Trajcevski and Telstra Corporation Limited

[2005] AATA 453

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 453

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No N2003/1650   )             N2005/383

GENERAL ADMINISTRATIVE DIVISION		)
Re		BETTY TRAJCEVSKI

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date19 May 2005

PlaceSydney

Decision The decision under review is affirmed.

[SGD] Dr J D Campbell   Member

CATCHWORDS

WORKERS’ COMPENSATION - work related injury - surgical treatment - continuing and varied symptomatology - permanent impairment - decision under review affirmed.

Safety, Rehabilitation and Compensation Act 1988 - sections 14, 24, 27

Comcare v Fielder (2001) 115 FCR 328

REASONS FOR DECISION

19 May 2005 Dr J D Campbell, Member

1.      Mrs Betty Trajcevski (“the Applicant”) seeks a review of the decisions made by Telstra Corporation Limited (“the Respondent”) in the following applications:

(a)In matter N2003/1650, the reconsideration decision made by the Respondent on 8 September 2003 to affirm the determination made by the Respondent on 21 May 2003 that Telstra Corporation Limited  was no longer liable to pay compensation in respect of any incapacity or medical expenses in relation to bilateral carpal tunnel syndrome on and from 21 May 2003; and

(b)In matter N2005/383, the reconsideration decision made by the Respondent on 22 March 2005 to affirm the determination made by the Respondent on 18 March 2005 that Mrs Trajcevski does not suffer from a whole person impairment pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) and is not presently entitled to payment of compensation pursuant to sections 24 and 27 of the Act.

2.      A hearing was commenced on 1 December 2004, during which it became evident to the Tribunal that the major issue wishing to be canvassed was that of permanent impairment. As this issue had not been the subject of the appropriate statutory processes, the matter was adjourned to another day to ensure that jurisdiction existed for the Tribunal to deal with the matter.

3.      At the commencement of the resumed hearing, counsel for the Applicant sought to have withdrawn the application made in matter N2003/1650. This was granted, with the section 37 documents for that application forming part of the section 37 documents for the remaining application.

background

4.      Mrs Trajcevski was born on 22 March 1970 and completed schooling to year 12 prior to joining Telstra in 1989. Mrs Trajcevski worked within a number of departments including customer services, Pay TV Group, Contract Management Group and National Network Solutions Group. Her role throughout has been of an administrative clerical nature involving typing, data entry, filing, photocopying and other administrative/clerical duties. Mrs Trajcevski was married in 2000 and at the time of the hearing was on maternity leave which she commenced on 28 March 2004.

5. On 8 July 2002 Mrs Trajcevski lodged a claim for compensation in respect of an injury to both wrists deemed to have been sustained in December 2001. By a determination dated 22 November 2002 the Respondent paid compensation pursuant to section 16 of the Act for various medical expenses, with there being file evidence (T17, T18) that the Respondent had accepted liability to pay compensation in respect of Mrs Trajcevski’s bilateral carpal tunnel syndrome pursuant to section 14 of the Act on 16 September 2002.

6. By a determination dated 21 May 2003 the Respondent denied liability for any further claims pursuant to either section 16 (medical expenses) and/or section 19 (incapacity payments) of the Act.

7. On 10 January 2005 a compensation claim for permanent injury was lodged with the Respondent. On 18 March 2005 the Respondent in a determination denied that Mrs Trajcevski was suffering from whole person impairment in accordance with section 24 of the Act and was not entitled to payment of compensation pursuant to sections 24 and 27 of the Act. This determination was affirmed upon reconsideration by the Respondent in a decision dated 21 March 2005.

issues

8.The relevant issues in this matter are:

(a)      Does Mrs Trajcevski suffer from a permanent impairment?; and if so

(b)      What is the nature of the permanent impairment?; and if so

(c) Is the permanent impairment a consequence of the work related Injury?; and if so

(d)      What is the percentage whole person impairment of that permanent           impairment pursuant to the Approved Comcare Assessment Guide;        and

(e) Is Mrs Trajcevski entitled to payment of compensation pursuant to section 24 and 27 of the Act?

decision

9.For the reasons stated later in this decision I conclude that:

(a)      Mrs Trajcevski does suffer from a permanent impairment.

(b) That the nature of the permanent impairment is a composite of clinical symptoms defined as burning sensation in all five digits (particularly tips) of both hands on an average of five days a week and pain around the circumference of both wrists on an average of two days a week and associated with exertion involving use of hands.

(c)      The permanent impairment is not the consequence of a work related   injury.

(d) The non-work related permanent impairment is assessed at nil percentage whole impairment pursuant to Table 9.4 of the Comcare Impairment Tables.

(e) No compensation is payable pursuant to sections 24 and 27 of the Act.

evidence of mrs trajcevski

10.Mrs Trajcevski detailed the following in oral evidence:

·That while working in her administrative clerical role with Telstra in November 2001, she, being right hand dominant experienced pins and needles in the fingertips of the three middle fingers of both hands, the left being worse than the right. At that time she had been working five days a week with occasional overtime on a Saturday. She consulted her general practitioner, who referred her to Dr Green, a Consultant Hand Surgeon.

