ZPFJ and Comcare
[2013] AATA 468
[2013] AATA 468
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Numbers | 2011/1736, 2011/4893 |
| Re | ZPFJ |
| APPLICANT | |
| And | Comcare |
| RESPONDENT |
DECISION
| Tribunal | G. D. Friedman, Senior Member |
| Date | 5 July 2013 |
| Place | Melbourne |
The Tribunal affirms the decisions under review.
.................................[sgd].......................................
G. D. Friedman, Senior Member
COMPENSATION – employment as customer service officer – compensable wrist, hand and shoulder injuries – whether rehabilitation program reasonable – whether effect of injuries has ceased
Safety, Rehabilitation and Compensation Act 1988 ss 16(1), 19(2), 36, 37(1), 37(3)
McGuinness v Comcare [2007] FCMA 1486
REASONS FOR DECISION
G. D. Friedman, Senior Member
5 July 2013
ZPFJ commenced employment as a customer service officer with Medicare Australia in November 2008. On 15 February 2010 the respondent accepted liability for compensation for medical treatment and incapacity for lateral epicondylitis (bilateral), De Quervain’s tenosynovitis (bilateral) and extensor tendonitis hand and wrist (bilateral) suffered by the applicant in November 2009. On 2 November 2010 the respondent accepted liability for compensation for bilateral supraspinatus tendonitis and bursitis. On 3 March 2011 the respondent made a reviewable determination that an amended return to work program (RTWP) dated 11 January 2011 be issued with a goal of the applicant working her pre-injury hours and duties within eight weeks (application 2011/1736). On 24 August 2011 the respondent made a separate reviewable determination ceasing all compensation from 1 March 2011 on the basis that the applicant’s compensable conditions no longer contributed to her current symptoms (application 2011/4893). The applicant seeks review of both determinations.
LEGISLATIVE BACKGROUND
Section 16(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides for an entitlement to compensation for medical treatment:
16Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 19(2) of the SRC Act provides for an entitlement to compensation for incapacity:
19Compensation for injuries resulting in incapacity
…
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated…
Section 37 of the SRC Act provides for rehabilitation programs:
37 Provision of rehabilitation programs
(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.
….
(3) In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36(8);
(b) any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee’s opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee’s attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
…
ISSUES
The issues before the Tribunal are:
Was the amended RTWP appropriate, in all the circumstances, under s 37(1) and 37(3) of the SRC Act?
Does the applicant’s incapacity for work after 1 March 2011 result from the compensable conditions? If so, is she entitled to medical expenses and incapacity benefits?
WAS THE AMENDED RTWP APPROPRIATE, IN ALL THE CIRCUMSTANCES, UNDER S 37(1) AND S 37(3) OF THE SRC ACT?
The applicant told the Tribunal that she was born in 1982 and left school after completing Year 10. She then worked as a cabinet-maker for two years until illness forced her to cease this work. After one year she found employment with a timber company but left several months later because of a shoulder injury. For the next three years she worked in a variety of jobs including retail positions, and during the period 2005 to 2007 she was in receipt of Newstart Allowance. She then secured a position for a number of months performing general office duties for a health care products company, and later in 2007 commenced work with a call centre where she remained for one year. In November 2008 she commenced with Medicare Australia as a Customer Service Officer, where her duties included answering telephone queries from medical practitioners about aspects of the Medicare system, and processing a variety of claims. She was required to enter relevant information onto the computer system following each call, and used a head set to take calls and enter data at the same time. While on the telephone she was required to consult books and reference material contained in folders which she had to lift around her workstation, which placed a strain on her arms and shoulders.
The applicant said that she enjoyed her work and initially met performance targets but that in November 2009 she began to experience pain in her elbows, wrists and shoulders. She consulted her general practitioner (Dr C Lahanis) and was prescribed medication including anti-inflammatories and analgesics. She also received treatment from an osteopath. She was advised to wear tennis elbow straps and a wrist support. In December 2009 she lodged a claim for compensation which was accepted by the respondent. She underwent ultrasound and x-rays to assist with the diagnosis and treatment and was referred to an orthopaedic surgeon for the shoulder complaints.
