Warren and Comcare
[2005] AATA 630
•30 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 630
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/113
) A2004/369
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | LINA WARREN | ||
Applicant
| And | COMCARE |
Respondent
DECISION
| Tribunal | Mr J.W. Constance, Senior Member |
Date 30 June 2005
Place Canberra
Decision
No. A2004/113
The decision of Comcare made 23 March 2004 is set aside and in substitution it is decided that:
1)Ms Warren has suffered an injury, being a chronic pain syndrome, which is permanent and which has resulted in a 20% Whole Person Impairment and Comcare is liable to pay compensation to Ms Warren pursuant to section 24 of the Safety, Rehabilitation and Compensation Act (Cth) 1988 in respect of the injury;
2)Ms Warren has suffered an injury, being a cervical disc injury at C4/5 level, which has resulted in a 5% Whole Person Impairment; Comcare is not liable to pay compensation to Ms Warren for this injury by reason of the provisions of section 24(7) of the Safety, Rehabilitation and Compensation Act (Cth) 1988;
3)Ms Warren has suffered an injury, being an Adjustment Disorder with Depressed Mood, which is permanent and which has resulted in a 10% Whole Person Impairment and Comcare is liable to pay compensation to Ms Warren pursuant to section 24 of the Safety, Rehabilitation and Compensation Act (Cth) 1988 in respect of the injury;
The parties have liberty to apply to the Tribunal in relation to the costs of this application.
No. A2004/369
The decision of Comcare 22 November 2004 is set aside and in substitution it is decided that during August and/or September 2003 Ms Warren suffered an injury, being left shoulder rotator cuff tendinitis and muscle strain of the upper and lower back, which resulted in impairment within the meaning of section 14 of the Safety, Rehabilitation and Compensation Act (Cth) 1988.
The parties have liberty to apply to the Tribunal in relation to the costs of this application.
..............................................
CATCHWORDS
COMPENSATION – two applications – first, whether permanent impairment for regional pain syndrome, cervical spine and psychiatric/psychological injury – second, whether injury to left shoulder compensable
Permanent impairment – regional pain syndrome, neck and adjustment disorder with depression - whether injuries permanent before 1 December 1988 – permanent impairment of cervical neck not compensable as permanent before 1 December 1988 and also less than 10% whole person impairment – regional pain syndrome compensable as permanent after 1 December 1988 and whole person impairment of 20% - adjustment disorder with depression compensable as permanent after 1 December 1988 and whole person impairment of 10% - decision set aside
Compensable injury – whether left shoulder injury occurred during rehabilitation course – injury occurred during rehabilitation course – respondent liable for injury to left shoulder and back – decision set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 4, 14, 16, 19, 24, 27
Re Kay and Comcare (1997) 47 ALD 576
Comcare v Kay (1997) 26 AAR 124.
Halliday v Comcare Australia (1994) 19 AAR 431
Comcare v Fiedler [2001] 115 FCR 328
Canute and Comcare [2004] AATA 627
Mahne and Comcare [2004] AATA 985
Canute v Comcare [2005] FCA 299
Comcare v Levett (1995) 131 ALR 645
REASONS FOR DECISION
| 30 June 2005 | Mr J.W. Constance, Senior Member |
Ms Warren has made 2 applications to the Tribunal.
The first is an application to review a decision of Comcare denying liability for permanent impairment claimed to arise from 3 injuries, namely, an injury that has been variously described over the years, but is best referred to as regional pain syndrome, a consequent psychiatric condition and an aggravation of a cervical spine injury. The second is to review a decision of Comcare denying liability for an injury claimed to have been suffered whilst Ms Warren was undertaking a course of rehabilitative treatment for the injuries referred to above.
For the reasons following both decisions will be set aside. There will be substituted decisions that Comcare is liable to pay compensation in respect of the injuries which have resulted in permanent impairment and in respect of an injury which occurred during the rehabilitation programme.
To avoid confusion as to the two decisions these Reasons are set out in parts.
PART A: PERMANENT IMPAIRMENT CLAIM (A2004/113)
A1. EVIDENCE AND FINDINGS OF FACT
Unless otherwise stated the following findings of fact are based on the evidence of Ms Warren. I am satisfied as to these facts on the balance of probabilities.
Ms Warren was born on 1 May 1957 and is now 48 years of age. She migrated to Australia with her parents in 1964. Her upbringing was strict and, in accordance with the wishes of her parents, she lived with her parents until she married in 1999.
When she was about 10 years old Ms Warren dislocated her hip. This injury was not diagnosed for some weeks; when it was she underwent an operation during which pins were inserted in her hip. Following the operation she walked with the aid of crutches for approximately 2 years. She suffered considerable pain until these pins were removed when she was 17. As a result of this hip injury she suffers from arthritis and walks with a limp. At times the pain from her injury has prevented her attending work, at times for periods of 2-3 weeks.
In 1976 Ms Warren commenced employment at the Australian Capital Territory Magistrates Court and has continued in that employment ever since. She commenced as a typist and after 2 years moved to clerical work.
From 1978 to 1986 Ms Warren’s work included the preparation of files for up to 400 new charges per day. This involved the stamping of several documents for each matter.
In 1986 Ms Warren experienced pain in her right upper arm and shoulder and in the right side of her neck. At times she suffered weakness and numbness in her right arm. On 9 February 1987 the Commissioner for Employees’ Compensation accepted liability for “Repetition Strain Injury – Right Arm”.[1] The date of the injury was deemed to be 16 September 1986.
[1] T4 (A2004/113).
Following the acceptance of liability Ms Warren was off work for approximately 3 months and then commenced a graduated return to work. She resumed full-time hours in December 1989, working as a Court monitor. This position did not involve the repetitive stamping work. She still suffered mild pain in her right shoulder and wrist for which she took medication and received physiotherapy.