·That Dr Green wrote a letter to the Respondent on 21 August 2002 in which she stated that Mrs Trajcevski’s bilateral carpal tunnel syndrome was work related, with the result that her claim for compensation for the bilateral carpal tunnel syndrome was accepted by the Respondent on 16 September 2002.

·That Dr Green operated on her right wrist on 26 September 2002 and that she was off work for three weeks and returned to work on light duties, having been treated with Panadeine Forte, physiotherapy and splints.

·That Dr Green operated on her left wrist on 27 November 2002 and that she returned to work on full duties on 13 or 14 January 2003.

·That her condition in both wrists continued to improve and by March 2003 she was pain free in both wrists, but discoloration was evident around both scar areas and she noted some tightness when driving a car.

·By May/June 2003 she stated that she experienced a burning sensation in the fingertips of both hands, that both hands were aching and there was a tightening around her wrists. At this time there had been no alteration in her work activities and she was taking Panadol and Panadeine Forte for the pain.

·That in mid-August 2003 she was transferred back to her old division. She attended at work, but was given nothing to do, other than to occasionally undertake some envelope activity. She was given to understand that this situation would continue until she was given a redundancy when her compensation matter was finalised.  Such a situation continued until March 2004 when she proceeded on maternity leave. She found her work situation boring.

·During the period of August 2003 to March 2004, she experienced troubles with her husband and was treated briefly with Zoloft for depression in August 2003, with the medication being ceased in September 2003, when it was established that she was pregnant.

·After her daughter was born in May 2004, Mrs Trajcevski has noted that she has experienced difficulty in holding her daughter, difficulty in writing, (fingers stiff) difficulty in opening a jar because of right hand weakness and some difficulties with cooking (lifting pots and pans).

·That when she saw Dr McGill in December 2003, he was late by half an hour, the consultation in total lasted five minutes, that she did not have to demonstrate her writing ability, that he did not undertake any tapping activities on her wrists or forearms and that she denied stating that she was “flat out, eight hours per day…”. Furthermore she denied stating that she had “no problems at all” on her return to work when she was moved to a different section in January/February 2003 as recorded by Dr McGill in his report of 17 December 2003. Similarly she denies that she stated that she had “not much aches or pain” in the same report.

·She believes that she would have mentioned to Dr Portek that she has troubles with her hands (weakness) after repetitive work activity when she saw him in September 2003.

·That she was operated on for gallstones, received physiotherapy until March 2003, with reoccurrence of symptoms in May 2003. She noted that her symptoms were more severe in winter, that she sought relief by putting her hands in warm water and by the use of a heated wheat bag. Mrs Trajcevski stated that she took four Panadol tablets a day and one to two Panadeine Forte tablets at night; that she had commenced taking the Panadeine Forte tablets about three weeks ago, with the tablets being left over from an earlier prescription.

·That when she returned to work in January 2003 she was initially assisted by another worker.

·That she has not had occasion to seek further treating specialist review since she saw Dr Portek in September 2003, although she intends to seek an appointment with Dr Green when it can be arranged.

·That the current symptoms are:

-   a hot burning feeling in all digits of both hands which occurs on four to five days a week; and

-   a pain around both wrists which occurs on about two days a week and is associated with the undertaking of repetitive tasks for example gardening or wiping the table down.

medical evidence

dr jenifer green - consultant hand surgeon

11.     In a pre-operative medical report dated 21 August 2002 Dr Green detailed Mrs Trajcevski’s clinical history since she was first seen by Dr Green on 9 November 2001, when she presented with a six month history of bilateral volar wrist swelling with occasional pain and paraesthesia. Following investigation, conservative treatment and serial review Dr Green concluded that Mrs Trajcevski’s work activities did contribute to her symptoms, there being an underlying anomaly whereby the muscle belly extends into the carpal tunnel of each wrist, together with a persistent median artery. Dr Green believed that the contributing factor from the employment was repetitive use, albeit that the effects of such work related contribution are temporary, with the symptoms subsiding if there is not repetitive use of the hands.

12.     Dr Green detailed her findings at operation (right carpal tunnel release 26 September 2002, left carpal tunnel release 27 November 2002) and in subsequent reports detailed Mrs Trajcevski’s clinical progress. On 6 March 2003, Dr Green reports that there is continuing improvement, with Mrs Trajcevski being essentially pain free and having no longer any carpal tunnel symptoms. Further Dr Green noted that her range of motion had returned to normal and her strength is gradually improving. Dr Green notes remaining concerns about mild scar discoloration and some wrist tightness when driving. (T31,p76)

13.     Dr Green reviewed Mrs Trajcevski on 28 August 2003, and in a report she describes Mrs Trajcevski as complaining of burning pain in both hands with cold weather and blanching suggestive of Raynaud’s phenomenon. Dr Green noted that Mrs Trajcevski had been unable to work for three weeks; that she was seeing a counsellor for anxiety and depression and referred her to Dr Portek, a Rheumatologist.

