Hancock and Comcare [2003] AATA 1177 (20 November 2003)

Last Updated: 27 November 2003

DECISION AND REASONS FOR DECISION [2003] AATA 1177

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos N2001/685

GENERAL ADMINSTRATIVE DIVISION	) N2001/1907
	Re	Vicki Marie Hancock

Applicant

And

Comcare

Respondent

DECISION

Tribunal

Ms SM Bullock, Senior Member Dr MEC Thorpe, Member

Date 20 November 2003

Place Sydney

Decision

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides: (i) In relation to Matter N2001/685, the Tribunal sets aside the decision under review and in substitution therefor determines: (a) There is aggravation of Mrs Hancock's neck and shoulder injury continuing beyond 21 January 2001 and Mrs Hancock is entitled to compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988; (b) Mrs Hancock is entitled to compensation under sections 16, 19 and 29 of the Safety, Rehabilitation and Compensation Act 1988. (c) The matter is remitted to the Respondent to calculate Mrs Hancock's entitlement as a result of this decision. (ii) In relation to Matter N2001/1907, the decision under review is affirmed. (iii) The Respondent is liable to pay the Applicant's reasonable legal costs as agreed or taxed and in accordance with the Tribunal's Practice Direction in relation to Matter N2001/685.

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

Ms SM Bullock

Presiding Member

CATCHWORDS

COMPENSATION - Neck and Shoulder Injury - Aggravation - Somatization - Permanent Impairment

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24, 27, 28, 29.

AUTHORITIES

Jones v Dunkel (1959) 101 CLR 298

Watts v Rake (1960) 108 CLR 158

Purkess v Crittenden (1965) 114 CLR 164

Commonwealth v Muratore (1978) 141 CLR 296

Re Wood and Comcare [1999] AAT 263

Comcare v Fiedler (2001) 115 FCR 328

REASONS FOR DECISION

20 November 2003 Ms SM Bullock, Senior Member

Dr MEC Thorpe, Member

1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mrs Vicki Marie Hancock, of two reviewable decisions by the Respondent, Comcare dated:

(i) 8 May 2001 (T64, N2001/685), which affirmed the determination of 31 January 2001 (T61, N2001/685) that Comcare was no longer liable to pay compensation for Mrs Hancock's claim for aggravation of neck and shoulder injury.

(ii) 26 October 2001 (T8, N2001/1907), affirming a determination of 12 September 2001 (T6, N2001/1907) that Mrs Hancock was not eligible for compensation for permanent impairment or non-economic loss under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988.

2. The hearing was held in Sydney before the Tribunal on 11 November 2002 and resumed on 12 November 2002 and 19 May 2003. Mrs Hancock was represented by Mr L Grey of Counsel and the Respondent was represented by Mr B Dube of Counsel. Mrs Hancock provided oral evidence at the hearing as did her husband, Mr Keith Malcolm Hancock. Evidence was also provided by Dr S R Sundaraj, Pain Management Consultant, Dr R Mellick, Consultant Neurologist and Dr I T Lorentz, Consultant Neurologist. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents": T1-T65, N2001/685; T1-T8, N2001/1907) and the following exhibits:

Exhibit Number	Description	Date
A1	Report of Dr B Zicat, Orthopaedic Surgeon	4 July 2001
A2	Report of Dr B Zicat, Orthopaedic Surgeon	4 July 2001
A3	Report from Dr S R Sundaraj, Pain Management Consultant	7 January 2002
A4	Statement of Mr K M Hancock	31 October 2002
A5	Report of Dr J Ireland, Orthopaedic Surgeon	12 June 1996
A6	Reports of Mr S O'Connell, Physiotherapist	9 May 1996 14 May 1996
A7	Report of Mr A Bourke, Physiotherapist	12 July 1996
A8	Report of Dr R Dhanji, General Practitioner	30 March 2002
A9	Report of Dr L Ding, Consultant Psychiatrist	31 December 2002
A10	Paper entitled "Neuroscience, Art and Consciousness" by Dr R Mellick
R1	Report of Dr I T Lorentz, Consultant Neurologist	19 July 2001
R2	Report of Dr I T Lorentz, Consultant Neurologist	19 July 2001
R3	Clinical notes of Dr R Dhanji, General Practitioner	Various
R4	Comcare Australia "Incapacity Determination List"	Various
R5	Comcare Australia Incapacity Payments and Dates	Various
MFI1	Article by Dr Lipowski "Somatization: Medicine's Unsolved Problem"	June 1987

ISSUES

3. The issues in this matter are:

(i) Whether or not Mrs Hancock has a continuing neck and upper limbs condition within the meaning of section 4 of the Safety Rehabilitation and Compensation Act 1988; and if so

(ii) Whether or not the Respondent has continuing liability for Mrs Hancock's neck and upper limbs conditions; and

(iii) Whether or not Mrs Hancock is eligible for compensation pursuant to sections 14, 16, 19, 24, 27 and 29 of the Safety, Rehabilitation and Compensation Act 1988.

It should be noted that at Hearing, the Respondent agreed that the issue of a section 29 entitlement under the Safety, Rehabilitation and Compensation Act 1988 is before the Tribunal and the Tribunal agreed.

LEGISLATION

4. A determination in this matter requires consideration of the provisions of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").

5. Section 4 of the Act deals with the interpretation of various terms and of relevance is the definition of "injury", which is defined as:

"injury means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."

6. Section 14 of the Act deals with compensation for injuries and provides that Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in, as relevant in this case, incapacity for work or impairment.

7. Section 16 of the Act deals with compensation in respect of medical expenses and provides that where an employee suffers an injury, Comcare is liable to pay in respect of that injury the cost of medical treatment.

