Woolley and Comcare
[2006] AATA 1017
•28 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1017
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/188
GENERAL ADMINISTRATIVE DIVISION ) Re SANDRA WOOLLEY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr D Weerasooriya, MemberDate28 November 2006
PlacePerth
Decision The Tribunal affirms the decision under review.
.....[Sgd S D Hotop]..........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant suffered right shoulder injury in 1994 – applicant thereafter suffered intermittent pain symptoms – applicant commenced employment with Child Support Agency (CSA) in January 2000 – applicant suffered pain symptoms in right shoulder and arm when performing work activities – applicant had supraspinatus tendonitis in right shoulder – applicant underwent right shoulder surgery in March 2002 – applicant thereafter suffered increased pain symptoms in right shoulder and arm – applicant unfit for work until March 2003 – applicant undertook graduated return to work programme from March to July 2003 – applicant ceased work in July 2003 because of pain symptoms – applicant’s right shoulder and arm ailment or aggravation not contributed to in material degree by employment by CSA – applicant’s right shoulder and arm ailment not an “injury” – respondent not liable to pay compensation to applicant in respect of right shoulder and arm ailment – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) and s 14(1)
Australian Postal Corporation v Lucas (1991) 33 FCR 101
Commonwealth v Beattie (1981) 35 ALR 369
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Re Musumeci and Department of Health (NT) (1990) 19 ALD 797
Tippett v Australian Postal Corporation (1998) 27 AAR 40
REASONS FOR DECISION
28 November 2006 Deputy President S D Hotop
Dr D Weerasooriya, Member
Introduction
1. The applicant commenced employment with the Child Support Agency (“CSA”) on 4 January 2000. She was off work from 26 February 2002 to 31 March 2003, during which period she underwent surgery to her right shoulder on 5 March 2002. On 31 March 2003 she commenced a graduated return to work programme but on 24 July 2003 she ceased to participate in that programme and has not worked since that date. She is, however, still employed by the CSA and has been on unpaid leave since 24 July 2003.
2. On 21 July 2003 the applicant made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) in respect of an injury to her right shoulder which she described as being of “gradual onset” and for which she stated that she first had medical treatment on 24 August 2001.
3. On 8 October 2003 a delegate of the respondent made a determination that the respondent was not liable under the SRC Act to pay compensation to the applicant in respect of her right shoulder condition. That determination was affirmed in a “reviewable decision” of the respondent dated 19 May 2004.
4. The applicant has applied to the Tribunal for review of the respondent’s “reviewable decision” of 19 May 2004.
The Issue and the Tribunal’s Determination
5. The issue for the Tribunal’s determination is whether the applicant’s right shoulder and arm condition is related to her employment by the CSA – in which event the respondent would be liable, under the SRC Act, to pay compensation to her.
6. For the reasons which follow, the Tribunal has determined that the applicant’s right shoulder and arm condition is not related to her employment by the CSA and, therefore, the respondent is not liable, under the SRC Act, to pay compensation to her for that condition.
The Relevant Legislation
7. Section 14(1) of the SRC Act provides:
“... 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.”
Section 4(1) of the SRC Act contains the following relevant definitions:
"aggravation includes acceleration or recurrence.”
"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.”
"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.”
"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;
...”
The Evidence
8. The evidence before the Tribunal comprised the “T Documents” (T1-T69) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), documentary exhibits tendered by the applicant (Exhibits A1-A21) and by the respondent (Exhibits R1-R8), and the oral evidence of the applicant, Dr J Salmon, Dr G Mastaglia, Mr P Honey, Mr A Skirving and Dr A Home.
The applicant’s evidence
9. A summary of the applicant’s evidence, dated 29 August 2005, which was tendered in evidence (Exhibit A1), states as follows:
“1 I am 42 years of age, having been born on 30 July 1963.
2In December 1994, I injured my right shoulder while opening the door of my car, which was whipped away by the wind. I only experienced mild, occasional symptoms in my right shoulder after this incident.
3On 4 January 2000, I commenced employment with the Child Support Agency as a telephone coach.
4At or around the time of commencing employment at the Agency, I was assessed at the instigation of my employer by a physiotherapist and a medical practitioner. Reports issued by these persons indicate that at that time I had no symptoms and a full range of movement in my shoulders (T3) and that I was medically capable of performing all the duties of my specified job (T59).
5My duties at this time entailed wearing a double jacked headphone listening into telephone conversations between employees of the Agency and the Agency’s customers and monitoring and writing out, sometimes verbatim, those telephone conversations. Most staff at this time did not want remote monitoring, so I had no choice but to sit next to them at their desk in conditions not conducive to my comfort. At some desks, there was very little space for me to utilise due to the space being used by the person occupying the desk, so I would often sit and write in cramped conditions at desks not set up to suit me.
6My duties with the Agency included a considerable amount of keyboard and mouse work.
7Between approximately September 2000 and August 2001, I noted a drastic increase in my right shoulder symptoms, both in terms of frequency of occurrence and severity. My shoulder, arm and hand were aggravated by writing and mouse use and any movement of my right elbow away from the side of my body was painful. I experienced burning in my right hand, elbow, scapula and lateral right shoulder.
8In the period from September 2000 to August 2001 and on an ongoing basis, I was frequently liaising with the Agency’s Occupational Health and Safety staff in attempts to rectify my work condition.
9On 24 August 2001, I attended with my general practitioner in regard to the pain I was experiencing in my right upper limb. This was my first visit to my general practitioner regarding my right shoulder since June 1999.
10On 12 October 2001, I emailed Mr Stan Snook, the Occupational Health and Safety Manager for the Child Support Agency, regarding difficulties I was having readjusting my desk so as to make my workplace comfortable. In a handwritten note, Mr Snook recommended modifying my work practices to minimise writing when possible (T60). I was not aware of this recommendation and to the best of my knowledge this recommendation was not communicated to my Team Leader. As a result, I continued writing, keying and using a mouse.
11On 13 December 2001, whilst travelling home from work on the train, a car drove into the train. This resulted in me suffering neck and back pain, hip pain and headaches.
12In or around November 2001 – February 2002, the Child Support Agency introduced a new computer system which was essentially mouse based. This system is known as the CUBA system. From June 2001 onwards, I also used the TRICS system extensively, which is also mouse based.
13In January and February 2002, I undertook CUBA familiarisation modules. The more I used the mouse, the more difficult and painful it became to use my right hand and arm. I informed my Team Leader, Ms Dorry McHendry, and also my Peer Tech Coach, Geralyn Fuller, of the pain I was suffering. Ms McHendry asked me to request an appointment with the newly appointed Occupational Therapist Ms Debra Browne of Acumen Alliance. As this was a new appointment to the Agency, staff were seen on a priority basis. My request was emailed on February 14 and I was seen on February 15 by Ms Browne.
14In February 2002, I was referred to Mr Peter Honey, Orthopaedic Surgeon, who recommended that I undergo surgery to my right shoulder. Shortly thereafter, I attended with my general practitioner who signed me off as unfit for work on February 26 which was prior to surgery. At this time, I was in a great deal of pain and virtually unable to use my right arm.
15On 5 March 2002, I underwent right shoulder surgery.
16I was off work, initially on sick leave and then sick leave without pay, from 26 February 2002 until I returned to work on 31 March 2003. During this period of time, the actions of CSA and/or their representatives were responsible for exerting undue pressure/stress upon me and as a result I was prescribed anti-depressants.
17On 31 March 2003, I commenced a graduated return to work programme, working initially 2 hours per day, once per week on restricted duties. This subsequently increased to 2 hours per day, two days per week, however, in July 2003, as I was still suffering from severe symptoms, it was recommended that I cease work. I was put off work on 24 July 2003 at the recommendation of Debra Browne, who noted an increase in symptoms in my right shoulder and onset of symptoms in my left shoulder.
18I remain employed by the Child Support Agency but have not returned to work since 24 July 2003. During this time I have been on sick leave without pay.
19Although I am informed that surgery has mechanically rectified my shoulder, surgery has not alleviated my symptoms and I continue to experience symptoms in my right shoulder and at times in my left shoulder. These symptoms were greatly exacerbated by the work duties undertaken by me at the Child Support Agency.”
10. In her oral evidence-in-chief the applicant said that, as regards the incident involving her right shoulder in December 1994 referred to in para 2 of her abovementioned summary of evidence, she did not seek medical treatment at that time because she experienced only “a few twinges” and there was nothing that caused her major concern. She said that she first sought treatment following that incident from her general practitioner, Dr E Kerr, in late 1995 or early 1996, and she subsequently had an x-ray and a CT scan of her right shoulder which did not indicate any major problem.
11. The applicant said that, in the period 1994-1999, she was in full-time employment for the whole of that period (with the exception of the period October 1994 - January 1995 when she was on maternity leave). She added that in that period she had no time off work due to her shoulder.
12. The applicant said that in 1999 she was living in a country town (Boyup Brook) in the south-west of Western Australia and the cold weather made her shoulder “ache” and her arm “feel heavy”, and she used heat packs on her shoulder which would cause her symptoms to settle. She said that on a visit to Perth in June 1999 she consulted Dr Kerr who gave her a cortisone injection in her shoulder. She said that initially after the injection she was in “absolute agony” but, once it had settled down, she “got almost if not full relief from it” and she did not complain about it again for a long time.
13. As regards the physiotherapy and medical assessments that the applicant underwent in January 2000 for the purpose of commencing employment with the CSA (see para 4 of her abovementioned summary of evidence), she confirmed that she had informed both the physiotherapist (Mr T Beveridge) and the medical practitioner (Dr P Moss, Health Services Australia) about the right shoulder injury which she suffered in December 1994 and the “occasional flare-ups” she had since experienced.
14. The applicant elaborated on the description of her duties as a telephone coach with the CSA outlined in paras 5-6 of her abovementioned summary of evidence. She said that, for the purpose of monitoring incoming and outgoing telephone calls involving a Client Service Officer (“CSO”) and a client of the CSA, the practice was to monitor 5-10 calls – an exercise which could occupy 2-3 hours during which time she sat near the particular CSO at his/her desk.
15. The applicant said that in late August 2000 she hurt her left hip while trying to manoeuvre a full shopping trolley down an incline. She said that she then consulted a local doctor, Dr C Yap, who arranged for her to have a scan of her hip and lower back. A report of an x-ray and a CT scan by Dr S Swift dated 30 August 2000, which indicated that the left hip was normal but that there was “a minimal left posterior disc bulge” at L5/S1, was tendered in evidence (Exhibit A3).
16. The applicant said that she had a couple of days off work after the shopping trolley incident and when she returned to work on 1 September 2000 she sent an email to Mr S Snook (Occupational Health and Safety Manager, CSA) requesting assistance. She said that, at her request, an assessment of her workstation was conducted by the physiotherapist, Mr Beveridge, on 17 October 2000. The applicant was referred to Mr Beveridge’s report, dated 17 October 2000 (T5), in which the shopping trolley incident is referred to and it is noted that:
· the applicant injured her low back and aggravated her right shoulder;
· lumbar pain has decreased;
· the right shoulder is continuing to cause problems, and she was provided with a wrist rest for keyboard and mouse;
· “aggravating activities” – any movement with right elbow away from side of body.