Dr S Turnbull, medical advisor-occupational health, stated in a report dated 21 December 2009 that he assessed the applicant’s fitness for employment and found right elbow extensor tendonitis in the context of her using a keyboard mouse with her right hand, even though she was left-hand dominant. He also noted chronic back pain and a history of depression. He recommended a reduction in working hours from five to four days per week for two to three months.
Under s 36 of the SRC Act two assessments of the applicant’s capability of undertaking a rehabilitation program were carried out. Dr B Trifiletti, occupational physician, stated in a report for Medicare Australia dated 6 April 2010 that she assessed the applicant to identify rehabilitation needs for the applicant’s bilateral upper limb conditions, and visited the applicant’s work site. She noted a history of chronic low back pain with intermittent absences from work, regular osteopathic treatment and use of opioid analgesic medication. Dr Trifiletti stated:
Physical avoidance of use of muscles/bones and joints leads to deconditioning and stiffness with subsequent worsening pain on use. Psychological changes can be direct responses to pain and additional stressors such as workplace anger, sense of injustice, aggrievement, heightened fear or re-injury and personal stressors can add to difficulties in coping.
Dr Trifiletti said that all these factors were present with the applicant, and, if not addressed, a self-perpetuating cycle of worsening function and increasing disability would eventuate. Consequently Dr Trifiletti recommended a multifactorial holistic focused approach aimed at improvement of functioning and not pain abolition or cure. This approach involves a rehabilitation and return to work program and recommendations including assessments and reviews by relevant medical practitioners. She acknowledged that the applicant did not agree with this approach and that the applicant was convinced that a return to work would worsen her injuries. Dr Trifiletti recommended participating in a RTWP that involved attending the workplace four hours per day for two days each week, leading to three full days per week after three months. She also recommended involving the applicant's general practitioner in the RTWP process.
On 16 April 2010 Medicare made a determination under s 37(1) of the SRC Act that the applicant should undertake a rehabilitation program based on Dr Trifiletti’s report. On 27 May 2010 Dr Lahanis issued a Certificate of Capacity stating that the applicant should work four hours per day (not six hours as recommended in the RTWP) for three days per week because of exacerbation in upper limb pain. The applicant stated that when the RTWP commenced her supervisor was threatening her and behaved aggressively when the applicant left work after four hours, causing the applicant to suffer considerable stress arising from conflict in the workplace. She was referred for psychiatric assessment.
In a further report dated 15 June 2010 Dr Trifiletti stated that she had consulted Dr Lahanis, who referred to bullying and harassment as the cause of the stress, and who said that he had no option but to reduce the number of hours worked by the applicant because of her reports of ongoing pain. Dr Trifiletti noted the concerns raised by Dr Lahanis but concluded that the RTWP allowed for tasks that were minimally demanding in a physical sense and were within the applicant’s medical capacity. She did not change her recommendations to increase hours on the existing two days per week rather than introduce a third working day.
Dr D Elder, occupational and environmental physician, stated in a report dated 29 July 2010 that he examined the applicant and visited her work site with a view to providing an independent opinion on her condition and to manage her recovery and return to normal functioning. She described to him her duties involving claims processing and customer service, including some repetitive work and use of a telephone, keyboard and computer. The was no reference to significant manual handling tasks, or any requirement to abduct or flex her shoulders beyond about 30 degrees, so he found no shoulder risk factor. He referred to a history of perceived stress in the workplace and an alleged lack of assistance or understanding by management.