8. Section 19 of the Act deals with compensation for injury resulting in incapacity and contains specific formulations for the calculations of compensation resulting in incapacity.

9. Section 24 of the Act deals with compensation for injury resulting in permanent impairment and requires for compensation to be paid in respect of that permanent impairment, that the degree of impairment is ten per cent or more as calculated by reference to the "Guide to the Assessment of the Degree of Permanent Impairment" as detailed in section 28 of the Act.

10. Section 27 of the Act deals with compensation for non-economic loss and provides where an employee has injury resulting in permanent impairment and compensation is payable for that injury pursuant to section 24 of the Act, Comcare is liable to pay additional compensation in respect of the injury for any non-economic loss suffered by the employee as a result of the injury or impairment. The section contains the specific formula for assessing non-economic loss.

11. Section 29 of the Act deals with compensation for household services and attendant care services and provides that subject to certain conditions, if as a result of an injury an employee requires or obtains household services which are reasonably required as a result of that work-related injury, then Comcare is liable to pay compensation of such an amount per week as Comcare considers reasonable in the circumstances being not less than 50 per cent of the amount per week pay or payable by the employee and no more than $200.00 per week.

EVIDENCE OF MRS VICKI MARIE HANCOCK

12. Mrs Hancock was born on 2 April 1957, leaving school in Year 10. She trained as a Secretary, working variously in her early career as a Secretary for a Solicitor, working at the Commonwealth Attorney-General's Department, the High Court of Australia and the Trade Practices Commission. Mrs Hancock had a break in her career from 1983 until 1986, caring for her children and recommenced work in 1986 undertaking clerical work for the Australian Electoral Office. In November 1988, Mrs Hancock commenced employment with the Department of Defence as a Clerical Assistant at the RAAF Glenbrook, working initially four hours, five days per week. In 1990, her hours changed to five hours, four days per week. Her duties included data-entry and filing which would take place in a huge compactus, approximately three metres high. There were no steps in the compactus and she had to reach up. Mrs Hancock estimated that she would file approximately 100 sheets at a time.

13. It is not disputed that on 28 March 1995, Mrs Hancock was involved in a motor vehicle accident sustaining injuries to her neck and shoulders while travelling home from work (T3, N2001/685). The incident occurred in the afternoon and by 7.00pm that same evening, Mrs Hancock was experiencing pain across the back of her shoulders, in the neck and she had a severe headache. Mrs Hancock could not recall how she slept but continued to have a headache the next morning. She consulted her General Practitioner, Dr R Dhanji, who certified her unfit until 4 April 1995. Mrs Hancock returned to work on 5 April 1995 for approximately two days but consulted Dr Dhanji because of continuing pain and on 7 April 1995 she was certified unfit for work until 17 April 1995. The pain she experienced was intermittent and occurred again in June 1995. The symptoms she was experiencing during this time included pain down the side of her left arm and the more "keying in" of data she did at work, the worse it became. It got to a point where Mrs Hancock described being unable to lift anything and by the end of 1995, she could not pull on her underwear, cut food or grip utensils because of the pain. Mrs Hancock undertook physiotherapy but it seemed to aggravate her condition, she told the Tribunal. In 1996, the Commonwealth Rehabilitation Service ("CRS") became involved and attempted to ensure her duties were not so repetitive. She was provided with techniques for lessening the stress on her arms. Mrs Hancock's time working on the computer was limited to 30 minutes per day. She was undertaking other repetitive duties, however, such as telephone reception work. Changes to Mrs Hancock's duties did not assist, she stated.

14. In 1996, Mrs Hancock was referred to Dr S R Sundaraj, Pain Consultant, having been referred by Dr Ireland, Orthopaedic Surgeon, on 19 July 1996. Dr Sundaraj referred Mrs Hancock to a psychologist to assist her with relaxation techniques. He also recommended she use a "TENS" machine to assist with the pain management. Mrs Hancock later underwent a cervical epidurogram to her neck in October 1996 and again in Febuary 1997. She stated that this involved an injection into her neck done under anaesthetic. There seemed to be no difference as a result of this procedure or perhaps only some temporary relief. At the end of 1996, she reported that her condition was much the same. She had significant periods of time off work during 1996. Different duties were tried but with no real benefit and by 1998, Mrs Hancock described experiencing many headaches. She was now working in the Secret and Confidential Registry and she had to sort through files, check them and then key in data. Because her head was bent over the files, this caused her many headaches, she explained. Mrs Hancock was taking a combination of medication "Panadeine Forte" and "Panadeine" which caused her some constipation.

15. Mrs Hancock noted that there were other pressures operating during the period, particularly from 1997. At the same time as Mrs Hancock being unwell, her husband was also unwell in that he had a "nervous breakdown".. He was in fact hospitalised on four occasions, including in 1997 and 2000, having retired from the New South Wales Police Service in 1998. In January 1997, Mrs Hancock's mother died. Mrs Hancock's mother had been of assistance to her both in a practical and emotional sense. Mrs Hancock had consulted a psychiatrist, telling him about her problems and her husband and also about her difficulties with her eldest daughter, Jessica. Jessica suffers from Asperger's Syndrome. She is now 17 years old and a large girl, requiring size 20 clothes. She has the mental age of a six year old. As Jessica became older, she became more demanding, requiring assistance getting up, getting dressed, showering and with general care. The death of her mother, care of Jessica, her own health and her husband's health problems were all difficult, but Mrs Hancock just had to deal with them, she told the Tribunal.

16. In 1999, Mrs Hancock underwent another CRS Workplace Assessment. She noted that there was no ergonomic furniture in her work area and she continued to be required to check files and undertake data-entry duties in a situation where it was awkward to reach the keyboard over files she was checking.