dr r. whitaker - consultant rheumatologist

14.     In a report dated 9 September 2002 (T16), Dr Whitaker detailed the clinical history and examination of Mrs Trajcevski and concluded that in his opinion her work duties are a contributing factor to her having developed carpal tunnel syndrome. In this regard Dr Whittaker considered that the general nature of her work duties had aggravated an underlying condition in her wrist (prominent accessory muscle bellies bilaterally and may have constitutionally narrow carpal tunnels). Dr Whittaker considered that the work related contribution to this condition is temporary in nature and would cease after those work duties have ceased.

dr hassall - consultant rheumatologist

15.     In a medical report dated 19 August 2003 (T46), Dr Hassall detailed Mrs Trajcevski’s clinical and work history. As regards the latter, Dr Hassall detailed a history of conflict at work commencing in April 2002, continuing prior to the two operations and surfacing again in middle August 2003. The conflict was noted as being concerned with her standard of work, which one team leader considered to be unsatisfactory, and which resulted in Mrs Trajcevski being moved to another department in late August 2003 and reporting to the team leader, with whom she had a poor relationship.

16.     Dr Hassall noted that Mrs Trajcevski’s symptoms were to do with paraesthesia in the fingertips, including those of the fifth finger, numbness in both thumbs, with her fingers sometimes swelling and going purple and red at times, especially in cold weather. He also noted complaints of pain over the front and back of both wrists and a reoccurrence of swelling over the front of both wrists for the past couple of months.

17.     Dr Hassall recorded that Mrs Trajcevski had increased symptoms in cold weather, which had caused her to miss work two days a week for the last five months, because of the cold sensation in her fingertips. He noted that she was able to shower, dress and manage buttons, drive a car and perform housework at her own pace, with her husband doing anything which required scrubbing.

18.       Dr Hassall concluded that:

“It is difficult to explain the claimant’s continuing symptoms on the basis of her previously diagnosed carpal tunnel syndrome, and in my opinion she has a form of regional pain syndrome…

I have no doubt, however, that the conflict experienced by her within her work environment has a lot to do with the regional pain syndrome which is now her main problem.”

Dr Hassall further concluded that: “I doubt whether the performance of some repetitive work would be a major factor in causing any further work-related symptoms” and that he suspects that many of her symptoms are likely to persist (due to conflicts at work unlikely to be resolved to her satisfaction).

Dr Hassall considered that Mrs Trajcevski’s condition had not stabilised and hence not possible to make an accurate assessment of likely permanent impairment.

dr ian portek - consultant rheumatologist

19.     In a report dated 23 September 2003 (Exhibit R6) Dr Portek noted that Mrs Trajcevski had a past history of Raynaud’s and that she complained of burning discomfort in her hands since June. Dr Portek considered that Mrs Trajcevski did not exhibit any evidence to make a diagnosis of synovitis or tenosynovitis. Dr Portek did not feel that Mrs Trajcevski has ongoing musculoskeletal pathology to account for her symptoms and that increasing her activities will not precipitate any significant musculoskeletal pathology.

dr david champion - consultant rheumatologist

In a report dated 16 May 2003 (N2005/383, T3, page 7) Dr Champion detailed the clinical and work history of Mrs Trajcevski, in which her current symptoms (16 May 2003) were described as a soreness or aching around each wrist, minor symptoms of pins and needles and numbness bilaterally and that she has difficulty opening jars. As a result of his history taking (considered Mrs Trajcevski to be vague about dates but generally reported reliably) and examination, Dr Champion concluded that (in summary):

·She has been effectively treated for bilateral carpal tunnel syndrome

·Mrs Trajcevski has recovered well from the carpal tunnel surgery, except that she has minor underlying flexor tendonopathy and hyperaesthetic/hyperalgesic scars 

·She was fit at the time (May 2003) for the work she was performing

·Her emotional reaction has improved, but certainly not resolved

·Her fine independent finger movements were normal and strength of grip was normal and did not cause pain

·That she is able to use each upper limb for self care and for grasping and holding and does not have difficulty with digital dexterity in any measurable sense, although she would have difficulty sustaining the fine independent finger movement required for a job in the long term involving mainly keyboard and mouse work

Using the Comcare Guides I cannot confirm any permanent impairment.

20.In a further report dated 10 November 2003 (T4), Dr Champion detailed further comments on the issue of permanent impairment, in which he stated:

“…Unless it is accepted that she has difficulty with digital dexterity on a sustained basis, she does not fulfil the criteria for 10 % whole person impairment. I do believe however that she cannot and should not sustain digital dexterity in the course of work, ie repetitive use of fingers/hands… and on reflection I do support a claim for 10 % whole person impairment…”.

21.     In oral evidence Dr Champion confirmed his opinion as regards the issue of permanent impairment as stated in his report of 10 November 2003.

