like to have the opportunity to explore more assisting technology (such as a thought mouse) to improve his productivity. There is no one to do this for him since Comcare denied liability. He has little time to investigate these things himself, considering his workload, management pressure, and the time it takes him to do online research. In the past, prior to his injury, he has spent time at home self-educating in order to increase his UNIX systems administration skills and knowledge of open source software. He still attempts to do some of this at home through voice recognition, but is finding progress to be very slow.
33. The applicant said in evidence that he has ceased playing computer games since his injury, as this is no longer possible, even with the use of voice recognition software. He previously followed two electronic mailing lists, in his own time, relating to an open source UNIX operating system (FreeBSD). He cancelled his subscription to these lists on 11 July 2001, because they had become less relevant, as his knowledge of the area was already substantial, and the proportion of mail was shifting further towards the open source software, rather than the UNIX operating system.
34. The applicant gave evidence that he has found that since 2003 the pain in his forearms has travelled somewhat to his upper arms into the biceps and shoulder regions. This aspect of his injury is more obvious when he is driving, particularly after a day’s work. This results in him continually swapping between his left and right arms on the steering wheel whilst driving. The pain in his forearms, wrists and inner elbows is the most significant effect of the injury. Moving the mouse, which he still does to improve his productivity at work, particularly when he is under time pressure, aggravates the pain. The applicant says that he finds it difficult to read to his young children without supporting the books in some way, or continually changing the load on each arm. This is something he tries to hide from his children, as he feels it is important to read to them every night, as he and his wife have done since they were about one year old. He is also embarrassed by questions from his children as to why he rubs and shakes his arms, and no longer roughhouses with them to the degree that he used to.
35. On 2 September 2003 the applicant’s solicitors lodged a claim for permanent impairment, pursuant to ss 24 and 27 of the Act, which as far as is relevant for the purposes of this review provides:
24(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.
…
27(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2)The amount of compensation is an amount assessed by Comcare under the formula:
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
…”
36. In support of his claim, the applicant provided a report from Dr Cullum dated 10 September 2003 [T83/5]. Dr Cullum reported that when first examined, on 13 June 2002, the applicant had mild De Quervain tendonitis, and minimal intersection tenderness. He was of the view that it was a compensable injury which was being influenced by personality factors, and his adjustment disorder. The applicant was an A type personality and anxious person. He had mild medial epicondylar tenderness, grade 1 out of 3, with tenderness only. When the applicant was reviewed in July 2002, Dr Cullum noted mild improvement; but in November 2002 he was referred again by his general practitioner, and presented as very anxious, almost obsessional about his work requirements, and dismissive of other people’s knowledge and techniques in the workplace. He therefore started doing other people’s work. On examination he had some localised back of forearm discomfort, consistent with perhaps a borderline carpal tunnel syndrome, not sufficiently marked to warrant operative treatment. The applicant also had a marked grievance over Dr Awerbuch’s medico legal opinion.
37. Dr Cullum reviewed the applicant again on 2 September 2003. On examination he had mild epicondylar discomfort bilaterally, grade 1 out of 3, with mild grimacing, but no phonation or withdrawal. Dr Cullum considered that the applicant had some very mild signs of epicondylitis, and that the issues had been compounded by personality factors and an adjustment disorder with mixed anxious and depressed mood.
38. Dr Cullum noted that the applicant was trying to strengthen his hands using the 30 lb gripper exerciser, and religiously doing eight repetitions with both hands three times a day. Dr Cullum concluded that the applicant had a partial incapacity for work, and in his view had a 10 percent impairment of the whole person with regard to the Guide to the Assessment of Degree of Permanent Impairment, Table 9.4 bilaterally, in that he has problems with digital dexterity and grip. He classified this view later in his report, of 22 September 2003, by advising that his assessment of impairment was 10 percent of the right upper extremity, and 10 percent of the left upper extremity; and that the applicant had problems with “visual dexterity” and grip bilaterally.
