McLoskey and Telstra Corporation Limited [2002] AATA 10 (11 January 2002)

Last Updated: 18 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 10

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1204

GENERAL ADMINISTRATIVE DIVISION )

Re MARGARET JOAN McLOSKEY

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date 11 January 2002

Place Sydney

Decision The Tribunal determines that the decision under review be set aside and in substitution therefore finds that: (i) the Applicant has suffered an injury during the course of her employment and that the injury was caused by the nature and conditions of her employment; and (ii) the Applicant is entitled to compensation pursuant to sections 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988; and (iii) the matter is remitted to the Respondent to assess the quantum of compensation in relation to medical expenses and for periods in which the Applicant has or continues to be incapacitated for work, either totally or partially, as a consequence of the injury; and (iv) costs are awarded to the Applicant in accordance with the Tribunal's General Practice Direction.

[sgd] Dr J D Campbell

Member

CATCHWORDS

Workers Compensation - complaint of bilateral wrist and arm pain and swelling of right wrist and hand tingling - issue of injury - continuing symptomatology - compensation claim - pre-existing injury

Safety, Rehabilitation and Compensation Act 1988, sections 4, 6, 14, 16, 19, 24, 27

Re Jeremic and Comcare (1991) 24 ALD 597

REASONS FOR DECISION

Dr J D Campbell, Member

1. In this matter, Mrs McLoskey ("the Applicant") seeks a review of a determination of Telstra Corporation Limited ("the Respondent") dated 5 June 2000. This determination affirmed an earlier decision of the Respondent, dated 28 January 2000, that held that the Respondent was not liable to pay compensation to the Applicant pursuant to sections 4, 6 and 14 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").

2. A hearing was held before the Tribunal on 14 August 2001 at which the Applicant was represented by Mr Kim Morrisey of Counsel. The Respondent was represented by Mr Brendan Kelly of Counsel. The Applicant presented oral evidence to the Tribunal.

3. The following documents were placed into evidence before the Tribunal:

Exhibit No Document Date

T1-T32 pp1-141 Documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

A1 Medical report Dr Davies 28 November 2000

R1 Medical report Dr McGill 17 January 2001

R2 Medical report Dr Mellick 1 March 2001

R3 Medical report Dr Mellick 12 June 2001

R4 Page from Dr Perry's clinical notes

R5 Clinical notes Ms Moss (1page) 6 November 2000

R6 Medical report Dr Mills 25 February 2000

R7 Medical report Dr Park 29 February 2000

R8 Medical report Dr Mills 31 March 2000

issues

4. The relevant issues in this matter are:

(a) whether the Applicant suffered an injury; and

(b) whether, if such an injury is determined to exist, the injury was causally connected to the nature and conditions of the Applicant's employment; and

(c) whether, if such an injury was sustained, and was determined to have been caused by the nature and conditions of the Applicant's employment, the Applicant is entitled to incapacity payments and/or payment of medical expenses.

legislation

5. The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 and in particular sections 4, 6, 14, 16, 19, 24 and 27.

background

6. On the 24 November 1999 the Applicant lodged a claim for worker's compensation benefits in which she stated (T4):

In response to question 12:

"12. Minor pain initially in right wrist. 11/10/99, as soon as I commenced work my right hand and forearm were painful and tingling. Then after about 2 hours my left hand became painful and tingly and forearm";

And in relation to question 20:

"20.I have a problem with my left elbow from a childhood accident which sometimes affect the ulnar nerve in my little and ring finger - this is a burning sensation and is totally different from the discomfort I'm experiencing now."

7. On 6 December 1999, Ms Godfrey, the Applicant's team manager detailed the following in a statement (T4):

"Margaret McLoskey has been working with me since June 99. She first advised of sensitivity in her wrists on 11 October 1999. I immediately organised training of "Hot Keys" and therefore relieving the use of the mouse. Margaret's work area is consistently disorganised. I have in the past advised Margaret to keep a clean work station and constantly stress this. Her desk is very messy and this does not help her work ethics.

On Wednesday the 13 October 1999 Mary Bahce who was our OH & S representative & assessor for our office, assessed Margaret's work place area and Margaret was happy with the changes that occurred. Mary adjusted the position of her PC, keyboard, checked headset and positioning of chair. There are no armrest on the chair and it was adjusted specifically as Margaret is below average height. Margaret was supplied with a mouse pad with wrist rest and also keyboard wrist rest.

On the 15 October 1999, which was a non working day for Margaret, she attended her doctor. I had no knowledge at this stage she had made an appointment. Margaret telephone [sic] me after the consultation with her doctor and advised me that she had been to visit him concerning the pain in her arms. The doctor advised Margaret to purchase a wrist brace for both her left and right arm. Margaret purchased these at a total cost of $75.00 and has worn these wrist guards at work on a daily basis.

Margaret informed me that her doctor had advised her that these wrist guards would eliminate the pain in her wrist.

