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Administrative Appeals Tribunal of Australia |
Last Updated: 11 February 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION ) A2001/421
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Re |
ROBYN ROE |
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And |
COMCARE |
Tribunal |
Mr S Webb, Member |
Decision
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1. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal ("the Tribunal") determines: (a) In relation to the reviewable decision dated 19 September 2001 (A2001/421), to set aside the decision under review and, in substitution therefor, decides: (i) The Applicant suffers an injury pursuant to section 4 of the Safety, Rehabilitation and Compensation Act 1988 in the form of a regional pain syndrome that is attributable to work-caused carpal tunnel syndrome, de Quervain's tenosynovitis and volar ganglion; (ii) The Applicant is entitled to compensation pursuant to section 14 of the Act on 28 August 2001 and thereafter; (iii) The Applicant is entitled to compensation for reasonable medical treatment costs in respect of her work-related injury pursuant to section 16 of the Act on and after 28 August 2001; (iv) The Applicant has been and remains incapacitated for work as a consequence of her work-related injury from 28 August 2001 and is entitled to be paid compensation for incapacity pursuant to section 19 of the Act on and after that date. (b) In relation to the reviewable decision dated 13 July 2001 (A2001/341), to set aside the decision and, in substitution therefor, decides: (i) The Applicant has a 20% whole person impairment of her left upper limb pursuant to Table 9.4 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment ("the Guide") and is entitled to compensation for permanent impairment pursuant to section 24 of the Act and compensation for non-economic loss pursuant to section 27 of the Act. 2. The Respondent is liable to pay the Applicant's reasonable legal costs in these matters as agreed or taxed. |
................(signed)..................
COMPENSATION - injury - liability - carpal tunnel syndrome, de Quervain's tenosynovitis, volar ganglion - regional pain syndrome - whether entitled to compensation for permanent impairment, incapacity and medical treatment costs
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss4, 14, 16, 19, 24
AUTHORITIES
Re Beer and Australian Telecommunications Commission [1997] AAT 5974
Re Wood and Comcare [1999] AATA 263
Commonwealth v Borg (1991) 20 AAR 299n
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Commonwealth v Muratore (1978) 141 CLR 296
Comcare v Nichols [1999] FCA 209
Comcare v Mooi (1996) 42 ALD 495
Semlitch v Federal Broom Co Pty Ltd (1963) 110 CLR 626
Commonwealth v Beattie (1981) 53 FLR 191
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Tippett v Australian Postal Corporation (1988) 27 AAR 40
Whittaker v Comcare (1998) 86 FLR 532
Comcare v Fielder (2001) 115 FCR 328
7 February 2003 |
Mr S Webb, Member |
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1. This matter involves two applications by Mrs Robyn Roe ("the Applicant") for review of decisions made by Comcare ("the Respondent").
A2001/341
2. This application is for review of the reviewable decision of a Comcare Independent Review Officer ("IRO") on 13 July 2001 to affirm Comcare's decision on 27 October 2000 (Exhibit T227 folio 489):
"(1) That the employee's left wrist, hand and arm condition has not resulted in a permanent impairment for the purposes of s.24 of the Act.
(2) That the employee's regional pain syndrome is not an injury for the purposes of s.14 of the Act.
(3) That the employee's regional pain syndrome has not resulted in a permanent impairment for the purposes of s.24 of the Act."
3. In the reasons for the reviewable decision the IRO stated (Exhibit T227 folios 485 to 489):
"Whether the employee's left wrist, hand and arm condition has resulted in a permanent impairment for the purposes of s.24 of the Act.
...
The employee's solicitors have made a claim for a 20% permanent impairment pursuant to Table 9.4 of the Guide. A 20% impairment pursuant to Table 9.4 requires that the employee "can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding". On the medical evidence currently available, there is no evidence of loss of digital dexterity or difficulty grasping and holding. The employee's occupation therapist, Jill Shanahan, reports the employee is able to undertake embroidery and to play tennis and / or badminton twice a week.
There is no evidence before me that the employee's left wrist, hand and arm condition has resulted in a permanent impairment for the purposes of s.24 of the Act. Accordingly my decision is to affirm the Determination dated 27 October 2000 that the employee is not entitled to any compensation under s.24 of the Act.
