WIGG and LINFOX ARMAGUARD PTY LTD
[2010] AATA 647
•27 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 647
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0467
GENERAL ADMINISTRATIVE DIVISION ) Re SAMANTHA WIGG Applicant
And
LINFOX ARMAGUARD PTY LTD
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr A Frazer, MemberDate27 August 2010
PlacePerth
Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides as follows:
· From 17 November 2008 to the present date, and as at the present date, the respondent has continued, and continues, to be liable to pay compensation, in accordance with s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), to the applicant in respect of an injury, namely, “right tibial/fibula strain”, sustained on 23 January 2007 (“the injury”);
· from 17 November 2008 to 12 October 2009 the respondent continued to be liable to pay compensation, in accordance with s 19 of the SRC Act, to the applicant in respect of the injury;
· from 13 October 2009 to the present date, and as at the present date, the respondent has not been, and is not, liable to pay compensation, in accordance with s 19 of the SRC Act, to the applicant in respect of the injury.
Application may be made to the Tribunal in relation to the costs of this proceeding within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of this proceeding incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
COMPENSATION – applicant suffered right knee injury in course of employment by respondent in January 2007 – respondent accepted liability to pay compensation to applicant for knee injury – applicant subsequently developed neuropathic regional pain syndrome in right lower limb – respondent determined it was not liable to pay compensation to applicant for knee injury in November 2008 – applicant continues to suffer impairment as result of knee injury – applicant continued to be incapacitated for work as result of knee injury until 12 October 2009 – applicant not incapacitated for work as result of knee injury from 13 October 2009 to date – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 14(1), s 16, s 19
REASONS FOR DECISION
27 August 2010 Deputy President S D Hotop
Dr A Frazer, MemberIntroduction
1. On 1 May 2007 Samantha Wigg (“the applicant”), who has at all material times been employed by Linfox Armaguard Pty Ltd (“the respondent”), made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in respect of an injury described as “strained right knee”. In the claim form the applicant stated that she sustained that injury on 23 January 2007 when she “slipped on a coin bag and jarred [her] right knee” in the course of her employment with the respondent.
2. On 8 May 2007 a “determination” was made, on behalf of the respondent, under the SRC Act that the respondent was liable under s 14 of that Act to pay compensation to the applicant in respect of an injury described as “right tibial/fibula strain” sustained on 23 January 2007. Pursuant to that determination the applicant subsequently received payments of compensation for medical expenses and for incapacity for work, in accordance with (respectively) s 16 and s 19 of the SRC Act, in respect of that injury.
3. On 17 November 2008, however, a further determination was made, on behalf of the respondent, under the SRC Act as follows:
“ … I determine that Samantha Wigg has ceased to suffer the effects of the compensable injury sustained on 23/01/2008, giving rise to an incapacity for employment or need of medical treatment, and is therefore not presently entitled to compensation for medical treatment under section 16 of the SRC Act and incapacity under section 19 of the SRC Act.”
That determination was affirmed by a “reviewable decision” made, on behalf of the respondent, under the SRC Act on 31 December 2008.
4. On 3 February 2009 the applicant lodged with the Tribunal an application for review of the reviewable decision dated 31 December 2008.
The Evidence
5. The evidence before the Tribunal comprised:
· the “T Documents” (T1– T215, pp 1–431) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1–A18 tendered by the applicant;
· Exhibits R1–R36 tendered by the respondent; and
· the oral evidence of the applicant and of the following witnesses:
-Dr T Berrigan, Dr E Visser, Dr R Goodheart, Dr W Saint, and Dr P Finch (who were called by the applicant);
-Dr K Cooper, Mr M Alexeeff, Mr B Slinger, Dr J Rosenthal, Dr G Edwards-Smith, Dr D Bacvic, and Mr M Ringelstein (who were called by the respondent).
The Applicant’s Evidence
6. In her written outline of evidence dated 14 September 2009 (Exhibit A1), the applicant stated that she was born in March 1963, summarised her primary and secondary education and her subsequent employment history up until 2004, and continued:
“ …
14.In 2004 I obtained employment at with (sic) the Respondent as a member of the ‘Road Crew’.
15.My employment required me to drive the Respondent’s trucks, deliver and collect cash, replenish automatic teller machines and to provide security and transportation for money transferred by the Respondent. This work required me to undergo firearms training and obtain a licence to carry a firearm.
16.In the course of my employment with the Respondent I also carried out work for Telstra. This work required me to empty cash out of telephone boxes. …
17.I also worked in the ASAP department which required me to carry out ‘plain clothes’ security work. …
18.In addition to the on the job training I received I was also required to attend two (2) firearm shoots each year.
19.I enjoyed my job. I do not consider myself an academic and I enjoyed the hands on nature of the work.
20.On the 23rd January 2007 at approximately 5.30 am I had reversed one of the Respondent’s trucks into a loading bay and opened the back of the truck. My crew leader counted the money that was being loaded onto the truck and placed it onto the floor at the rear of the truck.
21.Once he had done so I was required to kneel down and count the money and to then stack the money in various positions in the back of the truck.
22.Our truck was overloaded. By this I mean that there was no more room for money on the shelves in the back of the truck and all designated areas for stacking money on the floor of the truck were full.
23.On two (2) occasions this was reported to despatch via the radio however we were told that we had to continue to take on the additional money and to continue to put it on the floor of the truck.
24.There was so much money in the back of the truck that I was unable to walk in the back of the truck without stepping on bags of coins.
25.As we loaded the money into the truck I stood up and stepped towards the back of the truck and as I did so I stood on a bag of coins and slipped and jarred my right knee.
26.I struck my right knee hard on the floor of the truck.
27.It was extremely painful.
28.I swore several times but continued to attempt to carry out my work.
29.At the time I thought I had only knocked my knee and that it wasn’t anything too serious.
30.At the time I was only a casual employee even though I was working 42 hours a week. I was aware that the company was taking on full-time employees and I had applied for a full-time position.
31.I continued working as I did not want to make trouble for my application or put my job in jeopardy by not continuing to work.
32.Unfortunately the pain did not go away.
33.I kept working for approximately three months before I saw a doctor. I thought my knee would get better but it didn’t.
34.I subsequently lodged a claim for workers’ compensation with the Respondent. My claim was accepted.
35.When I initially suffered the injury to my knee, I experienced pain which I would consider to be a 9 out of 10 where 10 is unbearable pain. The pain was at its worst at night.
