Desmond and Comcare [1999] AATA 3 (7 January 1999)

Last Updated: 29 January 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 3

ADMINISTRATIVE APPEALS TRIBUNAL )

) N o Q97/914

GENERAL ADMINISTRATIVE DIVISION )

Re CHERRY DIANE DESMOND

Applicant

And COMCARE

Respondent

DECISION

Tribunal Miss WJF Purcell (Senior Member)

Dr KP Kennedy (Member)

Mr IR Way (Member)

Date 7 January 1999

Place Brisbane

Decision The Tribunal affirms the decision under review.

(Sgd) WJF Purcell

Senior Member

CATCHWORDS

COMPENSATION - Permanent impairment - whether psychiatric condition arose out of or in the course of employment - whether condition permanent - whether applicant undertook reasonable rehabilitative steps - pre-requisites not met - no entitlement to lump sum payment

Safety, Rehabilitation and Compensation Act 1988, s. 24

Dibbins v Dibbins, unreported, Supreme Court of South Australia, 23 October 1978

REASONS FOR DECISION

7 January 1999 Miss WJF Purcell (Senior Member)

Dr KP Kennedy (Member)

Mr IR Way (Member)

1. This is an application for review of a decision of a delegate of the respondent (Comcare) dated 14 August 1997 which affirmed a decision dated 8 April 1997, disallowing the applicant's claim for a lump sum permanent impairment payment in respect of "Bilateral carpal tunnel syndrome and an episode of adjustment disorder with mixed emotional features".

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), together with exhibits tendered by the parties. Mr Gorman of counsel appeared for the applicant, who gave oral evidence and called Dr Mulholland, psychiatrist, and Dr Hazell, psychologist, as witnesses. Ms Ford was counsel for Comcare which called Dr Byth, psychiatrist, Dr Cameron, neurologist, and Mr Holz the applicant's rehabilitation counsellor, to give evidence.

3. At the commencement of the Hearing Mr Gorman informed the Tribunal that the applicant was pursuing now, a claim for lump sum payment in relation only to the psychiatric aspect of her condition, and not to the condition of bilateral carpal tunnel syndrome.

4. The applicant is 52 years of age. She was born in the United Kingdom, and worked as a night auxiliary nurse at a hospital at Wonford, where she strained her back and required an injection of pethidine. In mid 1982 the applicant, her husband and two sons emigrated to Australia. In the initial years in Australia, the applicant cared for her growing children, but her back deteriorated. In about 1984 she underwent a myelogram at the Mater Hospital, and surgery was suggested, but the applicant did not pursue this avenue.

5. In 1985 the applicant obtained employment as a typist, at the Greenslopes Repatriation Hospital (the Hospital), and in 1989 she was transferred to the Department of Anaesthesia, within the Hospital. She was an Administrative Service Officer Grade 1 (ASO1) and worked as secretary/personal assistant to the Director of Anaesthetics, Dr Ganendran. The Hospital was involved in the process of accreditation during 1988/89, and in November 1989, subsequent to a Departmental meeting which took place on 30 October 1989, the applicant prepared a five page submission in support of reclassification of her position, to the level of Administrative Service Officer 3 (ASO3). She outlined the variety of duties she performed, and stated in part:

"The supervisory aspect of my job is virtually non-existent because all members of the department are actively engaged working in operating theatres, clinics, ward rounds and tutorials etc, and as such, cannot be disturbed and leave their situation. The job of Anaesthetic Departmental Secretary therefore demands someone who can proceed with a wide variety of tasks without direction or supervision; the ability to organise the department efficiently, with an acute awareness of the aims and objectives of the Director of the Department, and carry out these duties on the Director's behalf.

...

I have sound knowledge of the tasks and activities I perform and would agree with Dr Ganendran that my work is a specialised field. It involves liaising at all levels and subsequently calls for a high degree of tact and discretion, plus the ability to direct and make minor and complex decisions when necessary. Due to the nature of my work it naturally follows I have to have expertise in all areas of administration and have good co-ordination, personnel management, communication and liaison skills.

...

The Department of Anaesthesia and Multidisciplinary Pain Clinic presents quite a remarkable, if not unique, complement of dedicated people, for whom I hold a great deal of respect and admiration. I have been an equally and totally involved member of the Department, but feel I shall have to re-evaluate my position should the situation go unheeded and my post is not upgraded. As I stated at the meeting, I feel my efficiency level is being affected due to the workload of the Department and attention needs to be given to the fact as I am finding it extremely difficult to find the time for keyboarding. I have trained two people separately during the last six week period and both have been kept more than occupied.