Margaret is a very keen gardener and has often in the past spoken of pain in her arms caused by hours of gardening over the weekend. Margaret also advised of a childhood injury, which resulted in a badly broken left arm. She has stated that as a result of this accident there was nerve damage, which shoots pain from her little finger, up her arm to her face.

Margaret advised on the 24 November that she had visited her doctor again and he advised that she should attend physiotherapy and her first appointment was the Monday the 29 November 1999.

Margaret now feels she would like this to be covered under compensation. I have attached documents regarding cost incurred by Margaret. I do not feel it is work related and would like to discuss this further with the case officer assigned. I trust you will keep in contact with me and keep me informed at all times."

8. In a statement dated 11 January 2000, the Applicant stated (T11, pp 46-47):

"...Prior to 11 October 1999 I had a twinge in the underside of my wrist blow the thumb. On 11 October 1999 I came into work and probably within an hour of starting work I began to feel an electrical discomfort radiating up my right forearm first but later my left arm started to play up...

My work has changed over the past 6 months. Prior to June 1999 I was in the Priority Sales Group doing connections and we were allowed 450 or 600 seconds per call. Since June or July 1999 we changed to Interact Channel and now we don't do connections as a result we have gone from doing 30/40 calls per day to 60/90 calls per day and are only allowed 300 seconds per call. Our work load has increased a lot...

I have not had any time off work for my condition. I went to my doctor on 15 October, Dr D W Perry at Keiraville and she diagnosed TENOSYNOVITIS both wrists and forearm. The doctor told me to buy some wrist guards, I also bought some neurophen for the pain. I tried the wrist guards out for a month and although they alleviated the pain a little, the swelling was still obvious. Over that month I had been restricted (at) home and needed assistance around the house, it curtailed my gardening and sewing...[M]y doctor referred me to a physiotherapist...I have continued with my exercises...and it seems to be helping...My driving ability has been effect [sic], my car is automatic, but I don't have power steering...My arms were tired after [driving] 20 minutes."

9. In July 1999, according to the Respondent's Management Process Scorecard (T11, pp 60-65) the Applicant's average handling time per call was noted at 491 seconds, and this was deemed 'unacceptable' in terms of the rating. Her overall rating was noted as good. (T11, p 60) In August the two same parameters were recorded as 434 seconds and 'good' with an overall rating of 'good' (T11, p 61). In September 1999 the same parameters were recorded as 417 seconds, 'very good' and overall rating of 'good'. (T11, p 62) In October 1999 the time measurement was recorded at 389 seconds per call and this was considered 'outstanding'. (T11, p 63) In November 1999 the two parameters were noted at 388.6 seconds per call and this was considered 'good' with an overall rating of 'very good'. (T11, p 64) In December 1999 the average time per call was recorded at 405.6 seconds and this was considered as 'needing improvement'. The Applicant's overall rating, however, remained 'very good' (T11, p 65).

10. The Applicant was reviewed by Dr Potter, a consultant Rheumatologist on 17 January 2000 (T14). On 28 January 2000 the Respondent determined it was not liable to pay compensation to the Applicant in relation to the claim of 24 November 1999 (T16). The Applicant, through her solicitor, sought reconsideration of this decision on 23 February 2000 (T21), and forwarded further clinical reports in support of her application. The decision to affirm the earlier decision was made by the Respondent of 5 June 2000 (T30).

applicant's evidence

11. The Applicant told the Tribunal that she commenced work with Telstra in April 1994 and that from that time to June 1999 she was employed in customer services undertaking connections (new lines) which involved hand writing, typing and checking the credit data base. In an average day the Applicant stated that she would complete some 20 to 50 calls, with new customers averaging some 10-15 minutes, and old customers some 7-10 minutes, per call.

12. As part of her customer service duties during this period the Applicant also stated that she undertook billing enquires, which involved data entry. The Applicant indicated that she remained in the Priority Sales Group until June 1999. In July 1999, there was a change in duties, which the Applicant described in her statement (T11, p46) and which is reproduced in part within paragraph eight of this decision. The Applicant stated that the effect of the change in duties was an increase in the number of phone calls (60 to 90 per day), the use of the interact channel and an expected average time per call of 300 seconds. The Applicant stated that she is currently back doing connections and billings.

13. The Applicant stated that on 11 October 1999, she initially felt a tingling on the back of the right hand, which extended up her right forearm. She stated that she noticed some swelling on the back of the right wrist and right hand, the right hand being her dominant hand. The Applicant stated that she then started to use her left arm, and again she felt tingling. The subsequent course of events is as described in her statement of 11 January 2000 (T11, p46 supra).

14. The Applicant stated that she saw Dr Potter on 17 January 2000 and told him of her fractured left arm at the age of five and the problems associated with this, including her changing to writing with her right hand. The Applicant stated that after Dr Potter's examination, she had pain down her left arm to her hand and fingers, which gradually resolved over a two month period. Remaining symptoms include a sensitive left elbow and diminished left hand strength, the latter being evidenced by her inability to use fire extinguishers at work during fire drill; and difficulty in parking and tight turning her car (which does not have power steering) with the difficulty being the occurrence of pain in the right shoulder.

