Freak and Comcare [2000] AATA 669 (8 August 2000)

Last Updated: 28 August 2000

DECISION AND REASONS FOR DECISION [2000] AATA 669

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. Q1999/419

GENERAL ADMINISTRATIVE DIVISION )

Re CHRISTINE PATRICIA FREAK

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member) Miss A M Brennan AM (Member) Dr K P Kennedy OBE (Member)

Date 8 August 2000

Place Brisbane

Decision The decision under review is affirmed.

(Sgd) K L Beddoe

Decision No. 669/2000 Senior Member

CATCHWORDS

COMPENSATION : Incapacity payments - Continuing eligibility - Incapacity for work - Occupational Overuse Syndrome - Whether physical or mental disorder - Causation between facet joint dysfunction and keyboarding

Safety Rehabilitation and Compensation Act 1988 - s4, s14, s16

Christine Patricia Freak and Comcare AAT No. 12491 (15 December 1997)

REASONS FOR DECISION

8 August 2000 Mr K L Beddoe (Senior Member) Miss A M Brennan AM (Member) Dr K P Kennedy OBE (Member)

1. The applicant claimed incapacity payments for 19 October 1998 (T29), 6 November 1998 (T31) and for reduced hours of work for the period 20 October 1998 until 6 January 1999 (T28). Those claims related to the certified condition multiple facet joint dysfunctions and were rejected by the respondent (T32) with that decision affirmed on review (T42).

2. The applicant also claimed medical expenses for "episode right arm and shoulder muscle strain" which condition had been accepted, although not so described, by this Tribunal as then constituted (Deputy President Forgie and Dr Kennedy (Member)) in decision number 12491. The claim for medical expenses was rejected (T33) and that decision affirmed on review (T42).

3. The primary issue is whether the applicant continues to suffer an injury as defined resulting in incapacity for work. The second issue is whether expenses for medical treatment incurred by the applicant are in relation to treatment for an injury as defined.

4. Section 14 of the Safety Rehabilitation and Compensation Act 1988 ("the Act") provides that the respondent is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee resulting in incapacity for work.

5. "Injury" is defined in section 4(1) of the Act to mean, so far as is relevant, a disease suffered by an employee. "Disease is also defined to mean:

any ailment suffered by an employee; or

the aggravation of any such ailment;

being an ailment or an aggravation of an ailment that was contributed to in a material degree by the employee's employment.

6. Section 16(1) of the Act provides that where an employee suffers an injury compensation is payable in respect of the cost of medical treatment obtained in relation to the injury. The compensation is payable under section 16(1) whether or not the injury results in incapacity for work (s16(2)).

7. At the hearing Mr Boccabella appeared for the applicant and Miss Ford appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal. Further documents were tendered and marked as exhibits. Oral evidence was given by the applicant and 11 other witnesses.

The Evidence

8. At the time of the hearing the applicant was 40 years of age. She initially completed nurse training and was employed as a nurse but in 1990 undertook a course in advanced office administration and has since done office administration type work.

9. In 1974 she fractured her left leg playing softball and also injured her left ankle in a motor vehicle accident in 1979. She said the car somersaulted in the accident. She says she made a full recovery from both accidents.

10. In the early 1990's she visited a physiotherapist for treatment for stiffness in the shoulders. After a small number of treatments she says she made a full recovery.

11. The applicant commenced working for the Commonwealth at the Australian War Memorial Library in late 1990 moving to a position with the Department of Social Security at Coffs Harbour in late 1991. Within about 12 months she was promoted to a position of Administrative Services Officer Grade 3 ("ASO3") and has subsequently acted on occasions as an ASO4 on higher duties.

12. On or about 31 October 1994 she consulted her general practitioner about lower back pain. She was treated and says she made a full recovery.

13. On 27 March 1995 the applicant consulted a psychologist who saw her about six times until a final consultation on 19 May 1995. Apparently she saw the psychologist on her employer's recommendation. The applicant says she consulted the psychologist because of low levels of stress and anxiety in relation to the restructuring of her workplace. She says that by the end of the consultations with the psychologist she had no ongoing problems and did not feel in any way anxious, depressed or overwhelmed by her work.

14. Early July 1995 the Department of Social Security made changes to its management and computer systems. The applicant says these changes required "massive increases in keyboarding and data entry" (Exhibit B). On 17 July 1995 her duties were changed from dealing with new claims to dealing with "19U's" lodged by applicants for NewStart Allowance.