36.I attended Dr Danny Sader who gave me anti-inflammatory medication and referred me for an MRI and an ultrasound scan.
37.I also attended my own General Practitioner, Dr Warren Saint.
38.Dr Saint referred me to a specialist and also to Dr Eric Visser and I was diagnosed with Complex Regional Pain Syndrome.
39.I was instructed by my doctor to reduce my hours and to limit my work to light duties only.
40.An occupational therapist was appointed by the Respondent who saw that these hours and restrictions introduced (sic) at my work.
41.I worked five hours a day on Monday, Tuesday, Thursday and Friday of each week.
42.I continue to work these hours now.
43.Up until 17 November 2008 I continued to work restricted duties and restricted hours in accordance with the recommendations of my medical practitioners. Up until 17 November 2008 I continued to receive a partial incapacity payment from the Respondent and my medical expenses and consultations were paid for by the Respondent.
44.On 17 November 2008 the Respondent denied ongoing liability for my claim.
45.As a result of my injuries I continue to be certified fit for restricted duties limited to five hours of work, four days each week.
46.I continue to require treatment and medication and I have processed as much of these expenses as I can through Medicare or my Medibank Private health insurance.
47.I was forced to cease going to the physiotherapist when the Respondent refused to continue paying for the physiotherapy.
48.As I cannot afford to continue to pay for physiotherapy each week, I had the physiotherapist show me the exercises I need to do and I carry out these exercises each day. I also complete pool exercises approximately 1-2 times each week.
49.I also try and walk every day for approximately 30-40 minutes.
50.Some days I can complete these exercises and I feel as though they have helped improve my pain however more often than not once I complete the exercises my pain has increased and I suffer for several hours afterwards.
51.I have purchased an infrared sauna and a vibration machine that I can use at home in an attempt to alleviate the pain I experience as a result of my work accident.
52.As a result of the pain I also undergo massage treatment approximately twice a week.
53.As a result of my work accident I require a significant amount of medication and as a result I often feel very drowsy.
54.I try and avoid taking tablets as much as I can so that I do not become dependent upon them.
55.I continue to experience pain to my right foot and the back of my right knee. I also experience pain to the outside of my right knee and cramping to my right calf.
56.My leg is highly sensitive to touch and the bottom of my right foot is extremely painful.
57.I often feel as though my toes are curling up and then relaxing and I continue to experience a pins and needles sensation to my lower right leg, right foot and the toes of my right foot.
58.If I am required to stand for periods of more than approximately thirty (30) minutes at a time then my leg feels very heavy, almost as though it is dragging a ball and chain.
59.As a result of the pain I experience I often have trouble getting to sleep and if I am able to get to sleep, difficulty staying asleep. I require sleeping tablets approximately every second night to assist me to sleep.
60.I also experience headaches as a result of the stress I am under because of my accident sustained injuries.
61.As a result of my work injuries I experience an increase in the pain to my right leg and foot when undertaking sweeping, vacuuming or mopping floors, making beds, cleaning bathrooms, gardening, washing the car and shopping. I now avoid tasks where I am required to stand for a long period of time or where I am required to lift heavy items.
62.I feel weak and stupid because I am unable to do these things in the manner I used to.
63.As a result of the pain, my relationship with my partner has become strained. I am not as tolerant as I was prior to my work accident and this has led to arguments.
64.As a result of the pain I am now easily frustrated.
65.As a result of my work injuries I no (sic) longer as socially active as I was prior to my work accident. I have lost the motivation to go out socially due to the discomfort I experience when I sit or stand for long periods of time. I have also lost the confidence to go out socially.
66.As a result of my inability to exercise as often as I did prior to my work accident I have gained weight and I find this very upsetting. My self esteem is much lower since the accident.
67.I continue to work twenty (20) hours a week for the Respondent. My duties are limited to filing paperwork, placing money into plastic bags, counting money, sending documents interstate, answering phones and completing paperwork.
68.I am no longer allowed to carry out the physical work I did prior to my work accident. In addition, as a result of my injuries I am no longer permitted to carry a firearm.
69.At the end of my shift I am very uncomfortable and in a significant amount of pain. I would describe the pain I experience to my right leg and right foot as being a 7 out of 10 where 10 represents unbearable pain. In addition I am very fatigued.
70.My inability to continue in my pre-accident duties makes me depressed. I feel worthless because I am unable to carry out the physical work and I have to watch others be trained and promoted whereas I am no longer able to carry out different types of work.
71.I have attended Mr Sean Hood, Psychiatrist regarding my depression and I am undergoing a psychological program. Mr Hood has prescribed me anti-depressant medication and I understand I will require this medication on an ongoing basis.
72.Unfortunately as a result of the Respondent refusing to continue to pay partial incapacity payments to me and its refusal to pay for my treatment and medical expenses, I am only able to purchase the medications I can afford from week to week.”
7. In her oral evidence-in-chief the applicant confirmed that the contents of her abovementioned outline of evidence are true and correct. She also confirmed that she had experienced a motor vehicle accident on 14 May 2007 which caused her to feel “a bit shocked” but as a result of which there were “no physical effects”. She also acknowledged that she had experienced an incident in which she “came off” a skateboard but she said that she did not injure herself in that incident. She added that she saw her general practitioner, Dr Cooper, and told her that she had a sore leg as a result of a work accident, but that, so as not to prejudice her job prospects with the respondent, she told Dr Cooper to record that her leg injury was caused by her “coming off” a skateboard.
8. In cross-examination the applicant was questioned in detail about the abovementioned skateboard incident. She said that it occurred when she was riding a skateboard up the sloping driveway of her home. She said that, as she approached the main road at the end of the driveway, she “got off the skateboard quickly” and “ran alongside it” but did not fall off it. She described that incident as “very minor” although she added that it “scared her a bit”. As regards the date of that incident, the applicant said that it happened after the relevant work accident and on the day before a concert featuring “The Pretenders” which she attended. She produced an admission ticket relating to a concert featuring “The Pretenders” on Sunday, 28 January 2007 (part of Exhibit R17) and confirmed that the skateboard incident occurred on the day before that concert, namely, 27 January 2007. Asked why she was riding a skateboard on 27 January 2007 if her right leg was very painful as a result of the work accident on 23 January 2007, the applicant could not offer any explanation.