The applicant responded that she hurt her hip in that incident and she did not remember hurting her shoulder. She added that, in a conversation with Mr Beveridge, she mentioned that she had “hurt [her]self with the shopping trolley” and that she was “having trouble with [her] arm”, but that she does not “put those two incidents together”. (Transcript, p 39)
17. The applicant said that in March 2001 she was transferred to the “New Clients” section of the CSA and her new workstation was located near air-conditioning vents which made that location “extremely cold”. She said that she told her Team Leader that she was “suffering with the cold” but she nevertheless remained in that location until June 2001 when she was temporarily transferred to the Human Resources (“HR”) section. She said that her duties in HR comprised preparing spreadsheets of training schedules for approximately 250 employees and entering that information onto the “TRICS” database which involved mainly computer keyboard and mouse use. She said that she continued to perform the HR role until September 2001, but from mid-August 2001 she also resumed her former role as a telephone coach.
18. The applicant said that she consulted her general practitioner, Dr Kerr, on 24 August 2001. She explained the reason for that consultation as follows:
“Because my arm was really starting to ache and I found that sort of intermittently again through the HR and with using the mouse and then with going back to doing a lot of writing again, my arm was playing up.” (Transcript, pp 42-43)
Asked over what period her arm had been “playing up”, she responded:
“It started really with the cold, when I was in New Clients. That aggravated a little bit. And then during my stint with HR with the mouse work and as I say, we moved to the city and I continued with mouse work and then with coaching and it just sort of gradually got heavier and heavier.” (Transcript, p 43)
She added that it was her arm which “got heavier” and that her arm would “ache with writing”. She also said that, apart from writing, the action which was most associated with pain was the movement of her arm in a forward direction away from her body – a movement which, because of the shape of the desk and her position at the desk, she was required to make in order to move the computer mouse. She said:
“With the amount of work that I was doing at work with the mouse and with writing it had started to flare up, my arm. I got intermittent problems within that time, sort of aching pains in my arm, I also had burning pains in my chest and actually into my arm. Again, they were intermittent but that was when I went and saw her again in that August. (Transcript, p 47)
She said that this was the first time she had consulted Dr Kerr about symptoms connected with her right shoulder since June 1999 when Dr Kerr had given her a cortisone injection.
19. The applicant confirmed that she arranged for a workstation assessment to be conducted by the physiotherapist, Mr Beveridge, on 5 December 2001. She explained the reason as follows:
“Because by this stage my arm was really starting to ache quite badly. I was still getting the burning pains, they were coming more often. I was really tired by the end of the day and I found that the more I was writing, the more mouse work I was doing, was just getting very difficult.” (Transcript, p 49)
She said, however, that Mr Beveridge found that her chair, desk and terminal were set up correctly, and that he advised her to relax (and not to “hunch”) her shoulders when keying and writing, and he recommended that she do an exercise which he demonstrated.
20. The applicant said that a new computer system (“CUBA”) was introduced in the CSA in November 2001 and that she attended “CUBA familiarisation modules” training workshops in January-February 2002. She said that this was a “mouse-based” system and that, with the constant use of the mouse, her arm was “getting worse and worse and worse to the stage where [she] couldn’t even hold it away from [her] body at all”. (Transcript p 52) Asked to describe the symptoms she then experienced if she moved her arm away from her body, she responded:
“It was - It was just incessant pain. It just never went away. It was there all the time. There was - it had this different kinds of pain and it - it is really hard to sort of describe because there's - I get muscle pain, joint pain and then I get the - what is now termed as the neuropathic pain. And before I always used to lump it all in the same one. To me pain was pain and it was in my shoulder and I quite often say my shoulder, when I say that I actually mean the whole sort of shoulder like my scapula, the whole lot.
...
The pain is actually in - in my whole right upper quarter. And it goes into my neck, to my right collarbone into - through to my right breast, into my ribs, around the back of my rib cage and then up my right side and my scapula and right up to the back. So it's that whole right quarter.” (Transcript, pp 52-53)
21. The applicant said that, at her request, the new occupational health and safety provider, Ms D Browne, conducted a workstation assessment on 15 February 2002. She said that Ms Browne arranged for adjustments to be made to the height of her desk and the arms of her chair, and for a tilted footrest to be provided.
22. The applicant confirmed that Mr P Honey performed surgery on her right shoulder on 5 March 2002. She said that initially she expected to return to work on 18 April 2002 but that, as a result of lack or progress in her recovery, she did not return to work until 31 March 2003, when she commenced a graduated return to work programme. She confirmed that the following work restrictions then applied to her:
· no keyboard or mouse use with the right arm;
· breaks every 20 minutes;
· desk height to be adjusted;
· high-back chair to be provided.
She also confirmed that her graduated return to work programme ceased in July 2003 on the recommendation of Ms D Browne because of continuing symptoms in her right arm and the development of symptoms in her left shoulder.
23. The applicant confirmed that she lodged a claim for compensation with the CSA on 21 July 2003. She explained that she did not lodge the claim earlier because of her initial lack of awareness of her possible entitlement to compensation and because of subsequent delays in obtaining legal advice and representation and medical reports.
24. The applicant said that in February 2006 she received treatment from Dr J Salmon involving the implanting of a spinal cord stimulator in her spine. She said that the stimulator has relieved her “neuropathic” pain, but has not relieved the “joint and the muscle type” pain. She said that she is now able to move her right arm away from her body to a greater extent, but she is still unable to perform repetitive movements.
25. In cross-examination the applicant disagreed with the proposition that, prior to her commencing employment with the CSA in January 2000, her right shoulder condition resulting from the incident of December 1994 was, at times, quite seriously disabling. Although various medical reports prepared in 1996, which indicated that she had been suffering significant right shoulder pain, were put to her, she reiterated that her right shoulder condition had caused her only “intermittent” problems and never prevented her from working in that period.
26. The applicant reiterated that her right shoulder symptoms settled after she was given the cortisone injection by Dr Kerr in June 1999 and thereafter she had no problems until midway through 2000 when her symptoms returned and became progressively worse with the writing and mouse work that she was required to do at the CSA. She said, however, that she did not have a major problem until August 2001 when she next consulted Dr Kerr about it.
27. As regards the “CUBA familiarisation modules” which she was required to undertake in January- February 2002, she said that it was a “mouse-driven system” and that, because it was “purely a training package”, no writing was involved.
The evidence of Yvonne Jeannette Roncon
28. A “Summary of Evidence” of Ms Roncon, dated 15 May 2006, was tendered in evidence by the applicant (Exhibit A13). Ms Roncon was not called as a witness by the applicant and was not required by the respondent for cross-examination. Ms Roncon’s “Summary of Evidence” states as follows:
“...
2I commenced employment as a telephone coach at the Child Support Agency on 4 January 2000.
3My duties as a telephone coach include:
(a)telephone coaching;
(b)computer work;
(c)attending various meetings;
(d) staff training;
(e)peer support.
Of the above duties, a telephone coach’s key responsibility is telephone coaching.
4 Telephone coaching involves:
(a)listening in to telephone conversations between Agency employees (customer service officers) and the Agency’s clients and writing out, usually verbatim, those telephone conversations. This ordinarily necessitated sitting at a customer service officer’s desk in conditions not conducive a coach’s comfort (sic);
(b)after recording a sufficient quantity of telephone calls, assessing what had been recorded;
(c)preparing feedback for a customer service officer; and
(d)conducting feedback sessions.
5In order to have sufficient information to assess a customer service officer’s performance, it was necessary to listen in to five good calls. As a call could last for up to 40 minutes, this could take anywhere from half an hour to 2 or 3 hours.
6The assessment process would need to be conducted for each member of a coach’s team on one occasion per month. This was with the exception of new employees, who initially had to be monitored once per week and then once per fortnight.
7In or around September 2000, I was appointed lead coach. In addition to coaching my own team, I had to keep statistics to assess the quantitative performance of the other coaches for National Office records.
8From 2000 to 2003, there were approximately 10 telephone coaches including myself. One of these coaches was Sandra Woolley.
9Ms Woolley and I commenced at the Child Support Agency at the same time and went through our initial training together. Prior to March 2001, however, Ms Woolley worked under Mr John Gardiner. In March 2001, Ms Woolley moved into my area and worked more closely with me.
10I am aware that whilst working as a telephone coach, Ms Woolley had a team of approximately 20 members for whose coaching she was responsible.
11In or around late September/October 2001, I became aware of Ms Woolley complaining of arm and shoulder pain. I was aware that prior to this she had had a number of consultations with Agency Occupational Health and Safety staff who were assisting Ms Woolley in setting up her workstation to suit her requirements.
12Sometime after September/October 2001, Ms Woolley indicated to me that she experienced arm and shoulder pain when carrying out her coaching duties, particularly when writing out the content of telephone conversations.
13In or around June/July 2001, the coaching team in the Perth office of the Child Support Agency was the top coaching team in Australia. What this meant was that we did the most coaching and the most efficient coaching.
14As mentioned above, in addition to telephone coaching duties, the duties of a telephone coach included a large degree of computer work. This included attending to emails, typing up reports, using the Child Support Agency’s ‘TRICS’ system and its CUBA modules. Ms Woolley and I assisted staff with all of the training for CUBA before it was rolled out. This involved approximately 50% of our time in the 4 weeks of February 2002.”
The medical evidence
Medical reports – pre-2000
29. The documentary material before the Tribunal includes some medical referrals and reports in relation to the applicant’s right shoulder condition in 1996 and 1997 (parts of Exhibit A4 and Exhibit R1). These may be summarised as follows:
·a letter dated 10 May 1996 from Dr Kerr referring the applicant to Mr P Bath, in which reference is made to the applicant’s having had “a long history of right shoulder and neck pain”;
·an x-ray report of Dr C Cianciullo dated 10 May 1996 which states that no bony abnormality was found in the applicant’s right shoulder;
·a report of Mr P Bath, Orthopaedic Surgeon, dated 28 May 1996, in which reference is made to “symptoms... in the neck and right shoulder region over the last two years or so, aggravated by physical activities such as picking up the children...” but no specific diagnosis is stated and the symptoms are not regarded as “bad enough to warrant more extensive or invasive investigations”;
·a letter dated 13 June 1996 from Dr Kerr referring the applicant to Dr K Maguire, in which reference is made to the applicant’s “right thoracic and shoulder pain” which is described as “severely handicapping her daily activities”;
·a report of Dr K Maguire, Rheumatologist, dated 15 August 1996, in which reference is made to the applicant’s having “significant shoulder problem which had elements of supraspinatus tendonitis”;
·an ultrasound report of Dr A Kaard dated 22 August 1996, in relation to the applicant’s right shoulder, which indicates that “slight thickening of the subacromial bursa” was shown but “no definite impingement” was identified during active or passive shoulder movement”;
·a report of Mr T Castle, Manipulative Physiotherapist, dated 11 October 1996 in which it is stated that the applicant “presented... complaining of a 2-year history of right arm and shoulder symptoms... pain radiating into her right breast, pins and needles in a glove-like distribution of her right hand and some neck pain”;
·a report of Dr R Goodheart, Consultant Neurologist, dated 1 April 1997, in response to a referral by Dr Kerr regarding the applicant’s headache symptoms, in which it is stated:
“...
As you know Sandra has suffered with significant headaches in the past two years. She describes predominantly right occipital headache which can spread to the frontal head regions. Headaches are described as being dull and constant. Occasionally the symptoms can spread to involve the left side of the head. There is often radiation of symptoms into the right side of the neck and shoulder.
...