22.     When made aware of Mrs Trajcevski’s current clinical symptoms as described by her to the Tribunal, Dr Champion was unable to relate such symptomatology (burning feeling in all digits of both hands, and pain around the circumference of both wrists) to the carpal tunnel injury and treatment thereof unless Mrs Trajcevski was one of the 18 per cent of people who have a nerve fibre connection between the ulna and median nerves. It is also to be noted that Dr Champion felt somewhat disadvantaged in that he had no opportunity to reassess Mrs Trajcevski since his assessment in May 2003.

dr mcgill - consultant rheumatologist

23.     In a report dated 17 December 2003 (Exhibit R2), Dr McGill records Mrs Trajcevski as stating that:

·She has had problems with depression and anxiety, mainly during 2003. She had been using an antidepressant between January and August 2003, with cessation occurring when she found out she was pregnant.

·She currently does little work when she attends work, as the section in which she works lost the contract for the work they were performing. It is noted that over the last two to three months she has been away from work (morning sickness and depression) as much as she has been at work.

·After return to work in January 2003 and being moved to another section where she performed modified duties, she was ‘flat out, 8 hours per day’, performing keyboard, typing, photocopying and other clerical work. It is reported that she further stated that she had ‘no problems at all’ while doing those duties in that section. Later following further transfers to other sections, it is reported that she felt under utilised.

·That during winter 2003 she occasionally experienced change of colour of her fingers consistent with a mild Raynaud’s phenomenon.

·That she was unhappy at having been transferred to a section where she thinks she does not have a future.

·She confirmed that she has no pain, no paraesthesia and no numbness.

That clinical examination revealed:

·No sensitivity of scars

·No wasting of muscles

·Demonstrated full power of the muscles innervated by median, ulnar and radial nerves in both hands and upper limbs

·Hand grip was variable in keeping with lack of full effort 

·Sensation in both hands normal

·Phaelen’s test for carpal tunnel syndrome was negative bilaterally

·Tinel’s sign was negative

·Finklestein’s test for de Quervain’s tendosynovitis was negative

24.     As a consequence of his history taking and examination, review of investigations and treatments undertaken, Dr McGill concluded that Mrs Trajcevski does not suffer from a current diagnosable condition, having previously had a bilateral carpal tunnel cured by surgery. He did not believe that she suffered from a regional pain syndrome and that she was fit for her full employment, with no indication for any further treatment of any type.

25.     In a further report dated 7 February 2004 (Exhibit R3), Dr McGill stated that Mrs Trajcevski did not suffer from any permanent impairment and that she had normal dexterity and function of both upper limbs.

26.     In oral evidence Dr McGill confirmed his earlier written opinions, while denying all the allegations bar the issue of being late for the consultation, made by Mrs Trajcevski. In rebuttal of the allegations he made available his handwritten clinical notes of the consultation which amounted to seven pages and confirmed from those handwritten notes statements in his report where he had made a verbatim record of Mrs Trajcevski’s comments. Further he outlined his normal approach to his conduct of and approach to such medico-legal consultations, which included a minimal consultation time of around an hour, a set routine whereby his secretary has the patient write their name and address on the patient record and a consultation phase which passes though a defined process as recorded in his report.

27.     In relation to the current clinical symptomatology described by Mrs Trajcevski, Dr McGill concluded that such symptomatology could not be explained by reference to the bilateral carpal tunnel syndrome or its sequelae, nor could it be explained by reference to tenosynovitis (is not present).

dr matheson - consultant neurosurgeon

28.     In a report dated 13 January 2004 (Exhibit R4), Dr Matheson details that Mrs Trajcevski denied any improvement of symptoms following bilateral carpal tunnel surgery by Dr Green. Dr Matheson records Mrs Trajcevski as complaining of nocturnal dysesthesia, daytime dysesthesia and weakness of the hands. He notes that she states that she tends to drop objects and complains of numbness which now extends to the front and back of the hand and is overlapping onto the ulnar and radial nerves as well as the median (his conclusion).

29.     At examination Dr Matheson found no wasting of the hands, sensation was normal and power was full in both hands. In summary Dr Matheson concluded:

“thus we have a condition which is congenital in origin and not work related and has no relationship to her clerical work at all. Indeed her work would have been alright for somebody with this problem. Her work certainly did not cause it or aggravate it. The condition has been treated appropriately with decompression, but her complaints of failure to improve are implausible and her complaints now extend beyond the boundaries of the median nerve and must be considered somatised.”

30.     In a further report dated 9 February 2004 (Exhibit R5), Dr Matheson concluded that Mrs Trajcevski has a mild carpal tunnel syndrome with minimal impairment of both wrists; that this has not arisen in relation to her employment and hence she has nil per cent whole person impairment pursuant to Table 9.6 in relationship to her employment. In assessing her non work related disability under Table 9.6 Dr Matheson concluded that she does not reach the 10 per cent category and hence her non work related whole person impairment is nil per cent.

dr j ellis - consultant orthopaedic surgeon

31.     In a report dated 9 March 2004 (Exhibit A4), Dr Ellis detailed a clinical history which included:

·     She was on and off work during 2003. In July 2003 she went off work for three or four days every two weeks, did little key boarding because of a burning sensation in the fingertips of both hands. The burning sensation and purple colour which developed in her hands in cold weather disappeared in the warm weather.