9. As regards her present work duties, the applicant said that she has continued to perform restricted duties of an administrative nature, including filing, preparing documentation, cash checking and preparation, computer data entry, answering telephone calls, and radio operating. She said that she has worked an extra half-hour (totalling 5½ hours) per day, 4 days per week since December 2009 when she transferred to Despatch, and that she is willing to further increase her working hours. She said that she recently worked a 12-hour day starting early in the morning, including doing a “security officer job” involving leaving the base at 4.30 pm for a pick-up at 4.45 pm then returning to base, and leaving work at 6.00 pm. She added that, if she has a “terrible night” because of pain, she sometimes goes to work at 3.00–4.00 am and the respondent has accepted such an arrangement and she gets paid for working extra hours.
10. The applicant said that she would be happy to try working 6 hours per day, 4 days per week, and, if she is able to manage that, then to try working 7 hours per day, increasing to 8 hours per day, 4 days per week. She said that she would like to do “Telstra work”, namely, payphones, 2 days per week and to do her present administrative work in Despatch for the other 2 days per week.
11. The applicant was asked to nominate which of her pre-injury “road crew” duties she was unable to perform. She said that she finds climbing up and down stairs, getting in and out of the truck, and lifting and carrying more than one heavy coin bag at a time difficult, although she added that she is able to perform those duties “but not all day long, day in and day out”.
The Evidence of the Medical Witnesses Called by the Applicant
Dr Warren Saint
12. Dr Saint confirmed that he is a general practitioner and he said that he first saw the applicant on 30 December 2005 and continues to treat her.
13. Dr Saint said that the applicant first consulted him about her right knee on 1 September 2007 when she told him that she had injured the knee at work on 23 January 2007 and that she was continuing to have pain in the knee going down into her upper calf. He said that, prior to 1 September 2007, he had seen the applicant on 6 occasions regarding various “intercurrent illnesses”.
14. Dr Saint said that since September 2007 he has regularly issued workers’ compensation progress medical certificates in relation to the applicant’s right leg. He confirmed that the applicant had been seen by Dr Eric Visser, a specialist in pain medicine, from October 2007 and that he accepted Dr Visser’s diagnosis that the applicant suffers from complex regional pain syndrome type I which has developed as a result of her work-related right knee injury.
15. As regards the applicant’s present, and future, capacity for work, Dr Saint said that she is keen to increase her present work hours and opined that the appropriate course to adopt would be gradually to increase her present work hours by 1–2 hours per day, 4 days per week, “every couple of months”, or to increase the number of work days from 4 days per week to 5 days per week with “slightly less” work hours per day, and to gradually lift her work restrictions, so as “very gradually to return her to her pre-injury duties for full-time hours”. He added that the applicant is “motivated to return to work as a security officer”.
16. In cross-examination Dr Saint was referred to a proposed Return to Work (“RTW”) plan, dated 5 May 2010, prepared by Ms Kelly Field, a rehabilitation manager employed by the respondent, in respect of the applicant (Exhibit R10). He confirmed that Ms Field had sent that proposed RTW plan to him for his consideration but that he would not sign it unless the applicant had first been consulted about it. He acknowledged, however, that he had returned the document to Ms Field, having handwritten a note, dated 11 May 2010, on the document as follows:
“ Samantha Wigg needs to be OK with this RTW and sign this before I am prepared to look at it”.
He also acknowledged that the applicant has told him that she is not able to wear a gun belt, carry coin bags, or get in and out of armoured vehicles.
17. In re-examination Dr Saint opined that the proposed increase in the applicant’s work hours in the abovementioned RTW plan was “much too quick” and he added that that plan had been prepared without any input from him or the applicant. He further added, however, that, if the applicant had signed the plan, he would have encouraged her to “give it a go” despite his reservations.
Dr Eric Visser
18. Dr Visser confirmed that he is a pain medicine specialist and that he has practised in the area of pain medicine for 13 years. He also confirmed that he has, in the course of his practice, seen the applicant on numerous occasions and that he has prepared various medical reports regarding the applicant. Those reports were identified as follows:
· report, dated 15 October 2007, for “insurance provider” (T47);
· report, dated 23 November 2007, to Mr Brett Bairstow, Orthopaedic Surgeon (T72);
· report, dated 18 February 2008, to Mr Bairstow (T99);
· report, dated 28 April 2008, to Dr Saint (T126);
· report, dated 9 June 2008, for “insurance provider” (T145);
· report, dated 18 August 2008, to Dr Saint (T164);
· report, dated 10 November 2008, to Dr Saint (T200); and
· report, dated 15 February 2010, to the applicant’s solicitors (Exhibit A6).
In his report of 15 October 2007 Dr Visser described the applicant’s relevant condition as:
“ Neuropathic regional pain syndrome of right lower leg: a sub-clinical version of Complex Regional Pain Syndrome (CRPS)”
and he added:
“ … although not fulfilling all of the IASP [International Association for the Study of Pain] criteria for CRPS, her presentation most closely fits this diagnosis”.
19. In cross-examination Dr Visser was asked to state the IASP criteria for CRPS. He referred to an IASP ”resource book” published in 2005 in which the diagnostic criteria for CRPS are set out (at p 47) as follows:
“ 1) The presence of an initiating noxious event, or a cause of immobilization.
2)Continuing pain, allodynia, or hyperalgesia with which the pain is disproportionate to an inciting event.
3)Evidence at some time of edema, changes in skin blood flow, or abnormal sudomotor activity in the region of pain.
4)This diagnosis is excluded by the existence of conditions that would otherwise account for the degree of pain and dysfunction.
Type I: without evidence of major nerve damage.
Type II: with evidence of major nerve damage.” (Exhibit A7)
Asked which of those criteria the applicant fulfilled, Dr Visser said:
“ … she reported an initiating noxious event in the reported fall or injury. She reported continuing pain and she demonstrated allodynia and hyperalgesia, both historically and on examination. There was evidence historically at some time of oedema, changes in skin blood flow and abnormal sweating in the region.”
20. Dr Visser was also referred to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th ed) in which, in respect of CRPS, it is stated (at p 496):
“ Since a subjective complaint of pain is the hallmark of these conditions, and many of the associated physical signs and radiologic findings can be the result of disuse, the differential diagnosis is extensive; it includes somatoform pain disorder, somatoform conversion disorder, factitious disorder, and malingering. Consequently, the approach to the diagnosis of these syndromes should be conservative and based on objective findings. The criteria listed in Table 16-16 predicate a diagnosis of CRPS upon a preponderance of objective findings that can be identified during a standard physical examination and demonstrated by radiologic techniques. At least eight of these findings must be present concurrently for a diagnosis of CRPS. Signs are objective evidence of disease perceptible to the examiner, as opposed to symptoms, which are subjective sensations of the individual.