There was a significant injury to the right shoulder in December of 1994. Sandra tells me that she was holding onto a car door which was suddenly blown open in the wind. She describes immediate pain around the right shoulder region but continued discomfort in the right arm. She describes a paraesthesia, and on occasions a dysaesthesia diffusely in the forearm...
...
I think it is likely that Sandra is describing headaches on the basis of muscle contraction. Her description of shoulder injury around the time of the onset of headaches suggests the probability of a stretch injury to the brachial plexus...”
Medical reports – post-2000
Reports of Dr A Taylor, Consultant Rheumatologist
30. Dr Taylor first saw the applicant in January 2002 following a referral from Dr Kerr, and he subsequently reviewed her periodically up until 5 November 2003. Dr Taylor prepared various reports which are in evidence (parts of Exhibit R1), the most recent of which is a report dated 18 November 2003 in which he summarised the position regarding the applicant’s right shoulder condition as follows:
“Mrs Woolley has chronic right shoulder girdle neuropathic pain. When I first saw her in January, 2002 she complained of pain in the right shoulder and lateral upper arm associated with overhead work, reaching forward and using a computer. My clinical examination was consistent with a diagnosis of right supraspinatus impingement syndrome and tendonitis. Physiotherapy and a corticosteroid injection of her right shoulder had not helped with her shoulder pain. I arranged an MRI scan of her right shoulder which was undertaken on the 4th February, 2003 (sic). This demonstrated significant supraspinatus tendonitis with small insertional partial thickness tears of the tendon. There was also subacromial bursitis and moderate thickening of the coraco-acromial ligament contributing to supraspinatus impingement. I referred her to Mr Peter Honey who undertook arthroscopic decompressive surgery of her right shoulder in April, 2002. This was complicated by the development of capsulitis and chronic neuropathic pain. Imaging confirmed the successful decompression of her subacromial space. This chronic right shoulder soft tissue and neuropathic pain continues...”
Dr Taylor noted that the applicant had “sustained a traction injury to her right shoulder when opening a car door in 1995 (sic)”, and stated that he was “not in a position to comment on the contribution of work to the chronic right shoulder pathology”.
Reports of Dr R Goucke, Consultant in Pain Medicine
31. Dr Goucke first saw the applicant in August 2002 following a referral from Dr Taylor, and he subsequently reviewed her periodically up until 26 March 2004. Dr Goucke prepared various reports which are in evidence (parts of Exhibit R1). In his first report, dated 29 August 2002, Dr Goucke opined:
“It appears that Mrs Woolley has developed a complex regional pain syndrome which clinically does not seem to have any sympathetic component to it currently.”
32. In a report dated 24 April 2003 Dr Goucke stated:
“She remains with a somewhat difficult to classify pain syndrome involving her right shoulder girdle... I had thought that there was a neuropathic component to some of her symptoms. However she has failed all the anti-neuropathic medication because of intolerance.”
Reports of Dr G Garside, Specialist in Occupational Medicine
33. Dr Garside first examined the applicant on 17 June 2002, and reviewed her on 19 May 2003, at the request of the CSA’s rehabilitation provider. In his first report, dated 17 June 2002 (T22), Dr Garside stated the following diagnosis of the applicant’s right shoulder condition:
“Mrs Woolley appears to have had a gradual onset of subacromial bursitis and supraspinatus tendonopathy with no specific aggravating factor. This has affected her work in that with the increasing ache and discomfort she has found it difficult to use the mouse and to write for any length of time.
Post-operatively she is making a slow recovery with her recovery being complicated by a capsulitis condition.”
34. In a report dated 19 May 2003 (T32), however, he amended his diagnosis as follows:
“Whilst Ms Woolley’s original symptomatology was consistent with subacromial bursitis and supraspinatus tendonopathy it does appear that she has developed a form of neuropathic regional pain syndrome resulting in complaints of burning and stabbing pains associated with a constant ache in the right shoulder region and which is affecting her range of movement.”
Reports of Dr E Kerr
35. Dr Kerr has been the applicant’s treating general practitioner since 7 February 1994. Dr Kerr has provided numerous brief reports and 3 comprehensive reports regarding the applicant’s ongoing right shoulder condition, including its aetiology and its relationship (if any) with her work at the CSA.
36. In a report dated 28 October 2002 to the applicant’s solicitors (Exhibit R8, pp 12-15), Dr Kerr, after summarising the applicant’s attendances upon her from 1995 to 25 October 2002, stated:
“...
The major deterioration in Mrs Woolley’s clinical state as documented in my notes has been subsequent to her shoulder surgery [on 5 March 2002]. Since the surgery her pain has been severely aggravated by physiotherapy, which had previously been of some benefit in the control of her symptoms in the short term. Since surgery she has had a record of very disturbed sleep due to her pain and at each visit has held her arm closely to her body and been unwilling to move her shoulder.
I have no evidence to suggest that her workplace has been a major trigger in the worsening of her shoulder, neck and thoracic pain.
Mrs Woolley’s work place activities that involve considerable computer, desk and telephone use make it very difficult to participate given her symptoms.
...”
37. In a report dated 2 May 2003 to the respondent’s insurers (part of Exhibit R1), Dr Kerr, after summarising the applicant’s attendances upon her from 1995 to 25 March 2003, provided the following diagnosis of the applicant’s right shoulder condition:
“Mrs Woolley had right shoulder rotator cuff tendonitis with a partial thickness tear in addition to right arm and chest wall pain of uncertain origin. The surgery to correct the tendon tear aggravated the non-specific arm, shoulder and chest wall pain and in my opinion added a neuropathic component to her symptoms.”
38. In a report dated 12 September 2003 to the respondent (T42), Dr Kerr stated:
“...
She has a complex regional pain syndrome involving her right upper limb and neck and now also involves her left upper limb. This has been called by many names including reflex sympathetic dystrophy. She was also found to have a supraspinatus tendon tear, which was repaired by Dr Honey.
I have never at any time suggested, nor supported a claim that her employment was the cause of her shoulder symptoms. I have been asked twice now to review extra documents provided from her workplace etc and continue to find it difficult to support any claim that the workplace was responsible for her very complicated pain syndrome.
Mrs Woolley developed her arm and shoulder pain over a long period of time. Initially it was thought to be related to an injury with a car door slamming shut and wrenching her shoulder, however I have no medical records of this injury and she did not mention it at consultations from December 1994 to the 5th February 1996.
I referred her to Dr Andrew Taylor as her shoulder pain worsened, with a diagnosis of neuropathic pain syndrome. He and Dr Honey believed that rehabilitation would be difficult with the supraspinatus tear, demonstrated on ultrasound. They too suggested a more complicated problem with her shoulder aches, however surgery was advised in an attempt to assist her recovery.
Unfortunately the surgery(as is common in neuropathic pain syndromes) severely aggravated her symptoms and this has not been manageable despite reviews by a Pain Specialist, rest, time, physiotherapy and several trials of medication, including Epilim and Gabapentin.
Her work place did attempt to trial different desk heights, wrist supports and more recently the use of the left hand for using the computer mouse. I do not believe the arguments about the appropriate desk height and arrangements have any bearing on her symptoms and diagnosis (as confirmed by Dr Taylor and Dr Goucke) of neurological nerve pain and was not at all surprised that the different adjustments made no difference to her symptoms as they worsened. Her upper limb symptoms have worsened and have more recently also involved her left upper limb, but not because of attempts to do her computer work with her left arm, but because of the nature of her problem, I believe.
...”
Report of Dr P Psaila-Savona, Consultant Occupational Physician
39. Dr Psaila-Savona examined the applicant on 22 March 2005. In a report dated 23 March 2005 to the respondent’s rehabilitation provider (part of Exhibit R1), Dr Psaila-Savona stated:
“...
As you are aware this has presented as a complex case in that there is no general agreement on the diagnosis. Dr Skirving has referred to an undiagnosed complication of her right shoulder; Dr Mastaglia referred to neuropathic pain syndrome, Dr Goucke as regional pain syndrome, Dr Taylor as shoulder girdle neuropathic pain. The fact remains that Ms Woolley is suffering from severe pain in the right shoulder which is accompanied by stiffness and reference of the pain to the chest and back. It is not clear whether the cause of the pain is in the shoulder or in the neck itself. In my opinion, the shoulder seems to be frozen and very little active
motion is present.
...”
Reports of Dr B Galton-Fenzi, Occupational Physician
40. Dr Galton-Fenzi examined the applicant on 10 March 2005. In a report dated 22 March 2005 to the respondent’s insurer (Exhibit A11), Dr Galton-Fenzi provided the following diagnosis:
“Having reviewed the specialists’ medical reports, assessed the radiological investigations and undertaken a clinical review, the evidence would indicate that Ms Woolley has a moderate to severe regional pain syndrome involving a region encompassing the right lower neck, right scapula, right shoulder and arm, and right upper anterior chest. The findings indicate that she has a neurogenic, centrally mediated pain condition, manifest with peripheral symptoms. Nociceptive pain appears to be arising from the right shoulder subacromial region following a period of impingement and subsequent arthroscopic acromioplasty inflammation and scarring. She has decreased pain threshold and increased pain sensitisation.” (original emphasis)
41. In a report dated 24 July 2005 (Exhibit A12), in response to a request from the applicant’s solicitors for a report expressing his view as to whether the applicant’s condition was “caused or contributed to by her employment with the Child Support Agency”, Dr Galton-Fenzi outlined the applicant’s history and expressed the following opinion:
“Having regard to the abovementioned history of onset, it is therefore my opinion that the work tasks undertaken by Ms Woolley at the Child Support Agency aggravated her medical condition of a neurogenic pain, which is centrally mediated (spinal cord) and peripherally expressed (pain/ache in the cervical C5 and C6 nerve distributions on the right). She has ongoing nociceptive pain input arising from the post-surgical scarring following the acromioplasty of the right shoulder. This condition was not caused by her work at the Child Support Agency, though her underlying predisposition was exacerbated by many activities, which included her work tasks at this Department and to some degree the surgical scarring in her right shoulder.” (original emphasis)
The evidence of the medical witnesses
Dr J Salmon
42. Dr Salmon, who was called as a witness by the applicant, said that he had been practising in Perth as a specialist in pain medicine since 1988. He confirmed that he had examined the applicant on 24 November 2005 and prepared a report. That report, dated 24 November 2005, was tendered in evidence (Exhibit A6).
43. In that report, Dr Salmon recorded the history as given to him by the applicant as follows:
“In ’94 her right arm was pulled forcibly when a car door was caught by the wind provoking right sided neck, shoulder and scapular and pectoral region pain. Her symptoms settled over the next year with some benefit from physiotherapy treatment. In June ’99 she moved to the country and the colder weather provoked some recurrence of right neck and shoulder region pain symptoms with some improvement following an injection into the right shoulder region.
In January 2000 she started work for the CSA and assessment when she started work revealed that she had some ongoing right neck and shoulder region pain but no significant functional restrictions. Her work involved prolonged periods of clerical and computer and telephone work using her dominant right arm and by August 2000 she had developed a significant recurrence of her right sided neck and shoulder region pain with pain extending down the arm to the lateral three fingers. She received a further injection into the right shoulder region in November 2001 with some benefit. In December 2001 she was travelling in a train which was struck by a car driving through a train crossing, during this incident she suffered some whiplash type aggravation of her condition resulting in some further increase in her pain symptoms and reduction in right arm function.