15. The Applicant stated that she had been placed on a modified work program in March 2000, undertaking six hours per day, five days a week. She is now doing more work with a mouse, works six hours thirty five minutes per day and has a ten-minute break per hour. She currently loses 35 minutes a day, and is coping as long as she has acupuncture four times a month, which costs her $40-$50 a session. The Applicant also stated that she continues to carry out her stretch exercises three to four times a week at home and every day at work.

16. In response to questions in cross examination the Applicant stated:

* that she did inform Dr McGill that she had difficulty holding an umbrella in her right hand because of pain in her right hand forearm prior to 11 October 1999, but that tingling was not present;

* that she did describe the symptoms as recorded by Dr Mellick in his report of 1 March 2001:

"...pain to be present on the dorsum of the wrist as well as on the palmar surface. She also described numbness to involve the proximal half of the extensor surface of the forearms. The symptoms were a little bit more troublesome on the right side than on the left."(Exhibit R2)

and that she had similar symptoms in the right hand some two weeks prior to 11 October 1999; that there were no symptoms associated with car driving prior to 11 October 1999, but that she did experience difficulty pulling a bag some weeks before 11 October 1999, but it was not associated with the symptoms nominated;

* that the details recorded by Dr Perry in her report of 13 January 2000 (T12) of a three month history of worsening hand and wrist pain bilaterally is incorrect, as there was no real manifestation until 11 October 1999;

* that she did inform Dr McGill, as recorded in his report of 17 January 2001 (Exhibit R1) when responding to his inquiry as to whether there had been a change in work activities in the period prior to onset of symptoms, of her difficulties when pulling her bag through Central Railway Station a couple of weeks prior to 11 October 1999 and that she had been changed to billing enquires rather than connections in the period prior to her presentation;

* that she was not sure what caused her problems, but an increased number of calls were undertaken from July 1999 until October 1999, with symptoms commencing in October 1999 and that her performance at work was rated "very good" for November 1999;

* that the response to her complaints of sore wrists on 11 October 1999 was being encouraged to use "hot keys", and, on 12 October 1999, following an ergonomic assessment, the provision of wrist supports and a mouse pad with some changes of desk height and telephone placement;

* that on 15 October 1999 she consulted Dr Perry because of sore wrists and thereafter while she saw Dr Perry on four occasions, it was not until 18 January 2000 that Dr Perry records problems with her wrists following an examination on 17 January 2000;

* that she had been coping with her job over the three months prior to 18 January 2000, but throughout this period she had been wearing wrist splints;

* that the examination by Dr Potter on 17 January 2000 of the Applicant's left elbow caused extreme pain immediately in the fingers and within half an hour pain in the left forearm. A similar examination of the right elbow resulted in pain in the wrist, fingers and forearm of the right arm. The Applicant felt intimidated by Dr Potter;

* that she did see Dr Perry on 18 January 2000 and was in tears when complaining about the pain in both wrists and arms as a result of the examination by Dr Potter on 17 January 2000;

* that she did see Dr Mills on 25 February 2000 when she again complained about the consequences of Dr Potter's examination;

* that she saw Dr Mellick on 17 January 2001 and that any complaints about Dr Potter's examination are absent, as they are following a further consultation on 30 May 2001.

17. In response to questions the Applicant stated that her hobbies were knitting (and that she done nothing in this regard for two years prior to October 1999); that she enjoyed sewing, which she did for less than an hour per week; and also gardening, which she could only do for two to three hours per fortnight.

18. The Applicant stated that after completing her Higher School Certificate she commenced a management trainee scheme with Grace Bros., which she ceased after a short time, before commencing as a trainee with the Auditor General for 18 months. Following her marriage, she moved to Wollongong and worked in a medical and health fund and then for the Department of Housing. For some years she cared for her two children while doing some part-time work, prior to joining Telstra in 1994. The Applicant informed the Tribunal of a fractured left elbow at the age of five, an injury to the neck in a motor vehicle accident, and an injury to her back at work in 1995 for which she received compensation.

clinical evidence

19. Dr Perry, the Applicant's treating general practitioner for many years records in her notes (Exhibit R4):

"15 October 1999: Tendonitis/ both wrists, computer work, Nurofen helps, given w/c form, suggesting wrist guards"

This is accompanied by a diagram of the right hand showing area over dorsum of right wrist and metacarpals and a diagram of the left hand showing area over dorsum of left hand extending to base of index finger and thumb.

"18 January 2000 w/c hands bad after examination yesterday. Certificate;

3 February 2000 Certificate refused w/c, to write letter;

11 February 2000 Certificate - off work."

20. On 13 January 2000, Dr Perry reported that she had seen the Applicant:

"...was seen 15/10/99 with a 3 month history of worsening hand and wrist pain bilaterally. There was swelling in both wrists and thumb joints...

These joints and muscles were painful and this pain was made much worse by utilising a keyboard; worsening as the workday and week continued and were relieved by rest and at the weekend.