...

I initiated my first application for upgrading on 14 July 1988, and feel most strongly that my application should now be treated with priority. I feel I have more than adequately demonstrated a high level of competence in skills that should be treated at a minimum ASOC 3 classification level. With Dr Ganendran's approval and support, I have submitted a vast amount of documentation during the course of the past two years in support of my application for upgrading. The Department will be commencing an Anaesthetic Record Survey, involving keying in computer information, plus various other statistical study information and I would like it to go on record that I feel it is prudent the matter of additional help is addressed as soon as possible before the lack of assistance has a drastic detrimental effect on the operation of the department, and subsequently on RGH Greenslopes patients." [T44]

6. In mid 1991 the applicant's position was reclassified as an Administrative Service Officer 2 (ASO2) position, and in July 1991 she was the successful applicant for the position. At about the same time, she completed a Job Satisfaction Questionnaire [T14/19], in which she stated that her job had very much less than 50% keyboard duties, and that there was a high level of variety of tasks, and work methods. As to variety of pace she commented "No variety of pace - always hectic." and in answer to the question relating to "satisfaction with the level of social interaction" she answered "No time as such" but stated that there was a "high level of satisfaction with the level of client interaction".

7. On 12 and 13 September 1991 the applicant took two days' sick leave for flu symptoms, and was on sick leave also, from 24 September 1991 until 4 October 1991. She took sick leave again on 12 November 1991 because of severe back pain; and she was referred to the Pain Clinic at the Hospital on 21 November 1991. She complained of tingling in her hands, spasms in the neck, blurred vision, severe pain in the back and hips. She was also suffering from tingling in her lips and legs. The pain in her hips was so severe, that she thought she would need hip replacement surgery. She was referred to Dr de Wytt, visiting neurologist, at the Hospital. Nerve conduction studies of the hands taken at the time were inconclusive, but in January 1992 further nerve conduction results were consistent with the condition of carpal tunnel syndrome.

8. On 7 February 1992 the applicant lodged a claim for compensation for "stress (work associated) weak painful hands and fingers and neck. Bilateral carpal tunnel" [T3/5]. Liability was accepted, and later in February 1992, the applicant's right carpal tunnel was decompressed by Dr M Coroneos, neurosurgeon; and in March 1992 the left side was decompressed. The applicant returned to work on 2 May 1992, but complained that she had continuing symptoms, and was referred to Dr J Cameron, neurologist, who examined her on 21 May 1992, and was of the opinion that she had a recurrence of her median nerve compression at both wrists. He referred the applicant to Dr P Millroy, hand surgeon. The applicant proceeded on compensation leave on 25 May 1992, and Dr Millroy operated on the right carpal tunnel on 2 July 1992.

9. The applicant commenced a graduated return to work on 27 September 1992 for four hours a day; but at the end of four weeks, on 22 October 1992, she commenced compensation leave. She was referred again, to Dr Cameron and also to Dr Ohlrich, neurologist, and Dr W Douglas, rheumatologist. Dr Douglas reported on 8 December 1992 that he was unable to determine any abnormality with the applicant's elbows, shoulders or lower limbs. Although she claimed weakness of grip and vague discomfort in both hands and arms, the clinical signs in the upper limbs were minimal, with only slight reduction in grip strength in her right hand, and minimal subjective impairment of appreciation to pin prick over both index fingers. Dr Douglas considered that the principal problem appeared to be chronic fatigue and irritability with a recent history of depression.

10. Dr Cameron reported on 3 December 1992, that when he saw the applicant on 1 December 1992, she told him that she had not noticed any improvement in her hand discomfort and in fact she felt worse. His examination revealed no abnormalities in her hands or arms. Dr Cameron repeated the conduction studies on both hands, and the studies were within normal limits, which would imply in his view that recovery had occurred. There had been significant improvement in median functions in both hands since his study in May 1992. Dr Cameron could find no evidence of ongoing disturbance or impairment in the applicant's upper limbs, and concluded that the problem seemed non-organic. He told the applicant that to overcome her problem, she was to use her hands as much as possible, without any degree of protection.