Ms Warren has suffered from pain in her right shoulder, right arm and the right side of her neck to varying degrees since 1986. At times she has had time off work because of this condition. During the same period she has also suffered pain from her hip condition and this has also caused her to take time off work. Ms Warren was not always able to clearly recall the reasons for some of the times she was unable to go to work.
Ms Warren is right-handed. At home she has difficulty grasping and holding and gave examples of difficulty in peeling vegetables and stirring food. She also said that she has a problem with holding a pen for a long time and that when writing her hand feels very weak and at times tingling and numb.
Medical evidence
Dr Webber has been Ms Warren’s General Practitioner since 1993 and prior to giving evidence had last examined her on 24 February 2005. A number of reports and certificates by Dr Webber are in evidence. Dr Webber confirmed the accuracy of those documents.
In 1997 Dr Webber reported that Ms Warren had “developed a chronic pain syndrome as a consequence of her long standing cervical brachial syndrome”.[2] He also reported that she suffered depression secondary to the chronic pain syndrome.
[2] Exhibit A7.
In giving evidence Dr Webber maintained his view that Ms Warren continued to suffer depression as a result of chronic pain syndrome. He said that having seen Ms Warren over so many years he could not foresee any further progress in her condition and that it had stabilised indefinitely. In cross-examination he stated that he thought that “there had been a genuine lack of progress since about 1998”. Dr Webber believed that prior to 1998 there was further treatment which could be tried for Ms Warren.
In late 2004 Dr Webber assessed Ms Warren’s ability to grasp and hold. In his report of 8 February 2005 he reported that that on testing he had noted “some weakness with gripping” and that based on history and clinical findings she had “difficulties grasping and holding.”[3] In his oral evidence he described the problem Ms Warren experienced with grasping and holding as being that when Ms Warren exerted the force required to perform this task she would suffer an onset of pain.
[3] Exhibit A2, document 15.
Ms Schellenberger, Surgeon, gave evidence on behalf of Ms Warren. Ms Schellenberger first examined Ms Warren on 5 May 1998, for the purpose of providing a legal report. At that time Ms Schellenberger found no overt pathology to explain the pain of which Ms Warren complained and was of the opinion that the complaints seemed “to represent a chronic pain syndrome”.[4] She was of the view that further tests were necessary.
[4] Exhibit A2, document 3.
Ms Schellenberger next examined Ms Warren on 5 March 2002. By that time Ms Schellenberger had available to her a cervical CT scan performed on 10 March 1997.[5] The scan confirmed a disc bulge at the C4/5 level with adjacent facet joint degeneration. On 5 March 2002 Ms Schellenberger reported:
“Mrs Warren appears to be symptomatic of a mid cervical disc injury that would explain her neck and upper shoulder blade pain. It would be consistent with the nature of her more than 22 years full-time clerical work with the Magistrates Court in Canberra.
…………
In addition she continues to describe generalised right upper limb pain with intermittent sensory disturbance in her hand. Possibly that could be due to cervical nerve root irritation at the level of the disc injury shown on the CT scan, due to thoracic outlet syndrome from constantly holding her right arm upto[sic] her desk over the years at work, or due to carpal tunnel syndrome. Alternatively that could be due to psychosomatic symptoms related to extension of the pain from her cervical disc injury maximised by the associated depression but before coming to that conclusion years ago, further investigations should have been performed to evaluate such physical possibilities. By today’s standards, her work injury was inadequately evaluated in the past.
Today on physical examination, I was impressed by this lady’s subjective complaints being genuinely physically based and not simply psychosomatic.” [6]
[5] Document T5, A2004/113.
[6] Exhibit A14.
On 13 May 2002 Ms Warren underwent a MRI scan of her cervical spine. The report of this scan reads, in part;
“There is mild loss of height of the C4/5 intervertebral discs. This is associated with a moderate broadbased posterior disc bulge and annulus tear. There is also a minimal posterior disc bulge at C7/T1.”[7]
[7] Document T15, A2004/113.
Ms Schellenberger reported further on 6 June 2002[8] having viewed a radiology report of 13 May 2002.[9] On the basis of this information Ms Schellenberger was of the opinion that Ms Warren’s complaints were “…genuinely physically based and due to C4-5 disc damage. Her years of clerical work would be consistent with a cervical disc injury”.[10] At the same time Ms Schellenberger was of the opinion that “there was no sign of right sided cervical nerve root compression to account for the right upper limb symptoms.”
[8] Exhibit A15.
[9] Document T15, A2004/113.
[10] Exhibit A15.
Ms Schellenberger re-examined Ms Warren on 6 July 2004. After this examination Ms Schellenberger was of the view that:
“Cervical investigations in the last 2 years have confirmed that Mrs Warren has two damaged discs in her neck that would have been significantly contributed to by her past employment and account for her right sided neck and upper shoulder blade pain. At times there might have been cervical nerve root irritation to explain her right upper limb symptoms although currently there is no sign of persisting cervical nerve root irritation or alternative intrinsic abnormality in the right upper limb to explain her subjective right upper limb symptoms.”[11]
Ms Schellenberger disagreed with the conclusions of Dr Dowda, to which I shall refer later. She was of the opinion that there was “definite proof of significant cervical….pathology.”[12]
[11] Exhibit A2, document 13.
[12] Exhibit A2, document 13.
In her oral evidence Ms Schellenberger said that in her opinion the long periods Ms Warren spent sitting at a desk and the consequent sustained positioning of her neck was responsible for the pathology of her neck. Ms Schellenberger agreed in cross-examination that an annulus tear was more common as a result of an acute event but maintained that it could happen in an insidious event. She also said that the extent of limitation in Ms Warren’s neck movement may fluctuate from day to day.