Whether the employee's regional pain syndrome is an injury for the purposes of s.14 of the Act
...
The medical evidence currently available suggests that, notwithstanding the employee's complaints of pain, no objective evidence can support such a claim either pathologically or clinically. Thus there is no evidence before me that the employee suffered a sudden physiological change to her left limb and accordingly I have assessed her condition under the disease provisions of the Act.
...
To find that the employee's regional pain syndrome is compensable, I must be satisfied on the balance of probabilities that the employee's employment with the Commonwealth has made a material contribution to that condition. In the case of Wood & Comcare [1999] AAT A263 it was held that the existence of fibromyalgia (also known as regional pain syndrome) does not of itself demonstrate that employment has been a substantial contributing factor to the condition, nor that the condition is a consequence of an injury or disease arising out of or in the course of that employment. It was further noted that currently the aetiology of fibromyalgia in medical scientific understanding is unknown.
...
I am not satisfied on the balance of probabilities that the employee's employment with the Commonwealth has made a material contribution to her condition. Accordingly my decision is to affirm the Determination dated 27 October 2000 that the employee's regional pain syndrome is not an injury for the purposes of s.14 of the Act.
Whether the employee's regional pain syndrome has resulted in a permanent impairment for the purposes of s.24 of the Act.
...
The medical evidence indicates the employee has not undertaken all reasonable rehabilitative treatment for the impairment and for these reasons, and those noted above I find the employee's regional pain syndrome has not resulted in a permanent impairment for the purposes of s.24 of the Act. Accordingly my decision is to affirm the Determination dated 27 October 2000."
A2001/421
4. This application is for review of the reviewable decision of an IRO on 19 September 2001 to affirm Comcare's decision on 28 August 2001to cease liability for the Applicant's compensable conditions of (Exhibit T236 folio 503):
"ganglion of the left hand, carpal tunnel syndrome of the left wrist, arm and hand and de Quervain's tenosynovitis of the left wrist, hand and arm."
5. In the reasons for the reviewable decision, the IRO states (Exhibit T236 folios 505 to 506):
"There is general acceptance among the medical practitioners who have examined the employee that she sustained an injury, diagnosed as left ganglion, left carpal tunnel syndrome and left de Quervain's tenosynovitis in the course of her employment in 1995.
The employee's treating doctors agree however that these conditions resolved after surgery was performed. Both Dr Brook and Dr Griffiths [sic] diagnose the employee to be suffering cervical spondylosis, a constitutional problem unrelated to her employment. They also speculate she is suffering regional pain syndrome.
The condition of regional pain syndrome would be considered a "disease" for the purposes of s.4(1) of the Act. For Comcare to be liable to pay compensation for the employee's condition, I must be satisfied that her employment made a material contribution to the development of the condition.
In my view, the available medical evidence is deficient in this regard. Dr Griffiths [sic] does not address the issue of the aetiology of the employee's regional pain syndrome. Dr Brook attributes the condition to the employee's work as a librarian but does not indicate how the employee's employment contributed to the development of the condition, given that the employee has not worked since 1997.
...
In these circumstances, given that her original condition has resolved, I am not satisfied that the employee continues to suffer an "injury" for the purposes of the Act."
BACKGROUND
6. The following information is provided by way of background and is not in contention between the parties.
7. The Applicant was born on 14 November 1945 (Exhibit T4 folio 6) and commenced work with the Australian Capital Territory Library Service ("ACTLS") on a part-time basis at the ASO-1 level on 8 January 1990 (Exhibit R1 p1).
8. The Applicant lodged a claim for compensation in respect of the conditions "carpal tunnel ganglion" which is signed and dated 7 December 1995 and stamped "RECEIVED" ON 19 December 1995 (Exhibit T4). In the claim form the Applicant states that the injury occurred on "2/5/95" and that she first had medical treatment for it on "19/10/95".
