Van Haltren and Telstra Corporation Ltd

[2001] AATA 743

DECISION AND REASONS FOR DECISION [2001] AATA 743

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W1999/236

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      GWENDOLINE VERNON  VAN HALTREN    
  Applicant

And    TELSTRA CORPORATION LIMITED   
  Respondent

DECISION

Tribunal       Associate Professor S D Hotop, Senior Member          
Date              24 August 2001

PlacePerth

Decision      The Tribunal sets aside the decision under review and, in substitution therefor, decides that: the respondent is liable under s14(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the SRC Act") to pay compensation, in accordance with that Act, to the applicant in respect of chronic pain in her neck and right upper limb ("the physical injury") and in respect of depression ("the mental injury"); the respondent is liable to pay weekly incapacity payments to the applicant, in accordance with Division 3 of Part II of the SRC Act, with effect from and including 12 March 1997 on the basis of the findings set out in paragraph 143 of the Tribunal's Reasons for Decision herein; the respondent is liable under s24(1) of the SRC Act to pay compensation, in accordance with s24 and the Guide to the Assessment of the Degree of Permanent Impairment ("the approved Guide"), to the applicant for permanent impairment in respect of the physical injury and the mental injury on the basis of the findings set out in paragraphs 147, 151 and 153 of the Tribunal's Reasons for Decision herein; the respondent is liable under s27(1) of the SRC Act to pay compensation, in accordance with s27 and the approved Guide, to the applicant for non-economic loss in respect of the physical injury and the mental injury on the basis of the findings set out in paragraphs 147, 151, 153 and 158 of the Tribunal's Reasons for Decision herein; the respondent is liable under s16(1) of the SRC Act to pay compensation to the applicant, being the cost of all reasonable "medical treatment" (as defined in s4(1) of the SRC Act) obtained by the applicant in relation to the physical injury and the mental injury from 12 March 1997, subject to proof being provided to the reasonable satisfaction of the respondent that the cost of such medical treatment has been incurred by the applicant; the respondent is not liable under s16(6) of the SRC Act to pay compensation to the applicant in respect of the cost of journeys by taxi for the purpose of obtaining reasonable medical treatment for either the physical injury or the mental injury; the respondent is not liable under s29(1) of the SRC Act to pay compensation to the applicant for household services; and the respondent is not liable under s39(1) of the SRC Act to pay compensation to the applicant in respect of kitchen alterations in her place of residence. The Tribunal orders, pursuant to s67(8) of the SRC Act, that the respondent pay the costs of the applicant in these proceedings, such costs to be assessed in accordance with clause 6 of the Tribunal's General Practice Direction dated 18 May 1998.             
  ...........(sgd S D Hotop)..........
  Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant employed by respondent as telephonist from 1973 to 1996 – applicant suffered injury to right shoulder in 1985 and 1987 and respondent accepted liability to pay compensation – applicant suffered recurrence of injury to neck and right shoulder in 1990 – respondent continued to pay compensation until 1 May 1996 but ceased payments from that date – applicant sought review by Tribunal – parties made agreement and Tribunal made decision under s42C of Administrative Appeals Tribunal Act 1975 that respondent liable to pay compensation to applicant for period 1 May 1996 to 11 March 1997 – applicant made fresh claim for compensation in December 1997 in respect of neck and right shoulder injury and secondary depression – applicant claimed compensation for incapacity, permanent impairment, non-economic loss, household assistance, modifications to kitchen, and medical, pharmaceutical and travel expenses – whether applicant precluded from making fresh claim for compensation by agreement and Tribunal's decision under s42C – whether respondent liable to pay compensation to applicant in respect of neck and right shoulder condition and depression – whether respondent liable to pay weekly incapacity payments to applicant – whether respondent liable to pay compensation to applicant for permanent impairment – whether respondent liable to pay compensation to applicant for non-economic loss – whether respondent liable to pay compensation to applicant for medical, pharmaceutical and travel expenses – whether respondent liable to pay compensation to applicant for household services – whether respondent liable to pay compensation to applicant for cost of alterations of place of residence.

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 4(9), 14(1), 16, 24, 27, 29, 39

Australian Postal Corporation v Lucas (1991) 33 FCR 101
Bank of Australasia v Palmer [1897] AC 540
Bogaards v McMahon (1988) 80 ALR 342
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Comcare v Kay (1997) 26 AAR 124
Re Elmazny and Australian Postal Corporation AAT Decision No 10524, 9 November 1995
Re Musumeci and Department of Health (NT) (1990) 19 ALD 797
Thiele v Commonwealth (1990) 22 FCR 342

REASONS FOR DECISION

24 August 2001       Associate Professor S D Hotop, Senior Member   

1. Gwendoline Vernon Van Haltren ("the applicant") has applied to the Tribunal for review of a reviewable decision made under s62 of the Safety, Rehabilitation and Compensation Act 1988 ("the SRC Act") by a delegate of Telstra Corporation Limited ("the respondent") on 8 June 1999 affirming a determination made under the Act by another delegate of the respondent on 4 June 1998 that:

   "Telstra Corporation is not liable to pay compensation to Gwendoline Van Haltren".

1. At the hearing before the Tribunal the applicant was represented by Ms C Crawford of counsel, and the respondent was represented by Mr J Lenczner of counsel. The Tribunal had before it the statement and documents lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), comprising documents T1-T35 (Volume 1, pp 1-128), T36 (Volume 2, pp 1-152), T37 (Volume 3, pp 153-295), and T38 (Volume 4, pp 296-537)("the T documents"). The Tribunal also had before it various documentary exhibits tendered by the applicant (A1-A29) and by the respondent (R1-R16). Oral evidence was given by the applicant and by the following witnesses: Ms L Coxon, Clinical Psychologist, Ms T Dival, Occupational Therapist, Dr A Harper, Occupational Physician (who were called by the applicant), Mr R McCormack, Barrister, Ms R Keep, Mr A Skirving, Orthopaedic Surgeon, Dr Z Mustac, Consultant Psychiatrist, and Dr P Hollingworth, Associate Professor of Occupational Medicine (who were called by the respondent).
   The Factual and Medical Background

2. The factual and medical background, as found by the Tribunal on the basis of the T documents, is as follows.

3. The applicant, who was born on 4 July 1940, commenced employment with the Postmaster-General's Department (a predecessor of the respondent) in March 1973 as a telephonist.

4. On 18 December 1985 the applicant claimed compensation in respect of an injury described as "RSI" and said to have occurred on 11 December 1985.  A "First Medical Certificate", dated 19 December 1985, by Dr B Hogan stated a provisional diagnosis of "RSI".

5. On 11 April 1986 a delegate of the Commissioner for Employees' Compensation made a determination that the Australian Telecommunications Commission (a predecessor of the respondent) was liable under the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") to pay compensation to the applicant in respect of "repetitive strain injury" contracted by her on 11 December 1985.

6. On 26 October 1987 the applicant claimed compensation in respect of an injury described as "pain right shoulder" and said to have occurred on 13 September 1987.  A "First Medical Certificate", dated 14 September 1987, by Dr B Hogan stated a provisional diagnosis of "muscle inflammation affecting right shoulder and associated muscles" and certified that the applicant would be unfit for work for 6 weeks.  Progress medical certificates were subsequently issued by Dr Hogan stating that the applicant was also suffering from "secondary depression" and certifying her  unfitness for work until 19 January 1988.

7. On 18 January 1988, Dr Hogan certified that the applicant, who was suffering from "work induced inflammation of muscles of R shoulder with secondary depression", had now completely recovered.  Dr Hogan noted, however, that if the applicant "works on more than one board at times where she has to propel herself around on her stool recurrence is quite likely".

8. On 19 January 1988 a Commonwealth Medical Officer reported that the applicant had been suffering from pain in the right shoulder, and reactive depression, but that she was now fit to resume employment in her present position.

9. On 1 March 1988 a delegate of the Commissioner for Employees' Compensation made a determination that the Australian Telecommunications Commission was liable under the 1971 Act to pay compensation to the applicant in respect of "muscle inflammation affecting right shoulder and associated muscles" contracted by her on 14 September 1987.

10. On 15 January 1991, Dr Hogan issued a "First Medical Certificate" in respect of the applicant referring to a "recurrence of work induced muscle inflammation of the neck & R shoulder" on approximately 7 December 1990.

11. On 18 April 1991 Dr Hogan reported to the Australian Telecommunications Corporation (a predecessor of the respondent) in relation to the applicant as follows:

    "Patient suffered from work induced inflammation of muscle of shoulder girdle, neck and right shoulder in September 1987 and has been subject to occasional recurrences of this condition since then.  In December 1990 she developed more severe recurrence with nagging pain across shoulders and cervico brachial pain, which has required treatment since then.
    At present she is still at work but requiring short wave therapy, NSAIDS Zantac for secondary indigestion from NSAIDS and antiflammatory (sic) injections into soft tissue.  Her progress is satisfactory but as always with this condition it is slow."

1. On 9 September 1991 Dr P Zilko, Rheumatologist, made a report to Telecom Australia regarding the applicant in which he diagnosed "generalised fibrositis with some contribution from cervical spondylosis" and commented:

   "I do not believe either of these diseases has been caused by her employment, but it is likely that symptoms due to these two conditions have been aggravated by her work activities".

1. On 31 January 1992 Dr K A Black, Rheumatologist, made a report to Dr Hogan regarding the applicant in which he opined that "her problems are a combination of cervical spondylosis and occupational cervicobrachial syndrome".

2. On 25 May 1992 Dr J Edelman, Rheumatologist, reported to Dr Hogan  that the applicant's condition was "quite consistent with an occupational pain syndrome" and that it was "well ingrained and quite chronic".  He recommended that she be kept off work.

3. On 11 June 1992 Dr Zilko reported to Telecom Australia his opinion that:

   "the cause of the [applicant's] condition is most likely to be a combination of some pre-existing cervical spondylosis and with some superadded fibromyalgia which is most probably work related."

1. On 6 July 1992 Dr Hogan reported to Telecom Australia as follows:

   "Mrs Gwen Vanhaltren (sic) who developed work induced pain syndrome affecting her shoulder girdle mainly affecting right side plus neck pain and pain extending down into right arm and anterior thorax.  Originally patient developed pain in September 1987, when she used to push her chair from board to board while working on exchange.  Over the years she has been managed by short wave therapy, NSAIDS, analgesics and at times cortisone injections locally to inflamed tender points.  The constant pain has disposed patient at times to depression.  Mostly the patient has been able to work despite her disability and only recently with the relapse of pain has she again required time off work.  However since then, possibly with the lack of movement her condition seems to have become even worse.  She has now restarted physiotherapy with gentle muscle relaxation massage, with a very gradual projected progression.  Patient does have underlying spondylitis of cervical spine, but this is only playing a part in the overall picture, which is work induced fibromyalgia."