·     At this time (March 2004) she was working 38 hours weekly, with two hours keyboarding per day. He reports that Mrs Trajcevski stated that when she lodged a claim she was told that she would remain on light duty until the claim was finalised and then she would be offered redundancy. He also reports that she does not have her name on the board at work, has not been invited to the last two work Christmas parties and has been told there is no space for her to park her car at work, although everyone else has a spot.

32.Dr Ellis records her current complaints at March 2004 as:

·Discomfort on the volar aspect of her right forearm five cm’s above the wrist joint. After she has been working, she notices that the swelling at the proximal end of the scar at the wrist is bigger and the area becomes more tender. The swelling and discomfort persists and prevents her from going to sleep. Sometimes she only sleeps for two hours per night.

·She is currently working five days a week, eight hours a day, with only two hours typing each day. She can drive a car as much as she likes.

·Present medication (March 2004) included Zoloft two tablets daily, Antenex two tablets three times a day, Panadol four to six daily and Panadeine Forte two tablets at night.

·She has a distinctly different pain, namely an aching around both wrists generally, equally on both sides. This pain is present every day on exertion, doing household duties and while keyboarding. The aching was said to be present before the carpal tunnel decompression.

·Her grasp in each hand is weak. It is difficult for her to open jars. Sometimes unable to carry three to four kilograms weights. Unable to carry a basket of washing.

33.      Following his clinical examination Dr Ellis made the following relevant observations:

·     Mrs Trajcevski does not now have signs of reflex sympathetic dystrophy or complex regional pain syndrome

·     She complains of tenderness over the scars on her wrists

·     She does have clear cut signs of tendinitis but without swelling of the tendon sheaths in each hand

·     The recorded grasp power in each hand is shown to be very weak indeed

·     She complains of neck pain, and has suprascapular and trapezius tendinitis bilaterally, suffered some nervous stress, and has possible cervical spinal intervertebral disc lesions

·     That her symptoms are likely to improve after confinement and redundancy

·     She has difficulty with digital dexterity

·     She is unfit for pre injury occupation, but is fit for light housework

·     She has a whole person impairment of 10 per cent in each upper limb pursuant to Table 9.4.

clinical notes of drs t zoverdinos and panopoulos - general practitioners

34.     The clinical notes of these two doctors (Exhibit R8) detail the following:

·     Mrs Trajcevski was counseled for dysthmia on 22 October 2001: was seen concerning increased stress at work arising from her performance being questioned on 17 April 2002 and 4 May 2002; was seen on 19 December 2002 when it is noted that she is staying at her mother’s home and is more depressed since operation: was seen on 20 August 2003 during which she reported having burning sensation across fingertips of both hands, swelling at the wrist when typing, having difficulty opening jars and with certain household duties. Was noted to be tearful and experiencing relationship/marriage difficulties. Given two weeks off work and recommended for psychological counseling.

·       It was also noted that at this time she was already on stress leave for one week and had been prescribed Valium 2mgs daily by another practitioner. Also she had been seen by Telstra doctors and had been given the option of light duties in original section if still symptomatic or redundancy if symptom free [sic] Noted that she feels unable to return to original section as she feels victimized. On 3 September 2003 it is noted that she is tearful, anxious and sleep disturbed and feels unable to return to work in her current section and that she has moved out of home. Given a further week off work for anxiety and depression. Was seen again on 10 September 2003 and was taken off Valium and commenced on Zoloft. Noted that she was prepared to get back to work and not worried about redundancy. Given a certificate to avoid repetitive tasks of hands at work to 25 September 2003.

·      Seen again on 15 October 2003, at which time pregnancy was confirmed, and a note made that the office was moving to Parramatta, a further note was made stating that she was being pressured at work concerning her medical certificate A further medical certificate to avoid repetitive tasks of hands at work was given to 4 November 2003.

35.     In relation to the issue of the bilateral carpal tunnel syndrome, notations were made of issues prior to the two operations on 22 October 2001, 2  February 2002, 4 May 2002, 25 May 2002, 15 June 2002, 21 August 2002, 22 October 2002, 28 October 2002 and 14 November 2002. Post surgery issues were noted on 19 December 2002 (depression, awaiting review by surgeon), 9 January 2003 (awaiting return to work approval), 27 February 2003 (hands improving, some symptoms with typing, difficulty heavy lifting, unable to open jars), 17 March 2003 (pain in hands, Digesic, Nurofen and script for Voltaren), 14 May 2003 (back  to pre injury duties still unable to open jars and milk bottles, last Friday did develop some pain and swelling right wrist), 15 May 2003 (developed pain in both wrists, had to use Digesic/[Paracetomal). 14 July 2003 (numbness pins and needles both hands), 21 July 2003 (burning hands), 31 July 2003 (burning pain tips of fingers of both hands and swelling at end of both scars for two months, finds it hard to work because of pain), 20 August 2003 (hands getting burning sensation across all fingertips, swelling at wrist when typing, difficulty opening jars, doing certain housework duties). 3 September 2003 (seen Dr Green re symptoms reported on 11 July and 20 August 2003, to see Dr Portek).