Dr Elder noted that at the time of his assessment the applicant had not worked full-time for six months, yet her symptoms had worsened. On examination he found a full range of movement in all joints including the shoulders and small joints of the hands. He could find no abnormality in the elbows. Dr Elder concluded that there was no clinical evidence of any residual lateral epicondylitis, De Quervain’s tenosynovitis or tenosynovitis of hand or wrist bilaterally. He said that changes in ultrasound scans of the shoulders did not represent work-related injury and were most likely constitutional in nature.
Dr Elder did not believe that the applicant’s health justified her extended absence from work. He said that there appeared to be non-physical factors, such as motivational and attitudinal factors, preventing her from participating successfully in a return to work plan. He suggested that she did not want to return to full duties given her description of her interaction with her employer. He also suggested a change in her treatment including a reduction in opioid medication and less reliance on myopathy and osteopathy. On 31 August 2010 he prepared a RTWP which supported the RTWP detailed in Dr Trifiletti’s report, which he described as reasonable and appropriate. Dr Elder’s plan provided for telephone tasks at 50 per cent of usual requirements for six hours per day, five days per week, gradually increasing to 75 per cent and then 100 per cent of normal requirements.
The new RTWP was due to commence on 13 September 2010 but Dr Lahanis had issued Certificates of Capacity restricting hours worked to four per day. On 4 October 2010 Dr Lahanis wrote to the respondent stating that he disagreed with the latest RTWP and insisting that the hours of work remain at four per day for three days per week.
On 8 November 2010 a determination was made under s 37(1) of the SRC Act that an alternative RTWP be developed following a further independent medical assessment.
In a report dated 17 November 2010 Mr R Haig, consultant orthopaedic surgeon, took a history of pain in the applicant’s wrists, elbows and shoulders, but said that the applicant told him that the right wrist and elbows had intermittent pain only, and had improved considerably. There was no pain reported in the left wrist. She reported constant pain in the right shoulder but the left shoulder was not as painful.
Mr Haig stated that he could not account for all the symptoms described by the applicant. He said that he did not believe in the diagnoses of tenosynovitis and epicondylitis in her case, and stated that in his opinion these conditions were constitutional in origin and were degenerative, despite the applicant’s relatively young age. He noted the MRI findings of some minor swelling and tendonosis in the shoulders which he said were not sufficient to account for the claimed symptoms. Mr Haig concluded that non-organic factors may account for the claimed pain. He said that the applicant’s excessive analgesic intake, together with multiple attendances at her general practitioner and osteopath, reinforce her perceived symptoms, and there were no employment-related aspects of her condition in a musculoskeletal sense.
On 6 December 2010 Dr Elder wrote to the respondent and noted the comments by Dr Lahanis. He noted regular non-attendance at work by the applicant and stated that there were non-medical factors in her not following the RTWP. Dr Elder concluded that there was no objective evidence to support the concerns by the applicant and Dr Lahanis. He emphasised that there were no significant risks to the applicant’s health in a return to work.
On 13 December 2010 a determination was made under s 37(1) of the SRC Act that the applicant should commence a new RTWP on 4 January 2011 which took into account the applicant’s absences from the workplace and the views of Dr Lahanis, and altered Dr Elder’s recommendation of a return to full-time hours within four to eight weeks. On 24 December 2010 the applicant sought re-consideration of the decision on the basis that radiology and her ongoing pain symptoms prevented her from working the RTWP hours. She also noted that a psychiatric assessment had found no connection between psychological issues and her physical condition. The applicant told the Tribunal that her employer did not listen to the concerns expressed by herself and Dr Lahanis, and that she was threatened with disciplinary action and cessation of compensation payments if she did not co-operate. She said that she agreed to comply with the RTWP because she had no real choice.
The applicant emphasised that she made a genuine effort to comply with the RTWP but had difficulty working the four hours per day three days per week as specified by Dr Lahanis. She said that as the work increased she experienced increased pain and needed longer rest between work periods.