9. On 29 January 1996, Comcare denied liability for "carpal tunnel ganglion" (Exhibit T12). The Applicant requested a reconsideration of the decision on 27 March 1996 (Exhibit T18). On 4 April 1999 the decision was affirmed by an IRO (Exhibit T21) and was subsequently set aside in a consent decision of the Administrative Appeals Tribunal on 16 October 1996 (Exhibit T30), whereby Comcare was liable to pay compensation pursuant to sections 16 and 19 of the Act for the work related conditions of:
"Ganglion of the left hand
Carpal Tunnell [sic] Syndrome of the left wrist, arm and hand
de Quervain's Tenovaginitis (also known as tenosynovitis and tendonitis) of the left wrist, hand and arm"
10. On 4 November 1996 the Applicant underwent surgical "left carpal tunnel release and deroofing of her left de Quervain's tenosynovitis" (Exhibit T49 folio 92). The Applicant's solicitor made claim for payment of compensation for permanent impairment (Exhibit T180 folio 365). In a letter dated 27 October 2000, Comcare rejected the claim for permanent impairment (Exhibit T197). The matter was reconsidered pursuant to the Applicant's request for reconsideration (Exhibit T203) and a reviewable decision was made to reaffirm the decision on 13 July 2001 (Exhibit T227). On 17 August 2001 the Applicant lodged an application for review of this decision by the Tribunal (Exhibit T1).
11. In a letter dated 24 July 2001, Comcare gave the Applicant notice that it would cease entitlements to compensation on and from 23 August 2001. On 17 and 26 August 2001 the Applicant requested the matter be reconsidered (Exhibits T232 and T233 respectively). Comcare determined to cease liability in respect of the Applicant's compensation claim for "ganglion left hand, carpal tunnel syndrome left wrist, arm and hand, de quervan's [sic] tenosynovitis of left wrist, hand and arm" (Exhibit T234). Having reconsidered the determination in response to the Applicant's prior requests, an IRO made a reviewable decision to affirm the determination on 13 September 2001 (Exhibit T236). On 9 October 2001 the Applicant lodged an application for review of this decision by the Tribunal (Exhibit 2A).
ISSUES FOR CONSIDERATION
12. The issues before the Tribunal are:
(a) Whether on or after 28 August 2001 the Applicant continued to suffer the effects of the compensable conditions:
(i) ganglion of the left hand;
(ii) carpal tunnel syndrome of the left wrist, hand and arm; and
(iii) de Quervain's tenosynovitis of the left wrist, hand and arm;
for which the Respondent is liable to pay compensation pursuant to section 14 of the Act;
(b) Whether the Applicant's regional pain syndrome is an injury pursuant to section 4 of the Act for which the Respondent is liable to pay compensation pursuant to section 14 of the Act; and
(c) Whether the Applicant is entitled to payment of compensation for permanent impairment pursuant to section 24 of the Act and non-economic loss pursuant to section 27 of the Act.
LEGISLATION
13. The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the Act"), in particular sections 4, 14, 16, 24 and 27, which relevantly provide as follows:
(1) In this Act, unless the contrary intention appears:
...
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
...
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.
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
27 Compensation for non-economic loss
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
[$15,000 x A] + [$15,000 x B]
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee."
EVIDENCE BEFORE THE TRIBUNAL
14. The Tribunal convened a hearing to consider both applications in Canberra on 25 and 26 November 2002. At the hearing the Applicant was represented by Ms Jane Godtschalk of Counsel and the Respondent was represented by Ms Lorraine Walker of Counsel. Mrs Roe gave oral evidence at the hearing, as did Mr Peter Roe, Dr Brook and Dr McGill.
15. The Tribunal had before it the following documents that were taken into evidence:
EXHIBIT DESCRIPTION
T1-T236 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
A1 Applicant's statement of facts and contentions, dated 8 February 2002.
A2 Statement of Mr Peter Roe, dated 19 November 2002.
A3 Statement of Mrs Robyn Roe, undated.
A4 Report by Dr A. Brook, dated 28 October 2002.
A5 Report by Dr A. Brook, dated 22 February 2002.
A6 Report by Dr A. Brook, dated 18 January 2002.
A7 Report by Dr A. Brook, dated 20 March 2001.
A8 Report by Dr A. Brook, dated 29 January 2002.
A9 Unsigned letter by Dr A. Brook to Dr G. Rosendahl, dated 2 April 1998.
