Ondrovcik and Comcare [2002] AATA 45 (29 January 2002)

Last Updated: 30 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 45

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1819

GENERAL ADMINISTRATIVE DIVISION )

Re Maria Ondrovcik

Applicant

And Comcare

Respondent

DECISION

Tribunal Senior Member M D Allen Dr M E C Thorpe, Member Professor T M Sourdin, Member

Date 29 January 2002

Place Sydney

Decision The decision under review is set aside and this matter remitted to the Respondent with the direction that the Applicant suffers a permanent impairment of 10% resulting from the work caused impairment of occupational over-used syndrome, right neck and shoulder and right lateral epicondylitis. The Respondent is to pay the Applicant's costs.

(Sgd) M.D. ALLEN

.................................

Presiding Member

CATCHWORDS

WORKERS' COMPENSATION - Neck shoulder and right arm pain with consequent restriction of movement caused by employment.

Credit of Applicant in case where no objective signs of injury or impairment.

Safety Rehabilitation and Compensation Act s14

REASONS FOR DECISION

Senior Member M D Allen Dr M E C Thorpe, Member Professor T M Sourdin, Member

1. By application lodged with the Tribunal on 5 December 2000 the Applicant sought review of a reviewable decision pursuant to section 62 of the Safety Rehabilitation and Compensation Act 1988 that affirmed a prior determination of 5 June 2000 refusing the Applicant's claim for an award pursuant to section 24 of the said Act in respect of 10 per cent impairment of shoulder function together with five per cent impairment of neck movement.

2. The said application for review came on for hearing before this Tribunal on the 2 November 2001. At that hearing the following documents were taken in as exhibits and marked as follows namely T1 to T19. The documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

A1 The Applicant's Statement of Facts and Contentions

A2 Report of Professor Sambrook, Rheumatologist, dated 19 March 2001

A3 Report of Dr Berry, Surgeon, dated 15 February 2001

A4 Report of Dr Berry, Surgeon, dated 1 November 2001

A5 Chronology

R1 The Respondent's Statement of Facts and Contentions

R2 Report of Dr Podgorski, Rheumatologist, dated 30 April 2001

R3 Report of Dr Podgorski, dated 30 April 2001

R4 Report of Dr Podgorski, dated 7 June 2001

R5 Copy Centrelink Induction Form

R6 Curriculum Vitae of Dr Podgorski

R7 Bundle of documents being clinical notes of Dr Hodgett, Dr Dunn, Dr Bhatt and Dr Sahukar together with reports of Dr Sahukar dated 12 May 1995 and 19 May 1995.

3. The Applicant commenced work with what was then the Department of Social Security (now the Department of Family and Community Service) in its Dubbo New South Wales office in 1980. After an initial period of probation she commenced duties which involved her in the use of a computer to transfer data from forms completed by Social Security Recipients to a form of electronic storage. Other duties involved her in interviewing Welfare Recipients and again recording data by way of computer entry.

4. In 1994 the Applicant noticed that she had developed a pain in her right shoulder. This pain was from the side of her neck across the top of the shoulder, down the right arm to just above the wrist. Computer work made the pain worse. At first the pain was "coming and going" and at weekends although less did not completely resolve.

5. The Applicant notified her Supervisor of the pain and consulted her General Practitioner Dr Bhatt. According to the Applicant, Dr Bhatt attributed the pain to the way she was sleeping.

6. On 26 April 1994 a workplace assessment was carried out by the Commonwealth Rehabilitation Service. The Applicant was provided with an adjustable chair. Her computer and telephone were repositioned and she was instructed to take breaks from keying tasks.

7. Notwithstanding these occupational health and safety changes the Applicant continued to experience pain and this pain became more severe. Her supervisor suggested she seek a second opinion and suggested a Dr Hodgett. The Applicant saw a Dr Dunne who was Dr Hodgett's locum. In a report dated 19 July 1995, Dr Dunn states inter alia:

"...this patient was first seen on 15/6/95.

...She complained of pain on both sides of her neck (occipital area), and radiating down to the right arm, for about two months...

...She works as a typist/computer operator doing clerical duties, using a VDU, which requires neck extension to view the screen. She gave a history of a similar episode of pain about 14 months ago...

...The patient was treated with Voltaren and Physiotherapy...

...On 26/6/95 the patient had physiotherapy treatment, but was not improved...

...On examination she had a localised trigger area on the left side of T1. This was treated with a steroid injection. Physiotherapy was continued and work duty was suspended...

...On 10/7/95 the patient's emotional state was considerably improved, and the trigger area on the left scapulae, as described above was treated with a steroid injection...