On 11 January 2011 a determination was made under s 37(1) of the SRC Act that the applicant should commence a new RTWP based on the review by Dr Elder, the report of a rehabilitation review meeting, the total amount of time away from the workplace, the views of Dr Lahanis, and recent compliance with Dr Lahanis’ alternate RTWP were included. The amended RTWP envisaged a return to full-time hours and full duties within eight weeks instead of four weeks. On 3 March 2011 the determination was reconsidered and affirmed.
Dr Lahanis told the Tribunal that he has been treating the applicant since 2005, and that she first complained of upper limb pain in November 2009. On 10 January 2010 he provided a report in which he stated that the applicant required tennis elbow straps for her forearms and a right wrist strap for her bilateral wrist soft tissue injuries. On 10 February 2010 he provided a report stating that the applicant’s bilateral lateral epicondylitis, bilateral De Quervain’s tenosynovitis and extensor tendonitis were caused solely by her work-related tasks of repetitive use of a computer keyboard and mouse. On 24 March 2010 he stated that the applicant’s bilateral tendonitis and bursitis were a direct consequence of activities performed at work, and were contributed to by a delay in the implementation of ergonomic adjustments at the workplace recommended in 2009. On 10 May 2010 he stated that on 25 November 2009 the applicant had experienced increased pain in her shoulders, elbows and wrists, which he said were related to her work. He said that the delay in providing her with tennis elbow straps, gel mouse pads and an ergonomic keyboard had contributed to an exacerbation of her injuries. In a report dated 10 March 2013 he described a long history of intermittent lower back, hip, knee and ankle problems relating to overactivity. He noted regular exacerbation of back pain which was treated with physiotherapy, osteopathy and medication.
Under cross-examination Dr Lahanis agreed that in his letter of 4 October 2010 disagreeing with the RTWP he referred to having …closely observed [the applicant’s] attempt to comply with the Return to Work Plan by Dr Elder but he had not visited the applicant’s workplace. He conceded that he relied on his clinical observations and the applicant’s description of her pain and tenderness in the affected areas, as well as occasional ultrasound results, and had not considered contrary medical evidence. He acknowledged that the question of the RTWP had resulted in conflict and stress for the applicant and he agreed that over-use of analgesics was not in her best interests. He also acknowledged that there had been some emotional or psychological issues that had been experienced by the applicant in the past. Dr Lahanis agreed that as a result of his concerns about the applicant’s ability to work the number of hours proposed by the employer, the RTWP had been amended to envisage a return to full-time work within eight weeks rather than four. He agreed that the amended RTWP was reasonable in theory, although the applicant was unable to comply with its terms because of her work-related injuries.
In respect of the factors in s 37(3) of the SRC Act:
(a) any written assessment given under subsection 36(8)
The Tribunal is satisfied that Medicare, as the rehabilitation authority, had regard to the written assessment and review by Dr Elder dated 29 July 2010, 31 August 2010 and 6 December 2010, and that Medicare referred to Dr Elder’s assessment in the amended RTWP dated 11 January 2011.
(b) any reduction in the future liability to pay compensation if the program is undertaken
Dr Elder noted there was no justification in keeping the applicant off work, and that to do so would lead to increasing levels of disability. The Tribunal is satisfied that Medicare’s conclusion that the RTWP was likely to result in a reduction of future compensation payable to the applicant was reasonable.
(c) the cost of the program
The aim of the RTWP was to return the applicant to full-time duties and hours, so the Tribunal is satisfied that the costs of the program would be reduced significantly when the applicant had undertaken the program.
(d) any improvement in the employee’s opportunity to be employed after completing the program
Because the amended RTWP aimed to return the applicant to full-time duties and hours, the Tribunal is satisfied that if the applicant completed the program and limited her absences from the workplace, her opportunity to be employed after completing the program would be improved.
(e) the likely psychological effect on the employee of not providing the program
In his assessment Dr Elder referred to motivational and attitudinal factors preventing the applicant from participating successfully in the RTWP. He concluded that keeping the applicant off work would lead to increasing difficulty, including increasing levels of disability. The Tribunal is satisfied that Medicare took into account the benefits of the RTWP and the likely psychological effect on the applicant of not providing the program.