1. On 5 October 1992 Dr Zilko reported to Telecom Australia on the applicant as follows:

   "She still appears to be suffering from severe generalised fibromyalgia and as stated previously I think the cause of this is most likely to be a combination of some pre-existing cervical spondylosis and now superadded fibromyalgia which may be work related.  Clearly this is not the only factor as her symptoms have persisted despite being totally off work."

He added:

"Taking into account her recurrent symptoms I think she is incapacitated for any work at the present time."

1. On 13 January 1993 Dr Zilko, in a report to Telecom Australia on the applicant, stated:

   "I believe that some of her disability is work related but it would have to be considered that much of the current disability is not work related as she has not been at work for many months."

He stated that he felt that the applicant was now fit for part-time work and he suggested that she return to work part-time (30-40% of normal workload) on a trial basis in one month's time.  In response to a specific inquiry from Telecom Australia, Dr Zilko, in a letter dated 15 January 1993, stated that he did not believe that the applicant's condition was "severe enough to warrant travel only by taxi".

1. Following Dr Zilko's report of 13 January 1993 a rehabilitation programme was formulated by Industrial Rehabilitation Service for the applicant under which she would resume her employment duties at the respondent's Wellington Customer Service Centre on 10 March 1993 initially working 3.5 hours per day, 3 days per week (Monday/Wednesday/Friday) on the nightshift commencing at 10.50 pm.

2. In the meantime Dr Hogan, on 28 October 1992, referred the applicant to Mr M Meinck, a therapeutic masseur, for treatment.  In his referral letter Dr Hogan also noted that the applicant's "constant pain has brought on depression".  In reports dated 30 March and 6 April 1993 Mr Meinck noted that the applicant had commenced therapy with him on 3 November 1992 and that during the first 3 months of treatment there was a gradual improvement in her condition but that, upon her recommencing work, her condition regressed as demonstrated by "swelling in the muscles of the neck and shoulder area".  He opined, by reason of this "very specific physical reaction", that the applicant's working was "detrimental to her recovery".

3. On 6 April 1993 Dr M Awerbuch made a report to Telecom Australia in which he opined that the applicant was suffering from "abnormal or learned illness behaviour", and not from "fibromyalgia syndrome", and that there were no employment factors which materially contributed to her abnormal illness behaviour.  He considered that the applicant was "physically capable of resuming her normal duties as a telephonist".

4. On 22 April 1993 Dr Zilko made a report to Telecom Australia on the applicant following her "return to work in a limited capacity", namely 3.5 hours per day, 3 days per week.  He reported that his clinical findings were similar to his previous findings and that there did not seem to be any significant deterioration in her condition.  He also noted Dr Awerbuch's opinion that the applicant's "symptoms are due to learned illness behaviour and he commented that "there may well be an element of such illness behaviour".

5. On 30 September 1993 Dr G Cope, Cardiologist, reported to the respondent that the applicant had been admitted to hospital with a myocardial infarction on 29 May 1993 but that she had now made a satisfactory recovery from this and that, as regards her heart condition, she was fit to resume work as of 1 October 1993.

6. On 3 December 1993 Dr D Dowda, Consultant Occupational Physician, made a report to the respondent on the applicant in which he stated:

   "The employment of Mrs Van Haltren was not materially a contributing factor to her myocardial infarction.
   It is possible that Mrs Van Haltren developed right arm or right shoulder tenderness and may well have sprained the right shoulder or strained the soft tissues in the manner in which she described while she was carrying out work, moving from station to station, unplugging and plugging in and changing position a lot, servicing different switchboards.
   The historical fact that she was completely recovered from January 1988 until three years later, January 1991, in the absence of a clear precipitating incident or event suggests that whatever employment factor might have occurred previously no longer was operative and the recurrence of her right shoulder condition in the absence of an incident is unexplained from the point of view of her work activities."

Dr Dowda went on to state that he did not consider that the applicant was physically incapacitated from working as a telephonist.

1. On 15 December 1993 Dr G Mastaglia, Physician in Rheumatology, reported to Dr Hogan that a "syndrome of fibromyalgia" was the most appropriate diagnosis of the applicant's physical condition.  He added that she would "never be free of pain" but that her condition could be "much improved" in the future.  In a follow-up report dated 28 February 1994 Dr Mastaglia noted that the applicant's condition had not improved and opined that she was unfit for work.

2. On 11 March 1994 Dr Hogan issued a Progress Medical Certificate stating that the applicant was still suffering from the effects of "work induced muscle inflammation" and that, after consultation with Dr Mastaglia, he had ceased her attempt to return to work as it aggravated her pain.  The applicant did not return to work thereafter.

3. On 12 August 1994 Dr P Hollingworth, Associate Professor in Occupational Medicine, made a report to the respondent on the applicant in which he stated that he "would not argue with" the view expressed by rheumatologists that the applicant has "some sort of fibromyalgia" but that he was unable to find "any evidence whatsoever that this was, or is, or ever has been, work caused".  He added:

   "…I think, whatever her current rheumatological problems are, they are not related to her work."

1. On 14 February 1995 Dr Awerbuch made a further report to the respondent following a review of the applicant on 8 February 1995. In that report he adhered to his previous opinion that the applicant has "abnormal or learned pain behaviour" and added that it was his "considered opinion" that she suffers from "somatisation".  He added:

   "…I find no relationship between her widespread pain problems, which I believe to be the result of a somatoform disorder, and her occupation.  I believe that she is incapacitated for work by her somatoform disorder."

1. On 29 March 1995 Dr Mastaglia reported to Dr Hogan that, having considered Dr Awerbuch's report, he adhered to his view that the applicant's symptoms were work related.

2. On 21 August 1995 Ms L Coxon, Clinical Psychologist, reported to the respondent that she had seen the applicant on 3 occasions in August 1995 following a referral by Dr Hogan and that her assessment of the applicant's "emotional state" was that "she suffered a significantly high number of anxiety symptoms and moderate depression".

3. On 16 November 1995 Dr S Dimmitt, Consultant Physician, General and Cardiovascular Medicine, reported to the respondent on the applicant and provided the following responses to specific questions:

   "…

   2It is difficult to dissect out a primary debilitating disorder – she has a composite of angina, musculoskeletal symptomatology and depression, all of which are now longstanding and likely to persist.

   3These disorders were likely primarily to be unrelated to work, each likely to have progressed 'naturally', but undoubtedly each has been aggravated by work, culminating in her incapacity to work.

   4The repeated use of her upper limbs and stress related to her work appear likely to have aggravated these conditions.

   5These aggravating effects of work would likely have been temporary and her present state related principally to natural progression of the conditions.

   …

   8Mrs Van Haltren is total (sic) incapacitated for her present or any work, on the basis of her coronary disease, musculoskeletal symptoms and depression."

Dr Dimmitt did not consider that the applicant would be able to undergo a rehabilitation programme at any time.

1. Dr D Clifford, Medical Officer, Australian Government Health Service, provided a lengthy report on the applicant to the respondent, dated 14 December 1995, in which he ultimately agreed with the opinions expressed by Dr Dimmitt (see preceding paragraph).

2. On 15 March 1996 Dr Edelman reported to Dr Hogan on a review of the applicant.  In his report Dr Edelman stated:

   "It was always my opinion that this was work induced.  It was always Dr Zilko's opinion that her condition is work induced and indeed Telecom asked this lady to see Dr Zilko.  It is Dr Mastaglia's and Dr Black's opinion that this is work induced as well.
   There is no doubt in my mind that the condition this lady has is still much the same as she has always had and it is due to the work environment and still continues to this present day.  None of us really understand why this condition continues for such a period of time but it does in any case.  She should remain invalided out of the work force and Telecom needs to be responsible for this.
   Treatment is always difficult in these conditions.  The only medication that can help is the anti-depressants at night and positive re-enforcement through psychological support and her own home exercise regime."

1. On 15 April 1996 a delegate of the respondent made a determination that the respondent was no longer liable to pay compensation to the applicant pursuant to s14 of the SRC Act in respect of "inflammation affecting muscles associated to (sic) right shoulder sustained on 14/9/87" and that, accordingly, "no further incapacity or medical or other benefits payable pursuant to provisions of the Act will be paid after 1 May 1996".

2. By letter dated 1 May 1996 the applicant's solicitors requested the respondent to reconsider the determination of 15 April 1996 pursuant to s62 of the SRC Act.

3. On 30 May 1996 a reconsideration delegate of the respondent made a decision affirming the determination of 15 April 1996.

4. On 24 June 1996 the applicant's solicitors lodged with the Tribunal an Application for Review of the reviewable decision of 30 May 1996.  That Application for Review was numbered W96/195.

5. In the meantime the applicant's employment with the respondent was ceased on 5 June 1996 when she was retired on medical grounds.

6. On 2 December 1996 Dr Hollingworth reported to the respondent's solicitors following an examination of the applicant on 29 November 1996.  In his report Dr Hollingworth stated:

   "…It is possible that this lady has had a fibromyalgia type illness.  It is equally possible that she has had nothing other than a depressive illness, with stress.  There is no way of proving this, one way or the other, as there are no tests for fibromyalgia and these pain states rely very much on what the patient tells the examining doctor.  This fibromyalgia, if it exists, is superimposed on a well documented, longstanding degenerative condition affecting both the cervical spine and the thoracic spine."

Dr Hollingworth stated that the applicant had a "degenerative musculo-skeletal condition" which had been "documented since at least 1991" and that there was "no connection between her musculo-skeletal condition and her work".  He also expressed the view that the applicant in the past had "shown a lot of abnormal illness behaviour".

1. An Agreement pursuant to s42C of the AAT Act, dated 11 March 1997, signed by the applicant, her solicitors and the respondent's solicitors was lodged with the Tribunal in relation to Application for Review No W96/195 on 11 March 1997. Clause 3 of that Agreement provided:

   "The parties request that the Tribunal make a decision as follows:-  That the reviewable decision of the Respondent dated 30 May 1996 be set aside and, in substitution therefore (sic), the Tribunal decides that:

   (i)The Respondent has liability under section 19 of the Safety, Rehabilitation & Compensation Act 1988 to pay $27,000 to the Applicant inclusive of taxation liability in respect of inflammation affecting muscles of right shoulder ('the condition') for the period 1 May 1996 to 11 March 1997.

   (ii)The Respondent has liability under section 16 of the Safety, Rehabilitation & Compensation Act 1988 to pay medical expenses incurred by the Applicant in respect of the condition for the period 1 May 1996 to 11 March 1997 to a maximum of $2,500, subject to proof that such expenses have been incurred."