11. On 8 December 1992 Dr Ohlrich, neurologist, reported to the applicant's rehabilitation counsellor, Mr Holz, that he examined the applicant on that day, and she had residual neural symptoms of her carpal tunnel condition in the form of pain and altered sensation, but Dr Ohlrich assessed her disability from this, as relatively minor. She had developed a number of other physical symptoms for which Dr Ohlrich could find no organic explanation, and he believed that they were due to an anxiety state. She was complaining of difficulty in thinking and concentrating, and poor memory, neck pain, tenderness across her back, and pain in both elbows. The applicant complained also of pain in both knees. In Dr Ohlich's view the applicant's multiple somatic symptoms relating to her anxiety state, had assumed the major portion of her disability. Dr Ohlrich recommended assessment by a psychiatrist, and treatment if necessary. He concluded "However I am not sure that she will accept this..." [T48/71].

12. A meeting between the applicant, her Union representative, Mr Connelly, a representative of Comcare, and Mr Holz, was held on 22 December 1992 to discuss the outcome of the medical investigations. On 29 July 1993 Mr Holz reported as to the details of the meeting that:

"Dr Cameron, Dr Ohlrich and Dr Douglas had not been able to find any demonstrable physical pathology. Dr Adam had offered the same opinion in a verbal report.

It was agreed, however, that Comcare would continue to accept liability for a further six weeks during which she should undergo a light physical exercise programme, under supervision, as previously recommended and then return to appropriate work in a suitable location with counselling support. Her treating general practitioner had agreed with this approach prior to the meeting but stated that he would be unable to provide medical certification for workers' compensation beyond this due to the absence of demonstrable physical pathology.

With regard to her emotional functioning, all of the assessing medical practitioners commented on her anxiety and agitation. However, it was not possible to address this matter directly through assessment and treatment because Ms Desmond maintained the view that her emotional difficulties were a direct consequence of the severity of her physical condition and she regarded any suggestion that her perception of her symptoms was anxiety related as an attack on her honesty or an attempt to minimise the seriousness of her condition. She also frequently commented that she disagreed with the use of anxiolytic medications."

13. The applicant returned to work on 8 March 1993, after more than four months on compensation leave, and commenced a graduated return to work trial with Telecom (as it then was) 6 hours per day, 3 days per week, for a 6 month period from 10 March 1993. At about this time the applicant agreed with Mr Holz and Ms O'Shea, from the Hospital, that she be referred to a psychiatrist for assessment. The referral did not eventuate because the applicant consulted Dr P Doughty, occupational physician, who examined her on 22 March 1993, and diagnosed reflex sympathetic dystrophy. He told Mr Holz that he had advised the applicant that she could remain substantially disabled for up to five years, and should not undertake work requiring free movements of the hands or fixed postures. A Rehabilitation Plan had been prepared in consultation with the applicant's case management Union representative, but was never signed by the applicant. On Friday, 23 April 1993 she telephoned her supervisor at Telecom, and advised that she would not be returning to work for a long while. She has not returned to work, and on 6 January 1995 she took a voluntary redundancy package.

14. On 7 May 1993 a delegate of Comcare determined that the applicant's entitlement to continuing compensation for bilateral carpal tunnel syndrome would cease with effect from 7 May 1993. That decision was affirmed on reconsideration on 28 June 1993, and the applicant applied to this Tribunal for review of that decision. On 13 May 1996 the application was dismissed by the Tribunal with the consent of the parties.

15. On 5 September 1996 the applicant, through her solicitors, lodged a claim for a lump sum payment for permanent impairment pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 which as far as is relevant for the purposes of this review provides:

Compensation for injuries resulting in permanent impairment

24. (1) Where an injury to an employee results in a permanent

impairment, Comcare is liable to pay compensation to the employee in

respect of the injury.

(2) For the purpose of determining whether an impairment is

permanent, Comcare shall have regard to:

(a) the duration of the impairment;

(b) the likelihood of improvement in the employee's condition;

(c) whether the employee has undertaken all reasonable

rehabilitative treatment for the impairment; and

(d) any other relevant matters.

(3) Subject to this section, the amount of compensation payable to

the employee is such amount, as is assessed by Comcare under

subsection (4), being an amount not exceeding the maximum amount at

the date of the assessment.

(4) The amount assessed by Comcare shall be an amount that is the

same percentage of the maximum amount as the percentage determined

by Comcare under subsection (5).