(f) the employee’s attitude to the program
The applicant raised concerns about the contents of the RTWP. On 20 December 2010 Medicare discussed the amended RTWP with the applicant and took her views into account. In McGuinness v Comcare [2007] FCMA 1486 McInnis FM stated at [86]:
…If the employee’s attitude to the program was negative, it does not mean that the program therefore fails, but simply that the attitude is taken into account and appropriate weight given to the attitude. It is conceivable that an employee, supported by a treating doctor may be opposed to a program but having determined the attitude and given appropriate weight to that attitude then the rehabilitation authority, in my view, has discharged the mandatory requirements of s.37(3)(f) of the SRC Act. That provision does not mean that the employee’s attitude should be the determining factor as to whether a program is approved and/or whether the employee is required to undertake the program.
The Tribunal is satisfied that Medicare gave appropriate weight to the applicant’s attitude to the program when determining the amended RTWP.
(g) the relative merits of any alternative and appropriate rehabilitation program
Dr Lahanis suggested an alternate program that limited the number of hours to be worked on any day to four, for three days per week. The Tribunal is satisfied that Medicare took Dr Lahanis’ views into account and assessed the merits of these views and the views of other medical professionals in recommending a gradual return to full-time hours within eight weeks.
(h) any other relevant matter.
The medical evidence and specialist opinion, including that of Dr Turnbull, Dr Trifiletti, Dr Elder and Mr Haig strongly point to the desirability of the provisions of the RTWP as specified in the determination of 11 January 2011.
Dr Trifiletti’s first report on 6 April 2010 identified the rehabilitation needs of the applicant after a visit to the work site. Her second report dated 15 June 2010 took into account the concerns expressed by Dr Lahanis. Dr Elder visited the work site and in his reports dated 29 July 2010 and 31 August 2010 he supported the recommendations made by Dr Trifiletti, leading to a decision by Medicare on 8 November 2010 to develop an alternative RTWP. On 17 November 2010 Mr Haig identified non-medical factors, and on 6 December 2010 Dr Elder took into account Mr Haig’s report and the comments by Dr Lahanis regarding the applicant’s unsuccessful attempts to comply with the RTWP and her concerns about its requirements.
The RTWP as specified in the determination of 11 January 2011 changed the original proposal for a return to full-time duties in four weeks to eight weeks. Dr Lahanis conceded at the hearing that the amended RTWP was reasonable in theory. The Tribunal accepts the weight of medical evidence from experienced and highly-qualified professionals and concludes that the amended RTWP was determined after taking into account relevant issues and opinions. The Tribunal finds that the amended RTWP was reasonable and appropriate.
DOES THE APPLICANT’S INCAPACITY FOR WORK AFTER 1 MARCH 2011 RESULT FROM THE COMPENSABLE CONDITIONS?
The applicant told the Tribunal that she suffers from chronic pain. She said that she had been referred to Dr C Thomas, rehabilitation and pain physician, in late 2010, and had further investigations by ultrasound, but the respondent was not listening to her concerns and decided to cease her compensation payments for medical expenses and incapacity from 1 March 2011. She said that she struggled to continue to work because of her increasing pain. However she said that she could not afford to continue her treatment, particularly osteopathy and psychiatric consultations, so she had to rely on her prescribed medication. The applicant stated that when payments ceased and her RTWP ended, she was forced to manage on her reduced earnings for hours actually worked. She was sent for psychiatric assessment by Dr James (May 2011) and Dr Smith (July 2011). She said that in August 2011 she was told that Dr Smith considered that she had no capacity for work, and she was then put off all work for about eight months, even though Dr Smith had recommended only three months off work. She said she was offered no duties in that time.
With regard to the current situation, the applicant told the Tribunal that she has resumed work and is now working 28 hours per week with the assistance of voice-activated software and is no longer performing telephone duties. She is currently on the waiting list for surgery on her shoulder and wrist conditions and still wishes to return to full-time duties in the future.