...At this stage I consider that:

(i) I consider she has a Cervico-Dorsal fibrositis.

(ii) this is most probably due to her work place as described.

(iii) her condition should resolve completely with appropriate therapy.

(iv) the duration of incapacity is inconclusive..."

8. The Tribunal considers it relevant that on 26 June 1995 and again on 10 July 1995 the Applicant's perception of pain was such that she was prepared to undergo steroid injections obviously in an attempt to have her condition resolve.

9. Prior to seeing Dr Dunn the Applicant had again contacted her regular practitioner Dr Bhatt. The Tribunal accept as reasonable that on other occasions she had attended Dr Bhatt for other reasons but had not mentioned her neck/shoulder pain to that doctor as Dr Bhatt did not support the Applicant's claim that it was work caused.

10. During May 1995 the Applicant attended Dr Bhatt, complaining of pain and told her she "wanted to get to the bottom of it". Dr Bhatt referred her to Dr Sahukar, Orthopaedic Surgeon, of Dubbo. In a report to Dr Bhatt dated 12 May 1995, Dr Sahukar stated that he saw the Applicant on 9 May 1995 and reports "Ms Ondrovcik contributes no definite history of any injury to her shoulder. If she was sleeping on her face with her arm abducted it is possible that as she turned over in bed she could have sprained her muscle around the right shoulder" and concluded by stating "I explained to Ms Ondrovcik that this is a straight forward strain of the internal rotation muscles which could be as a result of the position. I have given her full instruction on how to look after the shoulder and she is advised to be off work for 40/80 (sic) hours and then see me again next week".

11. On 19 May 1995 Dr Sahukar reported "I saw Ms Ondrovcik once again today, the 19 May 1995. She has fully recovered from the peri arthritis of the right shoulder. I have explained to her to make sure that she is comfortable when she is doing her clerical work and also when she is lying in bed to avoid twisting her arm right across when she is lying on her face".

12. Dr Dunn provided the Applicant with a WorkCover certificate on 15 June 1995 stating that she suffered from a cervico-dorsal fibrositis. The Applicant stated that the steroid injections relieve the pain but that it did not completely resolve.

13. The Applicant also had an absence from work of one month. On her return she was given different duties than previously and did not undertake computer based work for one month. She then returned to keying tasks.

14. The Applicant stated that when she resumed keying tasks her shoulder and arm pain returned. She was prescribed anti-inflammatory drugs but did not have recourse to pain killers. In 1998 as her neck arm and shoulder pain was getting worse she accepted a redundancy package when it was offered.

15. After ceasing employment with the Department of Social Security (DSS) in 1998, the Applicant had six months off work. During this time she found that she had difficulty performing household tasks and called upon her children to assist her. In July 1998 the Applicant commenced employment with Macquarie Publishing, publishers of the local newspaper as a collator. This required her to lift bundles consisting of 25 newspapers. She managed this task by using her left arm. Ultimately she found that her left hand began to ache.

16. Also, the Applicant stated that whilst working for Macquarie Publishing, the pain in her right arm, shoulder and neck got worse. She also conceded that she ceased that employment "because I could not hack night work any more".

17. Currently the Applicant undertakes casual work for the Roads and Traffic Authority. When she does work she takes medication namely Panadol and Brufin in order to cope. The Applicant states that when she is away from work she still had pain but not as strong as when she works. Apart from casual work for the Roads and Traffic Authority the Applicant is a coordinator of a homework centre at the local high school. This involves her on Monday and Wednesday afternoons for three hours. She can perform this work as it does not involve her using her arms. She still has difficulties carrying out household duties but can drive a motor vehicle and stated that her neck does not occasion her pain all the time so that she can reverse park. She conceded that she is not always aware of restrictions upon her movements but twice a week she would be so aware.

18. At present she is not undergoing any active treatment for her arm, shoulder and neck pain.

19. Cross-examined the Applicant stated that her pain had started in 1994. She had lodged an Incident Report with her employer but did not proceed to claim compensation as her General Practitioner Dr Bhatt did not support the claim. Since commencing in 1994 the pain has never gone away. Pressed on whether she had told Dr Dunn in 1995 that she had recovered from the 1994 incident she did not recall stating that to Dr Dunn and would dispute that she had done so. The clinical notes of Dr Dunn (Exhibit R7) noted on 15 June 1995:

"...had a previous episode 14/12 ago and recovered...".

The Tribunal accepts the accuracy of Dr Dunn's notes made at the time.

20. The Applicant was cross-examined as to why in numerous visits to her General Practitioner, Dr Bhatt she had never mentioned her shoulder and arm pain. The Tribunal accepts her evidence but this was because Dr Bhatt did not support her in attributing the pain to her employment.