By February 2002 her pain symptoms had become more severe and she was compelled to cease work. An MRI study of the right shoulder joint indicated a tear in the rotator cuff and in March 2002 she underwent acromioplasty by Mr Peter Honey. Following the surgery there was some improvement in the mechanics of right shoulder function but a flareup of her pain symptoms.
She completed the Scamp CBT pain programme in February 2003 with benefit and attempted a return to work in March 2003 utilising her left hand for clerical work but this provoked a flareup of both left and right arm pain and she ceased work in July 2003 and has not resumed.
Currently she describes persistent continuous aching, burning or shooting pain in the right neck and scapular and pectoral regions and extending down the right arm to the lateral three fingers and also associated with bilateral occipital to frontal region head pain, intensity 4 to 8 out of 10. Her worst pain is a burning sensation in the right scapular region. Her pain symptoms are provoked by movement and activity and cold temperature change and also sitting longer than about 30 minutes at a time. Walking tolerance is also about 30 minutes at a time. There are variable parasthesias and tingling in the lateral three fingers of the right hand and intermittent hot skin temperature change affecting the right hand (with up to 2° temperature difference between the left and right hands) and also increased sweating of the right hand at times. She also notes variable tremor and weakness affecting the right hand. She has not noticed any particular skin colour or swelling changes. Her condition has not improved in recent times.
..”
Dr Salmon then summarised the applicant’s previous medical treatment and set out his findings on examination as follows:
“On examination cervical movements were about 70% provoking neck region pain. There was diffuse tenderness over the cervical spine and upper dorsal spine and adjacent paravertebral structures particularly the nerve root regions more pronounced on the right. Right shoulder abduction was to about one hundred degrees limited by pain provocation. Right brachial plexus stretch testing was markedly restricted and pain provoking with more modest restriction on the left side. There was modest tenderness over the greater occipital nerves.
There was no difference in appearance or skin temperature between the two hands on review today. Blunt pinprick testing showed patchy hyper and hypoaesthesia over the right forearm and dorsum of the hand.”
Dr Salmon provided the following diagnosis:
“Mrs Woolley has developed persistent right sided neck and shoulder region and arm pain and head pain following a number of incidents dating from 1994 including work related activity and right shoulder acromioplasty in 2002. Her clinical presentation is consistent with neuropathic or neural sensitisation pain in the right upper quadrant and she would fulfil the current IASP criteria for diagnosis of complex regional pain syndrome type 1.”
Finally, Dr Salmon expressed the following opinion:
“With respect to causation of Ms Woolley’s current right upper quadrant pain symptomatology and disability this is evidently multifactorial involving a number of incidents dating from 1994. The period of intensive use of her right arm whilst employed by the CSA in the first part of 2000 triggered a sustained flareup in her pain symptomatology as would be expected with this type of neural sensitisation condition...”
44. In his oral evidence-in-chief, Dr Salmon summarised the International Association for the Study of Pain (IASP) criteria for a diagnosis of “complex regional pain syndrome type 1” (“CRPS 1”) as follows:
·the presence of an initiating noxious event or cause of immobilisation;
·continuing pain, allodynia, or hyperalgesia where the pain is disproportionate to any inciting event;
·evidence at some time of oedema, changes in skin blood flow (usually manifested by changes in skin temperature and colour) or abnormal sudomotor activity (sweating) in the region of the pain;
·the absence of pathology or conditions which would otherwise explain the degree of pain and dysfunction.
He added that the 2nd, 3rd and 4th abovementioned criteria “must be satisfied”, whereas the extent of the “noxious event” referred to in the 1st criterion may be “very minor” and need not involve any trauma.
45. In response to a question from the Tribunal, Dr Salmon acknowledged that the reference in his report to a difference of up to 2° in the temperature as between the applicant’s left and right hands was based entirely on the history which she gave him, and was not observed or measured by him.
46. Dr Salmon explained that CRPS 1 is:
“a disorder of nervous system dysfunction or control mechanisms... the essential feature is the generation of spontaneous pain generating electrical activity in the nervous system ... that can extend from the brain, from the frontal cortex where pain is perceived, right down to the peripheral nerves.” (Transcript, p 104)
He acknowledged that CRPS 1 is a “contentious diagnosis” because:
“there isn't... a solid structural abnormality that you can pin the condition on”. (Transcript, p 104)
47. Dr Salmon confirmed that he had been provided with the reports of investigations and medical reports prepared in 1996 (referred to in paragraph 29 above) regarding the applicant’s right shoulder, and he commented that no major mechanical problems with her shoulder, which might explain her right shoulder region pain, were identified in those reports. He noted that a physiotherapist had reported that there were neurological-type symptoms extending into the applicant’s right hand, and he opined that “she was already developing a neurological pain type problem... in that period”. (Transcript, p 106)
48. Dr Salmon was asked to comment on the impact of the applicant’s right shoulder operation in March 2002 on her symptoms. He responded:
“In fact her symptoms seemed to have been stirred up following the surgery and that’s a typical response you see of complex regional pain syndrome if there is a surgical procedure in the territory of the sensitised nerve, there’s usually quite a flare up of pain which [was] diagnosed as capsulitis... I would say it fits very well with her condition being essentially complex regional pain syndrome flared up by surgery in the territory of those sensitised nerves.” (Transcript, p 106)
49. Asked to explain the basis of the opinion, expressed in his report of 24 November 2005, regarding the causation of the applicant’s “current right upper quadrant pain symptomatology”, Dr Salmon said:
“Well, it is simply my recording of Mrs Woolley's report which was that she developed increasingly severe symptoms during the period of intensive work in 2000 and 2001. And by 2002 her symptoms had become so severe that she was compelled to cease work and then she underwent the surgeries then after that to her shoulder which was unsuccessful treatment. And that is certainly what you often see in these patients is that they have escalating symptoms following a period of attempted intensive use of the area. And once the condition gets really flared up it often doesn't settle even though the activity stops.” (Transcript, p 107)
50. As regards the abovementioned CRPS 1 diagnostic criteria, Dr Salmon was asked what he considered to be the “inciting event” in the applicant’s case. He responded:
“Well, that is a difficult question because there are a number of events that impinge on her report of symptoms dating back to '94, and each event seems to add to the extent and severity of the symptoms, with, certainly from her account, the episode of high work activity in 2000, 2001 being the straw that broke the camel's back in terms of stopping her working, and then with a further flare up after the shoulder surgery which I think is quite consistent with the diagnosis of CRPS. So, to pin down one event, it's not really, I think, possible in her situation but I don't think that should undermine the diagnosis.” (Transcript, p 112)
51. Dr Salmon was asked to describe the treatment which he has provided to the applicant since he first examined her on 24 November 2005. He said that in January 2006 she underwent a trial of cervical spinal cord stimulation which had a “very good analgesic effect”, and, accordingly, in February 2006 she underwent implantation of a permanent cervical spinal cord stimulation system. He said that the applicant has since reported a “sustained significant reduction in her symptoms... improvement in function, reduction in medication”. He added:
“Spinal cord stimulation is an established treatment for neurogenic or neuropathic pain and... the result from the stimulator implant tends to confirm that her symptoms are predominantly neural in origin.” (Transcript, p 100)
52. In cross-examination Dr Salmon was referred to the abovementioned diagnostic criteria regarding CRPS 1. As regards the 3rd criterion he commented:
“... a common sense interpretation would be that you need these - some abnormalities to be present fairly regularly and I think on one occasion once wouldn't to me make the diagnosis. And what these patients describe is oedema, skin colour, skin temperature changes coming and going, they are certainly not there all the time.” (Transcript, p 114)
He agreed that if that criterion were not satisfied, a diagnosis of CRPS 1 would not be appropriate. As regards the 1st criterion, Dr Salmon said that it was “theoretically possible” that the applicant’s right shoulder operation in March 2002 triggered the onset of her CRPS 1 but that it was not “an initiating event” in her case.
53. Dr Salmon was asked about the reference, in his report of 24 November 2005, to the applicant’s work at the CSA involving “prolonged periods of clerical and computer and telephone work...”. He said that he inferred from the history which was given to him by the applicant that she had been working for long periods without breaks, and he agreed that his understanding was that that work involved constant computer keying, clerical work and telephone work. He said that, in taking her history, he did not go into detail regarding how long she was working and how many breaks she took. He added:
“she just said: I was working long hours and my symptoms increased over a period of time. That’s all I can say.” (Transcript, p 134)
54. Dr Salmon was questioned by the Tribunal about the supraspinatus tendonopathy condition which was shown by an MRI scan on 4 February 2002 to be present in the applicant’s right shoulder. More specifically, Dr Salmon was asked whether that condition would explain the applicant’s pain symptoms, thereby excluding a diagnosis of CRPS 1. Dr Salmon said that the applicant’s supraspinatus pathology would not account for the extent of the right upper limb pain described by her. He added that the surgery to her right shoulder in March 2002 did not fix her pain symptoms and he regarded that as “further confirmation that her condition [was] not accounted for by supraspinatus pathology”. (Transcript, p 246)
Dr G Mastaglia
55. Dr Mastaglia, who was called as a witness by the applicant, said that he has been practising as a rheumatologist since 1981. He said that he saw the applicant on 13 October 2004 and he provided a report dated 15 October 2004 to the applicant’s solicitors. That report was tendered in evidence (Exhibit A9).
56. In his report of 15 October 2004 Dr Mastaglia recorded the applicant’s history as follows:
“The patient had worked for a Child Support Agency as a Coach attending to Telephone Educate (sic) and Customer Service. This job commenced in January 2000. She last worked in March 2003. She has done a return to work trial from the 31st of March 2003 to the 24th of July 2003.
She recalls having intermittent pain in the right shoulder and upper limb as of 1994, when a door was dislodged from her hand by a heavy gust of wind. She then noted the onset of symptoms on or about the 1st of August 2001, with stiffness of the neck, cramping of the right upper limb and usually when sitting and attending to the mouse on the computer. She then developed inability to lift the right upper limb. A colleague Andrew Taylor... subsequently referred her to Mr Peter Honey, who undertook acromioplasty and decompression of the rotator cuff. She has been left with limited movement and pain, which has now spread to the right supraclavicular area, right periscapular area, shoulder, forearm and hand. She was seen also by a pain specialist Dr Roger Goucke and undertook a pain management programme at Sir Charles Gairdner Hospital. She currently attended physiotherapy on a fortnightly basis.
...”
In response to questions posed by the applicant’s solicitors, Dr Mastaglia expressed the following opinions:
“...
2.She has a neuropathic pain syndrome affecting the right shoulder periscapular area and right upper limb...
3.The patient has pain in the right upper limb, limited shoulder movement, limited neck movement and pain in the supraclavicular area. The course of this is due to neuropathic pain syndrome, loss of muscle tone and aggravation of a pre-existing condition, which at the time was episodic in nature and now chronic.
4. She has a neuropathic pain syndrome, localised nature, and loss of muscle tone culminating in severe anxiety and depression. She has a history of a normal range of movement in 2000, prior to her starting this job. She subsequently has lost a lot of range of movement through the development also of a capsulitis of the shoulder noting that the acromion was type three in nature and there was evidence of a supraspinatus tendonopathy.
5.The injury is consistent with the history that I have obtained and I do believe that her symptoms are work related.
..”