(5) Comcare shall determine the degree of permanent impairment of

the employee resulting from an injury under the provisions of the

approved Guide.

(6) The degree of permanent impairment shall be expressed as a

percentage.

(7) Subject to section 25, where Comcare determines that the

degree of permanent impairment of the employee is less than 10%, an

amount of compensation is not payable to the employee under this

section.

16. The applicant's treating psychologist, Dr B Hazell, completed the appropriate portions of the claim form, and stated that he had diagnosed her condition as Post-Traumatic Stress Disorder. He considered that the condition would improve and be stabilised in three to twelve months, with his standard 12 sessions of short term cognitive behavioural therapy. In his accompanying report of 2 September 1996, Dr Hazell stated that in August 1995 he had diagnosed the applicant as suffering severe Post-Traumatic Stress Disorder, and her permanent/partial impairment would approximate 50%.

17. On 8 April 1997 the delegate disallowed the claim and stated as follows:

"I am writing with regard to Ms Desmond's claim for a Permanent Impairment Award.

The following criteria must be met before a Permanent Impairment Award can be paid:

1. A diagnosable medical condition for which liability was accepted by Comcare.

2. The condition must be permanent, ie not likely to improve.

3. There must be at least 10% whole body impairment.

4. All appropriate rehabilitation must have been undertaken.

Ms Desmond's bilateral carpal tunnel syndrome compensation claim was settled at the Administrative Appeals Tribunal on the basis that Comcare would not accept liability beyond the dates for which liability has already been accepted (from 17/2/1992 to 7/5/1993), on the basis that the bilateral carpal tunnel syndrome, if it existed at all, resolved around the time Comcare ceased liability for that condition and was replaced by a psychiatric condition. The AAT Direction was dated 13 May 1996.

Also the report you requested from Dr Grosser, for which Comcare paid, is attached. This report states I thought initially her problems were more likely to be permanent but recurrent findings show very significant improvement and only minimal limitation... In October 1996 her physical limitation would be classified at only about 5% to 7% level, but her psychological problems still remained as a major problem and appeared to affect her life and ability to work to a much greater extent than her physical problems.

Based on the AAT settlement and Dr Grosser's report of 5-7% physical limitation, I do not consider there is liability to pay a Permanent Impairment Award to Ms Desmond for bilateral carpal tunnel syndrome and there is no ongoing liability to pay compensation for that condition.

With regard to Ms Desmond's stress related condition, Comcare agreed to pay compensation to Ms Desmond from 7/2/1992 until the time Ms Desmond accepted a voluntary redundancy from the Department of Veterans' Affairs (6/1/1995), on the basis that Ms Desmond was fit for work on that date.

Dr Hazell reports that Ms Desmond is suffering from a severe Post Traumatic Stress Disorder (PTSD).

Comcare requires claims for psychological conditions to be diagnosed in accordance with the Diagnostic and Statistical Manual of Mental Disorders - Fourth Edition. The DSM-IV specifies diagnostic features of PTSD as The essential feature of Post Traumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person;...

The diagnosis provided by Dr Hazell does not appear to meet this criteria.

Dr Hazell also states in his report that Ms Desmond has a Permanent/Partial Impairment of approximately 50%. However he further reports that with appropriate modification, 12 sessions of short term Cognitive Behaviour Therapy provided by his centre, Ms Desmond's psychological condition would be modified by appropriate changes in her thinking.

This would indicate that Ms Desmond's psychological condition is not permanent.

Dr Grosser, Consultant Vascular Surgeon reported in February 1997 that Ms Desmond advised it would take a book to relate what had happened since her last visit. She admitted feeling dejected and depressed... Dr Grosser also reported on difficulties Ms Desmond had experienced since her previous visit. The issues reported by Dr Grosser are of a personal nature and do not relate to Ms Desmond's employment. Workplace factors impacting on her current psychological condition cannot be established.

For the reasons given above, I am unable to find there is any entitlement for payment of a Permanent Impairment Award in respect of Ms Desmond's condition/s.

I have therefore disallowed Ms Desmond's claim for payment of a Permanent Impairment Award..." [T98/196-198]

18. The applicant applied for reconsideration of the determination, and on 14 August 1997 the decision was affirmed. She has applied now, to this Tribunal for review of that decision.