Dr White, Neurologist, also gave evidence for Ms Warren, having examined her on 17 August 2001 for the purpose of providing a medico-legal report. On 17 August 2001 Dr White reported that:
“The issues are complex. There is no evidence of major orthopaedic or neurological injury in the cervical spine or the upper limb, either on the basis of vertical examination or x-ray. She appears to have a chronic regional pain syndrome. Unfortunately, this developed at a time when there was significant social uproar regarding the nature of repetitive strain injury. I believe that she has been caught up in this and that there is a substantial psychogenic component to the continuation of her pain. I do not believe this is deliberate.”[13]
Dr White indicated that he was aware of the report of bulging of the C 4/5 disc.
[13] Exhibit A11.
Ms Warren was reviewed by Dr White on 7 February 2002. At that time Dr White reported that the investigations conducted did not demonstrate any underlying organic pathology and that it was reasonable to accept that “we do not understand the reason for the prolongation of her pain”.[14] Having reviewed the x-ray and MRI scan reports, Dr White confirmed that there was an underlying organic pathology which precipitated the pain but that there was no ongoing such pathology which would cause the pain of which Ms Warren was complaining at the time.
[14] Exhibit A7.
When giving evidence Dr White adhered to the views expressed in his reports. He said that in Ms Warren’s case there had been a “significant psychological component which developed secondarily” as a result of various environmental factors with which she had not coped particularly well. In his opinion Ms Warren was not malingering in any way.
Evidence as to the psychological components of Ms Warren’s injury was given on her behalf by Dr Evans, Psychologist, and Dr Knox, Psychiatrist.
Dr Evans has been Ms Warren’s treating psychologist from 9 October 2001, she having been referred by Dr Webber for pain management and counselling. In his report of 17 September 2002 Dr Evans concluded:
“in 1986, Ms Warren was diagnosed as having a Repetitive Strain Injury. The injury has caused her unremitting pain. Despite the possibility that there is no longer any physical damage, the pain persists. This has severely limited Ms Warren’s capacity to work and to conduct her domestic duties. It has given rise to distress and has affected her quality of life in general.
Given her present symptomatology, Ms Warren can be classified as suffering a chronic Pain Disorder Associated With Both Psychological Factors and a General Medical Condition. Although it is unlikely that she will improve, the degree to which she will cope will be dependent on the stresses she encounters in the near future and her access to support. It is considered that counselling would provide such support.”[15]
[15] Exhibit A2, document 10.
Dr Evans confirmed his views in oral evidence. He said that Ms Warren makes no attempt to embellish the pain she suffers. He is of the view that originally Ms Warren suffered a physical injury which triggered a series of psychological processes causing a chronic pain disorder. Dr Evans last saw Ms Warren on 13 September 2004.
Dr Knox, Consultant Psychiatrist, examined Ms Warren on 5 February 2003, at the request of her solicitors. At that time he diagnosed:
“chronic Adjustment Disorder with Depressed Mood arising out of Ms Warren’s chronic pain and reduced capacities………[r]egarding the permanency of Ms Warren’s condition, I believe that the chronicity to this point of her pain, disturbed mood, and physical restrictions, strongly suggests that the illness complex is stable, and likely to persist indefinitely…………..I am of the view that chronic pain did arise for some physiological reason in 1986 arising out of repetitive overuse of the right upper limb, and that through disturbance of nervous and other systems in the body, a state of chronic pain and physical incapacity has come about.”[16]
[16] Exhibit A4.
When Dr Knox re-examined Ms Warren on 10 September 2003 he diagnosed continuing moderate severity depression.[17] In his report of 20 January 2004 Dr Knox stated that he thought it was “unlikely any significant improvement will be achieved after all this time.”[18] Dr Knox gave evidence and adhered to these views.
[17] Exhibit A5.
[18] Exhibit A6.
Dr Knox was not of the opinion that other non-work related factors caused Ms Warren’s depression. He was of the opinion that these other factors may have caused a predisposition to depression. As there is no evidence that Ms Warren suffered an Adjustment Disorder with Depressed Mood prior to the onset of pain arising from her work I prefer the evidence of Dr Knox in this regard. I am satisfied that this disorder was caused by the pain suffered by reason of the injury which arose out of Ms Warren’s employment.
Ms Warren also relied upon the following reports in respect of which there was no request for cross-examination of the respective authors:
1)11 April 1997 report by Mr T Sutton, Clinical Psychologist;
2)7 December 2001 report by Dr A Lark, Occupational Physician, Health Services Australia.
Dr Webber referred Ms Warren to Mr Sutton for assessment and management of her chronic pain condition. On 11 April 1997 Mr Sutton reported that:
“……on the clinical scales (which are valid) there is evidence for extreme emotional distress involving a major depression, significant symptom preoccupation and over endorsement along with a very fragile personality system………..There is abnormal illness behaviour which means that her perception, evaluation and coping with her pain is quite maladaptive……There is a significant degree of negative cognitive coping strategies associated with pain which research shows increases the actual experience of pain…………her ability to cope with her pain is virtually non existent but more importantly the negative depressive perceptions are increasing her experience of pain and the subsequent suffering.”[19]
[19] Exhibit A2, document 1.
Dr Lark examined Ms Warren on 5 December 2001 for the purpose of assessing her for a partial invalidity pension. His opinion expressed in his report of 7 December 2001[20] was that at that time Ms Warren had “a significant incapacity for work because of the right upper limb and cervical regional pain syndrome…”.
[20] Exhibit A2, document 6.
Comcare called two medical practitioners, Dr Dowda, a Consultant Occupational Physician, and Dr Saboisky, Consultant Psychiatrist. In addition Ms Warren was examined by Dr Craven, Consultant Neurologist, on behalf of Comcare and his reports are part of the “T documents”.