Under cross-examination the applicant agreed that at times she has not been entirely truthful with medical practitioners about some aspects of her past, but emphasised that this was for legitimate reasons of privacy and self-protection rather than for reasons of wilful or calculated deceit, and in any event she considered some issues not be relevant to her physical conditions. She agreed that her hobbies and recreational pursuits have included jewellery-making, leather craft, playing pool, and fire-twirling, which involves dousing both ends of a metre-long stick in kerosene before lighting them, then twirling the burning stick with her wrists and arms. She said that she engaged in fire-twirling a week before the hearing at a friend's party, although she has not done so on a regular basis for several years.
The applicant agreed further that she has had chronic back pain dating back to her childhood, and a number of dental issues which have now resolved. She acknowledged that her upper limb pain has led to significant conflict in the workplace which she attributed to the attitude of her employer.
In a supplementary report dated 3 February 2011 Mr Haig referred to radiology reports which showed for the right shoulder: Partial bursal surface tear on supraspinatus tendon with subacromial/subdeltoid bursitis causing impingement. He said that this may well cause shoulder complaints by way of pain and some loss of range of movement, but he maintained his earlier opinion that there are non-organic factors operating which may have an adverse impact on the perceived symptomatology. He said his comments about the left shoulder were similar. The ultrasound report for the right elbow referred to: At the origin of the right common extensor tendon, the echotexture is rather heterogeneous with a small hypo-echoic defect measuring 3 x 8mm suggestive of tiny partial tear with chronic tendonopathy. No joint effusion is seen. Mr Haig noted the history of intermittent pain only, plus an improvement in the applicant’s condition, and said that she did not have any indication of active epicondylitis or other radiological signs of elbow issues.
With regard to the wrists Mr Haig found no pathology to suggest De Quervain’s condition or ongoing wrist pathology, and the ultrasound findings supported this view. In oral evidence Mr Haig stated that he did not believe that the applicant’s telephone duties and use of a computer, or her work station set-up, would cause the claimed pain in her wrists, elbows and shoulders, although he acknowledged that he had not inspected her work site.
In a report dated 14 July 2011 Dr P Smith, consultant psychiatrist, took a history of pain in the applicant’s arms which she noticed at work in 2009 and which has been treated in a variety of ways, including a cortisone injection and analgesic medication such as Tramadol, Panadol and Ibuprofen, plus referral to a pain specialist. She reported difficulties in the workplace including bullying, poor management and cessation of her compensation payments, which she said contributed to a deterioration in her psychological condition. Dr Smith observed that her affective responses during the consultation were bright and cheery, and said that her affective cheeriness was disproportionate to her reported experience of chronic pain and functional limitations. He stated that the applicant had a strong subjective sense that her symptoms and dysfunctioning were the sole consequence of the omissions and commissions of others, especially her employer.
Dr Smith diagnosed adjustment disorder and said that in addition to blaming others the applicant appeared to have little or no insight into any other way of understanding her current functioning/dysfunctioning. Rehabilitative efforts have been unsuccessful. He stated: The presence of somatoform features is a concern, given the duration of symptomatology, the degree of functional incapacity and the absence of appropriate treatment. Dr Smith explained that somatoform refers to symptoms in excess of objective findings and a preoccupation with physical symptoms such as pain to the exclusion of almost everything else.
In a report dated 15 March 2013 Mr K Brearley, general surgeon, stated that he examined the applicant and was provided with a number of radiology reports and a statement from the applicant. She described constant discomfort or pain on movement of wrists (particularly the left wrist), shoulders (particularly the left shoulder) and the left elbow. He found a marked limitation of movement in the left shoulder and a slight limitation in the right shoulder. There was a full range of movement in the elbows but some tenderness in the left elbow. The wrists showed no limitation of movement or deformity. Mr Brearley concluded that the all of the injuries were the result of the applicant’s employment involving excessive use of the applicant’s arms and keyboard mouse, stretching, leaning back and other repetitive movements as described by her. He said that he expected the symptoms to persist in their present state for the foreseeable future, and suggested a pain management program and a reduction in reliance on analgesics.