19. The applicant submits that she has established the essential criteria for entitlement to a permanent impairment award, in that she has established on the evidence, a diagnosable medical condition in accordance with DSM-IV, of either Post-Traumatic Stress Disorder, or Somatoform pain disorder. The applicant also submits she has a whole body impairment of 10%; the condition is permanent and any improvement from her present condition would be minimal; the applicant's work with the Hospital has made a material contribution to her permanent impairment; and she co-operated as best she was able in any rehabilitation plan proposed by Comcare. The applicant claims that her condition is not attributable to her failure in 1991 to obtain an upgrading of her position, nor to her failure to gain promotion to another Administrative Service Officer 3 position.

20. Comcare argues that the applicant developed a psychiatric condition, or an aggravation of a psychiatric condition, in late 1991 in response to her marital problems; and if there was any work contribution at all, it arose from the failure to have her position upgraded to an ASO3 and/or the failure to obtain a promotion to another position. Comcare maintains in the alternative, that the development or aggravation of the psychiatric condition arose out of the applicant's dispute with Comcare regarding the payment of compensation. In addition the applicant's psychiatric condition is not permanent, it is likely to improve, and the applicant has failed to undertake all reasonable rehabilitative treatment for the alleged impairment.

21. In a review such as this, where there is conflicting medical opinion, the credibility of the applicant is crucial. In Dibbins v Dibbins (unreported Supreme Court of South Australia Judgment delivered 23 October 1978) Bright J approached a similar problem in this way:

"Of course, anatomical signs detected by the medical specialists or the absence of such signs may tend to establish that the patient is telling untruths about or is exaggerating her symptoms. But it is the symptoms that are central, not the signs. I hope that I am not being unduly idiosyncratic when I say that if reliable independent evidence clearly indicates that the patient is credible, one does not disregard his or her complaints merely because the signs suggest that little or nothing is seriously wrong. Failure to recognise this simple truth has, I should think, led to the death or invalidity of many patients. Medical science has advanced very far but it is still not always capable of producing unqualified and indisputable answers.

Very often there is no reliable independent corroboration of the patient's account. In such a case, obviously, the medical evidence is of the greatest importance, especially if the medical evidence is all one way. But if the doctors disagree the Judge still has to decide, and he may not make it his first concern to assess the relative credibility of the doctors. I think he may first assess the evidence of the patient."

22. The applicant gave oral evidence. We found her an unimpressive witness. Her evidence was vague and avoidant. She gave convoluted and evasive answers to direct and concise questions, and much of her evidence was not credible, in our view. We consider that she deliberately understated the effect upon her condition of her ongoing marital difficulties, and exaggerated any work-related stressors in an attempt to mislead the Tribunal. This does not mean that we discount all of her testimony, but that we look to more credible evidence to support our findings of fact in important areas.

23. Comcare called Mr Holz, the applicant's rehabilitation counsellor. We accept him as a witness of truth. The remaining witnesses were medical practitioners and a psychologist, Dr Hazell. We prefer the views and evidence of Drs Byth, Cameron and Mulholland in any area of conflict in the medical evidence.

24. On the applicant's evidence she was experiencing stress from overwork in mid-1991. The particular aspect of her duties causing the most problems would appear to be the keying in of surgical statistics on the computer. She was unable, however, in her evidence to provide details of her hours of work, or the time she spent daily involved in these particular duties. She stated often in her evidence that she loved her job, and enjoyed the camaraderie of her workmates, which accords with the job satisfaction questionnaire she completed at about this time.

25. The applicant has attributed her symptoms to stress caused by overwork but the witness statement from Glenda Castens [T6/11] is undated and unsigned, and it merely refers to a single incident in September 1991 when the applicant had presented at Ms Castens' office extremely distressed and requesting leave. During the course of the Hearing, it became clear that on that day the applicant had reported to her general practitioner complaining of "stress at home". The other witness statement at T21/28 signed by Ms Eland, referred to a single event in 1990. On that occasion the applicant had sought assistance with documentation in support of her request for an upgrading of her position, and explained to Ms Eland at the time that she had a heavy workload. The applicant's evidence in relation to her workload was scant and unconvincing.