1. On 11 March 1997 the Tribunal, in Application for Review No W96/195, made a decision under s42C of the AAT Act in the following terms:

   "In accordance with section 42C(1) of the Administrative Appeals Tribunal Act 1975 the parties have reached agreement as to the terms of a decision of the Tribunal that is acceptable to the parties; and
   the terms of the agreement have been reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
   the Tribunal is satisfied that a decision as agreed between the parties and set out below is within the powers of the Tribunal and that it is appropriate to make a decision without completing a hearing of the proceedings.
   In accordance with section 42C(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal:

   1.        sets aside the decision of the respondent dated 30 May 1996; and

   2.        in substitution therefore (sic) decides that:

   (a)the respondent has liability under section 19 of the Safety, Rehabilitation and Compensation Act 1988 ('the Act') to pay $27,000 to the applicant inclusive of taxation liability in respect of inflammation affecting muscles of right shoulder ('the Condition') for the period 1 May 1996 to 11 March 1997; and

   (b)the respondent has liability under section 16 of the Act to pay the medical expenses incurred by the applicant in respect of the condition for the period 1 May 1996 to 11 March 1997 to a maximum of $2,500, subject to proof that such expenses have been incurred."

1. In the period May-June 1997 there was correspondence between the applicant's (new) solicitors and the respondent's solicitors regarding the effect of the Tribunal's decision of 11 March 1997 in relation to the matter of the respondent's continuing liability (if any) under the SRC Act to pay compensation to the applicant.

2. On 28 July 1997 Dr A Harper, Occupational Physician, made a report to the applicant's solicitors regarding his review of the applicant on that date.  His conclusions, expressed by way of responses to questions asked of him by the applicant's solicitors, were as follows:

   "1.Mrs Van Haltren is presently incapacitated by arm, shoulder and neck pain.  I feel she is incapacitated for all forms of gainful employment on a permanent basis.  I do not anticipate her being capable of returning to the workforce in any capacity.

   2.Regarding treatment, I feel she requires ongoing management for her depression but would also benefit from counselling to assist her adapt to her limitations and to her ongoing anxiety.  Reduction of stress would be beneficial and with regard to this, I feel she will be somewhat more relaxed upon completion of her legal case.

   3.It is difficult to assess the precise percentage of her work-related impairment but my estimate is that she has a 10-15% loss of efficient use of the right upper extremity.  This percentage does not adequately define incapacity related to her depression and current emotional distress.

   4.I do not expect her work capacity to improve sufficient (sic) for her to re-enter the workforce.

   5.With reduction in stress, I would expect some improvement in symptoms rather than any further deterioration.

   6.I feel her working life has been terminated as a result of her current disability.

   7.I attribute the development of her right upper arm symptoms to her work circumstances and the resulting pain has caused reduced mobility, diminution in social relationships and recreational and leisure activities.  I anticipate her continuing to be handicapped by her condition but hopefully with management, her adjustment can be improved and the resulting distress reduced.

   8.See Point 2. above.

   9.I have not been able to identify any pre-existing condition which pre-disposed her to her current disability.  I feel her work circumstances played a significant part in the onset of symptoms.

   10.Mrs Van Haltren's ability to do her own housework and cooking has been significantly reduced and she is no longer independent in this regard.  She may regain some but not all of her capacity with regard to housework.

   ASSESSMENT

   Mrs Van Haltren is a 57 year old Telephonist who first developed right arm symptoms in 1985 which subsequently deteriorated.  She is incapacitated for her pre-accident work and for other forms of gainful employment.  I feel her incapacity is permanent and that her work has been a significant contributor to her disability.  I do not feel she is malingering or is suffering from a factitious disorder.  I feel her depression and anxiety are a complication of her pain and disability which has not been helped by the associated stresses of a workers' compensation claim."

In a subsequent report, dated 16 September 1997, to the applicant's solicitors, Dr Harper stated:

"Thank you for asking me to review Mrs Van Haltren.  I previously saw her on 28.07.97.
Regarding the question of the possibility that her heart condition is work related, I have the following comments to make.  Mrs Van Haltren reports that she had been off work from May 1992 due to her persistent musculoskeletal symptoms.  She returned to work in March 1993, following further medical assessment. She reports physical and emotional stress at work and an increase in her symptoms from that time until her heart attack on 29.05.93.  I am unable to rule out this work stress, playing some causative role in the precipitation of her heart attack.
Mrs Van Haltren's symptoms of chest pain which relate to physical exertion and are relieved gradually on rest, present something of a diagnostic dilemma.  However, it is my view that her coronary related symptoms themselves, do not preclude her from returning to the workforce.  The principal disability producing her work incapacity and permanent impairment is her musculoskeletal condition dating from 1987.
Regarding the tables on impairment which you have enclosed, I rate Mrs Van Haltren on each one at the following level:  upper limb – 30% of whole person, cervical spine – 5% impairment of whole person, thoraco-lumbar spine – 10% impairment of whole person, pain level of effect – score 4, suffering description of effect – score 4 and sometimes 5, mobility level of effect – score 2, social relationships level of effect – score 4, recreation and leisure activities – score 3 and sometimes 4.  I feel that she has permanent impairment in each of these categories as indicated by each score."

1. On 21 August 1997 Ms L Coxon made a report on the applicant to the applicant's solicitors in which she provided the following responses to their questions:

   "1.Mrs Van Haltren suffers persistent pain around the neck area, the chest, both shoulder and her right arm.  She also experiences cramping in her hands and arms and her abdomen.  The most recent assessment of her emotional state in June 1997 revealed very high anxiety and depression.

   2.Mrs Van Haltren would benefit from ongoing psychological treatment for both her stress and depression.  Unfortunately, her treatment with me was stopped by Comcare in June 1996 when she was retired on invalidity grounds from Telecom.

   I began seeing her again at the end of 1996 at her doctor's request and then again earlier this year, intermittently.  Mrs Van Haltren has been responsible for her own costs for psychological treatment since her retirement and since she has had very limited psychological treatment, her emotional state has declined.

   3.I understand that Professor Harper considers her degree of impairment of the right upper limb to be in the region of 10-15%.  Her incapacity related to her depression and stress would be in the region of between 20 to 30% disability.

   4.I consider that Mrs Van Haltren is unlikely to re-enter the workforce in any capacity.

   5.Her physical condition may well deteriorate, but with ongoing treatment her psychological state should improve to a degree.

   6.Mrs Van Haltren's working life has been terminated as a result of her poor health.

   7.The work related arm and neck pain, and limited mobility has led to a reduced capacity to engage in the tasks of daily living, household duties, social activities, and leisure pursuits.  Mrs Van Haltren has become depressed and stressed by her limited capacity to function in the home, and this has affected her relationship with family members.  Two of her daughters have contacted me in the past about their mother's depression and feelings of hopelessness.

   Although a very independent individual in the past, Mrs Van Haltren is now very dependent on her family.

   8.If she had access to more intensive ongoing psychological treatment her emotional state would show improvement.

   9.Mrs Van Haltren's medical history does not suggest that she had any pre-existing conditions which would have manifested themselves without the work caused injury.

   She was involved in a motor vehicle accident in 1971, when she was hit as a pedestrian, fracturing her left lower arm.  However, the arm fracture was reduced and plated and did not give her any more problems.

   10.Mrs Van Haltren relies heavily on her family to complete household tasks for her.  She is unable to undertake tasks which require lifting or carrying with her arms, such as vacuuming, scrubbing, ironing, cooking, hanging out clothes or carrying the shopping.  Her daughters and husband complete these tasks, while she undertakes light sweeping and dusting and putting clothes in the washer.

   I am not confident that she will ever regain the capacity to undertake all the above mentioned heavy tasks.  She may improve to a degree, with lighter manual tasks."

In a subsequent report, dated 7 October 1997, to the applicant's solicitors, Ms Coxon stated:

"Thank you for your correspondence of 5th September regarding Mrs Van Haltren.  I reviewed her on 2/10/97.
On Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment, regarding psychiatric conditions, I consider that Mrs Van Haltren is impaired at the 25% level.  She has a need for some supervision and direction in the activities of daily living.  Her reaction to stresses of daily living are such that she can only manage 1 hour of household duties per day.  She retires to her bed often and depends upon her husband and 2 daughters to run her household.  She cannot cope with crowded places and is unable to walk very far.  Mrs Van Haltren's thought patterns are often negative, and this leads to her feeling depressed.  She has difficulty in making decisions and relies on her family to make them for her.  Her behaviour patterns are erratic and she is intolerant of others.  She 'flares up' frequently over small issues and then withdraws by retiring to her bedroom.
I note Mrs Van Haltren's responses in the Non Economic Loss questionnaire dated 29/08/97.
In Section 1.1 (Pain).  She describes her pain as continuous and severe.  Preventing activity.  Largely uncontrolled by medication.
In Section 1.2 she describes her pain as continuous in arm, shoulders, chest, neck and back.  The pain results in cramping of the fingers and trembling of the right hand.  She also describes suffering severe headaches, starting from the back of the shoulders and neck with a subsequent loss of sleep.  Medication just dulls the pain.  I believe this to be an accurate description of her pain.
In Section 1.3 (Suffering).  She marked box 5 that her symptoms were wide ranging and tend to dominate her thinking.  She reports little time when she is free of symptoms and has difficulty in coping or performing activities.  Treatment is necessary.  She also marked the next item (6) in 1.3, that she is constantly focussed on her condition and ruled by emotions. Symptoms predominate her thinking and she is unable to cope.  Her activities are severely restricted, and treatment is of no help.  I consider that the first item she checked (No. 5) is the more accurate of the 2, as she does seem to get a degree of relief from her treatment.
In Section 2.1 (Mobility).  Mrs Van Haltren responded that her mobility is markedly reduced and she needs some assistance from others.  She is unable to use most forms of transport apart from the short train rides and taxis.  I believe this to be an accurate description of her mobility.
In the Social Relationships Section 2.3 Mrs Van Haltren marked Item 5 that her social contacts are confined to her immediate family.  I consider that this is an accurate description.
In the Section 2.5 (Recreation and Leisure Activities).  Mrs Van Haltren marked box 6, indicating that she is unable to undertake any satisfying or rewarding activities.  I believe she does very little in her household and depends largely on her husband and 2 daughters who live at home, to maintain the household.  She does not engage in any hobbies.
In the final Section 3.1 (Other losses).  She has ticked box 4 that she has marked disadvantages and does not sew, go out with friends, visit relatives or entertain others.  She spends considerable time in her bedroom and fears going out on her own.  I consider this an accurate description of the disadvantages she suffers.
Regarding overall permanent impairment, I believe Mrs Van Haltren's condition is likely to persist well into the future, rather than subside.
When I last saw Mrs Van Haltren on 2/10/97, she reported experiencing an increase in pain in the right arm region of her body.  She was to consult her Doctor about this problem."