Under cross-examination Mr Brearley agreed that he had not been provided with medical reports from other practitioners and had not visited the applicant’s work site, so he had relied on her statements and presentation, plus the radiology reports. He had not been given a detailed description of her duties, and was not aware of any previous issues such as her shoulder muscle tear in 2000, the reflux condition arising from stress, and psychological counselling. He had not been told about her hobbies such as jewellery-making or leather craft, and agreed that non-work activities such as fire-twirling might contribute to physical symptoms of overuse or repetitive activities. Mr Brearley said that constitutional or degenerative conditions are less common in young people under the age of 30 years.
Dr Lahanis told the Tribunal that, given the time that has passed since the original diagnosis of injuries, and given the persisting signs of damage observed in the most recent ultrasound results, the applicant’s condition has stabilised to the extent that further improvement seems unlikely, although there may be long-term inflammation in her arms, wrists and shoulders. Dr Lahanis concluded that the applicant is still very restricted in the intensity and duration of data entry that she can endure before pain and stiffness intensify such that she can no longer continue. She also requires strong analgesics to relieve the pain. He concluded that the applicant will have a permanent incapacity to engage in any activity that requires prolonged or forceful use of her wrists and shoulders, especially if she uses her shoulders in an abducted position. He said that her capacity for employment involves avoidance of long periods of keyboard use. Under cross-examination Dr Lahanis stated that he was unaware of the applicant’s non-work activities such as fire-twirling or playing pool, and had only a recent knowledge of her interest in jewellery-making. He has not visited her work site.
Dr G Ramage, consultant occupational physician, stated in a report dated 21 December 2011 that the applicant told him that her pain at the time of assessment was worst in her shoulders and then her wrists. Her hand pain was aggravated by performing household tasks such as cutting vegetables, lifting saucepans and scrubbing dishes. He said that her hand and wrist pain returns after typing at home for more than 30 minutes, and she attempts to alleviate the pain by performing exercises involving her upper limbs and neck. She reported that she could no longer engage in her hobbies of fire-twirling, jewellery-making or playing pool.
Dr Ramage referred to ultrasound and MRI scans taken in 2009 and 2010. He concluded that the applicant would be aided by an early return to work starting at four hours per day for three days per week and then being involved in a multidisciplinary pain management program. He considered that organic components of her injuries had largely subsided as a cause of her complaints of chronic pain, and suggested a diagnosis of chronic regional pain syndrome in her shoulders and arms. He also referred to multiple psychological factors.
Dr J Aizenstros, consultant psychiatrist, stated in a report dated 21 December 2011 the applicant had received counselling in the past for a number of issues. He took a history of chronic pain in her wrists, hands and shoulders, and that she was in conflict with her employer over its handling of her physical conditions. She reported severe financial difficulty arising from the cessation of compensation payments and her restricted ability to work.
Dr Aizenstros concluded that the applicant was suffering from a chronic pain disorder associated with psychological factors and a general medical condition in the context of some negative experiences and obsessional/histrionic traits exacerbating suspicion of authority figures including medical specialists and her employer’s human resources managers. He noted that she had refused evidence-based approaches to her chronic pain disorder, including psycho-social interventions and/or antidepressant medication. She had also avoided certain treatment for financial reasons. Dr Aizenstros said that she should return to work and he expected her condition to improve significantly if she cooperates with medical and rehabilitation providers.