other documentary evidence

36.     In a report dated 15 August (T13) Mr Ferris details the results of his investigation in to Mrs Trajcevski’s claim. It is evident from this report that Mr Jameson, her supervisor at Broadband Field Services had found Mrs Trajcevski’s work performance and attitude was not up to acceptable standards, and that this had involved disciplinary issues (page 35). Mr Vanson, her team leader for two years, expressed a similar view (page 37), while Mr McKeackie, her current Broadband manager at that time speaks of her as performing her work in a competent and pleasant manner (page 38).

consideration and findings

37.     In this matter I observe that there are particular difficulties with certain aspects of the evidence given by Mrs Trajcevski. The first aspect is her statements over time concern her use of Panadeine Forte for pain. In oral evidence she initially gave the impression that she was taking one to two Panadeine Forte tablets a night for a considerable period. This was later reduced to one to two tablets for the three weeks prior to the hearing. Also when questioned as to source of Panadeine Forte, Mrs Trajcevski stated that the source was some remaining from the various operations she had had. I also note an absence of scripts for same in either the treating specialist’s notes or the treating general practitioner’s clinical notes, although I do note prescriptions for other analgesics and anti-inflammatory (Digesic, Voltaren).

38.     I also note the various histories in relation to the use of analgesics and antidepressants (Valium and Zoloft). From such I draw an inference that Mrs Trajcevski’s memory for such circumstances is somewhat vague, although with the issue of Panadeine Forte usage, it may have been a mechanism by which Mrs Trajcevski wished to convey the gravity of her pain situation against a background in which she felt her complaints were not being heard. However the latter remains no more than a possibility.

39.     In addressing the second aspect, namely her evidence as to the nature and extent of Dr McGill’s consultation. I conclude that her evidence (with one exception) on this aspect cannot be accepted. In so stating it is evident that Dr McGill was late for the consultation that he had made seven pages of handwritten notes concerning the history and examination of Mrs Trajcevski and that direct quotes of what Mrs Trajcevski was stated to have said and quoted in his report, were contained within the handwritten notes. Further Dr McGill detailed his normal routine for conducting medico legal consultations, with there being nothing to suggest a variation other than allegations made by Mrs Trajcevski. I note there is no evidence to corroborate such allegations. I note that one allegation was that the consultation lasted only five minutes, which is clearly inconsistent with the amount of notes taken by Dr McGill.

40.     I further note that Dr McGill’s written notes did record statements which his final typewritten report did include as originating from Mrs Trajcevski. Similarly I infer from the allegations that Dr McGill is said not to have undertaken the clinical examination tests that he has reported as having undertaken. I accept that Dr McGill did undertake such testing as he stated they are the basic clinical tests for assessment in a matter such as this. In summary I find such allegations to be without substance, other than of course the fact that Dr McGill was late in commencing the consultation. In so finding that the reliability of Mrs Trajcevski’s is in question as regards this aspect, I am mindful that such allegations may have been made to suggest I devalue or not accept Dr McGill’s opinion. This I shall not do, observing in term that Dr McGill's opinion is but one of many in this matter.  

41.     A third aspect of Mrs Trajcevski’s evidence is the evidence concerning work conflict. It is evident from the report into her bilateral carpal tunnel syndrome by Mr Ferris in August 2002 that the standard of her work had been questioned by two of her supervisors and that a further supervisor in another department found her work to be satisfactory. It is to be noted that her placement and work activities upon return to work in January 2003 were accompanied by a gradual resolution of most of the post operative symptomatology and that by March 2003 Dr Green, the treating surgeon, is satisfied that such resolution is proceeding satisfactory. Similarly Dr Champion in his report of 16 May 2003 details that she has recovered well from her bilateral carpal tunnel surgery; that she has some minor underlying flexor tendonopathy and some hyperaesthetic scars.

42.     It is evident that Mrs Trajcevski workplace employment remained an issue and in mid August 2003, her general practitioner records that she had been given the option of light duties in her original section if still symptomatic or redundancy if not symptomatic. While it is evident from Mrs Trajcevski’s evidence that she returned to her original department in mid August 2003, it would appear from her general practitioner’s notes that this may well have been 11 September 2003 (medical certificate). Mrs Trajcevski stated that on return to her original department she has attended at work but been given no work to do, apart from occasional enveloping activity. This she said she found boring, and a situation which remained until she went on maternity leave in 2004.

43.     Apart from some variation as to dates, I am satisfied that Mrs Trajcevski has detailed a work history which is consistent with the records detailed in evidence, and that there is evidence of ongoing issues between Mrs Trajcevski and her employer.

44.     I have already noted that post operatively Mrs Trajcevski’s clinical condition improved and that by March 2003 Dr Green was satisfied with progress. Similarly I note the comments of Dr Champion in his report of 16 May 2003, (ibid paragraph 39).