1. On 19 November 1997 Dr B Hogan reported to the applicant's solicitors as follows:

   "Mrs Gwen Van Haltren is medically unfit for work due to soft tissue inflammation affecting mainly upper half of the body, complicated by anxiety and depression.
   The condition was precipitated originally by work practices required by Telecom in the early 1980's.  It was here, to keep up with the demands of the job, she was required to push herself on a chair mounted on casters from one exchange board to the other while employed as an exchange board operator.
   Her symptoms originally developing (sic) in her right shoulder and arm, and despite treatment it progressed gradually until the symptoms involved the upper half of her body.
   Mrs Gwen Van Haltren now has Fibromyalgia and I would not expect her to be able to return to work in the future.  The aetiology of Fibromyalgia is not definitely known but often follows an episode of stress.  I feel that Mrs Van Haltren's inability to return to work is the result of her job at Telecom with its work practices and associated stress.
   Mrs Van Haltren is in constant discomfort and pain, with episodes of depression.  She is grossly restricted in her normal life, requiring assistance to carry on keeping house.  She can't raise her arms above 90º, tires quickly and develops pain with use of muscle for any constant activity.
   Gwen has also suffered from Myocardial Infarction in May 1993, which has caused a substantial area of heart muscle to be affected by scar tissue.  Whether this was caused by work caused by stress it is impossible to say.  However even if Gwen did not have this infarction, her other fibromyalgic symptoms would prevent her from working.
   In my opinion the long term outlook for Gwen will depend on whether a definite treatment for Fibromyalgia is found.  In the meantime when the stress of the present litigation is finished I would expect some improvement.  She has not worked since 1993 and her condition has not improved much during this time, although there has been some slight improvement, again punctuated with relapses.
   I do have two reservations concerning Gwen's' present condition being a direct result of her work at Telecom. The first reservation is that Gwen has pain in the lower body especially the legs which is not likely to have been caused by the type of work that Gwen was doing at Telecom.  This however is a part of her Fibromyalgia.  The second is that Gwen's present condition is due to fibromyalgia, and the aetiology and mechanism of Fibromyalgia is not definitely known.
   Despite the above the balance of probability is that Gwen's present condition is largely work induced."

In a subsequent report, dated 9 December 1997, to the applicant's solicitors, Dr Hogan stated:

"In reply to the questions posed in your letter of October 3 1997.

1.        Mrs Van Haltren's work related symptoms and her ability to carry out her domestic duties at home would have benefited by the renovations to her kitchen and adjustment to the height of the kitchen benches carried out in 1992.

2.        Mrs Van Haltren required an outside employee to assist her so that she could cope with her housework as a direct result of her muscle inflammation and Fibromyalgia.  She required this outside help for 3 hours per week for 3 months.  In addition she required support and assistance from her family members.

3.        Mrs Van Haltren required taxi transport to my surgery and consulting rooms of her psychologist as she was unfit to travel long distances when not serviced by a direct bus route.

4.        Mrs Van Haltren will require permanent treatment although in lesser amounts unless a cure for fibromyalgia is found.  Mrs Van Haltren will never be able resume (sic) her job at Telstra and will have some restrictions in her ability to carry on her normal house duties although slow improvement can be expected."

1. On 12 December 1997 the applicant's solicitors wrote to the respondent's solicitors requesting that the respondent make a determination in respect of the following claims made by the applicant:

   "1Wages from March 12 1997 pursuant to Section 21 of the Act at 70% of the Applicant's wage rate.

   2Claim for Permanent Impairment under Section 24 of the Act. …

   3Claim for Non-Economic Loss pursuant to Section 27 of the Act. …

   4Household assistance pursuant to Section 29 of the Act. …

   5Modifications to the kitchen pursuant to Section 39 of the Act. …

   6… medical travel and pharmaceutical expenses…".

1. On 17 March 1998 Dr Hollingworth provided a report to the respondent's solicitors in relation to his review of the applicant on 16 March 1998.  In that report Dr Hollingworth commented:

   "…
   B.        I was interested in the report from my colleague, Andrew Harper, and I would agree with his estimate that at the cervical spine she has a 5% maximum level of impairment.  I would have put her on Table 9.4 as 20% impairment, using the upper limb, in that she can use the limb for self-care and she does have (sic) digital dexterity and does not have (sic) difficulty grasping and holding, but I thought again 20% was the maximum rate.
   I would also, using Table 9.1 again put her as 20% and (sic) she has got loss of half normal range of shoulder.
   I will now address the questions posed in your letter of referral dated 6.3.98.
   You ask about permanent impairment and the problem is that there are no objective abnormalities, rather they are what this lady says she can, or cannot, do.
   (a)       I am not suggesting the lady is lying, but there is no objective impairment of the arms.  I believe she has a diffuse pain syndrome, which is another way of saying she has pain with all sorts of things, but as regards the musculo-skeletal system there are not objective abnormalities.
   (b)       As regards the neck, I have never seen the X-rays, but I gather those reported on 11.5.92 show some degeneration with narrowing of C5-6 and C6-7 disc spaces and prominent antero-lateral oseophytes at these levels, with partial intra-body bridging due to calcification.  This was in keeping with the impairment shown on rotation on examination today.
   I believe that these are degenerative in nature and, given that the X-rays were taken some 5 years after the onset of her symptoms, I find it very difficult to say to what extent they are work related.  Certainly the condition would be unlikely to improve and with the efflux of time would be likely to normally degenerate.
   (c)       As regards the shoulders, there is said to be a decreased range in movement and when she said she was getting pain I did not persist in passive movements beyond that point and have accepted as true that that is all she can do.  I find no reason for this shoulder impairment and, as far as I know, there have never been X-rays taken of the shoulders.  It may well be that a lot of the reduced range of movement at this stage is due to fairly prolonged disuse.
   (d)       As regards the upper back, then the X-rays which originally were reported on 26.1.93 of the thoracic spine and neck, showed a scoliosis with some marginal osteophytes and degenerative changes between T10 and T12.  Again this is an objective impairment, but it is difficult to say that this is related to the work which she did and again the problem is that these X-rays were taken a number of years after the onset of her symptoms.
   I would agree with Professor Harper's estimate that the impairment, using Table 9.6 is 10%.
   C.       You ask about the scores which this lady has made for non-economic loss and again, we have the problem that all of this is on what is often called a ipse dixit basis.  There are no objective supporting reports and these are all what she says she can, or cannot, do.
   d.        As regards household assistance, she tells me that her husband has not taken further work so that he can be at home to assist her and not leave her alone, as she says she cannot cope.  She also tells me that another daughter has given assistance.  I am not able to make any comment on what happened 6 or 4 years ago.  I think it would probably be necessary to get an opinion from a forensic psychiatrist, such as Professor Finlay-Jones to give an independent opinion as to what he believes is her psychiatric or psychological state and I believe much of her psychological presentation is due to the stress of this whole protracted medico-legal situation.
   E.        As regards modification of the kitchen, I did not see her until August of 1994 and no mention was made of having to have alterations to the kitchen because of this and certainly I do not believe that there is any work related injury which required the kitchen to be remodelled.
   F.        This lady does not drive a car, hence could not drive herself to or from appointments.  She says that using public transport takes a long time, but, apart from the time taken, I cannot see why she would medically be unable to either take a public bus or a train.
   …".

1. On 4 June 1998 a delegate of the respondent made a determination that:

   "Telstra Corporation is not liable to pay compensation to Gwendoline Van Haltren."

1. By letter dated 19 June 1998 the applicant's solicitors requested the respondent to reconsider its determination of 4 June 1998.

2. On 13 November 1998 Dr Z Mustac, Consultant Psychiatrist, reported to the respondent's solicitors on his examination of the applicant on 4 September 1998.  In that report Dr Mustac expressed his conclusions as follows:

   "I do not find any evidence for an Axis I mental disorder with Ms Van Haltren.  She clearly is angry because in her view her entitlements have not been recognised by Telstra.  She is angry with those whom she regards as obstructing her obtaining these entitlements, including the doctors that she has seen for independent reports.
   I note that there is a complaint of pain for which there appears to be no obvious physical explanation.  You will note that with Ms Van Haltren's sense of injustice and determination to have her claim win through, I think that these are significant motivational factors directed towards symptom production.
   Clearly, there is a need in circumstances such as this to continue with symptom presentation in order to justify and advance the claim."

In response to questions asked of him by the respondent's solicitors, Dr Mustac expressed the opinion that the applicant was not suffering from any psychiatric illness and that, from a psychiatric perspective, she was "entirely normal" and was not suffering any impairment.

1. On 22 December 1998 Dr A Skirving, Consultant Orthopaedic Surgeon, provided a report to the respondent's solicitors in relation to his examination of the applicant on 26 November 1998.  In that report Dr Skirving made the following comments in answer to questions asked of him by the respondent's solicitors:

   "A.      Capacity

   1        …

   2I am unable to make any diagnosis of any specific structural injury or musculoskeletal damage which would explain her inability to return to work as a telephonist.  However, she clearly has a history of cardiac problems and I would refer you to her cardiologist to decide whether she is incapacitated from working as a telephonist because of this.  Mrs Van Haltren also has other problems related to her psychological and psychiatric state and may similarly preclude her from returning to work.

   B.Permanent Impairment and Non-Economic Loss

   a)Arms

   1I could find no clinical evidence to suggest any persisting structural damage or injury to suggest that she has any physical impairment of her upper limbs which is the result of any work related injury.

   2/3I note however that a diagnosis of fibromyalgia has been made.  This diagnosis is not supported by any objective evidence and is unlikely to be related to any work related injury.

   4…

   5…

   6…

   b)Neck

   1On clinical grounds Mrs Van Haltren has a reduction in her cervical spine movements, which is suggestive of degenerative disease.  This tends to be confirmed by her x-rays which show some mid-level degeneration of anterior osteophytes.  The cervical spondylosis however does not necessarily explain any of her referred pain to her limbs.  I think it's highly unlikely that her cervical spondylosis can be attributed to her work as a telephonist.

   2I believe that Mrs Van Haltren's cervical spondylosis is permanent and may well very slowly deteriorate.

   3…

   4I believe that Mrs Van Haltren's loss movement (sic) would represent some 10% of the overall function of her cervical spine.