Dr Dowda examined Ms Warren on 14 July 2004. He reported[21] that “I have not found any abnormal clinical findings to account for presentation of her chronic symptoms from 1986 onwards.” In his view the imaging studies identified “only minor degenerative changes in the cervical spine that as age-related changes in a person in her early to late 40s are not uncommon.” He also said that :
“[h]istorically, her right arm pain came on in September 1986 and all we have to go on is that she attributed it to the nature of the work that she was doing at the time. I am unable to provide any more expert advice to support or refute the nexus between the onset of those symptoms and the work that she was doing.”
In giving oral evidence Dr Dowda stated that he was not suggesting that Ms Warren was malingering. He is of the view that Ms Warren is likely to continue to present with the symptoms of the nature that she has described since 1986.
[21] Exhibit R2.
In his report of 3 April 2005,[23] Dr Dowda commented on the views expressed by Ms Schellenberger. Similar to the observations of Ms Schellenberger, Dr Dowda points out that their histories and examination findings are consistent. Dr Dowda does not agree with Ms Schellenberger’s diagnosis of the rupture of the C4/5 disc and annulus tear.
[23] Exhibit R3.
Dr Dowda did not find any evidence that Ms Warren was experiencing difficulties in grasping and holding at the time of his examination.
Dr Craven assessed Ms Warren on a number of occasions beginning in 1995, the last assessment being on 3 February 2003. In his report dated 4 February 2003,[24] Dr Craven set out symptoms in the right arm described to him by Ms Warren. These symptoms were similar to those described by Ms Warren in giving evidence before me. Dr Craven reported that he did not gain the impression that Ms Warren was attempting to exaggerate her difficulties or feign disability. In his opinion Ms Warren’s symptoms were physically determined and, on the balance of probabilities, were caused by her employment.
[24] T26 dated 4/2/03.
Dr Saboisky assessed Ms Warren on 9 January 2003. He expressed the following opinion in his report of 12 January 2003:
“She has a chronic pain syndrome involving her left hip and right side of the neck and upper limb which are the result of two organic conditions. The first a dislocation of the left hip when she was a child and the second an angular tear disc bulging of uncertain aetiology. In addition she has had significant depressive features going back to her childhood and noted by medical observers as early as early 1983 (Dr Szmerler and subsequently Dr Gavaghan).
…..
These profound disturbances of her personality functioning I believe is a major contribution to her depression but would have diminished her resilience in coping with her chronic pain conditions.
……
I do not believe that her work caused the problem in her hip or for that matter the problem in her cervical 4-5 disc level. Any work would however aggravate both conditions.
……
I believe her conditions will be chronic.”[25]
[25] Exhibit R4.
Ms Warren was further assessed by Dr Saboisky on 16 September 2004. His diagnosis at that time was that Ms Warren had an Adjustment Disorder with depressed mood which was likely to be permanent given her complaints of pain. Dr Saboisky found that the condition was being “ameliorated significantly” by anti-depressant medication.[26]
[26] Exhibit R5.
A2. THE STATUTORY FRAMEWORK
Section 24 of the Act provides for compensation for injuries resulting in permanent impairment. Its relevant provisions are:
“(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.”
When a person is entitled to compensation under section 24 additional compensation for non-economic loss is payable under section 27. However, in Ms Warren’s circumstances additional compensation is not payable unless the impairment commenced on or after 1 December 1988 (the date of commencement of the Act).
Relevant definitions in section 4 are:
“injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
“disease means
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;”
“ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);”
“impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;”
“permanent means likely to continue indefinitely;”
If it is decided that an employee has suffered an injury which has resulted in permanent impairment, section 24 then requires a determination of the degree of permanent impairment in percentage terms in accordance with the approved Guide.[27] Apart from exceptional circumstances not relevant here, compensation is not payable if the degree of impairment is determined to be less than 10%.[28]
[27] Comcare Guide to the Assessment of the Degree of Permanent Impairment, 1998 (7th ed.), Commonwealth of Australia, Canberra.
[28] Sub-section 24(7), Safety, Rehabilitation and Compensation Act 1988 (Cth).
In applying the provisions of a Table set out in the Guide the matter for determination is the function of the particular part of the body which is dealt with in the Table. It is not necessary to determine the location of the injury which gives rise to the malfunction.
In Re Kay and Comcare[29] the Tribunal found that Ms Kay suffered pain in the shoulder but that there was no observable pathology to suggest any tear or wound. The Tribunal accepted medical evidence that the injury was unlikely to be a soft tissue injury as such an injury would be expected to have resolved. On appeal to the Federal Court Comcare argued that a Table dealing with musculo-skeletal injury could not be used to assess permanent impairment arising from pain in the shoulder where there was no pathology indicating a wound or tear to the shoulder. The Court rejected this argument saying:
“……the Tribunal properly addressed the issue of function/range of movement raised by Table 9.1 in the light of the evidence of Drs Woods and White. Its finding beyond this as to the location of the injury was unnecessary.” [30]
[29] (1997) 47 ALD 576.
[30] (1997) 26 AAR 124.
The applicable tables of Part A of the Guide are 9.4 (Limb Function-Upper Limb), 9.6 (Spine) and 5.1 (Psychiatric Conditions). In certain circumstances it is necessary to apply Table 14.1 (Combined Values Chart). These tables deal with the calculation of compensation under section 24.
A3. THE ISSUES
The issues for determination are:
1)has Ms Warren suffered an “injury” or “injuries” as defined in section 4 of the Act?
2)if so, has each of the injuries (if more than one) resulted in an “impairment” or “impairments”?
3)if so, is that impairment “permanent” in each case, and if permanent did it become permanent on or after 8 December 1988?
4)if so, what is the degree of permanent impairment in each case?
A4. DETERMINATION OF THE ISSUES
A4.1. Has Ms Warren suffered an injury or injuries?