15. That change in duties included a period of very heavy keyboarding work in July because of the changes in systems. The changes in systems were also generating an unusual number of complaints by recipients of benefits claiming that errors had been made in payment of benefits. The applicant says that her work station required her to continually twist between keyboarding at a computer screen, answering telephone enquiries, and dealing with documents.

She says that complaints were made by herself and other employees about the physical effect of the increased workload. The result of these complaints was that the department changed the work teams to three person "cells." One person was to collect information and to deal with customer matters and the other two were to perform keyboarding for data entry and to cross-approve the others work.

16. Problems arose for the applicant however because the other members of her cell were absent from work resulting in the applicant alone being required to do the cell's work.

17. The applicant's difficulties were addressed by the Department over the next couple of days but by this time she says she was suffering pain and restriction of movement in the neck, right shoulder and arm.

18. During this time she consulted two general practitioners who in turn prescribed rest, pain killers and application of heat and subsequently limits on keyboarding and restricted use of her right hand. Notwithstanding this she continued to work, but eventually submitted a claim for compensation, and went on sick leave from 26 July to 10 September 1995 during which time she had treatment. The Department subsequently accepted liability for weekly incapacity payments and medical treatment.

19. The applicant attempted several graded returns to work with little success and has had considerable amounts of time off work since. By October 1996 she had increased her work on restricted duties to 28 hours per week and continued to work until June 1997 when she was off work until July 1998. She returned to work in the Compliance Section with different duties but eventually had to return to her former work place against her wishes.

20. The Department altered her work station resulting in additional pain to her neck in June 1997. Further periods off work followed and in June 1998 the applicant undertook a live-in rehabilitation program at the request of the respondent.

21. Further periods of work on restricted duties followed the program but the applicant has not worked since April 1999. The applicant says she has been in constant pain since that time with pain in the neck and right arm.

22. In cross-examination the applicant said that she does computer work at home but said this was limited to e-mail, Internet and children's games. She also said she was angry with the Department and Comcare has been unhelpful but denied that she does not want to resume employment.

23. Exhibit D is a statement by Paul Hammond, Rehabilitation Case Manager, Department of Social Security, dated 2 April 1996. That statement, which was confirmed in oral evidence, satisfies us that there was a serious issue as to Occupational Overuse Syndrome and stress in the Coffs Harbour office at the time the applicant claims she was injured.

24. In contrast to the applicant's evidence there is the evidence of several departmental officers. Lindsay Gordon Metcalfe said in his statement (Exhibit 9) that he is the Manager, Staff Support, at the Compliance Customer Service Centre, Coffs Harbour. He said that although the applicant achieved full time hours of work she reverted to working approximately half a day per day each week and this did not meet the requirements of the Compliance Service Centre and she returned to Centrelink's Coffs Harbour Customer Service Centre.

25. Exhibit 10 is a copy of a statement by Peter Sim, Centrelink Compensation Manager in the Compliance Customer Service Centre at Coffs Harbour. It includes the following paragraphs:

"At the completion of the graduated return to work programme in October 1998, I consider that Ms Freak was competent in all tasks associated with her work in the compensation section.

I recall that towards the end of the graduated return to work programme, I enquired whether Ms Freak was experiencing any pain. I made this enquiry as I was aware she had made a claim for compensation and I wanted to ascertain how her graduated return to work had progressed. I recall that she related that she had experienced pain in her neck or shoulder after finishing work one day. However, she did not elaborate on this to me.

Apart from this occasion, I do not recall Ms Freak relating to me that she was experiencing pain.

Ms Freak did not exhibit any problems with her neck, shoulder or arms during the course of her employment in the compensation section."

In oral evidence Mr Sim said that the applicant would have been retained in the Compensation Section on a full time basis but there was no position for her if she worked part time.

26. Mr Sim's evidence is corroborated by the evidence of Susan Nelson a team leader employed at Centrelink, Coffs Harbour. In a statement dated 7 January 2000 (Exhibit 11) Ms Nelson included the following:

"I recall that in July 1995 Centrelink experienced significant computer system problems. For example, the system might not be available for data entry until 2.00 pm in the afternoon. Because of these problems, the amount of manual keying work increased dramatically.

The Coffs Harbour customer service centre would process approximately 5,000 to 6,000 forms every fortnight. If the computer system was not available throughout the day this would leave less time to input the same amount of work.

Centrelink arranged for the members of the two teams, approximately eighteen to twenty people, to perform the data entry work. This work was apportioned across all team members including Ms Freak.