57. In cross-examination Dr Mastaglia agreed that, as regards the history he took from the applicant, he was given the impression that she had not had any problems regarding her right shoulder and upper limb for “some years” prior to the onset of symptoms in August 2001. He confirmed that it was his understanding that the applicant commenced to suffer pain in the right supraclavicular area, right periscapular area, shoulder, forearm and hand after – and not before – the operation on her right shoulder in March 2002. Asked whether the neuropathic pain affecting the applicant’s right shoulder was a consequence of that operation and the post-operative capsulitis condition, Dr Mastaglia said that “some of it could be explained by the capsulitis”. He added:
“... these symptoms actually became more relevant after the surgery...” (Transcript, p 293)
He agreed that, in the absence of a relationship between the applicant’s employment and the surgery in March 2002, there would not be a relationship between her employment and the neuropathic pain syndrome affecting her right shoulder and upper limb. He further agreed that a relationship between the applicant’s employment and her right shoulder problems was not apparent from the history he took from her.
58. In re-examination Dr Mastaglia was asked for his opinion regarding the existence of a relationship between the applicant’s employment and her supraspinatus tendonitis condition which required surgery in March 2002. He said that, given the acromion abnormality in the applicant’s right shoulder (as shown in an MRI scan on 4 February 2002), her performing “manoeuvres” involving abducting or rotating the arm – as in keyboarding and using the mouse at her workstation – could irritate and inflame the tendon. He added that these movements could also irritate (otherwise dormant) nerve fibres thereby causing more pain and resulting in a neuropathic pain syndrome.
Mr P Honey
59. Mr Honey, Orthopaedic Surgeon, was called as a witness by the respondent. He said that he first saw the applicant, following a referral by Dr A Taylor, in February 2002, and that he subsequently prepared various reports regarding the applicant. These reports were tendered in evidence by the respondent (parts of Exhibit R1).
60. In his first report to Dr Taylor, dated 21 February 2002, Mr Honey noted that the applicant had “a right shoulder rotator cuff supraspinatus tendonitis with a partial thickness tear”, and continued:
“Seven years ago she was holding a car door when it was blown by a strong wind gust. She had an injury to the arm and it has never really come good since then. She has typical impingement type of pain, but in addition has a lot of pain around the back of the scapula and indeed right down the arm.”
He said that, on that occasion, the applicant did not indicate to him that her right shoulder problem might be work-related, and accordingly he did not explore that possibility with her.
61. Mr Honey confirmed that he performed surgery on the applicant’s right shoulder on 5 March 2002. He said that she was found to have impingement affecting the rotator cuff, and that he performed decompressive acromioplasty to rectify that problem. He said, however, that on 20 March 2002 he found that the applicant’s shoulder was “still a little tight”. He explained that, on arthroscopic examination, he saw that she had mild inflammation within the joint which was consistent with a condition referred to as “frozen shoulder syndrome” or shoulder capsulitis, and he formed the view that “these mild changes of capsulitis... may have been aggravated by the surgery”. He acknowledged, however, that that was a “presumed diagnosis” because that condition cannot be confidently diagnosed until it is very severe.
62. Mr Honey confirmed that he had provided a report dated 10 March 2004 to the respondent. In that report Mr Honey noted that the applicant had “a right shoulder impingement syndrome associated with some shoulder capsulitis”, that she had undergone a right shoulder joint arthroscopy and acromioplasty on 5 March 2002, and that he last reviewed her on 17 April 2002. As regards the applicant’s history, Mr Honey noted:
“She is a right-handed lady who gave a history of an injury to her right shoulder approximately 7 years before I saw her. She said she was holding a car door when it was blown by a strong gust of wind injuring her shoulder. She complained of ongoing pain in the shoulder since that time which she describes as being identical to the pattern of pain she had when I reviewed her. On that basis it is reasonable to conclude that her symptoms are at least in large part, due to that injury...
... She does not describe any time between 1994 to surgery when her shoulder had actually recovered. In other words she suffered injuries then that did not recover until she was treated surgically...”
Mr Honey then added:
“For that reason I think it is probable that her work was not a significant factor in causation of her complaint.”
In his oral evidence, Mr Honey confirmed that opinion but added that the applicant’s work “would be expected to provoke symptoms”, as would any activity involving use of the arm at that level, eg driving, or hanging out the washing.
63. Mr Honey also prepared a report dated 25 October 2004 at the request of the respondent’s solicitors. In that report he summarised the applicant’s history as follows:
“She had pain in her right shoulder girdle when I saw her. Part of that pain was due to a rotator cuff impingement syndrome. On the 5th March 2002 I took her and treated that particular problem surgically. Post operatively she developed some shoulder capsulitis (tightness in the shoulder due to capsular inflammation and contracture). I last saw her on the 17th April 2002 and at that time she did have some restriction of movement consistent with capsulitis...
The shoulder impingement problems relating to the abnormal acromial anatomy in that incident with the car door should have resolved itself by now. It may be that she still has those more widespread symptoms which from the information you have attached in part pre-date her employment with the CSA.”
In response to questions posed by the respondent’s solicitors, Mr Honey expressed the following opinions:
·the applicant’s right shoulder impingement condition was “probably caused by the incident with the car door” (in December 1994);
·whereas impingement syndrome generally gets better with surgery, shoulder girdle pain of a non-specific nature often persists.
Mr Honey’s report concluded as follows:
“She had impingement syndrome which related to that motor vehicle accident. Whether the other generalised shoulder pain was related in some way to her work is something that I have no particular knowledge of, given that it was not identified as a problem when I saw her and I therefore did not take any history regarding the progression of those more generalised symptoms.
... I expect that the impingement has settled. Whether the more generalised complaints have settled is another thing of course.”
64. In his oral evidence Mr Honey said that the applicant had been referred to him as a person with a history of intermittent shoulder problems over an extended period and that when he examined her he concentrated on her shoulder, formed the view (as had Dr Taylor who referred her to him), based on a recent MRI scan, that shoulder surgery would be appropriate, and performed that surgery. He said that the possibility of a neuropathic pain syndrome had not been raised with him and that, on examination, he did not see any evidence of that. He added that, had he suspected that she had a significant neuropathic syndrome, he would have referred her to an expert in that area and would not have performed surgery because “neuropathic pain syndrome is not helped by surgery”.
65. In cross-examination Mr Honey confirmed that, when he first saw the applicant, he noted that, in addition to that right shoulder impingement problem, there were symptoms which were not referable to that shoulder impingement problem. He agreed that he had addressed only the mechanical impingement issue with surgery, and he had left the other symptoms to be treated by Dr Taylor.
66. As regards the possibility of a relationship between the applicant’s symptoms and her work at the CSA, Mr Honey opined that it was “unlikely that her work would cause significant pathological damage to the shoulder”, but he acknowledged that:
“Work would aggravate the symptoms in that they would provoke symptoms and make the symptoms more significant, but after a period of avoidance of work, you would expect that work-caused aggravation to settle.” (Transcript, p 276)
67. Finally, it was put to Mr Honey that it was possible that the applicant’s continuing symptoms after the surgery of 5 March 2002 included her aforementioned pre-surgery symptoms that were not referable to her shoulder impingement problem. Mr Honey responded:
“I only saw her in - for a brief period around the time of surgery, and I didn't see her subsequently... I mean, anything is - you can say yes, is it possible? Anything is possible. I didn't see her subsequently but amongst the things which are possible is that whereas she did have shoulder impingement syndrome which was proven on the MRI scan and proved in that surgery and was treated surgically, it may be that, despite that being my clinical impression,... in fact she had some other problem all along which was - you know, problems with her neck, and others suggested she had a neuropathic pain problem, but I imagine that was after I saw her rather than before, and it may be that surgery which she had for her shoulder has aggravated those other problems. That's a possibility too.” (Transcript, p 277)
Mr A Skirving
68. Mr Skirving, Consultant Orthopaedic Surgeon, was called as a witness by the respondent. He said that he has been practising in orthopaedics for about 25 years and that his special area of experience is the shoulder. He confirmed that, at the request of the respondent’s solicitors, he had prepared 3 reports regarding the applicant, dated 9 December 2004, 10 March 2005 and 2 February 2006. Those reports were tendered in evidence (parts of Exhibit R1).
69. In his report of 9 December 2004 Mr Skirving noted that he had examined the applicant on 18 November 2004 and, after comprehensively setting out the applicant’s history, he summarised his findings on examination, and commented on them, as follows:
“She presented as a fit looking middle aged lady who was not in any obvious distress whilst sitting throughout the consultation. Spontaneous movements of her neck appear to be normal and this tended to be confirmed on clinical examination but with some slight restriction and discomfort at the extremes of movement.
Inspection of her right shoulder suggested slight generalised muscle wasting. There was tenderness all around the shoulder on palpating the skeleton ie the acromion, clavicle, acromioclavicular joint as well as the insertion of the rotator cuff. All movements were performed very tentatively and she could not or would not elevate above 90 degrees. She resisted any attempt at abduction. However, it was possible to passively rotate her arm almost fully confirming that there was no established capsulitis present now or that any previous capsulitis has now resolved. The appearance of the upper limbs was normal and in particular there was no evidence of any dystrophic features in her hands ie no reflex sympathetic dystrophy. There is no motor, sensory or reflex deficit in her upper limbs.
...
As a result of this consultation, had it been performed for clinical purposes only, I find it very difficult to explain her apparent inability to move or use her right shoulder. Clinical examination however does allow one to exclude a diagnosis of adhesive capsulitis or at least, as mentioned, confirm that any previous capsulitis is now to a large extent resolved and is not the cause of her current loss of movement. There is no explanation resulting from the clinical examination or the investigations which explain her very significant inability to actively move her shoulder.
I note that, as frequently occurs, any difficult to diagnose pain has been referred to as a complex regional pain syndrome. This is not a syndrome which is easily recognised even by orthopaedic surgeons who spend most of their time dealing with orthopaedic problems, both pre-op and post-op. It is stated in several reports that this diagnosis is used interchangeably with reflex sympathetic dystrophy. Again, orthopaedic surgeons have great difficulty in ever diagnosing a reflex sympathetic dystrophy confined to the shoulders, as distinct from an adhesive capsulitis. Certainly in this lady’s case there is no objective clinical evidence to make the diagnosis. Reflex sympathetic dystrophy as manifest in the upper and lower limb is almost always manifest by clinical features which include abnormalities of the skin on inspection and on palpation as well as marked restriction or movement of the adjacent joints. This is not apparent in Mrs Woolley’s case, ie although she has tenderness all around the shoulder there is no abnormality to inspection nor any abnormality to palpation.
In addition, there is no significant contracture of the underlying shoulder joint. On this basis I would find a diagnosis of complex regional pain syndrome untenable. I note that Dr Goucke has explained this anomaly by stating that she has a complex regional pain syndrome without a sympathetic component.”
Mr Skirving then commented on certain matters put to him by the respondent’s solicitors as follows:
“...
4If it is your opinion that Ms Woolley did suffer from right supraspinatus impingement syndrome and tendonitis, whether it was likely that these conditions were materially contributed to by her employment with CSA, and if so, the factors involved. For example, whether Ms Woolley’s current condition (if any) is simply the natural progression of her underlying pre-existing condition.
4Since I did not see this lady before her operation I cannot in any way confirm or refute a diagnosis of supraspinatus impingement syndrome. However, experienced practitioners made that diagnosis and the MRI scan performed pre-operatively tended to confirm the diagnosis of tendonitis and impingement. As such I believe that the pre-operative diagnosis was correct.