Dr A James, specialist occupational physician, stated in a report dated 27 May 2011 that the applicant is suffering from a non-specific chronic pain syndrome of her upper limbs rather than specific joint or soft tissue injuries, and that despite extensive treatment the prognosis is guarded. Dr James stated that the applicant would benefit from a multidisciplinary pain management program and ongoing psychological interventions (including a psychiatric assessment) which are an inherent component of managing chronic pain conditions. Dr James noted that despite relatively intensive physical therapy treatment until March 2011 there was no reported improvement in functional capacity at work or home, and work capacity has not improved. The applicant ceased all treatment other than from her general practitioner when the respondent ceased compensation payments in March 2011.
Dr S Varna, consultant psychiatrist, stated in a report dated 28 February 2011 that the applicant is suffering from mild depression secondary to pain due to physical injury at work. Dr Varna took a history that the applicant is stressed because of the way she believes she was treated by her employer who refuses to acknowledge the evidence of physical injury. Dr Varna recommended supportive psychotherapy as long as medical problems and issues with her employer remain.
The Tribunal accepts that the applicant believes that she had justification for not making full disclosure of certain events in her past, but by deliberately failing to give a complete history to various medical practitioners she lessened the credibility of her evidence as a whole. She did not disclose to Dr Lahanis or to Mr Brearley the extent of her non-work activities that might account for injuries arising from repetitive movements.
Dr Lahanis presented as a caring and conscientious general practitioner. However despite many consultations with the applicant since 2005 he was unaware of most of her non-work activities and has not visited her work site. He admitted that he relied on radiology reports, her description of the pain and his clinical observations, and was aware of previous emotional issues that had resulted in psychological counselling and treatment.
Mr Brearley found limitation of movement in the left shoulder, and to a lesser extent in the right shoulder, but no limitation in the elbows or wrists, and a slight tenderness in the left elbow. The Tribunal places less weight on his conclusion that all the upper limb injuries are the result of employment with Medicare than might otherwise be the case because he did not have the benefit of reports from other medical practitioners, he did not visit the work site, and he relied on the limited history given by the applicant. He was largely unaware of the extent of her non-work activities and their possible impact on her.
Mr Haig, an experienced orthopaedic surgeon, concluded after a clinical examination and an assessment of the radiology reports and assessments by other medical practitioners that non-organic factors may account for the claimed pain, and that the compensable conditions were no longer present. This view was supported by Dr Elder, an experienced occupational physician who carried out an extensive fitness-for-work assessment including an examination of radiology reports and a visit to the applicant’s work site. He found no objective evidence of factors that would account for the shoulder complaints. Dr James referred to non-specific pain syndrome of the upper limbs rather than joint or soft tissue injuries.
Dr Ramage considered that organic components of the injuries had largely subsided and that chronic regional pain syndrome with psychological factors was the preferred diagnosis. Dr Aizenstros diagnosed chronic pain disorder with psychological factors and noted obsessional/histrionic traits exacerbating suspicion of authority figures. Dr Smith noted a preoccupation with pain symptoms that may suggest a psychological condition.
Although the radiology reports show some indication of damage to aspects of the upper limbs the Tribunal accepts the weight of medical evidence that suggests that ongoing pain described by the applicant is caused by constitutional or non-organic factors. These include psychological factors that have resulted in a number of practitioners advocating a holistic approach to her pain management, including psychological treatment. For these reasons the Tribunal is reasonably satisfied that any incapacity currently suffered by the applicant, or medical treatment arising from the incapacity, is not due to the compensable injuries suffered in November 2009. Therefore the Tribunal finds that from 1 March 2011 the applicant is not entitled to compensation for medical expenses under s 16 of the SRC Act or for incapacity under s 19 of the SRC Act.
DECISION
The Tribunal affirms the decisions under review.
| I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member. |
..........................[sgd]..............................................
Associate
Dated 5 July 2013
| Dates of hearing | 26, 27 and 28 June 2013 |
| Counsel for the Applicant | Ms M Lang |
| Solicitors for the Applicant | Arnold Thomas & Becker |
| Counsel for the Respondent | Ms C Currie |
| Solicitors for the Respondent | Australian Government Solicitor |
0
0
0