The computer system difficulties also caused problems for staff dealing with client enquiries about Centrelink payments. As some Centrelink staff members did not understand how the new computer system operated they were unable to explain Centrelink's payment system to Centrelink's clients. I consider that Ms Freak fell into this category.

I believe the stress caused by dissatisfied Centrelink clients would have been more difficult for Centrelink employees to deal with rather than the back log of data entry work.

Ms Freak was a very good worker. She was the type of person who would take on extra work to help others. However, she would not advise her supervisors if she was having difficulties in handling the extra work she had undertaken.

I recall that Ms Freak would spend most of her time performing processing, event though there had been general occupational health and safety direction to Centrelink employees that they should be careful about the amount of computer keying work that they were performing.

I recall that this warning would have been repeated by myself and other team leaders during this period.

Ms Freak was a very conscientious worker during this time and was concerned about making sure forms were processed properly to ensure that Centrelink clients received the correct payment. However, Ms Freak may not have considered the potential physical effects arising from spending longer than usual processing forms.

I was Ms Freak's team leader from February 1999 until approximately April 1999. Ms Freak returned to the customer service centre after she had been able to only work four hours per day at the compliance customer service centre.

When Ms Freak returned to the Customer Service Centre she was required to sit alongside other employees to enable her to refresh her knowledge of Centrelink's processes and learn new procedures. She was advised not to perform any keyboarding duties unless she felt capable of performing those duties.

After she completed refresher training, Ms Freak attempted to return to work as a counter officer. She would have spent 90% of her time answering over the counter enquiries from Centrelink customers and the remaining 10% performing keying work. I recall that during her training and return to work period, Ms Freak's attendance was very spasmodic and she ceased attending work at Centrelink in approximately April 1999."

27. In her oral evidence Ms Nelson said that the applicant had a good attitude in dealing with Centrelink customers but was very angry with the Department. She confirmed that keyboard operation represented about 10% of the work duties. She confirmed that July 1995 saw a lot of customer dissatisfaction with Centrelink.

28. Ms Nelson also confirmed that when the applicant phoned to report non-attendance for work she would refer to domestic duties as having aggravated her shoulder (para 21 of Exhibit 11).

29. Glenn Pearson is the Assistant Regional Manager, Centrelink. He gave evidence to the effect that in February 1999 the applicant sought approval to work a four hours day from 8am to 12 noon. Centrelink preferred that if she was to work part time it be 10am to 2pm. The matter was resolved by approving part time hours of 9am to 1pm. He was unable to explain why the applicant had ceased working on this basis.

The Medical Evidence

30. Documents T5, T8, T9, T10, T11, T40 and Exhibit A include reports by Dr Schwarzer, Consultant Rheumatologist. In a medico-legal report addressed to the applicant's solicitors and dated 24 February 1997 based on a consultation on 22 November 1996, Dr Schwarzer was of the opinion that the applicant had neck and arm pain that could only be related to an overuse syndrome consequent to her work. However this report makes it clear that without access to pain charts the report is conjectural especially in relation to the neck.

31. After seeing the applicant on a number of occasions and with the benefit of pain charts Dr Schwarzer made a further medico-legal report dated 12 August 1997. In this report he said that he had not been able to formulate a diagnosis, but said the clinical features were consistent with an overuse syndrome. He thought it more likely that the pain and incapacity was a result of an injury sustained at the workplace, namely excessive keyboard work. He thought the prognosis was poor but there should be a slow improvement if she ceased keyboard work, although the condition was likely to persist in the indefinite future. In a supplementary report Dr Schwarzer confirmed his view that he was unable to make a diagnosis of the cause of the pain but did say that the applicant did not have a diagnosis of R C5-6 and C6-7 zygapophysial joint pain.

32. A report by Dr Schwarzer to Dr Ellis, the applicant's general practitioner, dated 16 March 1998 (T9) noted improvement in the applicant's condition. He also noted that there was evidence to suggest that a significant proportion of the applicant's pain was arising from the R C2-3 joint.

33. Dr Schwarzer made a further medico-legal report dated 3 June 1999 (Exhibit A). He describes in detail clinical testing of pain in the neck. He found continuing incapacity for work with a poor prognosis. While he found pain he did not make a specific diagnosis as to the cause while acknowledging the contribution of the C2-3 and C6-7 joints in the neck but not the C5-6 joint.

34. In his oral evidence Dr Schwarzer was uncertain as to the temporal link between the reported pain and the keyboarding work. He also said pain may be experienced without any neurological abnormality being present and he had not found any structural abnormality.