26. The applicant has maintained that at all times the deterioration in her physical and psychological health was due to alleged work related stress, and in turn attributed the breakdown of her marriage to her alleged work related condition. She said in evidence that she and her husband had separated for a short period in 1991 and in 1992; and that they separated on 28 May 1993, immediately after Comcare's initial decision to cease compensation. She said that she asked her husband to leave because she felt she had become a liability to him, and that she wanted independence. In her letter to Dr Mulholland of 28 August 1993 the applicant stated in part:

"... in my case I have lost a husband, the lives of my two boys has been drastically affected and always will be. My extended family and friends have been affected.

It is bad enough to lose one's career, but to lose a marriage partner - there's little else can be taken away and that's not encompassing the financial side. For the first time ever in my life I am on Social Security. My 1/2 sick pay and Social Security is $220 per week. I am fortunate my husband is over generous with maintenance - he gives me $150 per week. I terminated our marriage for the best of reasons, simply that I loved him - because I loved him I let him go. The stress when the `cog in the wheel' can't cope (most women fit into this category) but perhaps more importantly I felt I was a liability to him. He did not want to go, but I have done the right thing as far as trying to regain balance for the children - it is not what any of us wanted to happen, but I had to do something."

27. In the course of the applicant's cross-examination it became clear that on 7 March 1987 she sought medical treatment from her general practitioner, Dr Moriarty, for a black eye and neck injury inflicted by her husband. They separated then for a six week period. On 7 December 1988 she consulted Dr Moriarty because her husband had pushed and punched her in the left temple and left eye and chin, she also had bruises on the right buttock. They separated again in early 1989, and in April 1989 the applicant sought a referral from Dr Moriarty for marriage counselling and other investigations. They separated again in June 1991, and in September 1991 Dr Moriarty noted that the applicant complained that she was "stressed at home and had difficulty sleeping". She remained on sick leave until October 1991.

28. We note also that the applicant told Dr Grosser on 10 January 1994, that her elder son had started stealing "when her husband left for a new wife". [T97/193] In our view the applicant's turbulent relationship with her husband was the cause of her stress related symptoms in September 1991, and subsequently, but she has chosen to attribute her stress to her work situation, and to seek worker's compensation for her stress.

29. Comcare called Mr Holz, the applicant's rehabilitation counsellor, and he gave evidence that he had been involved in a professional capacity in attempting to rehabilitate the applicant into the workforce during the period from October 1992 to May 1993 and in particular through a rehabilitation plan involving a graduated return to work through Telecom commencing in March 1993. A comprehensive Rehabilitation Case Report prepared by Mr Holz in July 1993 is at T64/118-131. Mr Holz said that it was important that the applicant return to the workforce, but despite his counselling efforts, the applicant had not co-operated in her rehabilitation plan. In his written report Mr Holz stated:

"Ms Desmond was angry with her employers because of her belief that her condition was work-caused and her feeling of maltreatment and mismanagement by Greenslopes Hospital." [T64/120]

In his oral evidence Mr Holz explained that the "maltreatment" he referred to was the applicant's belief that she had been given an excessive workload; and that "mismanagement" referred to the handling of her claim against Comcare particularly by her first case manager, John Morley.

30. Mr Holz said in evidence that in respect to the plan to return to work, the work required very little either physically or mentally. At no time had he ever suggested or arranged for the applicant have "aggressive physiotherapy" (as she claimed) nor had he ever derided or laughed at the applicant during meetings with her and others. He said that he and others had attempted to assist the applicant, and had treated her case as a very serious matter. In his written report [T64/127] Mr Holz referred to a meeting with the applicant and Mr Connolly at the Public Sector Union offices on 1 February 1993 when "Ms Desmond arrived at the meeting but within minutes of the commencement of the discussion she stormed out and did not return." In a further report [T64/122] Mr Holz also referred to the offer for family/marital counselling in recognition of the difficulties that a partner and family members experience in such circumstances. He said in evidence that the applicant did not accept this offer, but told him that her husband was away on business.

31. Mr Holz gave evidence also that the applicant claimed she could not do anything, and presented with an extraordinary level of claimed disability. He said that eventually it had been decided to cease any rehabilitation efforts when it became obvious that there was no prospect of keeping her in the workforce. This, he said, became particularly apparent, after the applicant had consulted Dr Doughty, on her own initiative, and had received from him a diagnosis of reflex sympathetic distrophy. Mr Holz said that the applicant was resistant to any suggestion that she had a psychiatric or psychological disorder, that she was adamant that her problems related to an underlying physical condition and that Dr Doughty's opinion reinforced this belief.