Table 16-16 Objective Diagnostic Criteria for CRPS (RSD and causalgia)
Local clinical signs
Vasomotor changes:
· Skin color: mottled or cyanotic
· Skin temperature: cool
· Edema
Sudomotor changes:
· Skin dry or overly moist
Trophic changes:
· Skin texture: smooth, nonelastic
· Soft tissue atrophy: especially in fingertips
· Joint stiffness and decreased passive motion
· Nail changes: blemished, curved, talonlike
· Hair growth changes: fall out, longer, finer
Radiographic Signs
· Radiographs: trophic bone changes, osteoporosis
· Bone scan: findings consistent with CRPS
Interpretation:
≥8 Probable CRPS
< No CRPS”
(Exhibit R8)
Dr Visser said that he had never seen those diagnostic criteria in any of the pain medicine literature and that he did not agree with them. He acknowledged, however, that each of the “local clinical signs” listed in Table 16-16 “can be” a sign of CRPS but he added that the “radiographic signs” listed in the Table are “not of diagnostic value”.
21. Dr Visser was next referred to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (6th ed) in which it is stated (at pp 538–539):
“ Complex regional pain syndrome (CRPS) is a challenging and controversial concept, difficult to diagnose accurately, with epidemiological studies indicating that most such diagnoses are made within a workers’ compensation context. Therefore, this is a particularly challenging diagnosis to rate. The hallmark of this condition is a characteristic burning pain that is present without stimulation or movement, that occurs beyond the territory of a single peripheral nerve, and that is disproportionate to any suspected inciting event. The pain is associated with specific clinical findings, including signs of vasomotor and sudomotor dysfunction and, later, trophic changes of all tissues from skin to bone.
The International Association for the Study of Pain (IASP) created the diagnoses of CRPS type I to replace the diagnosis of reflex sympathetic dystrophy (RSD), and CRPS type II to replace causalgia.
…
Since a subjective complaint of pain is the hallmark of this diagnosis, and since all of the associated physical signs and radiologic findings can be the result of disuse, an extensive differential diagnostic process is necessary. Differential diagnoses which must be ruled out include disuse atrophy, unrecognized general medical problems, somatoform disorders, factitious disorder, and malingering. A diagnosis of CRPS may be excluded in the presence of any of these conditions, or any other conditions which could account for the presentation. This exclusion is necessary due to the general lack of scientific validity for the concept of CRPS, and due to the reported extreme rarity of CRPS (any of the differentials would be far more probable).
Because accurate diagnosis of CRPS is difficult, the diagnostic approach should be conservative, and supported by objective findings. The diagnosis of CRPS has not been scientifically validated as representing a specific and discrete health condition. The diagnostic process is itself unreliable, as competing diagnostic protocols and definitions are continuously being introduced and utilized. There is no gold standard diagnostic feature which reliably distinguishes the diagnosis of CRPS from presentations which clearly are not CRPS. Scientific findings have actually indicated that whenever this diagnosis is made, it is probably incorrect. A diagnosis of CRPS may create a dilemma for the evaluator with regard to a specific injury. Specifically, a lack of proportionality between a clinical presentation and any suspected inciting event is inherent to the concept of CRPS. Therefore an evaluator must determine if there is relationship between CRPS and the injury in question.
CRPS may be rated only when: (1) the diagnosis is confirmed by objective parameters (specified in Table 16-13), (2) the diagnosis has been present for at least 1 year (to assure accuracy of the diagnosis and to permit adequate time to achieve maximum medical improvement), (3) the diagnosis has been verified by more than 1 physician, and (4) a comprehensive differential diagnostic process (which may include psychological evaluation and psychological testing) has clearly ruled out all other differential diagnoses. Emphasis is placed on the differential diagnostic process, because accurate diagnosis of CRPS is difficult, and because even objective findings have been demonstrated to lack diagnostic validity.
The taxonomy and criteria, which were adopted by the Committee for Classification of Chronic Pain of the International Association for the Study of Pain (IASP), have contributed to progress in understanding the syndrome; these substantial efforts finally provided standardized diagnostic criteria, improved clinical communication and homogeneity of research, and provided the promise of results that could be compared across studies. These criteria have been examined, both in terms of external and internal validation. The IASP criteria, while sensitive, lack specificity, and thus would identify patients as having CRPS when they do not. As a result of validation studies, proposed modified research diagnostic criteria were developed.
…
TABLE 16-13
Diagnostic Criteria for Complex Regional Pain Syndrome
1) Continuing pain, which is disproportionate to any inciting event.
2) Must report at least one symptom in three of the four following categories:
- Sensory: reports of hyperesthesia and/or allodynia.
- Vasomotor: Reports of temperature asymmetry and/or skin color changes and/or skin color asymmetry.
- Sudomotor/Edema: Reports of edema and/or sweating changes and/or sweating asymmetry.
- Motor/Trophic: Reports of decreased range of motion and/or motor dysfunction (weakness, tremor, dystonia) and/or trophic changes (hair, nail, skin).
3) Must display at least one sign* at the time of evaluation in two or more of the following categories:
- Sensory: Evidence of hyperalgesia (to pinprick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement).
- Vasomotor: Evidence of temperature asymmetry and/or skin color changes and/or asymmetry.
- Sudomotor/Edema: Evidence of edema and/or sweating changes and/or sweating asymmetry.
- Motor/Trophic: evidence of decreased range of motion and/or motor dysfunction (weakness, tremor, dystonia) and/or trophic changes (hair, nail, skin).
4) There is no other diagnosis that better explains the signs and symptoms.
* A sign is counted only if it is observed and documented at time of the impairment evaluation.”
(original emphasis) (Exhibit R9)
Dr Visser was asked whether the applicant meets the description:
“ The hallmark of this condition … any suspected inciting event”
in the first paragraph of the above extract, and he opined that she does. Dr Visser was referred to the statement in the third paragraph of the above extract that differential diagnoses, including “somatoform disorders”, must be ruled out. He acknowledged that, in his report of 28 April 2008 (T126), he stated:
“ I feel somatization is playing a part in her presentation but to what degree is uncertain.”
He explained that by “somatization” he meant “emotional and mood distress related to [the applicant’s] medical condition”. He added that he always considered “emotional responses to pain or medical disorders” in respect of all his patients.