On examination there was tenderness over her wrist joints thumb, [metacarpal] joints and tenderness and swelling over the wrist extensors and thumb extensors."

Dr Perry considered that the diagnosis was tendonitis and that it was caused by poor ergonomics with keyboards. Treatment instituted involved physiotherapy, splinting, analgesia and attention to workplace ergonomics. Prognosis was guarded (T12, p66).

21. In a further report dated 9 February 2000, Dr Perry detailed the Applicant's severely reduced functioning of both wrists, hands and forearm, with extreme tenderness over the tendons of these areas, following Dr Potter's examination of the Applicant on 17 January 2000. Dr Perry also noted that Dr Potter had detailed the Applicant's involvement in painting, which was untrue and appeared to have overstated the Applicant's involvement in her hobbies (T19, p81).

dr potter

22. In a report dated 18 January 2000 Dr Potter, a consultant rheumatologist, stated that the episode in question began in September 1999 with the Applicant experiencing soreness in the right wrist and later in the left wrist and a sensation of tingling, which she reported in October 1999. Further, Dr Potter reported:

"That syndrome involved the hand, wrist and forearm up to the elbow (but not the elbow) - the right than the left...Splints were suggested. She was told that she had an "overuse syndrome". No time off work followed. She thought she had swelling of the hands and forearms."

Dr Potter concluded that:

"1. This lady did not have a physical injury in the workplace.

2. She developed a muscular tension state.

3. The underlying factors here relate to behavioural and motivational issues.

4. She seems to have improved in that regard and does not have any disability measurable."

In summary Dr Potter concluded that the Applicant was fit for all normal duties and her complaints were consistent with the syndrome given. He did not find any history or clinical inconsistencies nor features of exaggeration, and believed the Applicant to be genuine in her distress (T14).

23. The Tribunal also notes that there is nothing in Dr Potter's two reports of 18 January 2000 regarding the Applicant's hobbies of gardening, sewing and knitting, nor her house painting activities, contributing to the Applicant's symptoms (T14).

dr Davidson

24. In his report dated 22 February 2000 Dr Davidson, a consultant in rehabilitation medicine, detailed the clinical history of the Applicant's problems, which was consistent with that outlined by the Applicant. Dr Davidson summarised his opinion in the following terms (T20, p83):

"It seems reasonable to identify that she probably developed a muscle tendon problem on the right side as a direct result of the altered work responsibilities, and although there has been some improvement, that has not completely resolved. On the left, it seems more likely on clinical grounds, that she has a traction ulnar neuritis, and although she may have had some problems in that area due to her childhood fracture, the historical attribution unfortunately lies with the physical examination performed.

It is encouraging that it is settling, but it should still be investigated and the extent of the problem identified, if at all possible. To that end I would suggest that she have a musculoskeletal ultrasound of the forearm to identify any evidence of tendon injury and an x-ray of her left elbow. She will probably need to go on to a CT scan of the cubital tunnel and nerve conduction studies of her upper limbs. She indicates that she may have had previous nerve conduction studies on the left and these would be very useful for comparison if an abnormality is detected on current studies."

25. In a second report dated 22 February 2000, Dr Davidson stated that the Applicant's identified engagement in her hobbies of gardening, sewing and knitting was quite small in terms of time, particularly when compared to her full time work at a keyboard and using a mouse. Further, Dr Davidson stated (T14, p85):

"Unfortunately the situation is further complicated because Mrs McLoskey has significant and quite intrusive pain since a recent medical examination on your behalf...She has clinical evidence of an injury to her ulnar nerve. This hopefully will continue to settle, but at this time, the symptoms related to these events are at least of equal importance as her original presentation."

26. In a further report dated 16 May 2000, Dr Davidson stated (T27, pp95-96):

"My diagnosis of the plaintiff's condition was that she had a work related problem, most likely a muscle tendon injury, as the result of her altered work responsibilities. That was supported by the initial assessments of Dr Perry and her response to the modifications in the work station and the use of wrist supports. Furthermore, she had an injury to her ulnar nerve in her left arm, historically, on the basis of the manipulation that occurred within the examination by the insurance company doctor.

Mrs McLoskey had a past history of problems on the left hand side and she has had some episodes of similar pain, although not as severe, over many years, since a childhood fracture of her left elbow. However, she has had no symptoms related to this for several years. The character of her pain and presentation, and physical examination are consistent with an ulnar neuritis, historically that was traumatic. Fortunately, that was settling down and my expectation was that it would continue to settle.

Furthermore, she was experiencing significant emotional distress - depressed and frustrated at the approach of the insurer, the lack of support, and her perceived injustice were limiting her coping strategies for her ongoing pain."

Further Dr Davidson opined that (T27, pp96-97):

"I cannot reasonably assert that there is another significant cause for her symptoms, other than her work duties.

...

The patient's condition is not stable.

...