   5…

   6…

   c)Shoulders

   1I could not identify any specific injury or damage to the shoulder which explains her symptomatology.

   d)Upper back

   1Mrs Van Haltren's symptoms extend down to her upper thoracic spine and slightly to the right of her spine.  X-rays have shown some early degenerative changes but no more than one would expect in a person of her age.  Similarly I find it impossible to attribute these changes to any work related injury.  Her impairment in respect of her thoracic condition would be no more than 5% of her thoracic spine.

   C.Non-Economic Loss

   On the basis of my clinical examination and the attempt to detect and elicit clinical signs which explain her symptomatology and disability I am unable to explain her limitations in respect of her domestic, recreational and social activities.

   D.Household Assistance

   Similarly I am unable to identify any physical disability which suggests that Mrs Van Haltren requires any household services for the proper running of her household.

   E.Modifications to Kitchen

   Presumably Mrs Van Haltren would not have had any modifications to her kitchen which were not necessary or of benefit.  However, I still have great difficulty in explaining, on the basis of physical injury and impairment, the necessity for such changes.

   F.Travelling Expenses

   I am unable to explain why Mrs Van Haltren cannot use public transport.

   I have found this consultation and the writing of the subsequent report a very difficult exercise.  The crux of the conundrum, as is frequently the case, relates to the difficulty in correlating or explaining the physical clinical signs with the severity of symptomatology stated and the subsequent totality of the patient's disability.
   In such cases it is my experience that one has to rely almost entirely on objective evidence.  Such evidence falls into 4 main sections:

   1The nature of the initial injury or incident.  It is suggested that the responsibilities of a telephonist, even when having to move in a chair on castors, could produce chronic injury which persists in a constant and severe fashion, even after cessation of the precipitating activity.  Such symptomatology is widespread and tends not to fit any well recognised clinical picture or syndrome.

   It is therefore exceedingly difficult to attribute Mrs Van Haltren's responsibilities as a telephonist, as described to the development of severe and persistent musculo-skeletal symptomatology and disability.

   2Subsequent progress following the acute or chronic injury.  Following any musculoskeletal injury it is highly unusual for symptoms to progress and certainly unusual for the area of symptomatology to become more extensive.  In addition, the failure to respond to any form of conservative treatment, as well as a response to time and the absence of the precipitating activity, is clearly different from what usually happens following injury.  Similarly the totality of disability is unusual and difficult to explain on the basis of acute or chronic injury in the absence of clinical features to explain it.

   3Physical examination at the time of review.  It is highly unusual for patients with severe, constant and permanent extensive pain and loss of function to occur in the absence of clear physical signs which demonstrate the reasons for the symptomatology and disability. (sic)

   4Special investigations. Severe symptomatology and persisting disability are almost inevitably explained on the basis of abnormal investigations.  Such are not present with Mrs Van Haltren in respect of her work related injury.

   These statements are made without in any way denying that Mrs Van Haltren has cardiac problems and anxiety and depression.  However, in the absence of clinical and investigatory evidence to explain her physical disability related to the work related incidents, I have to conclude that the major reason for her continuing symptoms and her disability now relate to non-work related factors."

1. On 6 April 1999 Ms L Coxon reported to the applicant's solicitors confirming that she had continued to see the applicant on a fortnightly or a monthly basis and that her assessment of the applicant's emotional state was that it was characterised by high levels of anxiety and depression.

2. On 8 June 1999 a delegate of the respondent, following a reconsideration of the abovementioned determination of 4 June 1998, made a reviewable decision under s62(5) of the SRC Act affirming that determination.

3. On 20 July 1999 the applicant, through her solicitors, lodged with the Tribunal an application for review of the reviewable decision of 8 June 1999.
   The Applicant's Evidence

4. A written statement of the applicant, filed with the Tribunal on 8 August 2000, was tendered in evidence (Exhibit A1).  The applicant confirmed that that statement had been made by her for the purpose of these proceedings.  The contents of that statement are as follows:

   "…

   3 I commenced employment with the Post Masters General (sic) Department on or about March 17, 1973 as a telephonist at the National Exchange in Forrest Place Perth, this being a cords and plugs exchange.

   4About 18 months after that I moved to the international exchange which involved a move from the second floor to the sixth floor within the same building and this exchange comprised of (sic) a press button board and also required manual writing of tickets through carbonised paper.

   5This continued until the new exchange was opened in Wellington Street Perth in 1980.

   6This exchange was a computerised exchange which involved keyboard operation.

   7From 1980 to my retirement in 1994 I was engaged as a telephonist for Telstra.

   8I operated keyboards throughout that time in my role as a telephonist including motions of stretching and keying in and at times holding hands and arms in static positions.  I will call that keyboard duties.  These duties were on 10C, Leopard, pager, ANR Routing, Dial-it-Service, and DAS/C.

   9Between 1986/1987 and 1992, I was also engaged in pushing and pulling chairs on castors between operating boards (operating board duties).  These duties were performed on 10C, pager (for a while) ANR and Routing.

   10On day shift, the system involved an operator working at each keyboard.  On night shift, there were eight boards.  Often there were only four operators.  Three would be on 10C and one on ANR.

   11       The chairs at the other boards we always moved back.

   12It was not practical to unplug, stand up, walk across, and sit down, then plug in again.  The demand for efficient service required us to simply push across our chair on castors.

   13The work that I had to do included using my hands and arms over periods of seven hours and twenty minutes and eight hours and forty minutes for Saturday to Sunday shift.

   14I worked on nightshift from about 1985/1986 through to 1993 although I did have some periods off work with my condition.

   15We were given formal breaks during the shift but sometimes we were unable to take those breaks because of the volume of work and shortages of staff.

   16We were often one person short and this would occur specially when a person would ring in to say that they were sick at the last minute.

   17       We also at times had staff and one in particular who did very little if any work.

   18       The duties often involved continuous repetitive actions of my arms and hands.

   19On 10C it was one big board but there were three circuits with one keyboard but there were other keys that had to be pressed from time to time over on my left and my right and above as well.

   20The only work we had was answering calls and so to that extent there was no variation of task requirements for the duration of the shift.

   21There were slack times say when there were public holidays or long weekends.  However there were more highs than lows and in most shifts there was little in the way of slack.

   22When we had five staff on it used to be good, as there was some capacity for each of us to take a break.  However often we had only three or four on at a time.

   23Often there would be periods of extraordinary pressure throughout the shift, which included times when four to eight thousand sailors may arrive in port or during times of major sporting events.

   24There was no way I was able to take a rest whenever I needed to.  This was the same for all of the staff.

   25ANR position was manned by one operator only on night shift.  The operator stayed on this position for one hour and 40 minutes at a time before they were relieved.

   26In 1992, due to my condition worsening I requested that the time cards be altered so as to ensure that it was only required that the operator would work for 60 minutes in accordance with the rules that had been agreed between Telstra and the union.

   27Supervisor Keith Rozario was the mentor of my group and it was to him that I made my request.

   28He approached the manager and permission was granted to alter the time each operator spent on ANR to 60 minutes instead of one hour 40 minutes.

   29Movement of chairs was not involved on DAS/C and Leopard although a lot of stretching had to be done to reach the 000 console to answer calls.

   30Some of the men were not nearly as conscientious and would take their breaks regularly no matter what.

   31       Supervisory staff frequently just ignored things and did not pull their weight.

   32Some supervisory staff who were not familiar with the working of 10c boards and the night shift did not realise the slackness of certain staff members which in turn placed a heavier load on other staff.

   33We did have a meal break but the extent of that depended on how much call traffic there was and how many staff we had at the time.

   34We often worked seven days straight then three days off.  Or six nights on and two nights off.  Although at times we would have seven nights on and then five nights off.

   35Over period from 1987 on, one of my supervisors Ms Rosalie Keep made sure I did not have to push my chair from board to board.

   36However other supervisors did not make any effort to change my work situation and I found myself required to push myself from board to board because otherwise callers would have been let down.

   37If I did leave a call on another board and I was available there would generally be a call from a supervisor to get on and answer the call.  I am not saying that they would use my name but they would simply call out 'Somebody take that call!'.

38       THE APPLICANT'S CONDITION

39I suffer from pain in the neck region, the shoulders, upper limbs, around the back under the shoulder blades, and my chest inside my arms.  This is especially on the right hand side.

40I found that I have been unable to enjoy any vigorous or heavy physical activity without aggravating my condition.  Even washing my hair irritates the condition.

41When my right shoulder and arm became extremely painful and showed signs of swelling I began using my left hand more.  This resulted in pain on my left side as well.

42I also find that any continuous jobs no matter how heavy or light aggravate my condition.  Normal personal hygiene practices cause discomfort, pain, and swelling and even at times bruising.

43I have also suffered a lot of stress and depression as the result of the condition over the years.

44       COMMONALITY OF THE PROBLEM

45I observed amongst those working in the same duties I had at the Perth Telephone Exchange 20 to 30 workers who suffered from over use injury as I did during the late 1980's and early 1990's.

46Several of these workers had swollen neck, swollen forearms, and swelling between the thumb and index finger.

47Some staff came into work on the night shift with slight swelling and by the end of the shift, the swelling became quite prominent.

48       HISTORY OF THE CONDITION

49Throughout the years since the early 1990's I have suffered from swelling in my neck and hardening of muscles in and around the shoulders, arms and part of my chest and in the back around the shoulder blades.

50I am not currently suffering any leg pain.  Over the years I may have had some complaints of leg pain to the doctor and physiotherapist but these have been very rare and insignificant compared to my problems in the upper body.

51In 1985 I first noticed pain in my shoulders and upper arms while I was operating the keyboard.  This pain continued and worsened and late in 1985 I attended Dr Brian Hogan's clinic although at that time it was Dr Kargotich's clinic.  I was certified unfit and lodged a claim for compensation.

52Telstra accepted liability for a repetitive strain injury.  I believe I was only off for a couple of days although I would defer to records at the time.

53In or about 1986 I transferred from day worked (sic) to night shift which involved extra stress and strain upon my upper limbs and body as the volume of call traffic was higher at night with a lesser number of staff to handle the calls.

54During this work on night shift I suffered increasing pain to my right arm and into the shoulder and neck and I got some cramping in my hand.  Later in 1987 I filed a further claim for compensation having gone back to see Dr Hogan who issued a certificate certifying me unfit for work for two weeks.

55I recall having ultrasound and short wave treatment and Dr Hogan gave me a cortisone injection.

56Dr Hogan did tell me that if I had to keep pushing myself from board to board on my chair on casters then recurrence was likely.

57After I was certified fit to return to work I did return to full duties working day shift and after two weeks, I returned to the normal night shift roster.

58I continued working with intermittent periods of a few hours or days off for treatment.