39. On 19 September 2003 an ultrasound, undertaken by Dr Simmons of Dr Jones and Partners, revealed mild tendinopathy and mild changes of extensor tendons, more marked on the right. Dr Awerbuch, on 18 December 2003, reported further, and commented on Dr Cullum’s report, with which he disagreed. He referred to Dr Cullum noting that the applicant was trying to strengthen his hands by using the 30 lb gripper exerciser, and religiously doing eight repetitions with both hands three times per day. Dr Awerbuch stated, that in his opinion, there was no reason for the applicant to engage in that activity. It would not strengthen his hands. It might strengthen the flexor and extensor muscle groups in his proximal forearm, and it might also induce humeral epicondylitis.
40. On 19 March 2004 the delegate refused the applicant’s claim for permanent impairment. The applicant requested a reconsideration, and on 5 April 2004 the Reconsiderations Officer affirmed the determination. The applicant has applied, now, to this Tribunal for review of that decision.
41. The applicant gave lengthy oral evidence. He was cross-examined at length, but fairly. He impressed us as a competent, highly sensitive and conscientious employee, resentful of the restrictions and induced limitations that his injury has imposed upon him. In his oral evidence he outlined some bizarre symptoms resulting from inactivity, but we consider that he did his best to outline to us accurately the history of his symptoms and treatments. The remaining witnesses were medical practitioners, all of whom were objective and competent witnesses, but we prefer the evidence of Drs Rositano, Awerbuch and Simmons in areas of dispute in the evidence.
42. Dr Rositano gave evidence that when he first saw the applicant on 8 November 2001, there was no specific injury reported; but the applicant related the pain to his repetitive hand activity as a computer operator. X-rays and ultrasounds were undertaken and reported as normal. Dr Rositano said that he was surprised that the ultrasounds undertaken by Dr Simmons on 19 September 2003, were abnormal. He felt that the condition had taken a long time to show up; but that perhaps Dr Simmons was more experienced than the previous reporting radiologist.
43. Dr Rositano said in evidence that he was optimistic about the applicant’s progress, and that he was in the long-term, not looking at any further treatment. He would be hopeful of the applicant improving further with the current restrictions. In his view the applicant initially was not using the computer very well. If he returned to excessive movement he would expect the applicant’s symptoms to return. Pain management had improved the applicant’s pain coping mechanisms. He perceived a good progress, and clinically the applicant’s condition had improved. He was making a gradual improvement. We accept Dr Rositano’s evidence.
44. Dr Simmons, Radiologist, gave evidence relating to the ultrasound of right and left forearms and wrists conducted on 19 September 2003. He impressed us with his professionalism, being always present during the ultrasound investigation, localising clinically the area of concern, and if necessary, performing the investigation himself. He explained and demonstrated visually the appearance and significance of “mottling”, and the ability to measure minute increases in the diameter of tendons. We accept his evidence that there was evidence of mild early tendonopathy of the elbows and wrists.
45. Dr Cullum, who has seen the applicant on four or five occasions, gave evidence that he identified pain on palpation of the medial epicondylor area and the wrists (De Quervain extensor tendons of the thumbs). He considered that the applicant had mild De Quervain tenderness bilaterally of the wrist – “tendonitis”. He said that he was satisfied that the applicant had organic pain, but that he had an obsessional personality with significant personality variances. The applicant, in his view, has a minor identifiable organic injury which has largely resolved; but in view of the chronicity of symptoms, he considers there are permanent impairments, and the assessment of impairment is 10 percent.
46. Dr Awerbuch said in evidence that when he saw the applicant on 24 September 2002, he did not identify any physical injury on clinical examination. We accept his evidence that he took a detailed history, which he read to the applicant, and amended subsequently as necessary. Dr Awerbuch gave extensive evidence as to his opinion on the nature of repetitive strain injury or occupational over use injury; and that he does not accept this as a diagnostic entity. He described “intersection De Quervain’s tenosynovitis” as a rare condition, that he had seen only in rowers. It is a condition easily diagnosed and confirmed by ultrasound, and it is a “tenosynovitis” rather than a “tendonitis”.
47. Dr Awerbuch said in evidence that when he examined the applicant in September 2002, the epicondylitis of the elbows was not present at that stage. He said however, that the repetitive use of the “gripper”, which involved forceful contraction of the flexor forearm muscles, could give the applicant epicondylitis.
48. Dr Hill, who examined the applicant on 6 June 2003, said in evidence that he complained of developing symptoms of pins and needles in the hands and arms, tightness of the shoulder girdle and neck – more noticeable on rest than activity. The only abnormality on physical examination was a mild medial epicondylitis.