I am satisfied on the balance of probabilities that about 1986 Ms Warren suffered an injury to her right arm in the course of her employment as a clerk at the ACT Magistrates Court. This injury may have been relatively minor but I am satisfied that it caused Ms Warren to suffer pain in her right arm for a considerable time, although I do not have evidence before me to enable me to make a finding as of the precise period.
I accept the evidence of Ms Warren as to the time and circumstances of the onset of her right arm symptoms and I note that on 9 February 1987 the Commissioner for Employees Compensation accepted liability for “Repetition Strain Injury-Right Arm.”[31] In addition I accept and rely upon the report of Dr Craven of 3 April 1998[32] in which he reported to Comcare that Ms Warren condition at that time was “caused by incidents or accidents at work in 1986.” It is not clear, but it appears from Dr Craven’s report that he saw Ms Warren at least as early as October 1995.
[31] Document T4, A2004/113.
[32] Document T8, A2004/113.
In his certificate of 12 October 1989[33] Dr Szmerler stated his opinion that at that time there was “a continuation of the problem since onset described 16.9.86.” I accept this evidence.
[33] Exhibit A1.
I am not satisfied that the original injury is directly causing any part of the pain from which Ms Warren now suffers. I rely upon the evidence of Dr White set out in paragraph 25 of these reasons.
I am satisfied on the balance of probabilities that as a result of the pain suffered from the 1986 injury Ms Warren developed a chronic pain syndrome causing her to suffer ongoing pain in her right arm. In reaching this conclusion I prefer the evidence of the medical practitioners called on behalf of Ms Warren to those called by Comcare to the extent that there is a difference in their opinions. All Ms Warren’s medical witnesses agree that she suffers a chronic pain syndrome which arose from her injury in 1986. None of the practitioners called by Comcare suggested that Ms Warren was malingering. Dr Dowda could not support or refute a nexus between the onset of symptoms and Ms Warren’s employment but he did not offer an explanation for her condition as an alternative to the syndrome diagnosed by others. Dr Saboisky accepts that Ms Warren suffers from the syndrome, although he ascribes the pain giving rise to the condition to the cervical injury. For reasons set out later, I am satisfied that the cervical injury is work-related, in which case, even on Dr Saboisky’s diagnosis the chronic pain syndrome is work-related. However for reasons set out at paragraph 57 I prefer the opinion of Ms Schellenberger to that of Dr Saboisky as to the causation of the spinal condition.
I am satisfied that the chronic pain disorder is an ailment which was contributed to in a material degree by Ms Warren’s employment and is therefore a “disease” and consequently an “injury” to which section 24 applies.
I am also satisfied on the balance of probabilities that sometime prior to 13 May 2002 Ms Warren suffered an injury to her spine at the C4/5 level. I am satisfied that this injury was suffered in the course of her employment and has caused ongoing pain in the right side of her neck and right shoulder. In making this finding I rely upon the evidence of Ms Schellenberger set out in paragraphs 21-23. I prefer this evidence to the opinion of Dr Dowda (paragraph 38) as he appears to have disregarded the full extent of the result of the MRI scan carried out on 13 May 2002 (referred to in paragraph 20). I also prefer Ms Schellenberger’s opinion as to the cause of the spine pathology to that of Dr Saboisky by reason of her greater experience in this area of medical practice.
I am also satisfied on the balance of probabilities that Ms Warren has suffered a third injury, namely an Adjustment Disorder with Depressed Mood, and that this condition was contributed to in a material degree by her employment. Both Dr Knox and Dr Saboisky agree on this diagnosis and I rely upon their evidence in making this finding. Their opinions are set out in paragraphs 30-32 and 41-42 respectively. This diagnosis is supported by Mr Sutton (paragraph 34).
A4.2. Has the Chronic Pain Syndrome resulted in an impairment which is permanent? If so, is that impairment permanent? If so, did it become permanent on or after 8 December 1988?
Under the definition in section 4 of the Act, a “malfunction” of the arm amounts to an “impairment” of that part of the body. The meaning of the word “malfunction” in the definition of “impairment” was considered in detail in Halliday v Comcare Australia[34]. At paragraph 47 and 48 the Tribunal said:
[34] (1994) 19 AAR 431.
47. Turning to the word "malfunction", we are not aware of any authorities
which have considered the meaning of the word. Therefore, we have again
looked at the dictionary meanings. The Shorter Oxford English Dictionary does not define it as such but states that the prefix "mal" "... conveys the sense 'ill', 'wrong', 'improperly' ...". When taken with the meaning of "To fulfil a function; to perform one's part" given to the word "function" by the same
dictionary, "malfunction" would mean to fulfil that function or to perform the
part wrongly or improperly. This accords with the meaning given to the word
"malfunction" by the Macquarie Dictionary when it states that it means "... to
fail to function properly ... failure to function properly." It accords also
with the meaning given in Blakiston's Gould Medical Dictionary (4th edition)
where it is said to mean "... failure to function normally or properly. 2. To
function abnormally or improperly." That dictionary also defines the word
"function", in part, as "1. The normal or special action of a part. ...".
48. There does not appear to be any significant discrepancy between the
various dictionaries as to the meanings of the words "damage" and
"malfunction". In the context of the definition of "impairment" in which
those words are used and in the context of the whole Act, there seems to be no reason why we should not adopt the ordinary meaning of those words.
Consequently, there will be an impairment of a part of the body or a bodily
system or function if it has been damaged in the sense that its usefulness or
value has been diminished or if it malfunctions in the sense that it fails to
perform normally or properly. We do not consider that we should "read down"
the definition of an impairment so that it refers only to those limitations
set out in the Guide.”
I am satisfied that Ms Warren’s right arm is not performing normally in that she suffers pain in the arm to a degree that causes her distress and to the extent that she cannot use her arm normally. I accept her evidence (supported by Dr Webber) in this regard. Although there is no identifiable pathology to account for the pain Ms Warren is experiencing in her right arm (as distinct from the pain in her right shoulder and neck) there is no evidence to suggest she is malingering. I am satisfied that there is an impairment of her right arm.