32. In cross-examination Mr Holz could not recall whether the applicant had withdrawn from the rehabilitation program with Telecom on her own initiative prior to the formal decision to cease her plan. The documentary evidence contains the case notes of Ms O'Shea (Exhibit R4), who replaced Mr Morley at the applicant's request as case manager. Ms O'Shea indicates that the applicant had never signed her case management plan and that the applicant had informed Telecom on 23 April 1993 that "she wasn't coming back to the job for a long while". The case notes also record that the applicant told Ms O'Shea on 30 April 1993: "Chris Connelly, Public Sector Union representative had advised her not to return to work until David Gilpin's report arrived at Comcare and a meeting was arranged to discuss diagnosis, disability and progress".

33. Mr Holz concludes in his written report:

"With regard to the future, it would seem that her difficulties with anxiety were a major barrier to her progress. It seems that her problems are of long standing and she did not demonstrate a capacity to deal constructively with her emotional difficulties, using her own resources, during my contact with her. Consequently, I see little prospect of her successfully returning to work without directly addressing her anxiety and anger through appropriate therapeutic intervention." [T64/131]

34. Dr Peter Mulholland, psychiatrist, gave evidence that he interviewed the applicant on 27 August 1993 and 3 September 1993, that the applicant had perceived that she had a physical disease and that she had been very reluctant to accept treatment from a psychiatrist. She was very angry because nobody seemed to know what was wrong with her. Dr Mulholland was of the opinion that the applicant was emotionally upset and that she might pour all her problems into physical symptoms. He said that her problems might have commenced about 1980. He believed that she had a somatoform disorder. Initially he said that he thought that the workplace may have started off her symptoms and that he believed the psychiatric condition had followed on a carpal tunnel syndrome.

35. In his written report dated 3 September 1993 [T57/89], Dr Mulholland referred to the applicant as being vague, avoidant and evasive. She had told him that she had separated from her husband three months previously, and despite his efforts, he was unable to get a clear picture as to why she separated, except in so far as she was having emotional difficulties and was not functioning properly. Dr Mulholland further stated that it was unclear to him as to why she had separated and she was not able or willing to inform him.

36. In the course of his cross-examination Dr Mulholland was asked to assume certain facts. Ms Ford outlined a situation in which in September 1991 the applicant had become distressed and upset at work and said that she had to go home. There was marital conflict and on that day, she reported to her general practitioner that there was stress at home. She took three weeks off. Prior to September 1991 she had been exposed to domestic violence at the hands of her husband. In November 1991 there was further conflict and then she had developed tingling across her mouth, drooping eye lids, great pain in the hips as if a hip replacement would be needed, she developed pain in her back and tingling in the arms. She had a test of the median nerve which was not diagnostic. A decompression of the nerves in the carpal tunnel was suggested. About that time her boss and her husband said that the problem was "in the head". After surgery she was no better. In December 1992 nerve conduction studies at wrists were normal. Dr Mulholland was then requested to comment on this scenario. He replied that the symptoms described could be related to marital problems, and that under these circumstances the employment was only the scene in which these things were occurring. His original opinion had been based on what he had been told by the applicant.

37. When re-examined, Dr Mulholland acknowledged that the applicant could develop resentment towards her employer if she were not given enough assistance; and when asked what effect it might have on the applicant if her immediate boss had referred to her problems as "being in her head", Dr Mulholland replied that such a statement could aggravate her problems at the time, but that the effect would be of very short duration and certainly of no significance six months later. We accept Dr Mulholland's evidence.

38. Dr Andrew Blyth, psychiatrist, gave evidence. He was asked by Ms Ford to assume a similar chain of events to that she had already outlined to Dr Mulholland. Dr Byth said that in such circumstances stress within the marital relationship was more likely to stir up the physical symptoms than the applicant's work. With reference to the comment of her immediate superior that it was "all in her head", Dr Byth said that he would not expect such a statement to have any effect upon the applicant for more than a few days. In the course of his cross-examination Dr Byth expressed the opinion that the applicant does have a personality disorder, and that those with personality disorders may at times, cope well until a crisis occurs. He said that he based his opinion on his assessment of the applicant, and the total documentation provided. In his written report of 23 February 1998 (Exhibit R2) he agreed with Dr Mulholland that the applicant had a somatoform disorder. We accept Dr Byth's evidence.