It is clearly noted that Mrs Woolley did have right shoulder problems before she commenced work and that a clinical diagnosis of tendonitis and impingement had been made pre-operatively. I note also that she commenced work in December (sic) 2000 and that she complained of worsening right shoulder symptoms during 2001. This would suggest that her occupation may well have worsened her symptoms but was not the primary cause.
5If it is your opinion that Ms Woolley’s right shoulder condition was contributed to by her employment after commencing with CSA, what specific aspect of her employment contributed to her symptoms bearing in mind that there is no reported specific work related trauma, and Ms Woolley’s duties are considered to be sedentary in nature. For example, whether the ergonomics of her work station were (or are) a contributing factor.
5I understand that Mrs Woolley’s work involved writing and use of a computer and although I would believe that these activities may aggravate a rotator cuff tendonitis it would not specifically cause such a condition and I think it’s very doubtful that the ergonomics of her work station were a significant contributing factor.
...
7Assuming you consider the conditions are work related, whether the work related effects of the right supraspinatus impingement syndrome and tendonitis condition has now ceased.
7There is little evidence that the condition is work related.
8Whether Ms Woolley suffers from any other diagnosable medical condition(s) with respect to her right shoulder, and if so, the nature of the condition(s), and if so, the likely factors that are contributing to the condition(s).
8I am unable to make any precise diagnosis in respect of her continuing symptoms. I have doubts that she has a regional pain syndrome since there are no clinical features of the same and also happy to exclude a diagnosis of adhesive capsulitis which has also been made in the past. There is no evidence of any other structural abnormality in the shoulder.
9Your opinion as to what is the usual cause of Ms Woolley’s current condition (if any) including whether the condition is usually precipitated by trauma, or caused by other factors such as the employment and duties undertaken by Ms Woolley.
9Mrs Woolley has an undiagnosed complication of her right shoulder surgery which, I submit, has defied precise clinical identification. However, there is no information to suggest or explain why Mrs Woolley could not increase her use and function of her right arm if sufficiently determined and motivated. There is no identified reason why her shoulder and function should not improve.
...”
70. In his report of 2 February 2006 Mr Skirving noted that he had reviewed the applicant on 23 January 2006 and he set out her history since his initial examination as follows:
“Ms Woolley states that since I saw her last, more than one year ago, there has been no real change in her symptomatology or functional capacity. She states that she still has regular headaches, which may occur every week, and which may last for several days.
She also suffers with migraine headaches, which she states she did experience before the onset of her recent shoulder, neck and arm problems, but these migraine symptoms have worsened in recent years. She states that overall, her head hurts her all the time.
She describes constant discomfort in the whole of her right upper limb, anterior chest wall and posterior chest wall, extending up the right side of her neck. This is present for 24 hours a day. She states that her pain varies and may increase frequently to 7 or 8/10 on most days. She states that she still has slight restriction of neck movements on occasions, but at other times she has a full range of motion.
The movement in her right shoulder is also variable, but on a good day she may have full neck movement.
She continues to have pins and needles, stabbing pains and burning in the anterior chest wall and around her shoulder. The pins and needles extend down to the thumb, index and middle finger of her right hand. This occurs more frequently at night, but not exclusively at night.
I confirmed that she has not had any nerve conduction studies in her upper limbs and I note that these have been suggested by several specialists in the past, including Dr Bath and Dr Home.
I note also that when I saw her last she was under the care of Dr Goucke, Pain Specialist, and her problem was being managed with medication, although not with any considerable success. Dr Goucke made an initial diagnosis of Complex Regional Pain Syndrome, but without any sympathetic component. He noted that she was increasing her work hours and believed that this was appropriate, and that she could commence computer activities, telephone answering and small amounts of manual writing.
Ms Woolley has not seen Dr Goucke since that time.
I understand, however, that Ms Woolley has now been referred to see Dr John Salmon, who is also a Pain Management specialist. Dr Salmon diagnosed a Complex Regional Pain Syndrome. He did, however, believe it necessary to perform an MRI study of the cervical spine to exclude any cervical pathology.
...” (original emphasis)
Mr Skirving then summarised his findings on examination as follows:
“Ms Woolley again presented in a straightforward fashion. She sat comfortably throughout the consultation and was not obviously unwell. Spontaneous movements of her head, neck and upper limbs appeared to be normal.
When about to commence the examination, I was warned by her that palpation movement caused her significant pain. I decided that there was little to be gained by a formal examination of her neck and upper limbs.
As such, she was asked to indicate movement of her neck, which was essentially close to normal. Inspection of her arms and hands revealed no swelling or discolouration, and there was no excessive sweating.
There were no features of Reflex Sympathetic Dystrophy in the forearms or hands.
There was a normal range of elbow movements and she was able to make a normal fist. There was no sensory loss which fitted any dermatomal or peripheral nerve distribution. I did not perform a Phalen’s test, since this would have required maintained flexion of the wrist, and I was concerned as to the reaction if this test had been performed.
...”
Mr Skirving’s report concluded as follows:
“As a result of this consultation, had it been performed for clinical purposes only, I remain unable to make any precise diagnosis with confidence. There are no established signs of continuing or end stage Reflex Sympathetic Dystrophy (or Complex Regional Pain Syndrome Type 1). The diagnosis of this pain syndrome has not been established as affecting the shoulder and neck on its own. There are no similar features around her shoulders to suggest this sort of pathology.
I repeat also, that Dr Goucke made a very definite statement that her symptoms may have suggested a Complex Regional Pain Syndrome, but there was no obvious sympathetic component, which provides the objective evidence.
...
I shall now attempt to answer the questions you pose in your letter of the 17 January 2006, where not dealt with in the main body of this report.
...
5.Whether you remain of the view that Ms Woolley’s current condition is unlikely to be work related.
Since I am unable to make any precise diagnosis, I am unable to determine whether her problem is work related.
...
8.Generally, your views as to the various diagnoses which have been made by the different specialists, together with your views regarding the reliability of the diagnostic criteria and/or investigations which have been used by these specialists.
This remains the essence of the clinical conundrum. I have provided my opinions in respect of this.
I am unable to identify any evidence of structural damage, either on clinical examination or as a result of any investigation which allows me to make a prognosis of permanent disability.”
71. In cross-examination Mr Skirving confirmed that, on each of the occasions when he examined the applicant, she presented in a straightforward manner and did not display any “abnormal illness behaviour”. He also confirmed that he accepted that she was truthful in her description of her symptomatology to him.
72. Asked whether he accepted that the applicant’s occupation “may have worsened her symptoms”, Mr Skirving’s evidence was as follows:
“Yes. I mean, I accept that if this lady started this job with a rotator cuff tendonitis, with impingement for which she'd had injections, and which there's some evidence, then she would, when doing almost any occupation, any activity, cause her to increase her symptoms on the basis that she's got an angry shoulder ‑ ‑ ‑
Well ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ but not in respect of causing the process to deteriorate ‑ ‑ ‑
Right?‑‑‑ ‑ ‑ ‑ because that deterioration, as far as we know, relates to activity and a degree of strain and in a position which is more likely to cause ‑ ‑ ‑
Okay?‑‑‑ ‑ ‑ ‑ damage and therefore to progress the ‑ ‑ ‑
So the key issue, Professor, is deterioration relating to activity and strain; that causes the progression of the disease?‑‑‑That's one of the components that could cause it, yes.
...
Okay. The - so as I understand your evidence, the - if tendonitis is present pre-employment, then the issue is whether there is activity and strain which causes a deterioration of that tendonitis... Now, the evidence also is that on commencement of employment, she had a medical assessment which assessed her for - as suitable for the position and she also had a physio assessment which showed a full range of movement, and can I suggest to you, against a background of intermittent symptoms, when - she reports a flare-up of the symptoms causing her to need - or her GP giving her a cortisone injection approximately 18 months after she starts the position, against that background, the likelihood is that it's the employment that's caused the deterioration, something about the occupation has caused the deterioration in the tendonitis?‑‑‑I don't follow that. Clearly the use of a mouse in that position is not the most strenuous thing this lady would be doing during the day or during the weekend.
Well, you see ‑ ‑ ‑ ?‑‑‑It's not - it's not a strenuous activity. It's not a stressful - a strain which is imposed on her shoulder in a vulnerable position. It's not an activity which is imposed in a vulnerable position. There may well be - I'm not denying that there's going to be - you know, there can be progression of this condition and there doesn't have to be always a clear entity as to what's - what's actually causing it. All I'm saying is that it's unlikely that it is the actual activity of moving, you know, a little mouse around and the neutral position of about 20 degrees of abduction and with her arm resting.” (Transcript, pp 321-322)
73. Mr Skirving was referred to his answer to question 5 in his report of 9 December 2004, which was as follows:
“I understand that Mrs Woolley’s work involved writing and use of a computer and although I would believe that those activities may aggravate a rotator cuff tendonitis it would not specifically cause such a condition...”
Mr Skirving explained:
“I suppose - well, again, I suppose one is talking about the definition of aggravation in terms of whether it's aggravation of symptoms or whether it's aggravation of the underlying disease process. Now, if it's not clear then I would like to clarify it and say what I'm saying is that it may well aggravate the symptomatology arising from, but the nature of the mechanics of it and the ergonomics of the situation I don't see that it would - that it would progress the actual underlying condition. That's what I'm saying.” (Transcript, p 323)
74. As regards the applicant’s continuing right shoulder symptomatology since her operation on 5 March 2002, Mr Skirving opined that there may have been “an incomplete resolution of the symptoms following the surgery” – a circumstance he described as “not unusual”. He explained:
“...acromioplasty... removes the impingement. The tendonitis still persists and the tendonitis has got to settle down. And sometimes it settles down incompletely. Sometimes it takes a long time to settle down. That's the way we rationalise certain persistent pain in a shoulder following an acromioplasty. (Transcript, p 325)
He said that it was possible that some of the applicant’s continuing pain symptoms may be “residual pain from her shoulder”, but that that does not explain all of her pain symptoms. Asked whether CRPS 1 provided such an explanation, Mr Skirving said that, although he accepted that that condition (formerly known as reflex sympathetic dystrophy) may exist, he did not recognise that condition in relation to the shoulder.
Dr A Home
75. Dr Home, Consultant in Occupational Medicine, was called as a witness by the respondent. He said that he has been practising as an occupational physician since 1989, and as a specialist since 1993, and he stated his specialist qualifications. He confirmed that he had prepared a report dated 2 April 2003 in response to a request from the applicant’s solicitors. That report was tendered in evidence by the respondent (part of Exhibit R1).
76. In that report Dr Home noted that the applicant attended for examination on 1 April 2003, listed the various medical reports that had been provided to him by the applicant’s solicitors, comprehensively set out the applicant’s history, and continued:
“Current Symptoms
She continues to complain of regional pain in the shoulder girdle, antero-superior chest wall, with a considerable heavy feeling in the right arm, and paraesthesia in a median nerve distribution at the right hand.
...
Examination
Ms Woolley is a 39 year-old with medium height and build.
There are no localising findings on examination of the cervical spine apart from local tenderness to palpation overlying the right paravertebral structures at the C4 and C5 segments. Neck movements are well preserved apart from left lateral flexion, which is accompanied by contralateral suspensory muscle tightness.
There is local tenderness overlying the scalene muscles at the base of the neck but no evidence of a positive Tinel’s sign in this area.