As I have already indicated I accept the evidence of Ms Schellenberger and Dr White that this condition is likely to continue. I am also satisfied that Ms Warren has undertaken all reasonable rehabilitative treatment for the condition. Therefor I find that the Chronic Pain Syndrome has resulted in permanent impairment.
On the basis of Dr Webber’s evidence that “there has been a genuine lack of progress since about 1998”, I am satisfied that the impairment did not become permanent until after 1 December 1988. Dr Webber was Ms Warren’s general practitioner from 1993 onwards and saw her on many occasions concerning her various symptoms. He also prescribed various forms of treatment in the years after 1986 in an attempt to improve her condition. He was in the best position to assess her situation from time to time.
A4.3. Has the cervical spine injury resulted in an impairment which is permanent? If so, did it become permanent on or after 1 December 1988?
I accept Dr Schellenberger’s evidence that as a result of the damage to the cervical disc Ms Warren suffers “slight restriction in lateral neck movements”.[35] Ms Schellenberger is of the opinion that the injury will never recover.[36] I accept this evidence.
[35] Exhibit A2, document 13.
[36] Exhibit A16.
Dr White is of the opinion that Ms Warren’s condition is “probably permanent” and “represents approximately 10 percent loss of cervical function…..”[37] I take this to mean that Dr White is of the view that there is some restriction in neck movement. I accept this evidence.
[37] Exhibit A11.
On the basis of the evidence referred to in the preceding 2 paragraphs I find that the cervical injury is likely to continue. On the basis of all the medical evidence I am satisfied that Ms Warren has undertaken all reasonable rehabilitative treatment. Ms Warren has suffered a permanent impairment as a result of the injury to her cervical spine at C4/5 level.
Having decided that the disc injury was caused by what Ms Schellenberger described as “years of clerical work”, and taking into account that Ms Warren had considerable breaks from the repetitive clerical tasks after February 1987, I find that on the balance of probabilities this impairment became permanent before 1 December 1988. As I am not satisfied that this impairment has worsened since 1 December 1988 there is no compensation payable for this injury under section 24: see section 124(3)(b)(iii) of the Safety, Rehabilitation and Compensation act (Cth) 1988 and Comcare v Levett.[38]
A4.4. Has the Adjustment Disorder resulted in impairment which is permanent? If so, did the impairment become permanent on or before 1 December 1988?
[38] (1995)131 ALR 645.
I am satisfied that the Adjustment Disorder described by both Dr Knox and Dr Saboisky amounts to a malfunction of Ms Warren’s mental faculties and is an impairment.
Both psychiatrists agreed that the Disorder is likely to be ongoing. I find that Ms Warren has undertaken all reasonable rehabilitative treatment and the duration of the condition I am of the view that it is unlikely that the condition will improve. I am satisfied that the impairment is permanent.
I am satisfied that the Adjustment Disorder did not become permanent until after 8 December 1988. On the evidence of both Dr Knox and Dr Saboisky over time the pain from the original injury developed into a chronic pain syndrome followed by the adjustment disorder. The Adjustment Disorder/Depression following the 1986 injury was not diagnosed until 1997.[39]
[39] Diagnosis by Mr Sutton, psychologist, see Exhibit A2, document 1.
A4.5 What is the degree of permanent impairment as a result of each of the injuries?
As I have found that the chronic pain syndrome is the cause of the symptoms of pain in Ms Warren’s right arm, the relevant Table to assess impairment is Table 9.4.
On the basis of the evidence from Ms Warren (paragraph 13) and Dr Webber (paragraph 17) I am satisfied that Ms Warren has difficulties with grasping and holding although she can use her right arm for self care. The evidence does not establish that Ms Warren experiences particularly marked difficulty in this regard, but I am of the view that what has been said by the Federal Court in relation to the interpretation of “difficulty with digital dexterity” is equally applicable to the interpretation of “difficulties with grasping and holding.”
In Comcare v Fiedler[40] the Full Court of the Federal Court considered the meaning of the phrase “has difficulty with digital dexterity”. The Court rejected the proposition that there was a requirement for “very severe” or “very significant or substantial” difficulty. At page 334 the Court said:
“Something more than minimal problems with digital dexterity is required. But if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity, that will, adopting the approach to interpretation required by Whittaker at 544-545, justify a 10 per cent impairment assessment under par 1 of Table 9.4.”
[40] [2001] 115 FCR 328.
I find that as a result of the chronic pain syndrome which affects her right upper limb Ms Warren suffers a 20% Whole Person Impairment.
Table 9.6 deals with the assessment of the injury to the cervical spine. Even if the impairment had become permanent after 1 December 1988 compensation would not be payable for the reasons set out in the following paragraphs.
On the basis of the evidence of Dr Webber, Ms Schellenberger and Dr White I find that Ms Warren suffers from minor restriction in the movement of her neck and that consequently the degree of Whole Person Impairment under Table 9.6 is 5%.
When Dr Dowda examined Ms Warren on 14 July 2004 he found no restriction of movement of the cervical spine.[41] I prefer the evidence of Ms Schellenberger and Dr White on this issue as they had greater opportunity to examine Ms Warren on different occasions and therefore greater opportunity to make an assessment. In particular Ms Schellenberger impressed me as being very thorough and careful in her reporting and her diagnoses.
[41] Exhibit R2.
As the degree of Whole Person Impairment is less than 10%, compensation for this injury is not payable under section 24 even had the impairment become permanent after the commencement of the present Act.[42]
[42] See subsection 24(7).