17. Mrs Hancock described being unable from 1995, to undertake her main hobby which was to crochet and undertake craft activities and she also ceased helping her daughter's netball team. She found that crocheting aggravated her neck. She has attempted to crochet again but now her right arm is affected by pain as she was increasingly using her right arm to protect her left arm. Mrs Hancock noted that by 1999, her husband was at home having been discharged from the New South Wales Police Service. He was assisting her preparing the meals, peeling the vegetables, washing the tiled floors, hanging out the washing and vacuuming the carpets. Mrs Hancock agreed that she had seen Dr Dhanji on numerous occasions following the work-related motor vehicle accident and in fact it would appear from records that this occurred over 32 times, because she was experiencing pain in her upper limbs and very many headaches.

18. Mrs Hancock ceased work on 11 April 2000 until July 2001. This was because she was experiencing great pain and could only achieve short-term relief with medication. She stated that she was virtually in pain whenever she was at work. She was taking "Tramal" since 1999, prescribed by Dr Sundaraj. She was also taking "Prothiaden" and Panadeine Forte, the Prothiaden having been prescribed to assist her with sleep. There was no other clerical work for her at the Headquarters apart from that provided to her of filing and data-entry. There were not many civilian employees at the time and the duties she performed were all that were available. She stated that by the time that she gave up work for that year from April 2000, she had epicondylitis of the right arm as she was favouring her left arm and using her right arm more.

19. During the period off work between April 2000 and July 2001, Mrs Hancock was looking after her daughter. Her symptoms continued whether or not she was at work. Mrs Hancock returned to work because she had used all her leave entitlements including three quarters of her long service leave. She returned to work in the "CSIO Shopfront".. Here she did not have to undertake the same amount of filing. She would assist with travel documents, filling out forms, distributing pay-slips, photocopying material or providing employees with particular documents they required. She did not have to work on the computer as much initially, but this increased later. When asked to compare the symptoms she had when she returned to work in July 2001, as compared with her condition three months prior to ceasing work in 2000, Mrs Hancock noted that her symptoms were more or less the same. As she learnt the duties required in the Shopfront setting, her symptoms again worsened. She was taking the medication Tramal, 200 milligrams because of the pain and her inability to sleep, or she would take Panadeine Forte. Mrs Hancock's duties continued five days per week, four hours per day. She was also taking Prothiaden, 75 milligrams, and from time to time would take "Celebrex" and continued with her pain-killing medication.

20. Mrs Hancock stated that she consulted a Psychologist, Mr Wynn, on four or five occasions during 2000. Relaxation tapes provided to her did not assist. She does not continue to see Dr Sundaraj but consults Dr Dhanji every ten days.

21. In terms of current other activities, Mrs Hancock drives 25 minutes to work and by the end of this journey, her arms are sore. During the Hearing, Mrs Hancock had to stand up. This was necessary, Mrs Hancock explained, because her neck became painful and aggravated which occurs when she has to sit too long. This then resulted in her experiencing headaches.

22. In relation to Mrs Hancock's current duties, these include sorting and stapling of papers with her head down and she processes between 500 and 1000 payslips which causes neck aggravation and headaches. At home, her arms hurt if she hangs out the washing or washes the floor. She has difficulties turning taps, pulling clothes out of the washing machine and reaching up to wash her hair. She also experiences difficulty doing up her buttons and prefers to wear "T-shirts" because they are easier to put on. She has some difficulty brushing Jessica's hair and unloading the dishwasher. Mrs Hancock demonstrated to the Tribunal certain actions which she stated cause her pain. She noted that she expected that the night after the Tribunal Hearing, she "would have hell" from the pain as a result of demonstrating these actions. Mrs Hancock stated that she shops every day because she is incapable of undertaking a large shop anymore. Pushing the shopping trolley also aggravates her arms.

EVIDENCE OF MR KEITH MALCOLM HANCOCK

23. Mr Hancock is a Client Services Representative for the Australian Taxation Office, having previously been a Police Officer for over 19 years, serving most recently at the New South Wales Police Royal Commission. He retired medically unfit in September 1998.

24. Mr Hancock did not recall his wife having any difficulties with her arms before 1995. Immediately after the 1995 motor vehicle accident, he noted that Mrs Hancock was in pain, observing this by her demeanour and her actual complaints of pain. Mr Hancock believed that the pain she experienced initially was in her neck and shoulders. Over time, Mrs Hancock developed headaches more frequently particularly in 1996 and 1997 and used pain-killing medication. Over the years, the pain has been experienced not only in the upper neck but down her left arm and into her forearm.

25. Mr Hancock believed that his wife has coped well with the trauma she has experienced with his own health problems, the difficulty of caring for their daughter and with the grief as a result of the death of her mother. Mr Hancock described his wife as tending to carry on and cope and did not particularly notice any increase in physical symptoms due to stress.

26. After Mr Hancock left the NSW Police Service, he was at home and undertook more domestic duties. This involved hanging out the washing, as that activity caused his wife pain usually later on in the evening after hanging out the washing. She would also experience headaches. Sweeping floors aggravates her condition and she cannot garden apart from looking after small pots. Mrs Hancock was noted by her husband to have totally ceased crocheting and her other craft activities.

27. Up until the period of taking extended time off work commencing in April 2000, Mr Hancock observed his wife being continually in agony. She would go to bed at about 4pm or 5pm. She had frequent trips to her general practitioner and her medication has increased over the years. Mrs Hancock's condition remained much the same during the period of leave with perhaps some minor improvement.

28. Mr Hancock noted that the physical side of caring for Jessica has increased as she has grown older and bigger. Such activities as doing Jessica's shoes up, trying to get her dressed and bathing her have now been taken over by Mr Hancock as he has stopped his wife from undertaking such activities because of the pain it causes her.