39. Dr Cameron gave evidence that he agreed that although the applicant might have had a low grade carpal tunnel syndrome in 1991 and 1992, the overall symptoms recorded at that time were much greater than could be attributed to carpal tunnel syndrome alone. Further, he indicated that the evidence of carpal tunnel syndrome in keyboard operators was no greater than that found in the community as a whole. It was his opinion that the chances of a keyboard operator developing a carpal tunnel syndrome as a result of keyboard activity would be very low. In his report of 16 November 1998 (Exhibit R1), Dr Cameron stated that even with high pressure keyboard activity, it would be highly probable that any such person developing carpal tunnel syndrome would have developed that syndrome without the keyboard activity. We accept Dr Cameron's evidence.

40. Dr Brian Hazell, psychologist, gave evidence that he first saw the applicant on 17 August 1995. He said that it was clear to him that she had felt betrayed at work. She had presented to him as an extrovert who was depressed and angry. He believed that she tended to repress her emotions. He considered that she had a post traumatic stress syndrome, but he did not identify any life threatening event. He was involved in counselling her on 12 occasions between 15 August 1996 and 20 November 1996, and his aim was to shift her thinking. Any benefits were, however, of very limited duration as any perceived benefit did not extend to the date of the next consultation She seemed to be distressed by his therapy. Dr Hazell said in evidence that he believed that the applicant did not have any "sequence of dates". She therefore had to confabulate. He did not believe that the applicant had a personality disorder, and considered work responsible for her problems.

41. In the course of his cross-examination, Dr Hazell was asked for more specific detail as to why the applicant's work was responsible for her problems. He acknowledged that although he had spent some hours with her, over 11 consultations, he had not sought any detail about the extent of her work volume, but had "visions of her at home with work papers all over the floor". In response to questions from the Tribunal, Dr Hazell said that "hospital ethos", the doctors, the statement of her boss that "it was in her head" and the sense of betrayal were responsible for her symptoms. He did not relate her symptoms to any underlying physical disease.

42. We have examined the whole of the evidence carefully and in detail, and we have taken into account the parties' submissions. After reviewing all of the evidence it is clear to us that the applicant had previously withheld important information. While she has been seen and assessed by numerous doctors since the commencement of her symptoms, only her treating general practitioner had been aware of her domestic difficulties. That information was confidential, but the other doctors who had been asked to assess her condition did not have the full facts on which to base an accurate assessment. She has asserted that her condition has arisen from her workload but has provided no satisfactory evidence in our view to support her assertion. We accept Dr Cameron's opinion that there is no likely relationship between high keyboard activity and the development of carpal tunnel syndrome. In the case of the applicant, no evidence was available to indicate that she was required to be involved in high keyboard activity and therefore any association in her case would be even less likely. We do not accept therefore that the "carpal tunnel syndrome" was due to her work; and in any case, the evidence now, would suggest that any carpal tunnel syndrome had been an insignificant factor in relation to her total symptomatology.

43. We are satisfied on the evidence that the applicant suffers from the psychiatric condition of somatoform pain disorder, but we are satisfied on the evidence and find as a fact that the condition did not arise out of, nor was it attributable to her employment. It was related to her marital problems, and her ongoing conflict with Comcare regarding her claims for compensation. Both Drs Mulholland and Hazell consider that the applicant's condition will improve, and we are satisfied that the condition is not permanent in accordance with section 24 of the Act, and that in any event the impairment, if it was permanent, is less than 10%, and not compensable pursuant to section 24 of the Act. We are satisfied on the evidence also that the applicant failed to undertake all reasonable rehabilitation treatment. We are satisfied on the evidence that the applicant is not entitled to payment of lump sum compensation for permanent impairment in accordance with section 24 of the Safety, Rehabilitation and Compensation Act 1988.

44. For these reasons the Tribunal affirms the decision under review.

I certify that this and the 19 preceding pages are a true copy of the decision and reasons for decision herein of Miss WJF Purcell (Senior Member), Dr KP Kennedy, Mr IR Way (Members)

Signed: .....................................................................................

Associate

Date/s of Hearing 25, 26, 27 November 1998

Date of Decision 7 January 1999

Counsel for the Applicant Mr Gorman

Solicitor for Applicant Gateway Lawyers

Counsel for the Respondent Ms Ford

Solicitor for the Respondent Phillips Fox