35. During the course of cross-examination we gained the impression that Dr Schwarzer was advocating the applicant's case. He was reluctant to answer Miss Ford's assumed fact questions in any way other than on a subjective basis. In the ultimate he was unable to explain a possible causative link between the neck pain and the use of a keyboard.

36. Documents T18 and T39 are reports by Workplace Services Pty Ltd dated 17 April 1998 and 5 February 1999 respectively. The reports are signed by Dr Low, Specialist in occupational medicine and Mr Holz, Rehabilitation Counsellor (Exhibit 8). The reports were made to the respondent. In their initial report they recommended a three weeks intensive rehabilitation course with a planned return to full work including keyboard work.

37. The second report is a closure report following completion of the return to work program. A fair reading of the report indicates difficulties with the way the applicant related to the program. The report includes the following:

"During our contact with Ms Freak, our intervention was directed towards assisting her to understand that the muscle tension was being maintained by factors such as her underlying rigid/moralistic, obsessional and avoidant personality traits, combined with the effects of entrenched illness conviction, secondary gains and longstanding protective behaviours, rather than being due to any sinister underlying physical disease. We encouraged her to confront these issues and accept that she could increase her physical activity which, in turn, would improve her symptoms and her physical tolerances.

Ms Freak acknowledged many of the issues raised about her personality functioning but disagreed that these could contribute to the maintenance of her symptoms or cause any level of functional disability. She did agree that her emotional functioning could impact adversely on her perception of her symptoms, and her capacity to cope, but insisted that any such emotional difficulties were secondary to her chronic pain and were, therefore, still compensable.

With regards to Dr Coroneos', findings, Ms Freak was dismissive, stating that he was biased and had given an opinion which met Comcare's expectations. She stated, on many occasions, that she regretted seeing him and that she had been "setup". Whenever the various medical issues were discussed, she was adamant that her treating doctors had found evidence of underlying disease which was undeniably attributable to her 'work injury' and consistent with the nature and severity of her functional disturbance. She insisted that her doctors were honest, principled, knowledgeable and competent and that any difference of opinion with them was due to the corrupting influence of Comcare."

The report includes a history of the rehabilitation and return to work program. Despite a reluctance on the part of the applicant the program was said to be successful in enabling the applicant to return to full time work. They expressed the opinion that the applicant's reported disability is largely volitional in nature and for reasons, largely related to her personality, she is not prepared to return to her usual work on a full time basis. The report also notes that there is no scientific evidence of a causal relationship between facet joint dysfunction and keyboard work.

38. In his oral evidence Dr Low explained that he was satisfied there was a volitional component in the applicant's responses evidenced by her husband's aggressive behaviour, the lack of pain related behaviour both at work and away from work and barriers erected against advice given. He also said in coming to his opinion he took into account advice from Dr Ellis which included advice about what Dr Schwarzer was doing. Dr Low said that it was his opinion that even if there is facet joint dysfunction the applicant's reported problems are emotional in nature.

39. Mr Holz also confirmed the report in his oral evidence - in particular saying that the applicant was unwavering in her view that there was a direct link between her claimed condition and the facet joint pathology. He also said that the applicant was clearly angry with Centrelink blaming it and its employees for her problems. Mr Holz said he had regarded the applicant's rehabilitation program as successful and was "flabbergasted" when she subsequently complained about it in front of her husband. He thought the applicant was manipulative and had decided that she would prefer to work on a part time basis. We have taken Mr Holz's evidence into account on the basis that it corroborates the factual evidence of Dr Low. However Mr Holz is neither a medical practitioner nor a clinical psychologist and we have not attributed to him any expert opinion.

40. Mr Dunn, Physiotherapist, said that he had treated the applicant in mid 1998. The treatment achieved an improved range of movement and significant pain relief. There was still some restriction in range of movement. He denied that the applicant had reported increased pain and sleeplessness because of the treatment.

41. Dr Martin, Orthopaedic Surgeon, provided the respondent with a medico-legal report dated 25 January 2000 (Exhibit 2) and gave oral evidence. Dr Martin said that the diagnosis of facet joint dysfunction did not explain the applicant's symptoms. Further he agreed with Dr Low that facet joint dysfunction could not result from using a keyboard. His opinion is set out in Exhibit 2 as follows:

"I consider that the reports of Dr Coroneos, Dr Ian Low, and Dr John Cameron, eloquently summarise the true situation with respect to Mrs Freak's alleged symptoms, and their causation.

My answer to the specific issue of the presence or otherwise of a rotator cuff disorder, is that Mrs Freak does not have any rotator cuff disorder which might be causing her alleged symptoms. She does not have any rotator cuff disorder which can be attributed to the alleged cause of symptoms, namely the operation of a keyboard under demanding circumstances, four and a half years ago."