49. We had great difficulty understanding the applicant’s submissions. We read and reread the applicant’s counsel’s written submissions, and the transcript of the addresses. We raised our concerns with counsel in the course of her address, but her reply assisted us little. We have come to the conclusion now, that in relation to the first determination, much of the submissions propounded, are based upon an erroneous view of the facts, and a misunderstanding of the legislation.
50. Ms Chambers submitted firstly that the determination was invalid, in that it purported to revoke liability under s 14 of the Act; and secondly, that if the compensating authority does not have a claim for compensation before it, then it is not appropriate for the authority to determine that liability has ceased. What should have happened, she submitted, was for the applicant to make a claim for compensation under a specific head, other than s 14 of the Act, for incapacity payments, medical expenses, etc. The compensating authority would be in a position where it could determine to reject that specific claim on the basis that the applicant is no longer incapacitated as a result of his injury. The applicant submits that there is no evidence before the Tribunal in relation to any medical expenses that have been paid, and that it would be a submission from the bar table that that is not the applicant’s position. Medical expenses have been paid in the past. The applicant might even have been paid incapacity payments in the past; but once the compensating authority has met its liability under that section, to pay those medical expenses, its liability is extinguished, and it is enlivened only once a new claim is put forward in relation to a certain section of the Act.
51. Ms Chambers maintained that the only sensible conclusion that the Tribunal can make in circumstances where the compensating authority has made a determination ceasing liability where there is no outstanding claim for compensation before it, is that it can only be looking at ceasing liability for future claims, or attempting to revoke the liability under s 14 of the Act. It cannot be a determination ceasing liability for current payments in circumstances where there are no current payments. The applicant is seeking therefore, a decision that the first determination is void; and that the applicant have his costs of the application. Such a decision, she submits, would achieve nothing. The applicant had been brought to the Tribunal on a determination that ceases liability for nothing. If successful, there is no financial benefit whatsoever to the applicant. She relies on Rosillo v Telstra Corporation Limited [2003] FCA 1628 and Pisani and Comcare [2004] AATA 441.
52. Counsel submitted finally, that the applicant continues to be incapacitated for work. His incapacity has always been of a minimal nature, because of the way in which he has carried on with his work. He is using voice recognition software, a modified keyboard and mouse, and he is able to continue with his employment. The fact that he has been stoic does not mean that he has ceased to be incapacitated. The underlying incapacity continues, but with the use of that equipment he is able to cope with his work.
53. We have outlined the applicant’s submissions at some length in a broad and general way, but this outline does not purport to be a précis of the lengthy oral and written submissions, all of which we have taken into account in our deliberations.
54. Comcare takes the position now, that the original condition was bilateral synovitis and tenosynovitis, but that if the Tribunal finds that there is, nonetheless, an organic condition of the upper limbs that fits another category, then it is open to the Tribunal to make findings in relation to that condition; thus accepting that the Tribunal can address any condition, in relation to the upper limbs. Counsel pointed out that this approach by Comcare excluded any psychological or psychiatric condition, which has not been the subject of a claim by the applicant.
55. The issue it submits is whether the applicant has, at December 2002, and up to the date of the Hearing, the ongoing effects of an organic injury to his upper limbs. If the answer is “no”, that for the most part deals with the permanent impairment claim. If the Tribunal answers “yes”, then the question is whether he meets the statutory criteria for permanent impairment. Comcare maintains that on the whole of the evidence the impairment is not permanent. The applicant himself says that his condition is improving, and all the medical witnesses had some optimism that there could be some improvement. It cannot be said therefore, at the present time, that the applicant’s condition is likely to continue indefinitely. He does not have a permanent impairment.
56. In relation to the second determination, the applicant maintains that his impairment is permanent, and that, in effect, the opinion of Dr Cullum should be preferred. On the basis of Dr Cullum’s assessment, the appropriate assessment would be a level of 10 percent permanent impairment.