29. Mrs Hancock has increasingly relied on medication to get her through the day over the past two years, Mr Hancock opined. He noted that she cannot sit for long and this means that they cannot go to the movies or drive for any length of time. Driving three hours to Sydney caused his wife to be in agony. Mr Hancock estimated that his wife could not drive for a period of more than 30 minutes.

EVIDENCE OF DR S R SUNDARAJ, PAIN MANAGEMENT CONSULTANT

30. Dr Sundaraj provided evidence to the Tribunal. Mrs Hancock has been Dr Sundaraj's patient for approximately 12 years, although there have been some gaps during this period in his treatment of her. Dr Sundaraj has provided a number of reports concerning Mrs Hancock namely: 30 July 1996 (T19, N2001/685); 31 October 1996 (T29, N2001/685); 18 March 1997 (T38, N2001/685); 11 December 1997 (T42, N2001/685); 4 August 2000 (T51, N2001/685); 16 August 2000 (T53, N2001/685); 24 May 2001 (T4, N2001/1907); and 7 January 2002 (Exhibit A3).

31. Dr Sundaraj noted that he performed two cervical epidurograms in 1996 and 1997. He noted that an epidurogram is an unusual procedure, somewhat inconclusive in its results and indeed can be unreliable. It is sometimes used to ascertain whether or not there is a disc bulge. The epidurogram can provide additional information about a condition but must be used in conjunction with other more orthodox diagnostic and treatment methods such as clinical examination, distribution of pain findings and orthodox radiological testing. Dr Sundaraj stated that the main purpose of an epidurogram is to inject cortisone into a site and to provide pain relief. Part of the process also involves injecting contrast or dye. This could result, as it did with Mrs Hancock, in depicting a "cold zone" or area where the dye does not spread which can indicate epidural scarring. Such scarring could be congenital, it may be the result of an injury or from a motor vehicle jarring injury, causing inflammation of the epidural space. The dye indicates the site where the cortisone and the other agents should be injected. The enzyme contained in the injection breaks down fibrous tissue and scarring. "Kenacort" is the steroidal agent that Dr Sundaraj injected into Mrs Hancock.

32. Dr Sundaraj noted that the following day after the initial procedure, Mrs Hancock reported reduced pain and this indicated to Dr Sundaraj where the focus of pain was. The test does not tell if there is a nerve or muscle problem. The presence in Mrs Hancock's case of a cold zone indicated to Dr Sundaraj that there was marked epidural scarring and fibrosis (T29, N2001/685). Dr Sundaraj could see that epidural scarring may not explain all of Mrs Hancock's problems, opining that the symptoms have become more global. The results from the second epidurogram indicated to Dr Sundaraj that the scarring initially found in 1996 had been reduced.

33. Dr Sundaraj noted that on the day of the second epidurogram, Mrs Hancock's husband was himself admitted to hospital and she was understandably stressed as was recorded in the hospital clinical notes. It was possible, Dr Sundarj opined, that such factors as her husband's health impacted on Mrs Hancock's own health and that she has been anxious and stressed by family problems. He concluded that the combination of these stresses in her life have aggravated her existing pain and thus there is a bio-psychosocial complexity of factors. Dr Sundaraj did not believe that Mrs Hancock had any similar problems prior to the motor vehicle accident in 1995. In relation to her prognosis, Dr Sundaraj opined that once the stress factors recede, he would expect an improvement in the future but could not say what the level of this improvement would be. He believed that her outlook and mood has been better since the end of 1997.

34. Considering the issue of whether or not Mrs Hancock suffers from somatization, Dr Sundaraj opined that Mrs Hancock suffered a soft tissue musculo-ligamentous problem of the shoulder, upper limb, back and neck and that somatization could make her symptoms worse. Dr Sundaraj stated that he is not referring to a DSM-1V (American Psychiatric Association's, "Diagnostic and Statistical Manual of Mental Disorders", Fourth Edition) diagnosis. If the symptoms had lasted more than six months, which they have, then there is a possibility of a psychological component, but if that is the case, it has arisen from the pain which she experienced from the motor vehicle accident in 1995.

35. Dr Sundaraj did not know that Mrs Hancock had experienced another motor vehicle accident on 12 December 2000. He noted that it depended on the site of the impact of the recent motor vehicle accident as to whether or not that would impact on the problems she was experiencing as a result of the 1995 motor vehicle accident.. Dr Sundaraj noted that plain X-rays in 2000 were normal and that in his report of 24 May 2001 (T4, N2001/1907), there was no mention of a recent motor vehicle accident. Dr Sundaraj reported that Mrs Hancock continues to have muscle pain in her upper limbs, neck and back with relapses occurring during periods of stress. Again, he emphasised the interplay of the physical and emotional stresses concerning her daughter, husband, the death of her mother and her own health.

36. Considering the assessment of the degree of impairment, Dr Sundaraj reported that he had assessed five per cent whole person impairment to indicate the minor nature of her problems in her cervical spine and five per cent loss of the effective use of her right upper limb and minor restrictions in the thoraco-lumbar spine.

37. Dr Sundaraj noted that Mrs Hancock may require three or four hours of home service assistance per week for undertaking heavier tasks such as mopping, sweeping, washing heavy loads of washing, hanging out the washing and some aspects of ironing clothes. He reported that she would show some improvement in her health particularly with modification and simplification of methods of undertaking domestic and work duties and this may lead to her being in a position to take on more responsibilities at work.