42. In his oral evidence Dr Martin confirmed that he could not find an organic reason for the restriction in movement of the glenohumeral joint. He said there was no arthritic condition shown radiologically but was not prepared to say whether there could be a pain syndrome.

43. Exhibit 1 is a medico-legal report by Dr Cameron, Consultant Neurologist, dated 6 September 1999, and addressed to the respondent's solicitor. Dr Cameron sets out a history generally consistent with the material before the Tribunal. Dr Cameron found no neurological abnormalities and was unable to explain the source of the applicant's reported pain but noted a possible right rotator cuff disturbance. Further, Dr Cameron was unable to relate the reported condition with typing activity. We understand "typing activity" to include computer keyboard operation. He said that while it is "conceivable she may have some mild arthritic changes in her facet joints and her cervical spine which may have caused some neck discomfort of a transient nature" such a discomfort would settle after cessation of typing and would not cause long term discomfort. He expressed the opinion that the applicant was physically fit to return to full time typing duties.

44. In his oral evidence Dr Cameron confirmed the opinion in his report. He said he could not see a causative link between typing and facet joint pain. He was not aware of any neurological cause for the pain.

45. Document T25 is a report dated 16 June 1998 by Dr Coroneos, Neurosurgeon, addressed to Workplace Services (Dr Low and Mr Holz). It is a detailed report following examination and taking of the applicant's history. Dr Coroneos made six conclusions and recommendations. In particular Dr Coroneos could find no clinical, musculoskeletal, neurological, plain radiographic, computer tomographic, magnetic resonance imaging or ultrasonographic abnormality in reference to the entire symptomatic area described by the applicant. He could not find an objective abnormality on examination.

Consideration

46. The applicant submits that she suffers the pain complained of thereby causing incapacity for work. In particular the applicant relies on the evidence of Dr Schwarzer in both Exhibit A and his oral evidence. There is a temporal connection between the increased keyboard activity and the onset of the condition.

47. The respondent says that Dr Schwarzer is not a relevant specialist because he is not a neurologist. It says that the Tribunal should rely on the evidence of Dr Cameron and Dr Martin who are both neurologists. In this case no relevant injury has been identified. Nor has it been established that work activities did in fact and in truth contribute to the condition.

48. The latter submission is in conflict with decision no. 12491 where the Tribunal concluded that the applicant was suffering from an injury within the meaning of the Act with incapacity for work from 1 February 1996 to 13 June 1997.

49. In this case we have had the benefit of extensive medical evidence much of which was not available to the Tribunal, as then constituted, when it made decision no. 12491 on 15 December 1997.

50. We are satisfied on the medical evidence, including that of Dr Schwarzer, that there is not a causative link between keyboard operations and facet joint injury. We accept that keyboard operation could cause some aggravation of a pre-existing facet joint injury but that aggravation would settle within hours rather than days. That view is consistent with the finding in Decision 12491 that there was a disturbance of the normal function of the body resulting in pain and to which the pain is attributable.

51. We also agree that there was a causative link between the disturbance and the applicant's employment. However we take the view that the disturbance in bodily function resulted in a short term aggravation only of a non-work related degenerative condition, namely mild arthritic changes of the facet joints.

52. We are not satisfied that the mild arthritic changes of the facet joints as postulated by Dr Cameron can be accepted as being work related. Certainly we should not speculate and the causal connection must be established on the balance of probabilities. In this case the causative link can only be considered in relation to aggravation of the possible arthritic changes in the facet joints and we are satisfied that aggravation, if any, was short lived.

53. There is no basis in fact, in our view, to find any causative link between the continuing reported pain and the applicant's work activities.

54. We are satisfied on the balance of probabilities that there is no diagnosed condition which can be said to have been caused by the applicant's employment. It follows, in our view, that there is no injury, as defined, no relevant incapacity for work and no basis for a finding that the applicant is entitled to compensation for medical treatment under section 16 of the Act.

55. The Tribunal decides unanimously, that the decision under review should be affirmed.

I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member, Miss A M AM Brennan (Member), Dr K P Kennedy OBE (Member).

Signed:

T G Lowther

Associate

Dates of Hearing 29 February & 1 March 2000

Date of Decision 8 August 2000

Counsel for the Applicant Mr Boccabella

Solicitors for the Applicant MBT Solicitors

Counsel for the Respondent Miss Ford

Solicitors for the Respondent Phillips Fox