57. In relation to the applicant’s submissions regarding the first determination; it is clear, in our view, that it does not purport to revoke liability under s 14 of the Act. In addition, the Review Officer stated in the course of his Reasons specifically, that “The determination did not revoke the determination that found liability initially”. The determination purports however, to deny future liability for compensation for the accepted condition. In his judgment in the matter of Rosillo, Madgwick J said at paragraph 17:
“The position was also explained, if I may say so, with great clarity by Cooper J in Australian Postal Corporation v Oudyn (2003) 73 ALD 659 (‘Oudyn’) at 666-667:
‘The decision of the Full Court in Lees makes clear that a decision to accept liability under s 14 of the Act involves no more than acceptance of a liability to pay compensation under the Act in accordance with the provisions of the Act in respect of a particular injury. A decision to accept liability under s 14 of the Act involves findings as to the five elements identified by the Full Court in par [35] of its reasons.
The content, duration means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act including the s 24. These determinations give substance to the liability ... provided for in s 14. They do not require that determination under s 14 of the Act to accept liability be reconsidered or revoked when the liability to pay under s 14 is satisfied by payment in accordance with the requirements of one or more of the other sections of the Act. The liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act. Once discharged it is terminated.
The power of [a determining authority] to reconsider a determination under s 62 of the Act, when exercised in relation to a determination made under s 14, is a power limited to a reconsideration of one or more of the elements identified by the Full Court in Lees.’ [I interpolate that no such reconsideration was ever in issue before the delegate or the Tribunal in this case].
‘A determination on reconsideration that one or more of the elements did not exist is a determination that there was at no time a liability under s 14 of the Act to pay compensation for the particular injury. The position is different to, and to be contrasted with, the situation where a benefit is being paid under a particular section, in consequence of a determination having been made under s 14.
Where [a determining authority] is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant. It is a determination under that section. It operates in respect of the claims then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.
[A determining authority] cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act: Plumb v Comcare (1992) 39 FCR 236 (FC) at 240. Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability, which correctly and effectively attached to [a determining authority] in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury. The Act does not contemplate the making of such a determination once liability under s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 of the Act.’ [emphasis added]”
58. In relation to the applicant’s second submission, Comcare on 11 December 2001 accepted liability pursuant to s 14 of the Act; and subsequently favourable ongoing determinations issued accepting medical treatment claims under s 16 of the Act, and inviting claims for time off work under s 19 of the Act. Payments pursuant to s 16 of the Act continued until Comcare’s refusal on 5 September 2002 to pay Mr Whiteread’s account, without further medical evidence, Subsequently, the delegate decided on 4 December 2002 that compensation, including medical expenses, would not be payable after 3 December 2002. Clearly, compensation was being paid pursuant to s 16 of the Act, there was a current favourable determination before it, and it was appropriate for Comcare to review the applicant’s current eligibility for payment of compensation. As to Ms Chambers’ submission that if the applicant was successful before this Tribunal, no financial benefit would follow; it is clear that if the Tribunal sets aside the decision under review, the applicant would be entitled to payments of compensation under s 16 of the Act, and s 19 of the Act if appropriate. Reimbursement of medical expenses and/or arrears of weekly payments would be payable where appropriate..
59. We have examined the whole of the evidence carefully and in detail, and we have taken into account the parties’ submissions. The applicant’s accepted condition is “synovitis and tenosynovitis bilateral”, which is synovitis of the wrist joints, and tenosynovitis of tendons adjacent to the wrist joints. “Synovia” is defined in the Macquarie Dictionary, Third Edition, as “a lubricating liquid resembling the white of an egg, secreted by certain membranes as those of the joint”. “Tenosynovitis” is defined as “inflammation of a tendon sheath, especially the inflammation of the sheath in the wrist, resulting from repetitive activity”. The pain and swelling is clinically palpable and was evident in the initial examination of the applicant, at the time of his first medical assessment.
60. In our view, detailed evidence from a number of medical practitioners, following multiple examinations, and also two ultrasounds of the wrist, have not shown persistent swelling and tenderness of the tendon sheaths of the wrist or painful swelling of the wrist joint. Swelling of the joint or tendon sheath would usually be shown on ultrasounds, and verified on clinical examination. Although tenosynovitis/synovitis usually settles with medical treatment in the short-term, there is a chronic form of tenosynovitis, referred to by Dr Cullum, and described by De Quervain in 1895, and thought to be due to excessive wrist movement. It gained the name of “washer woman’s thumb” – a condition where as a result of chronic inflammation, thickening and narrowing of the tendon sheath occurs, and there is catching or triggering of the thumb on flexion. This condition has not been diagnosed by medical examiners, or on ultrasounds.