She is not fit for her normal duties at the moment and the cause of her loss of capacity is directly related to her circumstances at work."

dr mills

27. In his report dated 25 February 2000, Dr Mills, a consultant in occupational medicine, detailed a history from the Applicant not inconsistent with what has already been described. Dr Mills considered the Applicant's diagnosis to be unclear, and he suggested a psychological opinion be obtained regarding possible depression; nerve conduction studies to exclude peripheral neuropathy; and a bone scan to assist in the diagnosis of possible reflex sympathetic dystrophy. Dr Mills considered the Applicant unfit for all work until the issues had been addressed, and that it would be likely that the Applicant would not be able to return to full pre-injury duties for at least three months (Exhibit R6).

28. On 29 February 2000 Dr Park reported that as a result of bilateral motor nerve and sensory nerve conduction studies on the median and ulnar nerves, there is no electrophysiological evidence of median or ulnar nerve dysfunction (Exhibit R7).

29. On 31 March 2000, Dr Mills provided a further report as a consequence of reviewing the nerve conduction studies report. He concluded that the Applicant's symptoms were largely not organically based and that it may be appropriate for the Applicant to be referred to a psychologist for an opinion regarding the need for pain and/or disability adjustment counselling (Exhibit R8).

ms moss

30. In a report dated 4 December 2000, Ms Moss, a clinical psychologist, stated that the Applicant did not exhibit signs or symptoms of significant depression or anxiety, but that her biggest concern is anger at the rejection by her employer of her claim for compensation. Ms Moss reported that the Applicant believed she had been penalised for telling the truth and as a result has become quite suspicious and guarded (Exhibit R5).

dr davies

31. In his report dated 28 November 2000, Dr Davies, a consultant neurosurgeon, detailed the clinical history of the Applicant's complaint together with issues associated with the examination by Dr Potter on 17 January 2000. Dr Davies stated the following opinion (Exhibit A1):

"Mrs Margaret McLoskey has suffered from gradual onset of tingling and pain affecting both forearms, worse on the right arm. The onset of her symptoms appears to coincide with a change in her work duties, which occurred around July 1999. Changes to her work environment (the provision on [sic] a mouse pad and the provision of a wrist support whilst using the computer keyboard together with the use of wrist splints suggested by her General Practitioner) have all resulted in some improvement in her symptoms suggesting that they are largely mechanical in origin. The absence in any abnormality on nerve conduction studies would also tend to favour a mechanical (repetitive use) problem rather than a nerve dysfunction problem.

Mrs McLoskey has continued to try to work through the whole period of her disability although she has required a period of one month off work earlier this year after which she commenced her graded return to work program. She is currently working six hours per day and having 10 minute breaks every hour. Mrs McLoskey has continued to work and is keen to continue working in spite of the ongoing discomfort affecting her forearm.

This is in spite of the fact that her complaints cause significant interference with her household and social activities and in spite of the fact that her husband has subsequently obtained full time employment. This suggests to me that Mrs McLoskey is quite genuine in her complaints and is prepared to suffer an interference with her non work related activities in an effort to continue working.

A history of the condition and a description of the examination findings has been provided in the main body of this report. A description of Mrs McLoskey's Current Complaints has been provided in the section headed Current Situation.

The most likely diagnosis is a repetitive use type syndrome affecting both forearms and hands, worse on the right side. To this has been added some aggravation of a pre-existing problem at the left elbow following an examination for insurance purposes by a Dr Potter in Sydney. The reference in Dr Davidson's report to the nerve conduction studies showing no abnormality would be in keeping with the diagnosis of a repetitive use type injury rather than any nerve compression type problem affecting the upper limb. Also in keeping with the diagnosis is the tenderness affecting the extensor muscles of both forearms and the tenderness over the medial and lateral epicondyles of both elbows and over both writs. Also in favour of this diagnosis is the fact that Mrs McLoskey got some improvement in her symptoms following some changes to her workplace and following the use of wrist supports as suggested by her General Practitioner...

I do not think Mrs McLoskey's condition has fully stabilised at the present time and it is therefore not appropriate to comment on any permanent impairment or loss of efficient use at this stage."

dr mcgill

32. Dr McGill, a consultant rheumatologist, in his report of 17 January 2001, summarised his findings and conclusions in the following terms (Exhibit R1):

"This 46 year old lady reported bilateral upper limb symptoms, worse on the right which essentially commenced in October, 1999 although in retrospect, she thought that she had minor symptoms prior to that. There had been an increase in the number of calls she was dealing with each day in the proceeding months because of a change in the nature of the calls. Her work station was modified and she continued her full duties up until she saw Dr Potter in January 2000. After that assessment she ceased work for about one month and then resumed a graduated return to work program. She has increased to 6 hours per day, 5 days per week, performing normal duties during the time that she is working.

On examination she was overweight and had adiposity of the upper limbs. There was no evidence of any tendon, joint or other physical musculoskeletal problem other than the CT evidence of previous injury in the left elbow region. There was no clinical impairment of left elbow function and she had a full range of elbow movement in all directions (flexion, extension, supination, pronation). The lack of any clinical evidence of tendonitis or tenosynovitis was supported by the normal ultrasound examination of her right wrist and forearm in February, 2000.