EVIDENCE OF DR R MELLICK, CONSULTANT NEUROLOGIST

38. Dr Mellick provided a report dated 14 September 2000 (T58, N2001/685). While Dr Mellick had not been aware that Mrs Hancock had a period of up to one month off work after her injury on 28 March 1995, having only thought she only had two days off work, this did not cause him to change his opinion about her condition.

39. Dr Mellick found that Mrs Hancock had a full range of movement on examination of the neck, shoulders and arms and that bone CAT scans undertaken in August 2000 were normal (T55, p127; T56, p128, N2001/685). On examination, Dr Mellick asked Mrs Hancock to perform tasks once or twice and for the purpose of making an assessment about digital dexterity, did not ask her to open lids or the door, for example. Dr Mellick did not inquire if Mrs Hancock had taken pain-killers before the examination but stated that even if she had, it would not have made a material difference to what she could or could not do.

40. Dr Mellick noted that the diagnostic test, the cervical epidurogram, undertaken by Dr Sundaraj was an unusual test and Dr Sundaraj's diagnosis of possible marked epidural scarring with some degree of nerve irritation was by no means, in Dr Mellick's view, expressed confidently by Dr Sundaraj. When the findings from the epidurogram are related to more conventional investigations, Dr Mellick concluded that there was no evidence of spinal pathology. Considering the clinical data, Dr Mellick opined that there was no basis to interpret the history or physical findings as indicative of cervical epidural fibrosis or scarring. Dr Sundaraj's tentative diagnosis does not explain the clinical picture, Dr Mellick stated, and there was accordingly insufficient evidence of epidural scarring. The epidurogram is an unreliable test and this is endorsed by the results of the repeat epidurogram undertaken in February 1997, which gave a different result to the 1996 test.

41. In this regard, in the 1997 epidurogram, Dr Sundaraj had noted that there was a difference between the first and second test and in the reduction in the "cold zone" as found by the first epidurogram. Dr Mellick considered that Dr Sundaraj's reference to a "cold zone" meant that the anti-inflammatory material "Kenacort" with a "Hyalase" spreading agent meant that the material did not spread whereas in the second test it did spread and was shown up. Dr Sundaraj interpreted the second epidurogram test results as indicating that the fibrosis had cleared. The difficulty was, however, that Mrs Hancock had not reported any real benefit from either procedure, Dr Mellick opined.

42. Dr Mellick found no clinical evidence of pathology or organic disorder to explain Mrs Hancock's symptoms. He noted that she had a motor vehicle accident just prior to her being examined by Dr Mellick and that it was possible, though he had no evidence, that she may have had symptoms from that. Dr Mellick also opined that Mrs Hancock has a "psychologically-based disorder" and another accident was at least a psychological stressor, which could add extra stress to the clinical picture (Transcript, 12 November 2002, p12).

43. Dr Mellick did not doubt the presence of Mrs Hancock's symptoms or the accuracy of the history she provided to him. Dr Mellick's opinion is that Mrs Hancock's symptoms are an expression of the process of somatization (Transcript, 12 November 2002, p15). That diagnosis implies that there is a psychological pre-condition which predated the accident. It is the pre-accident psychological state which is, in Dr Mellick's view, primarily responsible for the chronic symptoms which Mrs Hancock's experiences and which are not explicable as a result of physical injury. Dr Mellick would expect, given his view about somatization, that prior to the 1995 accident, Mrs Hancock would have had a history of a constellation of symptoms occurring over a long period to do with many stressors. For example, in 1998, Mrs Hancock complained of chest pain to her General Practitioner, Dr Dhanji. In July 1989, there were symptoms in her right knee. There were a large number of instances in Dr Dhanji's notes of her attending her General Practitioner for treatment until 1995. Dr Mellick opined that the symptoms described in the clinical notes were not related to any physical cause and therefore the pain complained of by Mrs Hancock currently involving the headaches, shoulders and abdomen are not associated with a clear medical diagnosis. This supports the conclusion of somatization which is Dr Mellick's diagnosis. Dr Mellick did not agree he was not making a diagnosis despite that being one of the categories of Somatoform Disorders in DSM-1V, but agreed that such a diagnosis needed to be concluded by someone with psychiatric expertise. It was still valid and reasonable for Dr Mellick to place Mrs Hancock's symptoms in the realm of the psychological, he stated.

44. When questioned about his report in which he noted Mrs Hancock's pre-existing psychological profile, Dr Mellick was not in fact able to identify any specific factors which made up that pre-existing psychological background, nor could he point to the constitutional factors relevant to Mrs Hancock, despite relying on there being constitutional factors to support his diagnosis of somatization. Dr Mellick did agree that given his diagnosis of somatization, there was a reasonable probability that the motor vehicle accident in 1995 amplified and triggered something Mrs Hancock was prone to suffering.

EVIDENCE OF DR I T LORENTZ, CONSULTANT NEUROLOGIST

45. Considering Dr Sundaraj's findings on the two epidurograms, Dr Lorentz opined that the results could be explained in two possible ways. In this regard, the first epidurogram may have been abnormal because, for example, of a technical fault or alternatively, any fibrosis which was present on the first epidurogram was no longer present when the second epidurogram was taken. The second explanation is difficult because if there were adhesions of the severity indicated by the first epidurogram, it would not be expected that the Kenacort and Hyalase injections would have cleared the adhesions. There would also need to be symptoms and signs consistent with the epidurogram findings, which there were not.

46. Dr Lorentz could not, at the time of his examination of Mrs Hancock in July 2001, find any evidence of epicondylitis. Dr Lorentz could find no organic neurological cause or organic neurological diagnosis fitting Mrs Hancock's symptoms.