21. In 1994 the Applicant was also involved in a motor vehicle accident and injured her leg. As a result she attended Dr Sahukar, the Orthopaedic Surgeon. Cross-examined as to why on this occasion she had not made mention to Dr Sahukar of pain to her neck and other limbs, she replied "you don't go to an orthopaedic surgeon about one thing and ask him about another. Dr Bhatt wanted to see if my leg was OK".

22. The Tribunal fully understands the Applicant's position in this matter and indeed had she mentioned her upper limb or neck pain to Dr Sahukar he would have been entitled to refuse to discuss the matter given the ostensible purpose of the consultation.

23. On 6 May 1998, the Applicant attended Dr Bhatt complaining of headaches, mainly at night and tender spasm muscle at the back of the neck. Dr Bhatt noted "had RSI before in 1994 - all settled". The Applicant denied telling Dr Bhatt that her RSI had settled. Whereas Dr Bhatt has been unsympathetic to the Applicant's claim to attribute her disability to work the Tribunal sees no reason not to accept the notes Dr Bhatt made at the time.

24. Dr Hodgett whom the Applicant consulted in 1995 regarding her neck, shoulder and arm pain referred her to Dr Ian Stratton, Orthopaedic Surgeon. Dr Stratton's report reads inter alia:

"...Maria Ondrovcik saw my locum Dr David Grimsdell on Wednesday 26/7/95 following your referral...

I am given to believe your locum, Dr Dunn, gave her three steroid injections into Maria's cervical area in the trigger points over the facet joints and these injections have helped a lot...

...I believe she should continue on full duties as tolerated and it is to be hoped there will not be a recurrence of severe disability. The problem relates to postural strain caused by computer work, in previously ergonomically unsatisfactory work conditions. With the advent of improvement of posture and positioning, it is to be hoped that her symptoms will resolve...".

25. Following her retrenchment from the DSS and ceasing work at Macquarie Publishing, the Applicant was employed by Centrelink (which is administered by the Department of Social Security) for the period 14 February 2001 to 6 April 2001. Prior to taking up that employment she completed a national induction form. In that document signed by her and dated 8 February 2001 the Applicant ticked the quote "no" box to the question "do you consider you have a long term illness or disability?". In particular the question then goes on to ask specifically if the person answers yes to the question, if the illness or disability is repetitive strain. Cross-examined as to this the Applicant stated that she had filled out the form incorrectly.

26. The Tribunal does not accept the Applicant's counsel's submission that this incorrect answer was mere inadvertence. The Tribunal suspects that the answer was deliberately false because she was aware that to confess to an ongoing repetitive strain injury would mitigate against her being employed.

27. At the request of the Respondent, the Applicant was examined by Dr Podgorski. Dr Podgorski while stating that his opinion was based solely on the Applicant's subjective complaints and that there were very few objective findings of any abnormality in the Applicant's presentation, did state that he largely agreed with the report of Professor Sambrook and that he did not dispute Professor Sambrook's diagnosis. Indeed Dr Podgorski is of the opinion that the Applicant does have symptoms consistent with Professor Sambrook's reporting albeit those symptoms are in his opinion not due to work.

28. Significantly on cross-examination, Dr Podgorski stated that in his opinion it is possible that work may have been an aggravating factor. He later qualified that opinion by stating that whereas work may have aggravated the Applicant's symptoms in 1994, it was not responsible for ongoing symptoms. In his report of 30 April 2001 Dr Podgorski opined "...In my opinion Ms Maria Ondrovcik suffers from a constitutional disorder or disease of fibro-myalgia/cervico-dorcel fibrositis or regional myofascial syndrome that has been temporarily aggravated during the course of her employment at Department of Social Security."

29. Professor Sambrook examined the Applicant at the request of her solicitor on 5 March 2001. Of this examination he noted:

"...she had a normal posture but was tender to (sic) over the lateral epicondyles of both elbows. There was pain on resisted extension of the wrist bilaterally consistent with lateral epicondylitis. There was no allodynia or muscle wasting. Shoulder movement was full, but cervical rotation to the left and lateral flexion to the left produced pain on the right side of the cervical spine. She was tender to palpitation over the cervical spine and in the right trapezius muscle. Neural tension tests produce pain in the right elbow when performed on the right side. Reflexes were equal and symmetrical"

and opined:

"...I would agree with the diagnosis of occupational overuse syndrome in the right neck shoulder and lateral epicondylitis of both elbows. The term cervico-dorsel fibrositis is more a lay descriptive phrase.