61. We consider that on the preponderance of the medical evidence, the applicant’s condition of tenosynovitis/synovitis has resolved currently. We accept Dr Rositano’s view that if the applicant returned to excessive movement, his symptoms would be expected to return. As to other abnormalities, we consider that currently the applicant is suffering from epicondylitis of the elbow and a tendonitis of the wrist (not tenosynovitis or synovitis). These are minor abnormalities, with minor symptoms and physical signs, and minor ultrasound abnormalities. The onset of these symptoms, although difficult to pinpoint with accuracy, appeared after the onset of the tenosynovitis and the synovitis, and appeared to manifest themselves more markedly after September 2002. They were present on clinical examination by Dr Hill on 10 June 2003.
62. We have considered the evidence of over use syndrome and repetitive strain injury, which was confusing and contradictory, and given that these clinical conditions arose whilst the applicant was on modified duties, we could not identify a specific work causation, and there is no psychological condition claimed by the applicant nor accepted by Comcare. We do not accept that the applicant suffers from a compensable over use syndrome. We accept Dr Awerbuch’s evidence that the upper arm symptoms could be due to the use of the “30 lb gripper” and self administered strengthening and stretching exercises of the arm. We note that the applicant is very “meticulous”, and motivated to perform these exercises.
63. The applicant suffers now, from different conditions, epicondylitis and tendonitis of the wrist, which in our view are attributable to the treatment he has undertaken in relation the accepted condition of tenosynovitis/synovitis. We are satisfied on the evidence, that he has undertaken these treatments in good faith, and meticulously, in an endeavour to relieve his symptoms. Mr Cole conceded, in the course of his final address, that if the applicant has a condition of the upper limbs which is materially contributed to by treatment for the accepted condition, it is also, therefore compensable. We are satisfied on the evidence that the upper limb condition the applicant suffers now, has been materially contributed to by the treatment undertaken in relation to his accepted condition.
64. In relation to whether the applicant suffers a permanent impairment. On the whole of the evidence, he has ongoing symptoms. He is not impaired in undertaking his work. Currently he is working with modifications. His current symptoms are minor and not stable. Dr Rositano is not looking to any long-term treatment. He is hopeful of the applicant improving further with the current restrictions. Having regard to the criteria in s 24 of the Act, we consider that on the whole of the medical evidence, there is a likelihood of improvement in the applicant’s condition, and that his condition does not satisfy s 24 of the Act.
65. We are satisfied on the evidence, and find as a fact, that the applicant’s conditions of tenosynovitis/synovitis have resolved; that he continues to suffer from upper limb conditions, which can be described as epicondylitis of the elbows, and a tendonitis of the wrists, attributable to the treatment undertaken for the accepted conditions; that the applicant’s injury has not resulted in permanent impairment, and he does not satisfy s 24 of the Act.
66. For these reasons the Tribunal sets aside the first decision under review (S2003/125), and substitutes a decision that:
(a) During the period 8 November 2001 to 3 December 2002, the applicant is entitled to compensation in respect of the condition of tenosynovitis/synovitis pursuant to ss 16 and 19 of the Safety Rehabilitation and Compensation Act 1988.
(b) Comcare is liable to pay compensation to the applicant in relation to the upper arm conditions of epicondylitis of the elbows, and tendonitis of the wrists, as and from 3 December 2002.
(c) Comcare shall pay the applicant’s costs of these proceedings, such costs in the absence of agreement to be taxed by the Registrar or a District Registrar of the Tribunal.
67. In relation to the second decision under review (S2004/120), the Tribunal affirms the decision under review.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell and Dr ET Eriksen (Member)
Signed: ................J Coulthard .....................................
AssociateDates of Hearing 17/18 June 2004 and 31 August 2004
Date of Decision 11 March 2005
Counsel for the Applicant Ms K Chambers
Solicitor for the Applicant Moody Rossi & Co
Counsel for the Respondent Mr S Cole
Solicitor for the Respondent Phillips Fox
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