A more difficult question arises in applying Table 5.1 of the Guidelines to determine the degree of impairment arising from the Adjustment Disorder. The relevant parts of the Table provide:
| “5 | Despite the presence of ONE of the following is capable of performing activities of daily living without supervision or assistance. reactions to stressors of daily living with minor loss of personal or social efficiency lack of conscience directed behaviour without harm to community or self minor distortions of thinking |
| 10 | Despite the presence of MORE THAN ONE of the following is capable of performing activities of daily living without supervision or assistance. reactions to stressors of daily living with minor loss of personal or social efficiency lack of conscience directed behaviour without harm to community or self minor distortions of thinking” |
The figures in the left-hand column refer to the percentage Whole Person Impairment.
Counsel for Comcare properly conceded that Ms Warren has reactions to stressors of daily living with minor loss of personal or social efficiency and therefore has at least a 5% Whole Person Impairment. The issue for determination is whether Ms Warren also suffers “minor distortions of thinking”. If she does her percentage impairment would rise to 10%.
Dr Knox referred to “depressed mood, negativity, and reduced concentration” as examples of Ms Warren’s distortions of thinking.[43] In giving oral evidence, Dr Evans referred to Ms Warren’s difficulty in mobilising her intellectual resources, her worrying and negative thinking and her reduction in her ability to concentrate.
[43] Exhibit A5.
Dr Saboisky did not agree that Ms Warren suffered any distortion in her thinking. In forming this view he adopted what he called “the psychiatrists’ definition” of disturbed thinking, that is, over-valued ideas or delusions. In his view Ms Warren does not suffer distortions of thinking in this sense.
The issue I must decide is what is meant by “minor distortions of thinking” in Table 5.1 of the Guidelines and in this respect I am not bound to apply a particular definition commonly used by psychiatrists. The interpretation of the word is in the Guidelines is a question of law. The approach of the Tribunal has been to accept incidents such as described by Dr Knox and Dr Evans as minor distortion of thinking: Canute and Comcare [2004] AATA 627; Mahne and Comcare [2004] AATA 985. I can see no reason to depart from the principles in these decisions and, in the interest of certainty for future parties before the Tribunal, it is preferable that I not do so without good reason. I am satisfied that Ms Warren does suffer from minor distortions of thinking as a result of the injury she suffered and that her degree of Whole Person Impairment is 10%.
Counsel for Ms Warren tentatively suggested that a finding of 15% impairment could be made. I am not satisfied on the evidence before me that Ms Warren needs any supervision and direction in her “activities of daily living” within the meaning of that term as defined in the Glossary to the Guidelines.
I have found that Ms Warren has suffered 3 discrete injuries, each one of which has resulted in a separate impairment. As was set out in Canute v Comcare[44] [2005] FCA 299 the Act is concerned with individual injuries. In this situation, as there are 2 injuries to which section 24 applies and which separately give rise to impairment of 10% or more, the degree of Whole Person Impairment is calculated by simply adding together the 2 figures. This is not a case for applying Table 14.1: Canute v Comcare. The degree of permanent impairment suffered by Ms Warren as a result of the 2 injuries is 30%.
PART B: 2004/369 CLAIM FOR INJURY DURING REHABILITATION TREATMENT
[44] [2005] FCA 299.
B1. THE REVIEWABLE DECISION
On 16 March 2004 Ms Warren made a claim that on 4 August 2003 she had been injured on a stretching machine at Fit To Manage. She claimed that her left shoulder, left shoulder to left wrist and her thoracic spine had been affected.[45] This claim was rejected.
[45] Document T17, A2004/369.
The request for reconsideration of this decision, which led to the decision to be reviewed in this application, sought “a reconsideration of the injury to her left shoulder region and her upper and lower back as a result of the stretching machine at a Fit To manage Rehabilitation program…..”[46] It was this request which was dealt with by the decision of Comcare made 22 November 2004[47] and which was refused. It is the decision of 22 November 2004 which is for review in these proceedings.
[46] DocumentT35, A2004/369.
[47] Document T41, A2004/369.
B2. FURTHER EVIDENCE AND FINDINGS OF FACT
In August 2003 Ms Warren commenced a course of strengthening exercises with Fit To Manage as part of her treatment for her right arm condition. Ms Bronwyn Thompson, a psychologist and partner of Fit To Manage, managed Ms Warren’s treatment.
Ms Warren gave evidence that on 4 August 2003 Ms Thompson assisted her in her attempt to touch her toes by pushing her on the back and that later that day she was in “quite a deal of pain” and was unable to bend. She said she suffered pain in her lower back and left side.
Ms Warren attended her general practitioner, Dr Webber, on 5 August 2003. Dr Webber’s notes on Ms Warren’s file for that day read in part:
“Been to physical conditioning rehab by Comcares (sic) providor (sic) -> severe pain started 1 hour later, limping. Pain neck arms legs.
O/E myofascial trigger spots painful and tender
Limping……………………………………………………………………..
Note to therapist – [lessen] intensity”[48].
[48] Exhibit A10.
On the same day Dr Webber wrote a note which he gave to Ms Warren. The note read in part as follows:
“Dear Therapist,
Re: Lina Warren
Lina has presented today with quite a pronounced limp. Her arthritis in her L hip has been aggravated by some of the therapy yesterday, & there is now spasm & ↓ L hip movement. She has developed myofascial pain & tenderness around her neck & trunk. ………………………..Given her level of deconditioning & significant disease in her L hip, I wonder if we need to start a little more gently with Lina. She is very frightened that the therapy might cause her more harm.”[49]
Ms Warren gave evidence that she handed the note to Ms Thompson.
[49] Exhibit A3.
Ms Warren also gave evidence that later in the course she started using a stretching machine and began to experience pain in her right arm. She said that she then tried to make more use of her left arm but that she then experienced pain in her left arm, from her shoulder to her thumb. She said that this occurred towards the end of the program, which ceased in early September 2003. She said she complained of this condition to a number of people including Ms Thompson.