59In December of 1990, I developed more severe problems with my neck and shoulders, which required anti-inflammatory medication and injections, and I had short wave therapy.

60In September 1991, I was referred by Telstra to Dr Zilko and over the next two years, he advised me on treatment.

61At Christmas 1991 we did not have extra staff brought in to handle the increased load.  Also our international directories is normally closed on December 24 and 25 but this year we were told we had to answer those calls and this increased the heavy load of Christmas traffic.

62The manager who came in was aware of the situation and she stayed and worked along side us for two to three hours.

63This increased load had the effect of severely worsening my condition and by May of 1992 in spite of cortisone needles and acupuncture, I got no relief.

64       I saw Dr Edelman in May 1992.  He declared me unfit for work.

65I was unable to perform any household chores; any movement caused me severe pain.  I began relying on my family for help.

66       I remained off work until 1993.

67I found over this period that even vigorous activity while doing my housework aggravated my condition.  Thus even when I was off work the condition did not settle.

68Early in 1993 I was asked about the possibility of undertaking different duties being the Voice Recognition system of the day shift.

69I had never worked that board before.  They did not give me any demonstration of the duties that would be involved.

70At the time I was feeling very ill confident (sic) and weakened by what had happened to that point and I remember not showing any interest in carrying out duties on a new board with new staff which all would be unfamiliar to me.

71I was hoping that I would be allowed to do clerical work on the same shift free of keyboard and operating board duties.

72I knew of other workers on my shift who had got overuse injury who were given these clerical duties.

73I was sent back to work early in 1993 on a graduated return to work program working different hours.

74When I went back to work my condition worsened including swelling and hardening of muscles in my neck, shoulders and arms as I recall.

75I was having treatment from a masseur Matthew Meinck (recommended by Dr Zilko) to try to reduce the swelling and spasm of the muscles.

76Over the 1990's, I had treatment from a range of physiotherapists and massage therapists and I saw several Rheumatologists as well as Leonie Coxon the Clinical Psychologist, and in more recent years the Occupational Therapist Terry (sic) Dival.

77       HEART CONDITION

78In May of 1993, I suffered a heart attack.  This was six to eight weeks after returning to work.

79The lead up to the heart attack was a terrible time for me because I was back at work on the night shift and was required by Telstra to perform the same duties all along although I did not have to move my chair on castors.

80We remained short staffed with periods of extreme pressure and with my condition worsening and the doctors saying I should be fine and continue working I suffered terrible stress.

81After the heart attack I remained off work firstly as a result of my heart symptoms, then as a result of the swelling and pain in the upper part of my body.  During my stay in hospital after my heart attack, the nursing staff tried to relieve the pain in my shoulders and arms with light massage and hot and cold compress.

82I was returned to work in early 1994 working limited hours but after a few weeks was put off work indefinitely because of the neck and shoulder condition.

83       ACCEPTANCE OF LIABILITY UNTIL 1996

84       Up until 1996, Telstra paid my wages and medical expenses.

85Early in 1996 after a denial of further liability by Telstra I went to a court case in the administrative appeals tribunal and in March of 1997 at hearing we reached agreement.

86I understood that I would receive back pay of $27 000.00 which was calculated up to the date of the settlement March 11, 1997 together with medical expenses up to that date.

87I am aware that Telstra are now saying that that agreement was to be final and binding on me so that I would never be able to claim anything else.

88I did not understand that to be the case and I left that hearing on that day confident that if I wanted to pursue further compensation I could do so.  I thought this was what my lawyer told me.

89My lawyer told me he thought I would win my case but he could not do any more himself.  Shortly after that, I am told he left legal practice.

90       HOUSEHOLD SERVICES

91From about 1992 onward, I was unable to do any household work.  I repeatedly kept dropping or breaking things, or burning myself due to spasm of pain in my arms, hands, and shoulders.  I became reliant on my husband and daughter to care for me and the home.

92As I gradually improved with the swelling subsiding and the help on Panadeine Forte I occasionally cooked or did some very light work in the front garden.

93I remained unable to do work such as vacuuming or putting clothes out to dry and bringing them in.

94I needed a cleaning lady to help me when my daughter Sally was away for eight to ten weeks otherwise my husband and daughter Sally did the work for me at two hours per day between 1992 and early 1994 and thereafter at about one hour per day up to the present.

95Even if I do very light cooking and gardening activities over some time my shoulders, neck and arms swell and give me severe pain.

96       HOME MODIFICATIONS

97I required modifications to the kitchen of my house I believe in about 1993.  We had to have the cupboards lowered, and the oven hotplates lowered.  In addition, I needed a tap in the kitchen that I could turn off and on more easily.

98I refer to the documentation prepared at the time as to cost of these renovations.

99       TRAVEL

100     I have never been able to drive.

101As my  condition worsened, I found I was unable to walk any significant distance without the pain increase due to the movement of my arms as I walked.

102The pain increases into my shoulders and the muscles in my chest tighten which frightens and stresses me.

103To attend appointments with my psychologist Leonie Coxon if I were to endeavour to get there by bus I would have to walk a significant distance to the bus station, then catch a bus into Perth, then walk to another bus station, then catch another bus out to Leonie Coxon's rooms in Mount Pleasant and then walk a significant distance to her rooms.  I therefore rely on a taxi to get there.  Again to get to Dr Hogan I have to go by taxi, as there is no bus to get me there.

104Attending treatment by my occupational therapist Terri Dival, I travel by train into the city but then I have to get a taxi out to her office.

105     OTHER ACCIDENTS AND CONDITIONS

106In 1971, I was injured in a car accident in which I fractured my left radius and injured my forehead.  I had a claim for compensation and settled it in about 1973.

107I am not sure how long the symptoms lasted but I feel confident they certainly were for no longer than one year.  I did not return to work until 1972 but this was because I was pregnant with my daughter Sally.

108     Since then, I cannot recall having further symptoms from that injury.

109I had gynaecological problems and bladder problems in the early 1980's and I may have had swelling in the legs which I feel confident was related to that problem but I just cannot remember now.

110     In any event, I had a hysterectomy and bladder tightening. 

111This seemed to correct various problems that I had which are not relevant here.

112I do recall passing out when told that my family had been involved in a motor vehicle accident, although I can't remember when.

113In about 1992 I had a fall whilst returning from therapy with Ching Giele resulting in injury to my right knee, which resolved within a couple of weeks.

114     EXPERTS TO THE TELEPHONE EXCHANGE

115     I did not see any medical expert visit the night shift when I was working there.

116     I am talking about midnight to six am.

117This would have been the time when it would have been essential for the experts such as Professor Hollingworth to have attended and he would have needed to have attended on a range of nights to see the extent to which staff absences caused increased pressure of work.

118     1996 INCIDENT

119In 1996, I was struck by a trolley in Melbourne and I injured my right heel and aggravated my condition in my back, neck and shoulders.

120I had treatment from Heather Cook the physiotherapist and after some weeks, I was back to my previous condition.

121In relation to psychological treatment, I had been consulting Ms Leonie Coxon the clinical psychologist every couple of weeks over recent months.

122In relation to house work I never noticed any connection between my housework and the condition until the problems in my shoulders and neck, and so on, got so bad at work, but I kept going hoping that it would resolve itself.  Eventually during 1991 - 1992 as the swelling and pain increased housework would aggravate my condition."

1. In her oral evidence the applicant referred to a "split" which she said occurred in the respondent's Wellington Exchange (where she was working) in 1987.  The "split" involved an alteration in the organisation of the Exchange whereby the "DAS/C" and "1100" staff were divided from the "10C" and "ANR" staff, each of the 2 staff categories having its own manager.  The applicant said that she had always been a "10C person" and that she elected to continue to work on 10C boards (national and international calls) on the nightshift after the "split".  She said that when the "split" occurred, staff numbers and rosters were changed: whereas before the "split" there were 3 teams (each comprising 6-7 operators), 2 of which teams would be on duty each night, together with 3 supervisors and 1 table manager, after the "split" instead of teams there were only 7 operators to perform all the 10C duties on the nightshift.  She added that on some nights there were as few as 4 or 5 operators on duty.  As regards her own work duties, the applicant said that before the "split", she sat and worked at only 1 board and did not have to move around, but that after the "split" her duties (which included not only national and international calls, but also "ANR" (wake up and reminder calls), "routing" and "pager" boards) were such that she was required to move around different boards which she did by pulling and pushing herself around while seated on a chair with castors.

2. The applicant was referred to para 61 of her written statement (Exhibit A1) in which she stated that in the Christmas period in 1991 no extra staff were brought in to assist with the increased workload at that time.  She said that that was the only year in which extra staff were not hired for the Christmas period.  As regards her physical condition in the post-Christmas 1991 period, the applicant's evidence was as follows:

   "During the course of 1991 and 1992 did you have any time off due to your condition with your neck and shoulder?---It must have been early in January '92, it would have been about the 3rd or 4th, I can't give you a definite date, but I'd worked that night and I went home and the pain was just excruciating.  I went to be (sic) and my eldest daughter was there.  She was on holidays from Melbourne and I told her I have to go to the doctor because I'm too much in pain, I just can't cope.  At that time at 8.30 I was able to ring the doctor.  So at 8.30 I rang him and I think I had an appointment somewhere around 10.  I went and I told him, I said:  my hand feels it is just falling off with pain.  He gave me a needle, he gave me a morphine needle, one in my neck and one in my shoulder.  I went back home and I went to bed, then I got up and I started throwing up and I booked off that night.  I just kept throwing up the whole night.  The next day I went to him and he gave me another needle to counteract the vomiting.  I don't know if I went back to work that night or not, because I know I had - my holidays were coming up pretty soon after that.
   During the course of 1991 and 1992 did you have some absences from work due to - - -?---Yes.  I was taking - my daughter took me to see another doctor, Dr Eddie something at the Seacrest Hospital and he asked me to have acupuncture, but in the meantime Dr Hogan had fixed an appointment to see a Dr Black, but I was only able to see him at the end of January.  In the meantime then I started having cortisone needles, so if I had two days off - I'd take a cortisone needle and then I'd have, you know, an extra day off.  So whenever I had my off days I was taking cortisone needles and having a day or two, depending on how severe, like, the pain was and I used to stay at home.  In May '92 I saw Dr Edelman and he put me off work.
   Apart from the absences from work during 1991 and 1992, when you were at work during that period were you pain free or can you describe what the situation was?---No, I was in constant, constant pain.  It was all my shoulder and arms and chest and that was all swelling.  Because I was still at work and I couldn't use my right hand so I started using my left in keying in things and tapping in.  Then I started getting pain in my left - you know, increasing the pain.  I used to go to work.  I couldn't wear a bra because the strap used to just cut into my flesh.  I used to just take it off and, you know, stick it into my jacket pocket.  They used to have sort of dispensable aspirins at work and I used to just, you know, keep taking those and just continue.
   Now, during March 1993, this is before the heart attack in May, you returned to work on a rehabilitation program, did not you (sic)?---That's right.
   You were working three and a half hours a day three days a week?---That's right.
   Can you describe to the Tribunal how you coped with that return to work in terms of was there any effect on your arm, shoulder, muscles, in that area?---The pain became worse.  I just could not cope.  You know, like, the people from the compensation section used to say, and everyone:  it has to get worst (sic) to get better.  Just keep going, you've only gone now a couple of weeks, you know, you'll get used to it, it will ease up.  These were the things that I was being constantly told.
   In 1994, 23 February, you again made an attempt to return to work?---Yes.
   How long did that last?---Only a few weeks.