There is depression of the right shoulder. Prominent tenderness is reported to palpation of the subacromial space at the right shoulder. There is limitation of active shoulder movement, with flexion to 110°, and abduction 90°. External and internal rotation are well maintained. Scapulo-thoracic movement is somewhat dysrhythmic, particularly during shoulder abduction.
Neurological examination of the right upper limb is entirely normal. Examination of the vascular system is normal and there are no objective clinical features of thoracic outlet syndrome.
Assessment
In my opinion your client, Mrs Woolley, is suffering from a number of complaints. These are largely secondary to chronic supraspinatus tendonopathy at the right shoulder, for which she has undergone appropriate surgical treatment with decompression of the subacromial space twelve months ago.
Unfortunately she continues to experience mechanical pain at the right shoulder. There are no ongoing clinical signs of capsulitis, from which she has made a good recovery. However, it is probable that supraspinatus tendonopathy is continuing to cause her shoulder pain and related postural difficulties.
There are clinical signs of mild right-sided cervical facet joint pathology at the C3/4 and C4/5 segments. Again, the level of disability is mild.
There is prominent scapulo-thoracic dysrhythmia and drooping of the right shoulder, presumably due to chronic pain and disuse. This may be causing secondary physiological thoracic outlet compression leading on to symptoms of heaviness in the right arm, exacerbated by an elevated arm position.
Your client is describing mild symptoms of carpal tunnel syndrome (median nerve compression at the wrist) with paraesthesia and burning in a median nerve distribution of the right hand. Electrophysiological studies would be helpful to determine if there is electrophysiological evidence of significant median nerve entrapment that may be amenable to surgical treatment.”
As regards the issue of a relationship between the applicant’s symptoms and her employment with the CSA, Dr Home expressed the following opinion:
“The history reflects a long period of symptomatic rotator cuff tendonopathy (supraspinatus tendonitis) with secondary muscular and regional pain symptoms developing due to postural factors, and secondary shoulder girdle muscle weakness. If she is shown to have carpal tunnel syndrome, this is likely to be unrelated and idiopathic.
I cannot determine that Mrs Woolley’s complaints have been caused by her workplace activities. Whilst your client did present to me a number of ergonomic reports, I cannot determine that ergonomic factors were a significant contributing factor to the onset of her increased shoulder pain in mid-2001 or her other shoulder girdle and upper limb symptoms. There is no history of a specific workplace accident. In my view it is unlikely that prolonged writing and keyboard activity have materially contributed to her complaints notwithstanding the finding that her desk has been up to 5cm ‘too high’.”
77. In his oral evidence-in-chief Dr Home said that supraspinatus tendonopathy involves degeneration of the supraspinatus tendon (one of the rotator cuff tendons) which is usually the result of the ageing process and/or of activities involving manual handling away from the body, such as heavy pushing and pulling, and activities above shoulder height. He said that occupational studies have identified heavy manual work, work above shoulder height, and work with heavy vibrating tools as the major kinds of work associated with rotator cuff pathology.
78. Dr Home was asked to comment on his findings on examination of the applicant’s right shoulder, having regard to the surgery on her right shoulder in March 2002. He commented as follows:
“Well, the operative treatment was an acromioplasty, which is designed to move some of the bone from above the tendon. Unfortunately it doesn't mean the tendon is normal afterwards. She's presenting here with fairly typical clinical features of impingement, that is inability to raise the arm above 90 degrees or above the horizontal. I did find that she did not have any restriction of rotation movements with the elbow by her side, so she didn't have features of capsulitis, which had been discussed in previous reports. And she did have some abnormalities in the way that she moved her scapulae against the chest - posterior chest wall, which is really a consequence of a long-standing shoulder complaint. So these are all consistent with really the diagnosis prior to surgery and subsequent surgical treatment.” (Transcript, pp 340-341)
79. As regards the issue of a relationship between the applicant’s right shoulder condition and her employment, Dr Home said that the supraspinatus tendon is not engaged in such clerical activities as writing and using a computer mouse, and that there is no epidemiological evidence to link the development of rotator cuff pathology to such activities. Dr Home acknowledged that “shoulder girdle muscle discomfort” may be associated with clerical work but that would normally resolve within 1-2 hours of ceasing the activity. He said that domestic activities such as hanging washing and reaching into cupboards would be much more likely to exacerbate symptoms related to supraspinatus tendonopathy than clerical activities.
80. As regards CRPS 1, Dr Home said that the applicant did not present with any of the clinical manifestations of that condition, such as hyperpatha, allodynia, sympathetic dysfunction (changes in the temperature or colour of limb, trophic changes to the skin), oedema, sudomotor changes, and he therefore did not make that diagnosis.
81. In cross-examination Dr Home acknowledged that he does not have formal qualifications in pain management, but he added that in his practice he is “actively involved in the management of patients with chronic pain”.
82. In relation to his opinion regarding the relationship between the applicant’s employment and her symptomatolgy, Dr Home confirmed that he had considered the applicant’s supraspinatus tendonitis condition and her longstanding symptomatology associated with the shoulder region. He agreed that supraspinatus tendonitis can manifest “intermittently” in its symptomatology, and that it can progress and become more severe. He rejected the proposition, however, that activities involving mouse work and intensive writing for up to 2 hours at any one time were consistent with the development or progression of supraspinatus tendonitis. Likewise, he did not accept that those activities, together with an inappropriate desk height, might provoke symptoms in the right shoulder and arm area. He explained that those activities did not cause an increased load on the supraspinatus tendon and did not engage the rotator cuff.
83. Dr Home denied that his opinion ignored the impact of symptoms other than those associated with supraspinatus tendonitis – more specifically, the impact of a neuralgic pain syndrome. He said that, when he examined the applicant, he was not satisfied that there was a “significant neuralgic component” to her pain symptoms and he reiterated that he did not make a diagnosis of CRPS 1 because she “did not have the necessary diagnostic features” (Transcript, p 367).
Additional evidence
84. The Tribunal also had before it numerous documentary exhibits including:
·reports of Ms S Musulin, Physiotherapist, prepared in the period from January 2003 to November 2005;
·a Risk Assessment Report (January 2001), Ergonomic Reviews (February 2001, October 2001, October 2002), and a CUBA Ergonomic Review (September 2002), prepared for the CSA;
·Comcare report of Investigation into CUBA Computer System at the Child Support Agency (March 2003);
·various articles published in medical and occupational health and safety journals.
The Tribunal has had regard to this material but it is unnecessary to refer to it in more detail in these reasons.
Analysis and Findings
Has the applicant suffered an “injury” within the meaning of s 14(1) of the SRC Act?
85. The applicant will have suffered an “injury” within the meaning of s 14(1) of the SRC Act if she has suffered a “disease” (as defined in s 4(1) of the SRC Act) – that is, an ailment or the aggravation of an ailment “being an ailment or aggravation that was contributed to in a material degree” by her employment by the CSA.
The applicant has suffered an ailment
86. The Tribunal is satisfied, on the basis of the evidence before it, that the applicant has, at all material times, been suffering, and continues to suffer, an ailment in her right shoulder and arm. Although it is not necessary for the Tribunal to make a finding as to the precise diagnosis of that ailment, it is desirable that the Tribunal endeavour to do so on the basis of the whole of the medical evidence before it: see Re Musumeci and Department of Health (NT) (1990) 19 ALD 797 at 798; Australian Postal Corporationv Lucas (1991) 33 FCR 101 at 106, 108.
What is the appropriate diagnosis of the applicant’s ailment?
87. For the purpose of making a finding as to the appropriate diagnosis of the applicant’s relevant ailment, it is necessary to distinguish between the period preceding the surgery which was performed on the applicant’s right shoulder on 5 March 2002, and the period from the performance of that surgery to the present date.
Pre-surgery
88. On the basis of:
· the report of Dr K Maguire dated 15 August 1996;
· the reports of Mr P Honey dated 21 February 2002 and 10 March 2004;
· the report of Dr A Taylor dated 18 November 2003; and
· the report of Mr A Skirving dated 9 December 2004;
the Tribunal finds that, as at the date of the commencement of the applicant’s employment by the CSA (January 2000), she was suffering from supraspinatus tendonitis and impingement syndrome, together with a mild associated capsulitis, in her right shoulder, and that she thereafter continued to suffer from that ailment up until the time of her right shoulder surgery on 5 March 2002.
Post-surgery
89. The appropriate diagnosis of the applicant’s relevant ailment in the period from her right shoulder surgery on 5 March 2002 to the present date is more problematic.
90. In his report of 9 December 2004 Mr Skirving opined that the applicant has been suffering from “an undiagnosed complication of her right shoulder surgery which... has defied precise clinical identification”. In his oral evidence, however, Mr Skirving opined that the applicant may have continued to suffer pain symptoms from persisting supraspinatus tendonitis which had not completely settled down after the surgery, but he acknowledged that that explanation did not account for all of the pain symptoms of which she was complaining.
91. Dr Home, in his report of 2 April 2003, likewise opined that it was “probable that supraspinatus tendonopathy is continuing to cause [the applicant’s] shoulder pain...”.
92. Various other specialists, who have examined the applicant, have expressed opinions regarding the appropriate diagnosis of her ongoing right shoulder and arm condition. These opinions may be summarised as follows:
·Dr A Taylor, Consultant Rheumatologist, opined that the applicant has “chronic right shoulder girdle neuropathic pain”.
·Dr R Goucke, Consultant in Pain Medicine, initially opined that “it appears that [the applicant] has developed a complex regional pain syndrome which clinically does not seem to have any sympathetic component to it currently”, but he subsequently described the applicant’s condition as “a somewhat difficult to classify pain syndrome involving her right shoulder girdle” and added:
“I had thought that there was a neuropathic component to some of her symptoms. However she has failed all the anti-neuropathic medication because of intolerance.”
·Dr G Garside, Specialist in Occupational Medicine, opined that the applicant has “developed a form of neuropathic regional pain syndrome resulting in complaints of burning and stabbing pains associated with a constant ache in the right shoulder region”.
·Dr G Mastaglia, Rheumatologist, opined that the applicant has a “neuropathic pain syndrome affecting the right shoulder periscapular area and right upper limb”.
·Dr J Salmon, Specialist in Pain Management, opined that the applicant’s clinical presentation was “consistent with neuropathic or neural sensitisation pain in the right upper quadrant” and that she “would fulfil the current IASP criteria for diagnosis of complex regional pain syndrome type 1”.
93. The Tribunal notes, however, there is no medical evidence before it confirming that any of the objective peripheral signs (such as skin colour and/or temperature changes, oedema or abnormal sudomotor activity), which (the Tribunal understands) are essential criteria for a diagnosis of neuropathic pain syndrome or complex regional pain syndrome type 1, were found on any of the various clinical examinations of the applicant’s right shoulder and arm region that have been conducted since March 2002. In the absence of such evidence, the Tribunal is not satisfied that a diagnosis of neuropathic pain syndrome or complex regional pain syndrome type 1 is appropriate in this case. The Tribunal is, nevertheless, satisfied that the applicant has, since the surgery on her right shoulder on 5 March 2002, been suffering chronic pain symptoms in her right shoulder and arm region over and above the pain symptoms resulting from a persisting supraspinatus tendonitis condition. The Tribunal also notes that, although Dr Goucke referred to complex regional pain syndrome and neuropathic pain, he appeared to have reservations about such a diagnosis in the applicant’s case and he ultimately acknowledged that the applicant’s pain syndrome was “somewhat difficult to classify”. Having regard to the above considerations the Tribunal agrees with Mr Skirving that the applicant’s chronic right shoulder and arm pain defies precise clinical identification and, accordingly, the Tribunal is unable to make a finding regarding the precise diagnosis of the ailment which is producing those pain symptoms.