It seems quite clear that the employment at Macquarie Publishing accounts for the development of left sided lateral epicondylitis, but not the right side of occupational overuse syndrome or lateral epiconcylitis which predated this and are entirely attributable to her employment at DSS. I consider Ms Ondrovcik has suffered an impairment as a result of his (sic) work injuries which is now chronic and likely to continue indefinitely and that reasonable rehabilitation measures have been undertaken.

Using Table 9.6, I would grade the cervical spine as 5% as their only minor restrictions of movement evident today.

With regard to her movement and elbow problems, using Table 9.4 I would give her an impairment rate of 10% as she can use the limb for self-care and grasping and holding but has difficulty with digital dexterity. This Table is preference to Table 9.1 given that she has loss of function rather than alteration in range of movement."

30. In cross-examination, Professor Sambrook conceded that his opinion was based on the Applicant's complaints and reports to him. He conceded that Dr Podgorski could have come to a different opinion to him as patients often have fluctuating symptoms. However, he stated that Dr Podgorski did report that the Applicant had pain and that there were findings consistent with a regional pain syndrome. He also added that in his opinion the Applicant had limitation of movement due to pain in the neck and that the pain fluctuated.

31. Document T14 is a report by Dr Berry, Surgeon, dated 22 February 2000 to the Applicant's solicitors. Dr Berry diagnosed an occupational overuse syndrome attributable to her employment with DSS. Dr Berry's opinion as to the range of loss of movement is in our opinion too high and the Tribunal prefers the figures given by Professor Sambrook and Dr Podgorski.

32. In a later report dated 1 November 2001, Dr Berry very pertinently states:

"...the fact is, once one develops an occupational overuse syndrome it is in fact permanent. It may reduce when the patient stops doing the activity but a return to the activity brings it back. Therefore to state that because the symptoms decreased to a "niggling ache" and then came back when doing similar work from other employer, the second employer who's responsible does not fit with clinical experience. ...I emphasise that once a person gets this condition, the symptoms may wax and wane depending on activity but it never ever actually goes away..."

33. To our minds that opinion is consistent with Professor Sambrook's statement that the Applicant's degree of restriction of movement fluctuates.

34. The Applicant's veracity was also questioned by the calling of her former supervisor who gave evidence that she did not perform the amount of keying work she said she did in her evidence.

35. Taking the evidence as a whole the Tribunal is satisfied that the Applicant tended to exaggerate the amount of computer work that she did and the chronic nature of her pain between 1994 and the present. We are satisfied that her pain did ease both as a result of the cortisone injection by Dr Dunn and also by her retirement from the DSS. The Tribunal however, having seen the Applicant give evidence and be cross-examined, are satisfied that at present she genuinely suffers pain and has some restrictions of movement as a result. The Applicant herself stated that she is not aware of restrictions all the time so far as her neck is concerned. Having regard to the opinions of Doctors Berry and Stratton and Professor Sambrook, we are satisfied that the work the Applicant performed at the DSS made a material contribution to her current condition.

36. Professor Sambrook opined that the Applicant had an impairment of 5% for the cervical spine and 10% of the shoulder and elbow. Dr Podgorski opined that the degree of impairment was 10% under Table 9.4 of the Comcare Tables which Table refers to limb function. He did not observe any restrictions of neck movement.

37. As stated above in her evidence-in-chief, the Applicant stated that her neck did not have pain all the time and that she was aware of restrictions once or twice a week. In these circumstances the Tribunal consider that Dr Podgorski's findings of nil impairment is more in keeping with the reality of the situation. We are strengthened in this view as we consider that the Applicant does have the tendency, referred to above, to exaggerate her condition.

38. The Tribunal is, however, satisfied that the Applicant has a 10% impairment as ascertained by Professor Sambrook and Dr Podgorski regarding her right upper limb. The decision under review will therefore be set aside and this matter remitted to the Respondent with the direction that the Applicant suffers a permanent impairment at 10% for the work caused impairment of occupational over-used syndrome, right neck and shoulder and right lateral epicondylitis. The Respondent is to pay the Applicant's costs.

39. The matters addressed in subsection 24 (2) of the SRC Act were not disputed before the Tribunal nor referred to in Exhibits A1 and R1. The Tribunal therefore take it that those matters are not in contention.

I certify that the preceding 39 paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Dr M E C Thorpe, Member

Professor T M Sourdin, Member

Signed: (Kwai-Ling Wong) .....................................................................................

Associate

Date of Hearing 2 November 2001

Date of Decision 29 January 2002

Counsel for the Applicant Mr L T Grey

Solicitor for the Applicant Carroll & O'Dea Solicitors

Counsel for the Respondent Mr G Elliott

Solicitor for the Respondent Phillips Fox Solicitors