   What was your experience during that period, what was the impact on your arm, shoulders, back area?---It was the same.  The pain used to just - you know, just operating the boards the pain used to just get worse.  At that time I saw Dr Mastaglia and, you know, he advised me to have massage but nothing was working, but the pain used to just get worse and worse and finally Dr Hogan, Dr Mastaglia, I went back to him and he said:  no, you can't, you're unfit.  Then Dr Hogan certified me unfit."

(Transcript, pp 70-72)

1. The applicant was asked questions for the purpose of elaborating on paras 97 and 98 of her written statement regarding home modifications.  That part of her evidence was as follows:

   "Now, Mrs Van Haltren, can we briefly turn to the home modifications that were done in 1993.  This is at paragraphs 96 and 97 of the statement.  What changes were done to your kitchen?---The benches were lowered and the oven because the old - - - 
   …
   You said the benches were lowered?---Yes.
   What else?---We had an upright stove which was at the back of me and the fridge was in front and in this corner was the sink and it had two cupboards underneath it.  If I wanted to go to the stove I would have to from here move back and back down here.  We didn't have very much bench space there as well.  In that thing of going back and forth I was burning myself and dropping things.  So then we just changed that and the taps, we had all the screw type taps.  We got a tap that had a lever.  Actually, the lady who came and who did the thing, like, she was the one who brought all the diagrams and showed me the sink, because she was able to see all the swelling and everything on me and she said this would be more convenient with, you know, just flipping it up or flipping it down than screwing.
   Can you describe for the Tribunal what was the problem moving between the bench and the stove?---The bench - as I said, the stove was here.  The sink was here and the stove was back there.  I had to carry something all the distance back and forth and I just could not cope with that.
   I see.  What about your kitchen cupboards?---There were kitchen cupboards, only two that were down under the sink.  Alongside the stove was just a flat bench like with steel legs and right above all the cupboards, which again I couldn't keep lifting back and forth.
   So did you have a problem dealing with the overhead cupboards?---Yes.
   What was the problem with the overhead cupboards?---I couldn't raise my hands."

1. The Tribunal accepts Dr Harper's scores in relation to pain and suffering, mobility, and recreation and leisure activities as being consistent with the applicant's oral evidence.   As regards social relationships, however, the Tribunal's opinion is that a score of 4 is no longer appropriate having regard to the whole of the applicant's oral evidence, including her evidence that she keeps in touch by telephone with her children, siblings and "in-laws" who live overseas.   In the Tribunal's opinion a score of 3 would also be inappropriate because the applicant, according to her own evidence, does not have difficulty in maintaining relationships with her extended family - on the contrary, her evidence was that they are "a very close family".   The Tribunal regards a score of 2 as the most appropriate score in  respect of the applicant's social relationships in that her relationships are generally confined to her immediate and extended family and close friends.

2. Accordingly, the Tribunal's findings regarding the appropriate scores under Tables 1 and 2 in Part B of the approved Guide are as follows:-

   Pain  4
   Suffering  4
   Mobility  2
   Social Relationships  2
   Recreation and Leisure Activities             2         

3. The Tribunal finds, therefore, that the respondent is liable under s27(1) of the SRC Act to pay compensation to the applicant for non-economic loss, the amount of such compensation to be assessed by the respondent under the formula set in s27(2) on the basis of the abovementioned findings, in respect of the degree of permanent impairment and the degree of non-economic loss suffered by the applicant, made by the Tribunal in accordance with the relevant tables in the approved Guide.
   Is the Respondent Liable Under the SRC Act to Pay Compensation to the Applicant in Respect of Medical, Pharmaceutical and Associated Travel Expenses?
   The Legislation

4. Section 16 of the SRC Act relevantly provides:

   "(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
   …
   (6) Subject to subsection (7), if:
   (a)       compensation in respect of the cost of medical treatment is payable; and

   (b)the employee reasonably incurs expenditure in doing either or both of the following:

   (i)making a necessary journey for the purpose of obtaining that medical treatment;

   (ii)…;

   Comcare is liable to pay compensation to the employee:
   (c)       in respect of the journey – of an amount worked out using the formula:
             …
   (d)       …
   (7) Comcare is not liable to pay compensation under subsection (6) unless:

   (a)the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or

   (b)if the journey made by the employee involved the use of public transport or ambulance services – the employee's injury reasonably required the use of such transport or services regardless of the distance involved.

   (8) The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:

   (a)the place or places where appropriate medical treatment was available to the employee;

   (b)the means of transport available to the employee for the journey;

   (c)the route or routes by which the employee could have travelled; and

   (d)the accommodation available to the employee.

   (9)…".

The phrase "medical treatment" is defined in s4(1) of the SRC Act to mean (relevantly):

"(a)medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner;

(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner;

(c)…

(d)therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be;

(e)an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis;

(f)…

(g)…

(h)…".

The phrase "therapeutic treatment" is also defined in s4(1) to include:

"an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury."

Medical and Pharmaceutical Expenses – Finding

1. The applicant provided to the respondent, for the purposes of her claim for compensation, a schedule of medical and pharmaceutical expenses claimed to have been incurred by her during the period from 29 November 1996 to 9 December 1997 (T25, p65).   The medical expenses related to the provision of treatment and/or reports by Ms Coxon and Drs Hogan and Harper.

2. The Tribunal concludes that the respondent is liable under s16(1) of the SRC Act to pay compensation to the applicant, being the cost of all reasonable "medical treatment" (as defined in s4(1) of the SRC Act) obtained by the applicant in relation to each of her relevant neck and right upper limb injury or her relevant mental injury (namely, depression) from 12 March 1997, subject to proof being provided to the reasonable satisfaction of the respondent that the cost of such medical treatment has been incurred by the applicant.
   Travel Expenses – Consideration and Finding

3. The applicant has claimed, pursuant to subss (6) and (7) of s16 of the SRC Act, her expenses of travel by taxi for the purpose of obtaining reasonable medical treatment in respect of her abovementioned compensable injuries. Subsection (6) of s16 of the SRC Act relevantly requires that the expenditure in making a necessary journey for the purpose of obtaining such medical treatment have been "reasonably" incurred by the applicant, and subs (7) requires that the "reasonable length" of such a necessary journey (including the return journey) exceeded 50 kilometres, or, in the case of a journey by "public transport or ambulance services", the relevant injury reasonably required the use of such transport or services regardless of the distance involved.

4. In the present case, it appears that the reasonable length of any relevant journey made by the applicant was less than 50 kilometres. The question then arises, for the purposes of s16(7)(b) of the SRC Act, whether a taxi falls within the expression "public transport" and, if so, whether the applicant's relevant injury reasonably required that the relevant journey be made by taxi.

5. As regards the former issue, it was decided by the Tribunal in Re Elmazny and Australian Postal Corporation (Decision No 10524, 9 November 1995) that a taxi does not fall within the expression "public transport" (as defined in The New Shorter Oxford English Dictionary, namely, "a system of buses, trains, etc, charging set fares and running on fixed routes") and, therefore, the "use of a taxi does not fall within section 16 of the Act" (at para 20). The Tribunal notes, however, that in The Macquarie Dictionary the noun "transport" is defined as (inter alia):

   "a system of conveying passengers or freight: public transport".

In the Tribunal's opinion the expression "public transport" in s16(7)(b) of the SRC Act should, consistently with the "socially remedial" nature of the SRC Act (see Thiele v Commonwealth (1990) 22 FCR 342 at 346) be construed in the broad manner as indicated in The Macquarie Dictionary rather than in the narrow manner as defined in The New Shorter Oxford English Dictionary. Furthermore, there seems to the Tribunal no compelling reason to confine the expression "public transport" in s16(7)(b) to "mass" public transport systems such as trains and buses, given that the purpose of s16(6) is obviously to compensate the employee for the reasonable cost of a necessary journey undertaken for the purpose of obtaining medical treatment, in accordance with the formula set out in s16(6)(c). In the Tribunal's opinion, a taxi (which term is defined in The Macquarie Dictionary as "a motor car for public hire") is a form of "public transport" within the meaning of s16(7)(b) of the SRC Act.

1. The question then arises whether the applicant's injury reasonably required (or requires) the use by her of a taxi in order to make "a necessary journey for the purpose of obtaining medical treatment".   In the Tribunal's opinion the evidence before it on that issue is inconclusive and is not sufficient to satisfy the Tribunal that the use by the applicant of taxis for the purpose of making such journeys was (or is) reasonably required in the circumstances.   In the first place, the medical evidence tendered by the applicant on that issue is itself not entirely consistent.   Dr Hogan (report of 9 December 1997) asserted that the applicant required taxi transport to his surgery and to the "consulting rooms of her psychologist as she was unfit to travel long distances when not serviced by a direct bus route."   Ms Dival (report of 20 July 1999 and oral evidence) recommended against bus travel (because of the nature of the side) or walking long distances.   Dr Edelman (report of 15 September 2000), however, stated:

   "I cannot see why she would not be able to walk reasonable distances or travel in a bus."

Secondly, the applicant's own evidence (paras 99-104 of her written statement) is somewhat vague and lacking in detail in relation to such important matters as the actual distances (including walking distances) involved, the bus routes and their proximity (or otherwise) to the relevant destinations, and the means of transport available to her (including private transport by family members) (see s16(8) of the SRC Act).

1. Given the insufficiency of the evidence before it, the Tribunal is not prepared to find that the respondent is liable to pay compensation to the applicant, pursuant to s16(6) of the SRC Act, in respect of the cost of her journeys by taxi for the purpose of obtaining reasonable medical treatment for any of her compensable injuries.
   Is the Respondent Liable Under the SRC Act to Pay Compensation to the Applicant for Household Services?
   The Legislation

2. Section 29 of the SRC Act relevant provides:

   "(1) Subject to subsection (5), where, as a result of an injury to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.
   (2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:

   (a) the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;

   (b) the number of persons living with the employee as members of his or her household, their ages and their need for household services;

   (c) the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;

   (d) the extent to which the persons referred to in paragraph (b), or any other members of the employee's family, might reasonably be expected to provide household services for themselves and for the employee after the injury;

   (e) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).