I think it is quite possible that she experienced muscular pain related to her work activities when she experienced symptoms in October, 1999 but there was no evidence today of any ongoing musculoskeletal physical abnormality and the pattern of her symptoms as she described them and as recorded in the documentation was not that of tenosynovitis. The combination of tenderness, widespread pain, usually in association with anxiety or depression and sleep disturbance is given the label fibromyalgia (or fibrositis). That label does not imply the presence of any physical abnormality. Although I felt that there was evidence of embellishment (such as the marked difference in her reported tenderness when assessing possible tenderness with extremely light pressure as opposed to the pressure that she was willing to exert against my resisting hands when demonstrating muscle power) it may be that some of her pains are genuine on the basis of unhappiness/anxiety/muscle tension.

I think it is possible that her work contributed to her symptoms in October, 1999 by means of muscle soreness. I do not think that her work (previously or currently) is responsible for any current condition.

On the presumption that her work duties did contribute to her symptoms in October 1999, I think that contribution had resolved by the time she saw Dr Potter in January, 2000.

I do not think there is any work related condition requiring medical treatment. With respect to her general health, an improvement in fitness and reduction in weight would be beneficial and she indicated that she is making efforts in that regard through walking although she has gained considerable weight in the last sixteen months. There may be a role for anti-depressant therapy. I think it would beneficial in the long term if she moved from passive therapy (massage, acupuncture) to active fitness based exercise.

I think her prognosis with respect to symptom reporting will depend on her mood and her perception of the work place. Provided she does not continue to gain weight, her physical prognosis with respect to the musculoskeletal system is good.

I think she is fit to resume full hours of her normal employment. I think it may be easier to gain her acceptance of that if she initially increased to 7 hours per day for a few weeks before moving to full hours." (Exhibit R1).

33. Dr Mellick, a consultant neurologist, examined the Applicant on two occasions, and in two separate reports dated 1 March 2001 and 12 June 2001 he essentially came to the same conclusion, which is detailed by the Tribunal from his second report:

"The symptoms described by her, the clinical presentation and the findings on examination are in accord with the diagnosis of a chronic pain syndrome associated with the processes of Somatisation. That is the diagnosis, which was previously made. Somatisation is a properly documented and widely recognised phenomenon, which explains symptoms of the type described by Mrs McLoskey in the absence of an organic cause and in the absence of psychiatric illness. It arises through a complex inter-reaction of social, cultural and constitutionally determined factors.

I would not therefore regard Mrs McLoskey's symptoms to be due to any work related organic disorder. There is in particular no evidence of a soft tissue abnormality such as tenosynovitis.

With regard to the matters listed in your fax 1 - 6 not already addressed above:-

I do not regard Mrs McLoskey to be suffering with any condition, which has been caused and/or materially contributed to by her employment, there being no indication of any organic disorder.

These symptoms are, as described above are [sic] due to somatisation. The abnormalities of function, which are present, are due to Illness Behaviour.

I find no medical abnormality, which requires ongoing specific medical treatment.

She told me that she is able to do the work that she is currently engaged upon. That is in keeping with my assessment." (Exhibit R3).

34. The Tribunal also notes that Dr Mellick, while aware of Dr Potter's examination and report on 17 January 2000, makes no reference to any sequelae arising out of that examination in relation to the Applicant's symptomatology.

other evidence

35. The Tribunal notes the statement of Ms Godfrey, team leader of 11 January 2000 in which she states, amongst other things :

"Margaret is a keen gardener and does a lot of sewing. I saw her recently buying fabric to sew. In the past Margaret has complained about aching arms from gardening. You can't really compare Margaret's statistics pre-October to post-October because the role is constantly changing." (Exhibit T11, p56).

36. The Tribunal also notes the Work Maxims' report (T11, pp26-44) which details the interviews with Ms Godfrey and the Applicant and the findings nominated in T11, pp 39 - 44.

submissions

applicant

37. Counsel for the Applicant submitted that the Applicant had told a consistent story over time with directness and without embellishment. The story is one of an individual having a good work history who describes the sudden onset of clinical symptoms on 11 October 1999 in her right wrist, hand and forearm which extended over the next two hours to the left wrist, hand and forearm. The Applicant states that her duties at work involve extensive use of her right arm and that these had been changed toward the end of June 1999, with the changes requiring the Applicant to undertake more calls of shorter duration during the course of the working day.

38. Counsel submitted that the Applicant is a witness of truth and that the sequence of events she has described, her attendance upon her general practitioner, Dr Perry and later Dr Davidson, and their opinions also, are consistent with the proposition of the Applicant experiencing an injury at work, which arose out of the nature of her work activities. Further, her continuance at work, despite the existence of clinical symptoms, is indicative of her genuineness and motivation. Counsel submitted that the episode involving Dr Potter and his examination caused further difficulties to the Applicant, which has exacerbated her symptoms and prolonged the rehabilitation program.