47. On routine neurological examination, Dr Lorentz found Mrs Hancock to have a full range of movement, which was painless. He considered she did not have a problem with her left arm for self-care, grasping and no loss of finger dexterity. Dr Lorentz did not have Mrs Hancock perform activities such as unscrewing lids of bottles, combing her hair for two or three minutes or turning door handles. He asked Mrs Hancock to remove her upper garments and he observed her moving her neck in all directions with extensive rotation and full range of movement of the shoulders, elbows and wrists.

48. Dr Lorentz accepted that Mrs Hancock had a soft tissue injury as a result of a motor vehicle accident in 1995, but could find no evidence either from examination or from reports of any injury to the nerves, discs or bones of the cervical spine. Dr Lorentz did not expect that the soft tissue injury to the muscles and tendons and extending to the wrists would last for several years. He stated that he had no reason to disbelieve Mrs Hancock's history or reporting of symptoms.

49. Dr Lorentz stated that it was a reasonable proposition that Mrs Hancock's symptom complex might have been a combination of some earlier physical problems superimposed with psychological factors and it was a possibility that the motor vehicle accident in 1995 could have been a major factor precipitating a symptom complex which may, in part, be physical and part psychological. Another explanation could be that Mrs Hancock was consciously or unconsciously working the system in order to get money (Transcript, 12 November 2002, p36). It was difficult for Dr Lorentz to accept the evidence of pain from the motor vehicle extending from 1995 until 2002 when he reported. He accepted a chronological connection between the motor vehicle accident and pain but it was difficult to reach a logical connection or diagnosis based on known physiological facts.

50. Dr Lorentz in his report had recommended that Mrs Hancock would need some help with the laundry and certain household duties for four hours per week. He believed this was required because she was employed 20 hours per week and while being able to undertake her own housework for about one and half hours to two hours per week she would need help for the remainder, to that level of four hours per week. Dr Lorentz reached this conclusion on compassionate grounds, he stated. It was predicated on her having some level of symptomatology making it difficult for her to carry out household duties. It is the aetiology of that symptomatology that Dr Lorentz found difficult to accept.

51. Dr Lorentz assessed Mrs Hancock as having a nil impairment from Table 9.6 of the Guide and a nil impairment of the left upper limb from Table 9.4.

EVIDENCE OF DR B ZICAT, ORTHOPAEDIC SURGEON

52. Dr Zicat provided two reports dated 4 July 2001 (Exhibit A1) and a second report of the same date which provided an assessment (Exhibit A2). Dr Zicat examined Mrs Hancock on 4 July 2001, and opined that as a result of the motor vehicle accident in March 1995, she suffered a classic whiplash type injury and has had ongoing mechanical pain in her neck since then. Dr Zicat noted that Mrs Hancock has developed radicular pain in both arms of an irritative nature, consistent with myofascial irritation of her arms and neck. There has been no significant improvement in her condition in several years despite treatment with multiple modalities and under the direction of a Pain Management Clinic. There is no particular treatment which would be expected to improve Mrs Hancock's condition, but Dr Zicat advised that she should avoid activity, including work, which requires repetitive or prolonged use of her arms in an overhead or in an extended position, any heavy lifting or heavy physical work. Dr Zicat assessed that in relation to Table 9.6 of the Guide for the cervical spine, Mrs Hancock has a ten per cent impairment which represents the loss of half the normal range of movement. In relation to Table 9.4 of the Guide which deals with upper limb function, Dr Zicat assessed a ten per cent whole person impairment due to her left arm injury and a ten per cent whole person impairment from Table 9.4 of the Guide, due to her right arm injury. The combined whole person impairment from Table 14.1 is 27 per cent.

EVIDENCE OF DR L DING, CONSULTANT PSYCHIATRIST

53. Dr Ding provided a report dated 31 December 2002 (Exhibit A9). Dr Ding reported that he was unable to find any evidence of psychological symptoms which developed as a direct consequence of the motor vehicle accident in 1995 or secondary to her pain symptoms. There was no evidence of a psychiatric disorder and she was normal at the time of examination in every aspect of her mental state.

EVIDENCE OF DR R DHANJI, GENERAL PRACTITIONER

54. Dr Dhanji provided a number of reports and medical certificates but most recently a report dated 30 March 2002 (Exhibit A8). Dr Dhanji examined Mrs Hancock the day after her motor vehicle accident on 29 March 1995, her initial complaints were of pain and stiffness in her shoulders and neck in addition to headaches. Dr Dhanji's prognosis of the above injury was of recovery over a period of time but in Mrs Hancock's case, she had protracted periods of complaints with frequent flare-ups and aggravations resulting from her work duties and requirements from her "everyday living" plus her domestic and family roles. She has consequently ended up with ongoing symptoms, Dr Dhanji reported. Dr Dhanji reported that over a period of time, Mrs Hancock has been reviewed and treated using numerous modalities and now has a chronic list of symptoms including pain, localised soft tissue inflammation, restriction of activities, as well as accompanying anxiety and depression. He opined that Mrs Hancock would benefit from ongoing conservative symptomatic treatment plus supportive counselling/cognitive behavioural therapy (CBT).

55. Dr Dhanji assessed Mrs Hancock as having a ten per cent impairment of the cervical spine, a ten per cent impairment of the left upper limb, a five per cent impairment of the right upper limb and a five per cent impairment of the thoraco-lumbar spine. Dr Dhanji noted that Mrs Hancock had returned to some of her pre-injury duties but has experienced frequent flare-ups and also has had bilateral epicondylitis from time to time requiring treatment. He noted that Mrs Hancock's duties have been modified and more ergonomic methods have been employed. Dr Dhanji did not consider that Mrs Hancock would be able to return to her pre-injury duties and she has continued to be symptomatic. She would need to be reassessed from time to time by CRS to ensure that maximum benefits could be obtained for her.