22. Finally, Dr Visser was asked by the Tribunal to clarify the diagnosis which he had stated in his various abovementioned reports, namely, “neuropathic regional pain syndrome of right lower leg: a sub-clinical version of Complex Regional Pain Syndrome (CRPS)”. He said that “neuropathic regional pain syndrome” is a “more robust and less controversial” diagnosis than CRPS in the applicant’s case.
Dr Thomas Berrigan
23. Dr Berrigan, Consultant in Pain Medicine, said that he first saw the applicant on 30 May 2008, following a referral by Dr Visser, and that he had subsequently prepared various medical reports regarding the applicant. Those reports were identified as follows:
· report, dated 6 June 2008, to Dr Visser (T144);
· report, dated 29 August 2008, to Dr Visser (T173);
· report, dated 5 November 2008, to Dr Saint (Exhibit A2);
· report, dated 4 December 2008, to the applicant’s solicitors (T207);
· report, dated 12 November 2009, to Dr Visser (Exhibit A4);
· report, dated 12 November 2009, to Dr Philip Finch (Exhibit A3);
· report, dated 10 February 2010, to the applicant’s solicitors (Exhibit A5).
24. Dr Berrigan’s report of 4 December 2008 to the applicant’s solicitors states as follows:
“ …
In reply to your specific queries:-
a) the injuries and symptoms of our client
I initially reviewed Ms Wigg on the 30th May 2008 on referral from my colleague, Dr Eric Visser.
Ms Wigg told me that her main problem was that of pain felt in the right lower leg following an incident at work on the 23rd January 2007.
Ms Wigg was working as an armoured car driver for Armaguard. She had stepped on a plastic coin bag and her leg splayed out and her muscles were stretched. She had immediate onset of pain. Later that night she developed ‘unbelievable’ throbbing down the right leg. She had continued on working normal duties until placed on light duties and then reduced hours later in the year.
She was, however, continuing to experience pain. This pain was felt mainly behind the right knee and down the outside of the right calf. She also experienced ‘pins and needles’ sensations in the right foot and lower leg. Also, at times, the whole leg felt cramped and heavy. She had also, at times, noted cold sensations down this leg.
She told me that the pain was always present though the intensity varied. The pain varied between 7 and 9/10. She was awoken by intense pain during the night, approximately twice/week.
Prior to the above incident she did not have any of these symptoms.
When I reviewed her on the 30th October 2008 she also told me that, at times, the right foot would sweat more than the left. She was still experiencing her leg pain.
b)the cause of our client’s injuries and symptoms and in particular whether or not you would attribute our client’s injuries and symptoms to her accident of the 23rd January 2007
The diagnosis here is not clear. Initially, it would seem she was diagnosed with a soft tissue injury in the region of the knee. However, this has not settled down as one would expect.
Dr Eric Visser noted that she was extremely sensitive to touch in the lower leg, a condition often called allodynia. He felt that the diagnosis here was of a condition classified as ‘chronic (sic) regional pain syndrome’ or a neuropathic pain syndrome.
When I interviewed her on the 30th May 2008, I felt that the diagnosis here could be that of a piriformis muscle syndrome where the sciatic nerve is irritated as it passes over or through the piriformis muscle in the buttock. However, I would agree with Dr Visser that CRPS or neuropathic pain syndrome would also be a possible diagnosis.
On the basis of the information I have in front of me, I would indeed attribute her injuries and symptoms to her accident of the 23rd January 2007.
c) the treatment our client has received from you since your last report
On the 16th June 2008 I performed a piriformis muscle injection of local anaesthetic and Depo steroid under image intensifier control. This is the only treatment I have given to her so far apart from prescribing an analgesics (sic), Norspan.
d)the improvement or deterioration in our client’s condition since your last report
When I reviewed Ms Wigg on the 14th August 2008 following her piriformis muscle injection, she reported that her pain was 70% better following this injection.
When I next reviewed her on the 30th October 2008 she reported that her leg pain had returned.
e)the likely development of our client’s condition into the foreseeable future
This is a very difficult question to answer. I believe, in the longterm, her condition will settle but it is likely to be a protracted course. It may take several years yet. It is always difficult when one cannot make a clear diagnosis.
f) the likely treatment our client will require into the foreseeable future
I have recommended that she undertake a local anaesthetic sympathetic block. If one has CRPS or neuropathic pain syndrome then a sympathetic block may be helpful in settling down the condition.
I believe that she has also continued to require analgesics and medications such as Tramadol, Endep and Lyrica.
g)our client’s ability to work, in detail, together with any limitations or restrictions you would impose upon the same, both as to the type of work our client can perform and as to the hours our client is able to work
I think that Ms Wigg should be able to do some form of relatively light sedentary work. She should avoid any work which involves repetitive bending or lifting or lifting of heavy objects. She should probably work approximately 4-5 hours/day.
…” (T207)
25. In his oral evidence Dr Berrigan reiterated that CRPS type I is a “possible diagnosis” of the applicant’s condition but not one that he would favour. He said that he initially preferred a diagnosis of “piriformis muscle syndrome” but that he is now “less certain” of that diagnosis and “cannot offer a positive diagnosis”.
Dr Philip Finch
26. Dr Finch said that he has practised in the area of pain medicine for 32 years. He said that he had seen the applicant on 5 occasions, most recently on 11 May 2010, and that he had prepared 5 reports on the applicant’s condition. Those reports were identified as follows:
· report, dated 4 January 2010, to Dr Berrigan (Exhibit A14);
· report, dated 10 February 2010, to Dr Berrigan (Exhibit A15);
· report, dated 23 March 2010, to Dr Berrigan (Exhibit A16);
· report, dated 23 March 2010, to the applicant’s solicitors (Exhibit A17);
· report, dated 11 May 2010, to the applicant’s solicitors (Exhibit A18).
27. Dr Finch said that he was “very certain” that the applicant has CRPS, and he added that he has a “particular interest” in that condition, having “studied it for 20 years” and having published papers (with Professor Peter Drummond of Murdoch University) in peer-reviewed journals over that period.
28. Dr Finch opined that the applicant had contracted CRPS as a result of sustaining an injury to a nerve when she fell in the course of her employment. He said that CRPS can be of varying degrees of severity from “mild” to “very severe”, and he described the applicant’s CRPS condition as “mild to moderate”.