39. Counsel submits that the Applicant has suffered an injury; that such an injury arose out of the nature and conditions of her work; that the Applicant has required, and continues to require, medical attention; and that she has been incapacitated as a result of this injury, at times totally, and since her return to work, partially.

respondent

40. The Respondent argues that the Applicant had pre-existing symptoms as noted in the reports of Drs McGill and Mellick, and that the work performance of the Applicant, as measured during the period July 1999 to December 1999, did not indicate an expected average time per call of 300 seconds, but more in the order of 390-420 seconds per call. Counsel also pointed to the Work Maxims' report in which Ms Godfrey is quoted as stating the Applicant had much less keyboard typing to do post June 1999.

41. Counsel for the Respondent contended that no clear diagnosis has been made in this matter as evidenced by the many and varied diagnostic comments made:

* Dr Perry - tendonitis

* Dr Davidson - muscular tendon problem

* Dr Mills - diagnosis unclear; symptoms are largely not organically based

* Dr Davies - repetitive use type syndrome; aggravation of pre-existing condition

in left elbow

* Dr McGill - fibromyalgia

* Dr Mellick - chronic pain syndrome

42. In summary the Respondent argued that the Applicant had not suffered an injury; and, in the alternate, if it was found that the Applicant did suffer injury during the course of her employment on 11 October 1999 in the form of "tenovitis", that condition has not resulted in any incapacity for employment.

consideration and findings

43. In this matter the Tribunal has been particular in working through: the nature and extent of the Applicant's pre-existing conditions in relation to either or both arms; the clinical history surrounding the events of 11 October 1999, and the clinical history thereafter; the opinions of the many doctors involved in the matter; the work performance of the Applicant both before the incident and thereafter, and continuing to the time of the hearing; and the nature of the work against which the Applicant's performance was being assessed. This material has been detailed earlier in this decision.

44. As a consequence of considering such evidence and the evidence of the Applicant, the Tribunal makes the following findings:

(a) The Applicant is a credible witness, in that she has consistently detailed the circumstances of her pre-incident situation, her work situation and the changes made within the work environment, the events and circumstances surrounding the incident on 11 October 1999, the evolving events regarding both her own and her employer's response, her continuance at work despite ongoing symptomatology, her examination by Dr Potter on 17 January 2000 and its sequelae, and her endeavours to continue with her employer.

(b) The Tribunal accepts the Applicant's description of her clinical symptomatology. This includes her history of fracturing the left elbow at the age of five, the history of experiencing some difficulties with her right hand and wrist, involving some difficulty in holding an umbrella, and discomfort some few weeks prior to the incident of 11 October 1999.

(c) The Tribunal accepts that an incident did occur as described by the Applicant on 11 October 1999 and that her clinical symptoms and complaints and subsequent actions were as described, as were the actions of the employer.

(d) The Tribunal, while noting that the Applicant had particular hobbies, which included gardening, sewing and knitting, concludes that any probative evidence before the Tribunal points to such hobbies playing a minimal part in the clinical scenario. In stating such the Tribunal has paid particular attention to the evidence of the Applicant as regards pursuit of such hobbies during the relevant period, and the opinions expressed by the doctors, when they do express such an opinion. The Tribunal also finds that Dr Potter did not address these issues, with such issues being raised in the determination of 28 January 2000 and being unrelated to Dr Potter's opinion regarding the occurrence of an injury.

(e) As regards the clinical symptomatology, the Tribunal finds the description as provided by the Applicant appropriate and pertinent. In making such a finding the Tribunal notes the opinions of all the doctors involved, and even where there is a suggestion that there may be some embellishment by the Applicant (Dr McGill), all the doctors, including Dr McGill, state that all or some of the complaints and/or pains experienced by the Applicant are, or may be, genuine.

(f) In terms of the particulars of the pre-existing symptoms, the Tribunal has already found that there is evidence to suggest that they did exist, as identified some few weeks before the incident of 11 October 1999. The Tribunal notes that the attending general practitioner, Dr Perry, reported pre-existing symptoms of three months duration in her report of 13 January 2000. However, the Tribunal, on examination of Dr Perry's clinical notes for the relevant period, finds that there is no documentation to support such a statement and that it is inconsistent with the Applicant's evidence and her statement of 11 January 2000.

(g) The Tribunal accepts the history of clinical symptomatology as detailed by the Applicant and variously described by the clinicians in their reports. More particularly the Tribunal accepts that a sequelae of her examination by Dr Potter on 17 January 2000 was an increase in her clinical symptomatology, particularly as regards pain. The Tribunal notes that all the consultants involved in this matter, except Dr Mellick, refer to this incident, with Drs Davies, Perry and Davidson being particular as to an aggravation of this pre-existing left elbow injury. The reason for Dr Mellick's failure to comment on this event is difficult to fathom, in that he had access to the reports of both Dr Potter and Dr Davidson.