45.I further note Mrs Trajcevski’s complaint of symptoms:

·     To her general practitioner: on 21 July 2003 (burning hands), 31 July 2003 (burning pain fingertips of both hands and swelling at end of scars for two months)

·     Her oral evidence: in which she stated that by May/June 2003 she experienced a burning sensation in the fingertips of both hands and there was a tightening around the wrists.

·     To Dr Green on 28 August 2003: burning pain in both hands with cold weather and blanching

·     To Dr Hassall on 19 August 2003: paraesthesia in the tips of the fingers including the fifth finger, numbness in both thumbs, her fingers sometimes swelling and going purple and red at times, particularly in cold weather. She also complained of pain over the backs and fronts of both wrists and recurrence of swelling over the front of both wrists for the part couple of months:

·     To Dr Portek on 23 September 2003: burning sensation in both hands

·     To Dr McGill on 17 December 2003: occasionally experienced a change of color in her fingertips during winter 2003

·     To Dr Matheson on 13 January 2004: no improvement of symptoms following carpal tunnel procedures with complaints of numbness in front and back of hands

·     To Dr Ellis on 9 March 2004: a discomfort around the volar aspect of her right forearm, swelling and discomfort at the proximal ends of the scars following activity which prevents her from sleeping on occasions and an aching around both wrists, which is present every day with exertion together with a weak hand grasp.

·     To the Tribunal on 1 April 2005: burning sensation to all digits of both hands four to five days a week and pain around the circumference of both wrists two days a week and associated with exertion, worse in cold weather

46.     From an analysis of this evidence I conclude that the symptoms as expressed to the Tribunal have been in evidence in whole or in part sense since mid 2003 and consist of:

·     A burning sensation experienced in all digits of both hands (particularly tips) on four to five days a week and pain around the circumference of both wrists on two days a week and associated with exertion. Such symptoms are worse in cold weather.

47.     I further note that during 2003 and particularly from August 2003 to the year’s end that there is much evidence to indicate that Mrs Trajcevski was suffering from anxiety and depression and was treated for same. There is also much evidence to indicate that Mrs Trajcevski was in conflict with her employer and that she was experiencing difficulties in her domestic circumstances. I find that these circumstances existed at that time and in so finding rely upon the evidence of the Applicant, the clinical notes of her general practitioner, the reports of Drs Hassall, McGill and Ellis.

48.     In acknowledging the clinical symptomatology, I note its continuance albeit somewhat evolving since July 2003 and the comment made by Dr Champion in oral evidence that Mrs Trajcevski’s conditions of anxiety, stress and depression may well cause aggravation of the underlying symptomatology while they continue to exist. Nevertheless I further observe and so find that such clinical symptomatology as that has been found to currently exist cannot be explained on the basis of her previously diagnosed and surgically treated bilateral carpal tunnel syndrome. In make such a finding I rely upon the following:

·     The opinion of Dr Green in August 2003 that the symptoms are suggestive of Raynaud’s phenomenon

·     The opinion of Dr Hassall in August 2003

·     The opinion of Dr Portek in September 2003

·     The opinion given by Dr Champion in oral evidence in April 2005 that the symptoms complained of could not be explained by reference to the carpal tunnel syndrome and surgery, except there remained a possibility that the burning sensation in the five digits of both hands could be explained by the existence of a median ulnar nerve  fibre connection, which occurs in 18 per cent of individuals.

·     The opinion given by Dr McGill in oral evidence on 1 April 2005 that current clinical symptomatology cannot be explained by reference to the carpal tunnel syndrome and surgery

·     The opinion of Dr Matheson in his report of 13 January 2004.

49.     I would wish to further indicate that I have considered alternate diagnosis in this matter. I observed that Dr Hassall suggested a regional pain syndrome as a possible diagnosis in August 2003, but I note an absence of any confirmatory specialist opinion in this regard, and indeed a conclusion by Dr Ellis that there are no clinical signs of either reflex sympathetic dystrophy or regional pain syndrome. Further Dr McGill in his report of 17 December 2003 stated that Mrs Trajcevski does not suffer from a current diagnosable condition, while Dr Matheson considers her current complaints implausible.

50.     I further observe that Dr Ellis has raised a diagnosis of tendonitis in a variety of areas in his report of January 2004. Such a diagnosis is at variance with that of Drs McGill, Portek, Hassall and Matheson, while Dr Champion, having suggested a minor underlying tendonopathy in May 2003, concluded that her fine independent finger movement was normal, strength of grip was normal and did not cause pain and that she was fit at that time to do the work she was doing. I acknowledge that Dr Champion was at a disadvantage in that he had only seen Mrs Trajcevski on the one occasion in May 2003, and that his opinion may have been more particular if a later review had been undertaken. In such circumstances I conclude that on the balance of probabilities a diagnosis of tenosynovitis of the flexor tendons cannot be sustained. Such an outcome is perhaps reinforced by Mrs Trajcevski failing to seek further consultation with the treating surgeon, Dr Green, since August 2003 in an effort to seek understanding and/or treatment of the continuing symptomatology.