Dr Ross Goodheart
29. Dr Goodheart, Consultant Neurologist, said that he first saw the applicant on 17 November 2008 and subsequently on 18 March 2009 and that he had prepared 4 reports relating to the applicant, addressed to the applicant’s solicitors, namely:
· report of 17 November 2008 (T203);
· report of 18 March 2009 (Exhibit A8);
· report of 21 January 2010 (Exhibit A9);
· report of 28 January 2010 (Exhibit A10).
30. In his report of 17 November 2008 Dr Goodheart opined that the applicant was “suffering with a chronic pain syndrome in association with her right knee injury”. In his report of 18 March 2009 Dr Goodheart reiterated that opinion but added:
“ Although I have not found definite trophic changes in the right leg, it is now my opinion that it is more likely than not that there is a component of Complex Regional Pain Syndrome contributing to ongoing symptoms.”
In his report of 21 January 2010 Dr Goodheart expressed his agreement with the opinion of Dr John Rosenthal as stated in his report of 10 June 2009 (see paragraph 46 below) as follows:
“ [The applicant] sustained an initial injury or neuropraxia involving the right common peroneal nerve. This injury has been complicated by the development of a peripheral neuropathic pain syndrome which would fall under the diagnostic umbrella of complex regional pain syndrome despite the absence of vascular and trophic change.”
31. Dr Goodheart described the applicant’s symptoms as “moderate” or “mid-range”. As regards the applicant’s work capacity, Dr Goodheart opined, in his report of 17 November 2008, that the applicant, by reason of her ongoing symptoms, was “partially incapacitated for work” in that she was “limited in her lifting capacity” and “limited in her capacity to maintain prolonged periods of static posture” and he added that her “history suggested that she was more suited for continued light duties and was not fit to return to ‘full duties’ of a security officer”. In his report of 18 March 2009 Dr Goodheart noted that the applicant was working 5 hours per day, 4 days per week, performing light duties, and he opined that she “remained significantly incapacitated for work” due to her ongoing symptoms. He added that he “did not assess any scope for significant increase in work capacity for the foreseeable future”.
The Evidence of the Medical Witnesses Called by the Respondent
Dr Kathryn Cooper
32. Dr Cooper said that she is a general practitioner and that the applicant first attended the practice (of which she is a member) on 3 February 2007. She said that the applicant first consulted her in relation to a right knee problem on 20 February 2007 when the applicant told her that she had exacerbated her knee in a “twisting action” on a truck at work. Dr Cooper confirmed that the clinical note which she made on that occasion states:
“ Injured right knee about 3 months ago on skateboard, then jarred it at work about 2 months ago.” (Exhibit R4)
She said that she referred the applicant for an ultrasound of her right leg and the resulting report, dated 28 February 2007, indicated that there was no abnormality (T4).
33. In cross-examination Dr Cooper said that, in the 20 February 2007 consultation, the applicant’s main problems were more about her left ear and her sinuses than about her knee. She added, however, that, in a consultation on 22 May 2007 when she last saw the applicant, the “primary focus” was on the right leg.
34. In re-examination Dr Cooper said that, on 22 May 2007, the applicant complained that her existing right knee condition was being exacerbated by her performing her work duties.
Dr Durda Bacvic
35. Dr Bacvic, Specialist in Occupational Medicine, first assessed the applicant on 25 June 2007 and re-assessed her on 22 October 2007, at the request of the respondent, and subsequently prepared 3 reports, dated 6 July 2007 (T27), 26 July 2007 (T29), and 30 October 2007 (T62).
36. In her report of 30 October 2007 Dr Bacvic noted that, since the work accident of 23 January 2007, the applicant had been performing her normal work duties and hours until 22 October 2007 when she commenced “light duties” in accordance with the recommendation of her treating doctor. Dr Bacvic also stated that, on the basis of her “objective/physical” findings on examination, she was unable to explain the causation and extent of the applicant’s “symptoms/pain”. She added, however, that “pain syndrome” and “non-organic pain” were outside her field of expertise, and, in her oral evidence, she said that she would defer to experts in the field of pain disorders.
Mr Barrie Slinger
37. Mr Slinger, Consultant Orthopaedic Surgeon, examined the applicant on 13 November 2007 at the request of the respondent’s insurer and subsequently prepared 2 reports, dated 20 November 2007 (T69), and 11 September 2008 (T178).
38. In his report of 20 November 2007 Mr Slinger opined that, on the balance of probabilities, the applicant’s presenting symptoms did relate to the work incident of 23 January 2007 as reported to him, but he stated that the specific condition from which she was suffering was “uncertain”. He noted Dr Visser’s diagnosis of “neuropathic regional pain syndrome” but he added that the applicant had not presented to him with the clinical features confirmatory of that condition, apart from “burning pain or discomfort”.
39. In his oral evidence Mr Slinger said that the applicant had presented to him with hyperaesthesia, or increased sensation, below her right knee on the lateral aspect. He added that she “could not tolerate his grip anywhere below the knee” and she “actively withdrew as if something was about to strike or bite her foot”, yet she was able to tolerate pressure by her own hand to the same area without discomfort. He described her reaction as suggestive of “gross apprehension of pain” and “bizarre” and he regarded it as “abnormal illness behaviour”. He added that he had never seen such a reaction before in his 30 years’ experience as an orthopaedic surgeon.
40. As regards CRPS, Mr Slinger agreed that there are degrees of that condition which he described as “mild”, “moderate”, “severe”. He did not, however, agree that the applicant was suffering from that condition because there were insufficient clinical signs to support such a diagnosis in her case but he added that, if she does have CRPS, it is a “mild” case. He did acknowledge, however, that, in the case of CRPS, the “symptoms come early” but the “signs can come later”.
Mr Michael Alexeeff
41. Mr Alexeeff, Consultant Orthopaedic Surgeon, examined the applicant on 8 May 2009 at the request of the respondent’s solicitors and he subsequently prepared 3 reports, dated 15 May 2009 (Exhibit R12), 12 June 2009 (Exhibit R13), and 13 July 2009 (Exhibit R14).
42. In his report of 15 May 2009 Mr Alexeeff described the applicant’s condition as involving an “atypical pain response to soft tissue injury about the right knee” and he added that he was “unconvinced of the diagnosis of chronic (sic) regional pain syndrome” in her case. He also stated that there “appear(ed) to be a casual (sic) relationship between her work injury and the development of symptoms”.
43. In his report of 13 July 2009 Mr Alexeeff opined that the applicant was “not incapacitated for work” and that her present work hours should be “incremented” with a view to returning her to her pre-injury work duties on a full-time basis.