(h) In turning to the particulars surrounding the incident of 11 October 1999, the Tribunal finds that an injury did occur which involved the Applicant experiencing the symptomatology which she has described and which included pain and signs of swelling involving the dorsum of both wrists, the dorsum of the right hand together with tenderness over the wrist, wrist extensor and thumb extensor. In making such a finding the Tribunal relies upon the evidence of the Applicant and the clinical finding of Dr Perry as stated in her report of 13 January 2000.

(i) The Tribunal, in noting that there have been a variety of diagnoses suggested in this matter, recognises that there is no unanimity amongst the doctors as to an appropriate diagnosis. The Tribunal notes, however, that all the doctors accept that some, or all, of the Applicant's complaints, including pain, may be, or are, genuine. The Tribunal accepts and finds that the Applicant's complaints of pain are genuine, and in so doing notes the psychologist's report that there is no evidence of significant depression or anxiety. The Tribunal concludes that the appropriate diagnostic nomenclature is 'chronic pain syndrome'.

(j) Further the Tribunal finds that the injury occurred while the Applicant was undertaking her normal duties at work, which involved key boarding and mouse activity on the computer. In examining the evidence before the Tribunal as regards the Applicant's work, the Tribunal concludes that there was a change of the Applicant's duties in late June 1999, which gave the Applicant a shorter average time to deal with each individual call, but also less keystroke activity per call. The evidence is clear that the Applicant improved her time performance both prior to 11 October 1999 and maintained it thereafter, with a marginal falling off in time performance during December 1999. The Tribunal further notes that the Applicant's overall work performance was rated as 'good' to 'very good' during the period July 1999 to December 1999. The Tribunal concludes that there is no evidence to suggest a decline in the Applicant's motivation towards her work during this period.

(k) While the Tribunal has concluded that the Applicant's injury occurred while she was undertaking her normal duties at work, it also concludes that the injury arose out of the Applicant's employment, and, further, that the injury was caused by the nature and conditions of the employee's work, with the evidence before the Tribunal being the Applicant's description of events of 11 October 1999 and the medical reports assessing the Applicant's condition. In making such a finding the Tribunal has preferred the opinions of Dr Perry (treating general practitioner), Dr Davidson (rehabilitation physician), Dr Davies (consultant neurosurgeon) and Dr McGill (consultant rheumatologist) in so far as he believes that work may have contributed to the Applicant's symptoms in October 1999 by way of muscle soreness, and that work, and in particular repetitive activity, played a significant role in the causation of the Applicant's injury. The Tribunal, in noting the opinion of Dr Potter, finds his conclusion involving underlying factors that relate to behavioural and motivational issues, at odds with the evidence which clearly demonstrated absence of significant behavioural issues (such as depression and/or anxiety) and clear evidence that the Applicant was motivated to continue and perform well at work, until her consultation with Dr Potter on 17 January 2000. In relation to Dr Mellick's opinion, the Tribunal, while acknowledging his diagnosis of chronic pain syndrome draws little comfort or assistance from any conclusions drawn. Dr Mellick himself states that such a syndrome arises through a complex interaction of social, cultural and constitutional factors, which, in the Tribunal's view, is nothing more than a generalisation acknowledging a lack of specific understanding of the patho-physiological mechanisms involved.

(l) The Tribunal has already concluded that the examination undertaken by Dr Potter produced particular sequelae, and that the Applicant experienced a period of time in which her treating practitioner considered her unable to work. In these regards, the Tribunal notes the opinions of Drs Perry, Davidson and Davies and concludes that there was an aggravation of a pre-existing injury to the left elbow and an exacerbation of pain symptomatology as a result of this examination. The Tribunal further notes that Dr Potter was never asked to review the Applicant despite complaints arising out of his examination; that Dr McGill is silent on the effects of Dr Potter's examination, although alluding to them in his report; and that Dr Mellick does not address the issue at all in his report.

45. In addressing the continuing clinical and work circumstances of the Applicant up to the time of the hearing the Tribunal notes the periods of total incapacity that occurred after Dr Potter's examination and the period during which the Applicant has undertaken a graduated return to work, with a result that she is still losing 35 minutes a day (Applicant's evidence).

46. The Tribunal also accepts the opinions of the many consultants that the condition, however diagnosed, is not yet fully stabilised, and so finds.

determination

47. The Tribunal determines that the decision under review be set aside and in substitution there for finds that:

(i) the Applicant has suffered an injury, namely "chronic pain syndrome" during the course of her employment and that the injury was caused by the nature and conditions of her employment; and

(ii) the Applicant is entitled to compensation pursuant to sections 14, 16 and 19 of the Act; and

(iii) the matter is remitted to the Respondent to assess the quantum of compensation in relation to medical expenses and for periods in which the Applicant has or continues to be incapacitated for work, either totally or partially as a consequence of the injury; and

(iv) costs are awarded to the Applicant in accordance with the Tribunal's General Practice Direction.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed: Raina Savage .....................................................................................

Associate

Date/s of Hearing 14 August 2001

Date of Decision 11 January 2002

Counsel for the Applicant Mr K Morrisay

Counsel for the Respondent Mr B Kelly