51.     Despite all that has been written, I am satisfied that Mrs Trajcevski’s clinical symptomatology as currently defined are continuing and can be found to be permanent, having given consideration to:

·     The duration – 21 months

·       Likelihood of improvement – unlikely, in that the clinical symptomatology has remained during a period of 12 months maternity leave, and subsequent to delivery

·     Reasonable rehabilitative treatment remains a conundrum when there is no clear understanding  of what is causing the clinical symptomatology

·     The opinions of Drs Champion, Ellis and Matheson that a permanent impairment exists, while noting the opposite opinion from Dr McGill

·     While the issue of domestic and work conflict matters may have had a part to play in earlier years, no evidence was adduced that they continue to play a part in the current symptomatology.

52.     Nevertheless it is equally as clear from what I have already found that current symptomatology, albeit considered permanent, cannot be explained by Mrs Trajcevski’s bilateral carpal tunnel syndrome and the subsequent surgery. In the absence of any defined and explained body of evidence suggesting that the current symptomatology has either been caused by or aggravated by work, I conclude that the impairment, as defined by relation to the symptomtology is not work related.

53.     In addressing the assessment of the permanent impairment, albeit non work related. I note the opinions of the various specialists. I also note Table 9.4 of the Comcare Impairment Tables and the description of level of impairment for 10 per cent whole person impairment. Can use limb for self care and grasping and holding, but has difficulty with digital dexterity.

54.     I observe that all specialists’ opinions given in this matter concur in that Mrs Trajcevski can use either limb for self care and grasping and holding. The issue in contention is whether there is any difficulty with digital dexterity. My attention was drawn to a discussion on the phrase “difficulty in digital dexterity” in Comcare v Fielder (2001) 115 FCR 328. In turning to the specialist opinion I note the opinion of Dr Champion in his report of 16 May 2003 that fine independent finger movements were normal, strength of grip was normal and did not cause pain and that she did not have difficulty with digital dexterity in any measurable sense, although she would have difficulty sustaining fine independent finger movement required for a job in the long term. In a subsequent report of 10 November 2003, and in oral evidence Dr Champion concluded that she would have difficulty with digital exterity on a sustained basis. I have difficulty with this opinion on two grounds, namely Dr Champion’s acknowledgement that he has difficulty relating current symptomatology to the bilateral carpal tunnel syndrome and treatment and secondly it is a hypothetical and unhelpful opinion given against a set of circumstances as of May 2003, when he examined her for the one and only time, when indeed the current symptomatology had not been defined, with his assessment therefore having little bearing on current circumstances.

55.     I note that Dr Hassall considered an assessment as inappropriate as the condition had not yet stabilized. I further note that both Drs Hassall and Portek were of the opinion that some repetitive work activities and an increase in her activities at work would not be a major factor in causing any further work related symptoms or precipitate any significant musculo skeletal pathology respectively. I also acknowledge that Dr Ellis concluded a 10 per cent whole person impairment for each limb, despite acknowledging that her symptoms would improve after confinement and redundancy, because of difficulty with digital dexterity, without defining what is was and how he arrived at his assessment. Similarly I acknowledge that both Dr McGill and Dr Matheson conclude that she did not have difficulty with digital dexterity, without defining written evidence to support such a conclusion. Dr McGill stated that he has his secretary instruct a patient to write their name and address on the patient card and in this respect the ability to write is assessed. Further Dr McGill stated that he makes other observations as part of his clinical examination as to fine finger movement.

56.     In summary, I acknowledge that there is insufficient evidence before me to make any meaningful assessment under Table 9.4. In so stating I further acknowledge that there have been suggestions by some clinicians that there is an element of embellishment in Mrs Trajcevski’s clinical presentation (Drs McGill and Matheson). I also acknowledge that there are matters in which I find Mrs Trajcevski’s evidence difficult to understand or accept (Panadeine Forte issue, allegation  re Dr McGill). Further all the clinicians, apart from Dr Champion at his examination in May 2003 have failed to define the elements of their clinical examination which allowed them to make a finding on the issue of difficulty with dexterity. I have already made comments concerning Dr Champion’s view, and I find clinical assertions as to assessment of little assistance without defining what tests have been undertaken in order that any assessment against such an ambiguous phrase as “difficulty with digital dexterity” can be understood and assessed against other opinions.

57.     In conclusion, in the absence of any compelling clinical evidence that Mrs Trajcevski has difficulty with digital dexterity as a consequence of a complex of symptoms found to constitute a permanent impairment, I find that Mrs Trajcevski has a nil percentage whole person impairment pursuant to Table 9.4 for her non work related permanent impairment.

58.     In summary as a result of my findings I determine that the decision under review be affirmed.

I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:         Neil Glaser
  Associate

Dates of Hearing                   1 December 2004 and 1 April 2005
Date of Decision  19 May 2005
Counsel for the Applicant  E. Chrysostonou 
Solicitor for the Applicant                           Justin Raine, CMC Lawyers
Counsel for the Respondent                      Nick Polen
Solicitor for the Respondent                      Natalie Fisher, Henry Davis York