FINDINGS

56. Considering the submissions made by both parties, which the Tribunal has had regard to and taking into account the totality of the evidence before the Tribunal, a determination has been reached applying the legislation and relevant case law.

57. The Tribunal finds that Mrs Hancock provided forthright evidence and considers her to be a witness of truth. Mrs Hancock's evidence was not disputed by the Respondent, or any of the medical experts providing evidence in this matter.

58. The evidence accepted by the Tribunal is that Mrs Hancock had a motor vehicle accident in March 1995. The Respondent accepted liability for injury sustained to Mrs Hancock's neck and shoulders, however, ceasing liability on 31 January 2001. While Dr Mellick has advanced an hypothesis that prior to the accident, Mrs Hancock presented to Dr Dhanji with various symptoms which Dr Mellick opined evidenced somatization, the Tribunal finds that this hypothesis is made without foundation. There is no support for the hypothesis when considering either Mrs Hancock's oral evidence or evidence found within Dr Dhanji's clinical notes and especially in light of Dr Ding's opinion of Mrs Hancock not suffering from any psychiatric condition. While Dr Mellick in his capacity as a Consultant Neurologist expressed a view about Mrs Hancock's psychological functioning, the Tribunal prefers the opinion of Dr Ding whose speciality is psychiatry. Dr Mellick in his evidence agreed that it would be proper for a psychiatrist to provide the final opinion on such matters. Furthermore, when Dr Mellick was questioned about his report which detailed that Mrs Hancock had a pre-existing constitutional predisposition to somatization, he was unable to specify any particular constitutional factor or the precise other factors he took into account in reaching that opinion. Dr Mellick had concluded that the presentation by Mrs Hancock to Dr Dhanji prior to the motor vehicle accident in March 1995 indicated somatization, there is simply no evidence to support this and Dr Dhanji did not provide any support that he considered Mrs Hancock's pre-1995 consultations to be related to non-physical problems.

59. Mrs Hancock suffered a soft tissue injury as a result of the motor vehicle accident in 1995. The medical evidence is that such injuries in usual circumstances would resolve in the short term. Mrs Hancock has, however, pain beyond what would be expected in the circumstances. Her symptoms are not doubted by the medical experts. There is no suggestion of exaggeration, let alone fabrication. Mrs Hancock continues to work part-time and her duties have been modified. These circumstances can be distinguished from those apparent in Re Wood and Comcare [1999] AATA 263 in which Ms Wood was found to be exaggerating her symptoms and that Tribunal could not accept the level of incapacity she reported for her workability.

60. Dr Sundaraj has opined that there is a basis for accepting that the pain Mrs Hancock experiences could continue on from the original injury and be impacted upon by her other experiences and circumstances. Dr Mellick also accepted the possibility that there could be a continuation of symptoms exacerbated by the stresses Mrs Hancock experienced, although that was not his preferred view. Dr Mellick acknowledged that the motor vehicle could amplify and trigger something in Mrs Hancock to result in her continuing to experience neck and shoulder problems in addition to headaches.

61. Dr Lorentz has opined that it was a reasonable proposition that Mrs Hancock's symptoms might have been the result of a combination of the earlier physical problem as a result of the 1995 motor vehicle accident superimposed on psychological factors. Thus it was a possibility that the motor vehicle accident could have been a major factor precipitating the pain which over time has become a symptom complex which is in part physical and in part psychological. Again, this was not his preferred view, but he acknowledged it was a possibility. Certainly there was a chronological connection between the motor vehicle accident and pain but it was difficult for him to reach the logical connection and diagnosis of her condition based on known physiological facts.

62. Whether or not on Dr Sundaraj's opinion, the results of the two epidurograms indicate that there was fibrosis or scarring which reduced as a result of the Kenacort and Hyalase injections, is debatable given all medical experts commenting on this procedure, including Dr Sundaraj, acknowledging the unreliable nature of this test. In any event, Dr Sundaraj was of the view that Mrs Hancock was not suffering from somatization. He did opine that there may be a psychological component but that this component arose from the organic pain and he was not referring to a DSM-IV psychiatric diagnosis. Given that the symptoms had lasted greater than six months, then it was highly likely that factors such as anxiety and stress related to Mrs Hancock's family's health problems and her pain together aggravated the existing pain and that there was thus a bio-psychosocial complexity of factors. Certainly, Dr Sundaraj did not consider that Mrs Hancock had any problems prior to the motor vehicle accident.

63. It is true that Mrs Hancock has experienced stressful events in her life following the motor vehicle accident. Her husband was hospitalised on at least four occasions related to mental health problems. Her eldest daughter is suffering from Asperger's Disease and this requires constant attention and practical assistance. Mrs Hancock's mother, upon whom she depended for both practical and emotional support, died, adding to Mrs Hancock's stress. True it is that these events have impacted upon Mrs Hancock's life and the Tribunal finds that given the evidence, it is more likely than not that this also impacted upon her experience of her pain arising out of the 1995 motor vehicle accident. There is also evidence of exacerbations of the symptoms and extension of the symptoms into both upper limbs, her shoulders and the continuation of headaches as a result of particular work activities. This would result in change of duties, workplace assessments by the CRS and in some instances, a change to ergonomic furniture.

64. There is nothing in the material before the Tribunal to suggest that if Mrs Hancock had not experienced the motor vehicle accident in 1995 and the impact that had on her health as a result of soft tissue injuries, that she would have, in the absence of such events, experienced the symptoms which she now experiences. In other words, up to the motor vehicle accident there is nothing to suggest Mrs Hancock would have had her current physical symptomatology. The Respondent has not, on the balance of probabilities, been able to disturb this inevitable conclusion and in this regard, the Tribunal finds some guidance from Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 144 CLR 164.