Finding
94. Accordingly, the Tribunal finds that, at all material times, the applicant has suffered an ailment (as defined in s 4(1) of the SRC Act), namely:
·in the period from 4 January 2000 (the date of commencement of her employment by the CSA) to 5 March 2002 (the date of surgery on her right shoulder) she suffered supraspinatus tendonitis and impingement syndrome, together with a mild associated capsulitis, in the right shoulder;
·in the period from the surgery which was performed on her right shoulder on 5 March 2002 to the present date, she has suffered residual supraspinatus tendonitis pain symptoms in the right shoulder and also a chronic pain syndrome (of uncertain aetiology) affecting the right shoulder girdle and arm region.
Has the applicant’s employment by the CSA contributed in a material degree to the applicant’s ailment or to an aggravation of the applicant’s ailment?
95. In order to answer that question and make the required findings, it is necessary to distinguish between the ailment suffered by the applicant in the period immediately before her right shoulder surgery on 5 March 2002, and the ailment suffered by her in the period commencing immediately after the performance of that surgery.
The applicant’s pre-surgery ailment
96. Having regard to the whole of the evidence, the Tribunal is satisfied that the ailment which the applicant was suffering at the commencement of her employment by the CSA on 4 January 2000 – namely, supraspinatus tendonitis and impingement syndrome with associated mild capsulitis – was originally sustained by her in the incident of December 1994 referred to in para 2 of her summary of evidence (see paragraph 9 above).
97. On the basis of the evidence of Mr Honey, Mr Skirving and Dr Home, the Tribunal is not satisfied that the applicant’s employment by the CSA contributed in a material degree either to that ailment, or to an aggravation of that ailment, in a pathological sense.
98. For the purposes of determining whether employment has contributed in a material degree to an ailment or an aggravation of an ailment, within the meaning of the SRC Act, pain symptoms resulting from that ailment are to be regarded as part of that ailment, and an aggravation of pain symptoms resulting from an ailment are to be regarded as an aggravation of that ailment notwithstanding that no pathological change in that ailment occurs: Commonwealth v Beattie (1981) 35 ALR 369; Commonwealth Banking Corporation v Percival (1988) 20 FCR 176. The question thus arises whether the applicant’s employment by the CSA contributed in a material degree to the aggravation of pain symptoms resulting from her abovementioned ailments, namely, supraspinatus tendonitis and chronic pain syndrome.
99. According to the applicant’s own evidence, she experienced a “drastic increase” in her right shoulder and arm pain symptoms in the period September 2000- August 2001 which she attributed to her writing and mouse use at the CSA, and she attended her general practitioner (Dr Kerr) on 24 August 2001 in regard to her right upper limb pain. The Tribunal notes, however, that, according to Dr Kerr’s clinical notes (Exhibit R4), the applicant consulted her twice in that period prior to 24 August 2001 – namely, on 13 March 2001 and 18 May 2001 – and in the clinical notes for each of those consultations no reference is made to right shoulder or arm symptoms, and that, as regards the consultation on 24 August 2001, Dr Kerr’s notes relevantly refer only to “ongoing right shoulder problems”. The Tribunal also notes that the applicant was not medically certified as unfit for work, and that she did not take any time off work, by reason of her right shoulder and arm condition, during that period. On the contrary, she continued to perform her normal work duties, including prolonged writing and mouse use, and did not request any modification of her work duties or report any occupational health and safety problems during that period.
100. The applicant did, however, report occupational health and safety problems, and request a workstation assessment, in October and December 2001 and February 2002. She next attended Dr Kerr on 6 December 2001 who then referred her to Dr Taylor who in turn, following an MRI scan of her right shoulder on 4 February 2002 which confirmed supraspinatus tendonitis, referred her to Mr Honey for surgery which was performed on 5 March 2002. The Tribunal notes that the applicant did not take any time off work, by reason of her right shoulder and arm condition, during that period until 26 February 2002 when she was certified by Dr Kerr as unfit for work shortly before the surgery which was scheduled for 5 March 2002. The Tribunal notes that the relevant medical certificate issued by Dr Kerr (T16) does not state the basis of the applicant’s unfitness for work, and that Dr Kerr’s clinical notes regarding the consultation of 26 February 2002 state merely that the applicant is having “right rotator cuff surgery next week”.
101. As regards the medical evidence, Dr Salmon, Dr Mastaglia and Dr Galton-Fenzi opined that the applicant’s right shoulder and arm pain symptoms were related to her work activities at the CSA, although Dr Mastaglia, in his oral evidence, appeared to attribute the applicant’s pain symptoms to the surgery which she underwent on 5 March 2002. Mr Skirving acknowledged that the applicant’s work activities may well have aggravated the symptomatology arising from her underlying supraspinatus tendonitis/ impingement condition, whereas Mr Honey and Dr Home, while acknowledging that the applicant’s work activities would be likely to provoke pain symptoms while they were being performed, opined that domestic duties, such as hanging out washing or reaching up into cupboards, would be just as likely, if not more likely, to provoke or exacerbate the applicant’s pain symptoms.
102. The Tribunal notes, however, that (with the exception of Mr Honey) the abovementioned medical practitioners did not see the applicant until well after – in the case of Dr Salmon, over 2 ½ years after – the surgery which she underwent on 5 March 2002. As regards the medical practitioners who saw the applicant in the period from 2000 to 5 March 2002, Dr Taylor did not express an opinion regarding a relationship between the applicant’s work activities and her pain symptomatology, but Dr Kerr, who has been the applicant’s treating general practitioner since February 1994, has consistently indicated in reports (see paragraphs 36-38 above) that she does not support the proposition that the applicant’s work activities were the cause of, or were otherwise responsible for, her right shoulder and arm pain symptomatology. Instead, Dr Kerr’s consistently-expressed opinion has been that the applicant’s right shoulder and arm pain has developed over a long period of time partially due to a supraspinatus tendonitis condition dating back to at least 1994 and partially due to uncertain, non-specific factors which were apparently aggravated by the surgery which she underwent on 5 March 2002, and that her ongoing pain symptoms have made it very difficult for her to participate in her work activities.
103. Although Dr Kerr was regrettably not called as a witness in these proceedings, the Tribunal attaches great weight to her reports and to her clinical notes because she is the only medical practitioner to have treated the applicant throughout the entire period from the commencement of her employment by the CSA to the present time, and, indeed, for a period of about 6 years immediately prior to the commencement of her employment by the CSA.
104. The Tribunal accepts that the applicant’s work activities – in particular, prolonged writing and mouse use – from time to time exacerbated her existing right shoulder and arm pain symptoms while she was performing those activities, but that such exacerbation ceased when, or shortly after, the applicant ceased performing those activities. The Tribunal also accepts that such exacerbation of the applicant’s right shoulder and arm pain symptoms was not peculiar to her work activities and, indeed, that non-work activities, such as hanging up washing or reaching up into a cupboard, would also have exacerbated her pain symptoms to at least the same degree as did her work activities.
105. Having regard to the whole of the evidence before it, and attaching great weight to the opinions expressed in the reports of Dr Kerr, the Tribunal is not satisfied that the applicant’s work activities contributed in a material degree to an aggravation of her existing right shoulder and arm pain symptoms, within the meaning of the definition of “disease” in s 4(1) of the SRC Act. In the Tribunal’s opinion the circumstances of the present case are such that the performance of certain activities by the applicant involving the use of her right arm would synchronously exacerbate her right shoulder and arm pain symptoms whether or not she was at work, and, in those circumstances, the Tribunal is not satisfied that she has suffered a compensable “injury” (namely, a “disease” as defined in s 4(1) of the SRC Act) within the meaning of s 14(1) of the SRC Act: Tippett v Australian Postal Corporation (1998) 27 AAR 40 at 45. Likewise, the Tribunal is not satisfied that the applicant has suffered “an injury (other than a disease)”, or an aggravation thereof, in the course of her employment by the CSA, within the meaning of the definition of “injury” in s 4(1) of the SRC Act.
The applicant’s post-surgery ailment
106. The applicant’s post-surgery ailment has been found by the Tribunal to comprise residual supraspinatus tendonitis pain symptoms in the right shoulder and a chronic pain syndrome (of uncertain aetiology) affecting her right shoulder girdle and arm region. According to the evidence before the Tribunal, the applicant’s right shoulder and arm pain symptoms became worse after the right shoulder surgery which she underwent on 5 March 2002 and she remained off work for that reason from 5 March 2002 until 31 March 2003 when she commenced a graduated return to work programme which continued until 24 July 2003 when it was discontinued on the recommendation of her rehabilitation case manager because of her pain symptoms, and she has not worked since that date.
107. It appears to the Tribunal that the critical factor distinguishing the applicant’s post-surgery ailment from her pre-surgery ailment is the effect of the surgery itself. Whereas before the surgery the applicant’s ailment comprised supraspinatus tendonitis and impingement syndrome with a mild associated capsulitis in the right shoulder, and resulting pain symptoms, after the surgery her ailment comprised some residual supraspinatus tendonitis in the right shoulder and, more significantly, a chronic pain syndrome (of uncertain aetiology) affecting her right shoulder girdle and arm region.
108. As previously stated, the Tribunal is not satisfied that the applicant’s employment by the CSA contributed in a material degree to the applicant’s pre-surgery ailment or any aggravation thereof. As regards the applicant’s post-surgery ailment, even if the surgery itself contributed in a material degree to the applicant’s post-surgery ailment or any aggravation thereof – in particular, an increase in her chronic pain symptoms – that ailment or aggravation would not be compensable under the SRC Act because that surgery was performed for the sole purpose of rectifying an ailment which the Tribunal has found to be non-compensable under the SRC Act, and accordingly any ailment, or aggravation thereof, resulting from that surgery would also be non-compensable under the SRC Act. The Tribunal is unaware of any other activity or event – whether work-related or not – that arguably may have contributed in a material degree to the applicant’s post-surgery ailment or any aggravation thereof.
109. Accordingly, the Tribunal is not satisfied that the applicant’s employment by the CSA contributed in a material degree to the applicant’s post-surgery ailment or any aggravation thereof, and it is therefore not satisfied that she has suffered a compensable “injury” (namely, a “disease” as defined in s 4(1) of the SRC Act) within the meaning of s 14(1) of the SRC Act. For the sake of completeness the Tribunal adds that it is also not satisfied that the applicant has suffered “an injury (other than a disease)”, or an aggravation thereof, in the course of her employment by the CSA, within the meaning of the definition of “injury” in s 4(1) of the SRC Act.
Finding
110. The Tribunal finds, therefore, that the applicant’s right shoulder and arm ailment (including chronic pain syndrome) is not an “injury” within the meaning of s 14(1) of the SRC Act. It follows that the respondent is not liable under that subsection to pay compensation to the applicant in respect of that ailment.
Decision
111. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 111 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr D Weerasooriya, Member
Signed: ..........[Sgd S da Motta].........................
AssociateDates of Hearing 22-25 May, 24 July 2006
Date of Decision 28 November 2006
Counsel for the Applicant Ms C Crawford, Mr C Fraser
Solicitor for the Applicant Gibson & Gibson
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Sparke Helmore
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