Dr Webber’s notes record 2 further consultations in September 2003[50] when Ms Warren complained of stretching exercises at Fit To Manage causing pain in her left arm. Dr Webber found positive impingement in Ms Warren’s left shoulder and tenderness along the left extensor longus tendon when he examined Ms Warren on 29 September 2003.[51]
[50] On a date which is illegible and on 29/9/03.
[51] Exhibit A10.
In giving evidence Dr Webber confirmed his opinion that the impingement of the left shoulder and the tenderness in the left wrist were caused by the stretching exercises.
A left shoulder ultrasound was carried out on 23 December 2003. The report recorded “a small amount of fluid in the subacromial bursa and may be responsible for the patient’s symptoms.”[52]
[52] Document T13, A2004/369.
In her report of her examination of Ms Warren on 6 July 2004 Ms Schellenberger diagnosed:
“left shoulder rotator cuff tendinitis that has improved with treatment but not recovered fully……..[t]he left shoulder complaint would be expected to recover fully in the near future without any permanent impairment or permanent incapacity……….[a]lso recently Ms Warren has developed upper and lower backache which hopefully will be simple muscular strain associated with the exercise program.”[53]
[53] Exhibit A2, document 13.
Ms Schellenberger related the development of these conditions to the undertaking of the exercise program.
When Dr Dowda examined Ms Warren on 14 July 2004 he was unable “to identify a specific history of injury occurring on 5 August 2003, other than that Ms Warren presented as having sudden onset of pain in the left arm (she indicated in particular the left forearm) that she related to the stretch exercises she was doing.”[54]
[54] Exhibit R2.
Ms Thompson gave evidence that on the 4 August 2003 Ms Warren did some gentle exercises to stretch her calves and hamstrings during which it became apparent to her (Ms Thompson) that Ms Warren was having major problems with the exercises as a result of her hip injury. Ms Thompson was already aware of Ms Warren’s physical injuries. Ms Thompson denied pushing Ms Warren’s back such as to cause her any injury.
Ms Thompson denied having been given the letter from Dr Webber. She said that when Ms Warren attended on 6 August 2003 she did not complain of any increase in the symptoms of her injuries. Ms Thompson said that she was not aware of Ms Warren suffering any injury during the Fit To Manage course.
I am of the view that both Ms Warren and Ms Thompson were honest witnesses who were giving their evidence to the best of their respective recollections. I am not satisfied that Ms Thompson did anything by way of excessive pushing of Ms Warren which caused her any injury. I find that Ms Thompson was aware of Ms Warren’s problems and at all times conducted appropriately the program for Ms Warren. However I cannot be satisfied on the balance of probabilities as to whether Dr Webber’s note was given to Ms Thompson and I make no finding in this regard.
On the basis of Ms Warren’s description of her condition after attending the Fit To Manage course and on the evidence of Dr Webber I am satisfied that Ms Warren’s participation in the course caused her an injury being left shoulder rotator cuff tendinitis and muscle strain of the upper and lower back.
B3. APPLICATION OF THE LAW
Before a finding of liability under section 14 can be made I must also be satisfied that the injury resulted in “incapacity for work, or impairment”. There is no evidence that the condition of the left arm of itself caused incapacity for work so it is necessary to consider whether the injury resulted in impairment.
As I have referred to earlier in these reasons “impairment” includes a malfunction of any part of the body and I have also referred to the decision of Halliday v Comcare Australia. For the reasons I have stated in relation to the chronic pain syndrome I am satisfied that pain experienced by Ms Warren in her left shoulder and her upper and lower back amount to malfunctions of those parts of the body and are an impairment.
It follows from the above findings that I am satisfied that during August and/or September 2003 Ms Warren suffered an injury which resulted in impairment within the meaning of section 14 of the Act.
PART C: DECISIONS
No. A2004/113
The decision of Comcare made 23 March 2004 is set aside and in substitution it is decided that:
4)Ms Warren has suffered an injury, being a chronic pain syndrome, which is permanent and which has resulted in a 20% Whole Person Impairment and Comcare is liable to pay compensation to Ms Warren pursuant to section 24 of the Safety, Rehabilitation and Compensation Act (Cth) 1988 in respect of the injury;
5)Ms Warren has suffered an injury, being a cervical disc injury at C4/5 level, which has resulted in a 5% Whole Person Impairment; Comcare is not liable to pay compensation to Ms Warren for this injury by reason of the provisions of section 24(7) of the Safety, Rehabilitation and Compensation Act (Cth) 1988;
6)Ms Warren has suffered an injury, being an Adjustment Disorder with Depressed Mood, which is permanent and which has resulted in a 10% Whole Person Impairment and Comcare is liable to pay compensation to Ms Warren pursuant to section 24 of the Safety, Rehabilitation and Compensation Act (Cth) 1988 in respect of the injury;
The parties have liberty to apply to the Tribunal in relation to the costs of this application.
No. A2004/369
The decision of Comcare 22 November 2004 is set aside and in substitution it is decided that during August and/or September 2003 Ms Warren suffered an injury, being left shoulder rotator cuff tendinitis and muscle strain of the upper and lower back, which resulted in impairment within the meaning of section 14 of the Safety, Rehabilitation and Compensation Act (Cth) 1988.
The parties have liberty to apply to the Tribunal in relation to the costs of this application.
I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member
Signed: .....................................................................................
Associate (Chelsey Bell)
Date/s of Hearing 27 & 28 April and 6 May 2005
Date of Decision 30 June 2005
Counsel for the Applicant Mr S. Hausfeld
Solicitor for the Applicant Gary Robb & Associates
Counsel for the Respondent Ms L. Walker
Solicitor for the Respondent Phillips Fox
[22] Exhibit R2.
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