65. The Tribunal accepts the Applicant's submission that there is a complex interaction between the effects of the injury as the result of the motor vehicle accident in 1995 and the stressful events in Mrs Hancock's life which have occurred since that time. There is no precise evidence to persuade the Tribunal that the effects of the motor vehicle accident have been overtaken by other events or circumstances. In this regard, the Tribunal notes that Mrs Hancock experienced another motor vehicle accident in 2000 but the evidence from Dr Dhanji does not suggest that the recent motor vehicle accident had any permanent effect or changes and this appears to be Dr Mellick's opinion as well. Certainly the Tribunal considers there is insufficient evidence to support a finding that the motor vehicle accident in 2000 has overtaken the organic effects of the motor vehicle accident in 1995. Mr Dube is correct in his submission that it is difficult to come to a diagnosis of Mrs Hancock's condition. Certainly Dr Ding has not found any psychiatric illness which could form a DSM-IV diagnosis and this would include somatization. Dr Ding does not specifically deal with Mrs Hancock's life circumstances and stresses such as her daughter's and husband's health, and the death of her mother. In the Tribunal's view, the best diagnosis comes from Dr Sundaraj in his report of 24 March 2001 (T4, N2001/1907) of ongoing chronic pain of the shoulders and neck and upper limbs. Dr Zicat (Exhibit A1) opines that Mrs Hancock suffers from ongoing mechanical pain in the neck with radicular pain in both arms combined with myofascial irritation of her arms and neck.

66. The Tribunal finds that Mrs Hancock has suffered an exacerbation of her symptoms which arose out of the motor vehicle accident with injury to her neck, shoulder and upper limbs and there is a complex contribution to those organic consequences by other factors in her life. Thus, the Tribunal finds that the symptoms which occurred as a result of the motor vehicle accident in 1995 causing an organic problem in the form of soft tissue injury with resultant pain has been exacerbated and combined with the interaction of other stresses in her life and her continuing to work. The combination of those factors have led to the continuation of Mrs Hancock's pain.

67. As was opined by Dr Mellick and expressed by many decision-makers in such matters, the understanding and knowledge about pain is a complex area, which is still little understood. The simple facts of this case are that Mrs Hancock's credibility is not in doubt. She had no symptoms of the neck, shoulder or upper limbs prior to the 1995 motor vehicle accident and subsequent to that, she has had a continuation and exacerbation of those symptoms. It is not a case where, in the Tribunal's view, the effects of the motor vehicle accident have been overtaken by some other event. It is not a case where it is easy to disentangle the combined set of the results of the injury in organic problems combined with other factors such as the psychological consequences of the impact of the health of Mrs Hancock's husband and daughter and the death of her mother. Whereas the Respondent considers that such factors, including the motor vehicle accident of 2000, have assumed greater importance than the motor vehicle accident in 1995 whose effects should have ceased within nine months, it is the Tribunal's view that while those other factors must be recognised, they cannot be disentangled from the effects of the original injury and its organic consequences.

68. The Tribunal concludes in relation to matter N2001/685 that Mrs Hancock continues to suffer from neck and upper limbs conditions as provided in section 4 of the Act. There is continuing liability for compensation to be paid to Mrs Hancock pursuant to section 14 of the Act and Mrs Hancock is entitled to reasonable medical costs for treatment including pain management strategies pursuant to section 16 of the Act, and entitlement pursuant to sections 19 and 29 of the Act from 31 January 2001. In relation to section 29 entitlements for household assistance, the Tribunal relies on the opinions expressed by Dr Sundaraj and Dr Dhanji and the assessment of the precise entitlement is remitted to the Respondent.

69. In relation to there being entitlement for permanent impairment and non-economic loss pursuant to sections 24 and 27, the evidence from Dr Sundaraj at Hearing is that there has been some improvement and there is an expectation that there will be further improvement. This opinion, accepted by the Tribunal from the treating doctor, is more recent than the opinions on assessment by Dr Zicat and Dr Dhanji. As noted in the "Principles of Assessment" in the Guide, the condition must be stabilised, it must be concluded that there will be no further improvement or no further treatment required for the condition to be permanent. On this basis, the Tribunal cannot conclude that Mrs Hancock has a permanent impairment as defined in the "Principles of Assessment". In such circumstances, the Tribunal accepts the Respondent's submission that there can be no entitlement for permanent impairment or non-economic loss. In such circumstances, the decision in relation to matter N2001/1907 must be affirmed.

70. In all of the circumstances, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:

(i) In relation to Matter N2001/685, the Tribunal sets aside the decision under review and in substitution therefore decides:

(a) There is aggravation of Mrs Hancock's neck and shoulder injuries continuing beyond 31 January 2001 and pursuant to section 14 of the Act, Mrs Hancock is entitled to compensation.

(b) Mrs Hancock is entitled to compensation under sections 16, 19 and 29 of the Act.

(c) The matter is remitted to the Respondent to calculate Mrs Hancock's entitlements for compensation as a result of this decision.

(ii) In relation to matter N2001/1907, the decision under review is affirmed.

(iii) The Respondent is liable to pay the Applicant's reasonable legal costs as agreed or taxed and in accordance with the Tribunal's Practice Direction in relation to Matter N2001/685.

I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock,

Senior Member and Dr MEC Thorpe, Member

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

Associate

Dates of Hearing 11, 12 November 2002 and 19 May 2003

Date of Decision 20 November 2003

Counsel for the Applicant Mr L Grey

Solicitor for the Applicant Ms J Fraser, Adams & Partners, Lawyers

Counsel for the Respondent Mr B Dube

Solicitor for the Respondent Mr M Poulos, Australian Government Solicitor