   …".

The phrase "household services" is defined in s4(1) of the SRC Act, in relation to an employee, to mean:

"… services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee's household;".

Finding

1. The applicant has claimed compensation for household services pursuant to s29(1) of the SRC Act on the basis that, by reason of her injury, she reasonably required such services at the rate of 2 hours per day for the period from 1 May 1992 to 30 January 1994 and thereafter at the rate of 1 hour per day.

2. The applicant's evidence was that prior to 1992 she performed most of the domestic work in her household with some assistance from her husband and a daughter who resides with them, but that since 1992 she has been unable to do any household work and it has instead been done by her husband, with some assistance from their daughter on weekends.   Dr Hogan (report of 9 December 1997) asserted that the applicant, as a direct result of her injury, required "outside help for 3 hours per week for 3 months" to enable her to cope with her housework.   Ms Dival (report of 20 July 1999) opined that the applicant was "incapable of managing household services … into the foreseeable future" and that the abovementioned rate of household services, which the applicant claimed was reasonably required by her, was reasonable and consistent with her physical impairment.

3. Having regard to the whole of the evidence before it and having regard also the matters specified in s29(2) of the SRC Act, the Tribunal is not satisfied that the applicant has in the past reasonably required, or presently reasonably requires, household services to be provided by a person other than a member of her household. According to the evidence the members of the applicant's household are herself, her husband (who is retired) and their daughter (now aged 29 years). There is no evidence that either her husband or her daughter needs household services; on the contrary, the evidence is that since 1992 they have provided most of the household services.    In the Tribunal's opinion, it was not unreasonable in the past, nor is it unreasonable now, that the applicant's husband (especially now that he is retired and apparently physically active and in good health) be expected to perform most of the domestic work (with some assistance from their daughter) in what is, after all, a relatively small, exclusively adult, household.

4. The Tribunal concludes, therefore, that the respondent is not liable to pay compensation to the applicant for household services pursuant to s29(1) of the SRC Act.
   Is the Respondent Liable Under the SRC Act to Pay Compensation to the Applicant in Respect of Alterations of Her Place of Residence?
   The Legislation

5. Section 39 of the SRC Act relevantly provides:

   "Where:
   (a)      an employee suffers an injury resulting in an impairment; and

   (b) the employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program;

   the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee, of:
   (c)      any alteration of the employee's place of residence or place of work;
   (d)      any modifications of a vehicle or article used by the employee; or

   (e) any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances;

   being alterations, modifications or aids or appliances reasonably required by the employee, having regard to the nature of the employee's impairment and, where appropriate, the requirements of the rehabilitation program.
   (2)  The matters to which the relevant authority shall have regard in determining the amount of compensation payable in a particular case under subsection (1) include such of the following matters as are relevant in that case:

   (a) the likely period during which the alteration, modification, aid or appliance will be required;

   (b) any difficulties faced by the employee in gaining access to, or enjoying reasonable freedom of movement in, his or her place of residence or work;

   (c) any difficulties faced by the employee in gaining access to, driving or enjoying freedom and safety of movement in, a vehicle used by the employee;

   (d)      any alternative means of transport available to the employee;
   (e)      whether arrangements can be made for hiring the relevant aid or appliance;

   (f) when the employee has previously received compensation under this section in respect of an alteration of his or her place of residence or a modification of a vehicle and has later disposed of that place of residence or vehicle—whether the value of that place of residence or vehicle was increased as a result of the alteration or modification.

   …".

The phrase "place of residence" is defined in s4(1) of the SRC Act, in relation to an employee, to mean (inter alia):

"the place where the employee normally resides".

The phrase "rehabilitation program" is also defined in s4(1) to include:

"medical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training".

Findings

1. The applicant has claimed compensation, pursuant to s39(1) of the SRC Act, in respect of the costs of "modifications" to the kitchen at her place of residence, including lowering the height of the cupboards, the oven and the hotplates and installing a tap that could more easily be turned on and off, in the total amount of $4,612.00. It appears from the T documents that the relevant contract was dated 2 March 1993 and the "expected delivery date" was 15 March 1993 (T23, p61).

2. Paragraphs (a) and (b) of s39(1) of the SRC Act specify two preconditions of liability to pay compensation under that subsection. The condition specified in para (a) - namely, that the employee has suffered an injury resulting in impairment - has been found to be satisfied in this case. As regards the condition specified in para (b), the relevant material before the Tribunal (see Volume 4 of the T documents) indicates that on 10 March 1993 the applicant commenced a rehabilitation program, provided by Industrial Rehabilitation Service by arrangement with the respondent, whereby she returned to work at the Wellington Customer Service Centre initially working 3.5 hours per day, 3 days per week on the nightshift (see paragraph 20 above). The Tribunal finds, therefore, that the applicant was "undertaking a rehabilitation program", within the meaning of para (b) of s39(1) of the SRC Act, at the relevant time and, accordingly, the condition specified in that paragraph is also satisfied in this case.

3. The question then arises whether the costs of the abovementioned kitchen "modifications" are presently compensable pursuant to s39(1) of the SRC Act. There is no dispute that those "modifications" were carried out in the applicant's place of residence in March 1993, and the Tribunal so finds. The Tribunal also finds that the word "alteration" in para (c) of s39(1) is not confined to structural alterations and includes such home modifications as relocating kitchen benchtops, cupboards, oven and hotplates as were carried out in this case: see Thiele (above), at pp 351, 354. The ultimate question for the Tribunal's determination for the purposes of s39(1) is, therefore, whether the abovementioned kitchen alterations were "reasonably required" by the applicant, having regard to the nature of her impairment.

4. The Tribunal notes at the outset that, although the relevant kitchen alterations were carried out in March 1993 - at which time the applicant was, and had for a considerable period been, in receipt of compensation payments from the respondent in respect of her neck and right shoulder injury - no claim for compensation in respect of those kitchen alterations was made by the applicant until 12 December 1997.   There is before the Tribunal no contemporary medical evidence in support of the proposition that those kitchen alterations were reasonably required by the applicant by reason of her impairment at the time that they were carried out.   The only relevant medical or other expert evidence before the Tribunal, which was relied on by the applicant, is the report of Dr Hogan, dated 9 December 1997 (which was enclosed with the applicant's compensation claim of 12 December 1997), and the subsequent reports of Ms Dival dated 20 July 1999 and 24 September 2000.   In his report of 9 December 1997, Dr Hogan merely asserted:

   "Mrs Van Haltren's work related symptoms and her ability to carry out her domestic duties at home would have benefited by the renovations to her kitchen and adjustment to the height of the kitchen benches carried out in 1992 (sic)".  (emphasis added)

That assertion, in the Tribunal's opinion, falls well short of saying that those kitchen alterations were "reasonably required" by the applicant, as required by s39(1) of the SRC Act. As regards Ms Dival's reports, the opinion expressed that the standard height of kitchen benchtops was too high for the applicant, given her "upper limb dysfunction" and her short stature, and that the use of such benchtops would cause "re-inflammation", was expressly based on the assumption that the applicant would be engaging in kitchen activities of a "prolonged and repetitive nature" and placing her arms "in a work position". That assumption is, however, not in accord with the applicant's evidence which was that since 1992 she has done little household work, most of it (including cooking and cleaning) being done by her husband and (on weekends) by her daughter. That evidence was corroborated by her daughter (Sally) whose own evidence was that she and her father have done most of the cooking and other domestic work for many years and that the applicant "does very little" apart from "very light jobs like dusting" (Exhibit A12).

1. Having regard to the whole of the evidence before it, the Tribunal is not satisfied that, in the circumstances of the applicant's household since 1992, the abovementioned kitchen alterations were "reasonably required" by her by reason of her upper limb impairment. At best, the evidence supports the proposition that those alterations were beneficial or convenient for the applicant but that is insufficient for the purposes of s39(1) of the SRC Act. The Tribunal concludes, therefore, that the respondent is not liable under s39(1) of the SRC Act to pay compensation to the applicant in respect of the kitchen alterations in her place of residence carried out in March 1993.
   Decision and Order

2. For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that:

• the respondent is liable under s14(1) of the SRC Act to pay compensation, in accordance with that Act, to the applicant in respect of chronic pain in her neck and right upper limb ("the physical injury") and in respect of depression ("the mental injury");

• the respondent is liable to pay weekly incapacity payments to the applicant, in accordance with Division 3 of Part II of the SRC Act, with effect from and including 12 March 1997 on the basis of the findings set out in paragraph 143 hereof;

• the respondent is liable under s24(1) of the SRC Act to pay compensation, in accordance with s24 and the approved Guide, to the applicant for permanent impairment in respect of the physical injury and the mental injury on the basis of the findings set out in paragraphs 147, 151 and 153 hereof;

• the respondent is liable under s27(1) of the SRC Act to pay compensation, in accordance with s27 and the approved Guide, to the applicant for non-economic loss in respect of the physical injury and the mental injury on the basis of the findings set out in paragraphs 147, 151, 153 and 158 hereof;

• the respondent is liable under s16(1) of the SRC Act to pay compensation to the applicant, being the cost of all reasonable "medical treatment" (as defined in s4(1) of the SRC Act) obtained by the applicant in relation to the physical injury and the mental injury from 12 March 1997, subject to proof being provided to the reasonable satisfaction of the respondent that the cost of such medical treatment has been incurred by the applicant;

• the respondent is not liable under s16(6) of the SRC Act to pay compensation to the applicant in respect of the cost of journeys by taxi for the purpose of obtaining reasonable medical treatment for either the physical injury or the mental injury;

• the respondent is not liable under s29(1) of the SRC Act to pay compensation to the applicant for household services; and

• the respondent is not liable under s39(1) of the SRC Act to pay compensation to the applicant in respect of kitchen alterations in her place of residence.

1. The Tribunal orders, pursuant to s67(8) of the SRC Act, that the respondent pay the costs of the applicant in these proceedings, such costs to be assessed in accordance with clause 6 of the Tribunal's General Practice Direction dated 18 May 1998.

I certify that the 180 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Senior Member

Signed:

.................................(sgd S Railton)................................
Associate

Dates of Hearing  11-13 December 2000
Date of Decision  24 August 2001
Counsel for the Applicant        Ms C Crawford
Solicitor for the Applicant         Mr C Phillips
Counsel for the Respondent    Mr J Lenczner
Solicitor for the Respondent    Downings Legal