44. In his oral evidence Mr Alexeeff described CRPS as “rare” and added that he had seen about 10 cases of it in his 20 years’ experience as an orthopaedic surgeon. He said that “when you see the condition, you can’t miss it” and added that he had not seen it in the applicant. He also said that there are “no real degrees of CRPS” and he described it as “a disabling condition”. As regards his opinion that the applicant is capable of being returned to her pre-injury duties on a full-time basis, Mr Alexeeff opined that this should be done gradually over a period of 3 months.
Dr John Rosenthal
45. Dr Rosenthal, Physician in Rehabilitation Medicine, examined the applicant on 10 June 2009 at the request of the respondent’s solicitors and he subsequently prepared 3 reports, dated 10 June 2009 (Exhibit R23), 3 July 2009 (Exhibit R24), and 13 October 2009 (Exhibit R25).
46. In his report of 10 June 2009 Dr Rosenthal summarised his clinical findings on examination of the applicant as follows:
“ The history and the current clinical findings are supportive of her having a peripheral neuropathic pain syndrome following an injury to the right common peroneal nerve. The hallmark of neuropathic pain is allodynia and she consistently has this over the upper calf. I acknowledge that she does not have the vascular manifestations of complex regional pain syndrome (formally (sic) known as reflex sympathetic dystrophy) but this is an epi-phenomenon in the patho-physiology of this condition and its absence does not negate the diagnosis of complex regional pain syndrome. Her symptoms description and her reported response to Pregabalin (Lyrica) lend support to the diagnosis.
I could not agree with a proposition put by one colleague that she is exhibiting features of abnormal illness behaviour and/or symptoms exaggeration.
I find no clinical basis to support the assertion that there has been any traumatic disturbance of her lumbar nerve roots as a result of this work injury.
I cannot support the proposition that this injury resulted in a piriformis syndrome which has quite a different clinical presentation.
It is, therefore, evident that I concur with the diagnostic opinion of Dr Eric Visser.”
In response to a request for his “diagnosis of the applicant’s condition as caused by the work incident”, Dr Rosenthal stated:
“ As I indicated above, I think she sustained an initial injury or neuropraxia involving the right common peroneal nerve. This injury has been complicated by the development of a peripheral neuropathic pain syndrome which would fall under the diagnostic umbrella of complex regional pain syndrome despite the absence of vascular and trophic change. This is not an uncommon finding in the field of pain medicine.”
As regards the applicant’s work capacity, Dr Rosenthal opined as follows:
“ Ms Wigg is not incapacitated for work in terms of the number of hours she can work but it would seem her capacity is slightly reduced in terms of having to be on her feet for extended periods, having to lift bags of coins and having to alternatively squat and work in positions of awkward posture in a confined space such as the back of an armoured truck.”
He opined that the applicant’s work hours should be gradually increased to full-time hours over a period of 6 – 8 weeks. He also opined that the applicant’s incapacity was caused by the work injury of 23 January 2007.
47. In his oral evidence Dr Rosenthal opined that the applicant’s peripheral neuropathic pain condition was “at the lower end of the severity spectrum … in the mild to moderate bracket”.
48. Dr Rosenthal was referred to a statement of Matt Ringelstein in which the applicant’s work duties are outlined (Exhibit R16 – see paragraph 52 below). He confirmed that, in his report of 13 October 2009, he had expressed the opinion that the applicant was capable of undertaking all of those duties. As regards the duty involving “lifting and carrying bags”, Dr Rosenthal confirmed that he understood that the bags were bags of cash but that he was not aware of the weights of those bags. He added that, had he been asked to address that matter, he would have indicated that a 5-kilogram limit for each bag was appropriate. Asked whether a 6.5 kilogram limit for each bag could be appropriate, Dr Rosentahl said that, if there were only occasional lifting, that increase in weight would probably be of no consequence but that, if there were numerous repetitions of that activity, it could become more significant. He said, furthermore, that the applicant should be capable of lifting 2 such bags – one in each hand – at a time on an occasional basis, but not on an excessively repetitive basis.
Dr Gemma Edwards-Smith
49. Dr Edwards-Smith, Consultant Psychiatrist, assessed the applicant on 12 February 2008 at the request of the respondent’s insurer, and re-assessed her on 15 May 2009 at the request of the respondent’s solicitors, and she subsequently prepared 3 reports, dated 21 February 2008 (T101), 9 June 2009 (Exhibit R27), and 6 July 2009 (Exhibit R28).
50. In her report of 9 June 2009 Dr Edwards-Smith opined that the applicable psychiatric diagnosis in the applicant’s case is that of a “somatoform disorder, specifically that of a pain disorder”. She added that a differential diagnosis was that of a “pain disorder associated with psychological factors” or, alternatively, “pain disorder associated with both psychological factors and a general medical condition”. Dr Edwards-Smith also opined that the applicant was not incapacitated for work by reason of her psychiatric condition.
51. In her oral evidence Dr Edwards-Smith confirmed that her psychiatric diagnosis of the applicant’s condition was a provisional diagnosis. As regards the applicant’s capacity for work, she acknowledged that the applicant has been medically certified as fit only for part-time work on the basis of her physical condition, and she accepted that that was reasonable.
The Evidence of Matt Ringelstein
52. Mr Ringelstein is employed by the respondent as a Distribution Manager. He confirmed that he had prepared a statement of the applicant’s work duties as follows:
“ Samantha Wigg is employed by Linfox Armaguard as a Roadcrew staff member performing duties in both armoured and non-armoured operations.
The main duties in these areas include the following:
oDeliver and collection of coin, cash and cheques
oServicing ATMs replacing empty cassettes with full cassettes
oServicing other types of equipment, change machines, parking machines, payphones etc.
Tasks involved in performing these duties:
1. Assist with loading product into vehicles at commencement of run.
· Lifting and carrying bags from trolley to vehicle.
· Climb steps to access vehicle
· Stacking cash/coin bags into designated areas in back of vehicle.
2. Driving duties to site for delivery and collection
· Climbing in/out of vehicle
· Sitting for periods
· Driving and operating vehicle
3. Carriage of consignment to/from site
· Carrying bags/items from vehicle to client site
· Open client safes and perform transfer
· Transfer items to armoured vehicle
· Use of trolley when necessary
· Load items into shelves or designated area in vehicle
4. Assist with unloading of vehicle at completion of run
· Load items from vehicle to trolley
· Climb in/out of vehicle
Samantha performed these duties on average 5 days per week, with shifts varying between 6 and 9 hours per day.
Following Samantha’s injury, she has performed alternate duties within the branch including the following:
· Filing
· Answering phones
· Preparing paperwork and associated documentation
· Cash checking and preparation
Samantha continues to perform these duties 4 days per week for approximately 5 hrs per shift.” (Exhibit R16)
53. In his oral evidence Mr Ringelstein said that roadcrew staff are not required to carry more than one coin bag, weighing a maximum of 6½ kilograms, in each hand at a time, and, if necessary, they make multiple trips to collect all the bags. He said that the respondent has previously had roadcrew staff who had a lifting restriction of no more than 5 kilograms and has been able to accommodate them on a return-to-work basis. He also said that it was possible to roster roadcrew staff so as to avoid the necessity to climb stairs and that, if the applicant returned to roadcrew with a “no stairs restriction”, she could be accommodated.
The Legislation
54. The SRC Act (as in force at all material times) relevantly provided as follows;
“ 4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
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.
…
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;
…
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…
14Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
16Compensation in respect of medical expenses etc
(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.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
…
19Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, …
…”
Section 19 contains various provisions in accordance with which the relevant amount of compensation is determined have regard to, inter alia, the employee’s “normal weekly earnings” and “the amount per week (if any) that the employee is able to earn in suitable employment”.
Findings
55. There is no dispute that the applicant sustained an “injury” (for the purposes of ss 14(1), 16 and 19 of the SRC Act), namely, “right tibial/fibula strain” (“the injury”), on 23 January 2007. The matter in dispute is whether, from 17 November 2008 (being the date of the relevant determination whereby the payment of compensation to the applicant was ceased), the injury has continued to result in “impairment” or “incapacity for work” (as defined in s 4(1) and s 4(9), respectively, of the SRC Act).
Has the injury continued to result in impairment?
56. None of the abovementioned medical witnesses who have examined the applicant since November 2008 has disputed that the applicant has continued to suffer pain in her right lower limb as a result of the injury. There is, however, disagreement among those medical witnesses regarding the appropriate diagnosis of the applicant’s physical condition characterised by that pain.
57. In making a finding as to the appropriate diagnosis of the applicant’s ongoing right lower limb pain resulting from the injury, the Tribunal attaches the greatest weight to the evidence of those medical witnesses who specialise in pain medicine and who have reviewed the applicant periodically in the period from 2008 to 2010, namely, Dr Visser, Dr Berrigan and Dr Finch. The Tribunal also attaches substantial weight, in this regard, to the evidence of Dr Goodheart and Dr Rosenthal.
58. Having regard to the evidence the specialists referred to in the preceding paragraph, the Tribunal is satisfied that the applicant’s right lower limb pain condition may appropriately be diagnosed as “neuropathic regional pain syndrome” or “complex regional pain syndrome, type I”. The Tribunal notes, however, that the only specialist who unreservedly opined that the applicant has complex regional pain syndrome (“CRPS”) was Dr Finch, whereas Dr Visser, Dr Goodheart and Dr Rosenthal expressed a more qualified opinion, having regard to the absence of certain “trophic changes” commonly associated with CRPS on examination of the applicant’s right lower limb. The Tribunal ultimately accepts Dr Visser’s oral evidence that neuropathic regional pain syndrome is a “more robust and less controversial” diagnosis than CRPS in the applicant’s case.
59. Accordingly, the Tribunal finds that, as a result of the injury, the applicant continues to suffer from neuropathic regional pain syndrome in the right lower limb. The Tribunal also finds, on the basis of the evidence of Dr Finch and Dr Rosenthal, that the degree of severity of the applicant’s neuropathic regional pain syndrome is “mild to moderate”.
60. The Tribunal finds, therefore, that, from 17 November 2008 to the present date, and as at the present date, the injury has continued, and continues, to result in impairment of the applicant’s right lower limb.
Has the injury continued to result in incapacity for work?
61. In making a finding on whether the applicant has, from 17 November 2008 to date, continued to be incapacitated for work as a result of the injury, and, if so, the degree of that incapacity, the Tribunal attaches the greatest weight to the evidence of Dr Berrigan, Dr Goodheart and Dr Rosenthal.
62. On the basis of the evidence of Dr Berrigan and Dr Goodheart, the Tribunal is satisfied, and finds, that the applicant, as a result of the injury, continued to be partially incapacitated for work, within the meaning of s 4(9)(b) of the SRC Act, in that her work capacity was restricted to undertaking light duties for 5 hours per day, 4 days per week, up until June 2009.
63. On the basis of the evidence of Dr Rosenthal, however, the Tribunal is satisfied, and finds, that:
·as at 10 June 2009 (being the date of Dr Rosenthal’s examination of the applicant), the applicant, as a result of the injury, continued to be partially incapacitated for work in that she was physically restricted in respect of lifting bags of coins and squatting and working “in positions of awkward posture in a confined space such as the back of an armoured truck” (see Dr Rosenthal’s report of 10 June 2009), although she then had the capacity to increase her work hours to 40 hours per week over a period of 6 – 8 weeks;
·from 13 October 2009 (being the date of Dr Rosenthal’s final report – Exhibit R25), the applicant has not been incapacitated for work (as defined in s 4(9) of the SRC Act) in that, from that date, she has had the capacity to undertake all of the duties of a roadcrew staff member (as outlined in Matt Ringelstein’s statement of 5 October 2009 – see paragraph 52 above), which she was undertaking immediately before the injury, for 40 hours per week.
Decision
64. For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides as follows:
·From 17 November 2008 to the present date, and as at the present date, the respondent has continued, and continues, to be liable to pay compensation, in accordance with s 16 of the SRC Act, to the applicant in respect of the injury;
·from 17 November 2008 to 12 October 2009 the respondent continued to be liable to pay compensation, in accordance with s 19 of the SRC Act, to the applicant in respect of the injury;
·from 13 October 2009 to the present date, and as at the present date, the respondent has not been, and is not, liable to pay compensation, in accordance with s 19 of the SRC Act, to the applicant in respect of the injury.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr A Frazer, Member.
Signed: ...............[sgd D Brodie]........................
Associate
Dates of Hearing 25-28, 31 May, 1 June 2010
Date of Decision 27 August 2010
Counsel for the Applicant Mr T Offer
Solicitor for the Applicant Trewin Norman & Co
Counsel for the Respondent Ms P Giles
Solicitor for the Respondent Dibbs Barker
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