A10 Unsigned letter by Dr A. Brook to Dr G. Rosendahl, dated 19 March 1998.
A11 Letter by Ms M. Lad to Dr G. Rosendahl, dated 8 May 1997.
A12 Clinical records of Dr C. Roberts concerning Mrs R. Roe.
R1 Respondent's statement of facts and contentions, dated 7 May 2002.
R2 Report by Dr R Chase, dated 30 April 2002 with Appendices A to C.
R3 Clinical records of Dr Lakshmanan concerning Mrs R. Roe.
R4 Employee Leave History statement concerning the Applicant, dated 6 September 2002.
EVIDENCE OF THE APPLICANT
16. The Tribunal had before it the statement of the Applicant (Exhibit A3), who also gave oral evidence.
17. The Applicant told the Tribunal she commenced work with the ACTLS on 8 January 1990. She stated that she is left-handed and was, at that time, an active person, with interests in bush-walking and sewing clothes, who did all the housework.
18. The Applicant gave evidence that she worked in the Heritage Library and her duties included preparing materials, putting away publications and affixing dust covers. She recalled being given the task of replacing dust covers on "about 5000 books" two days before she was due to be admitted to hospital for a surgical procedure unrelated to her work. She told the Tribunal she approached the task as a challenge and completed it within the available time. The Applicant claimed, however, that her left hand and wrist became sore and a ganglion came up on her left hand. She related informing her supervisor by telephone at the time, before being admitted to hospital for a hysterectomy operation that was not related to her employment.
19. The Applicant told the Tribunal she returned to work six weeks later, working six hours per day, four days per week, recovering books. She recalled this work involved the repetitive use of scissors, sticky tape and bull-dog clips, where, for each book, she would cut plastic sheets to the required size, clip the plastic to the book with bull-dog clips and tape the cover into place before recommencing the process with another book. The repetitive nature of the work, especially the use of stiff bull-dog clips, she related, caused her left arm to hurt, to the extent that she could not move it without pain. The Applicant gave evidence that she complained to her supervisor and was given different work to do as a consequence, whereby she was required to move books from one room to another. She recalled that she had difficulty performing this work because it hurt her left arm and she was concerned about lifting heavy books after her hysterectomy operation. The Applicant told the Tribunal that she experienced pain in her left leg about which she complained to her supervisor and filed an incident report. She stated that she was moved to work in the Home Library Service, where she was required to locate books and deliver them to the Home Library Service. The Applicant agreed that these duties were lighter duties and there was no pressure, but stated that the work required her to use her hands. She reported enduring this work for two months at which point she "gave up, couldn't cope" as the work increased the pain in her left hand and wrist.
20. The Applicant told the Tribunal she had surgery for carpal tunnel syndrome in November 1996. She gave evidence that she continued to experience pain in her left hand and wrist after the surgery and also experienced neck pain, face pain, head aches and twitching in her left eye. She stated that after the surgery her arm was "aching really badly" and she couldn't put rings on her fingers, but the pins and needles sensations had gone. She told the Tribunal she attempted to return to work in December 1997, two days per week four hours per day, but was only able to work the equivalent of one hour each day because of the pain. She gave evidence that her duties included placing posters into poster drawers, one at a time, but this caused her arm to "muck up".. She reported that her left wrist is sore all the time and it hurts to grasp things to pick them up. This, she related, does not prevent her from undertaking activities such as embroidery using a special frame, but limits the amount of time she can spend doing it before the pain becomes too severe.
21. The Applicant told the Tribunal she has not worked since January 1998. She described feelings of disappointment and regret about the loss of her active life, about which she had been depressed and irritable, although she stated she was not currently depressed.
22. The Applicant told the Tribunal that she does not take any medication for pain, as a matter of principle, but uses pain management techniques and paces any activities in accordance with her symptoms. She stated that she is able to use her right hand, for some things, but is very limited in what she can do, being left hand dominant. She gave evidence that previous interests, such as bush-walking in rugged terrain and canoeing are beyond her current capabilities. She related attempting activities such as badminton and tennis, using her right hand, and aquarobics for therapeutic reasons but found these did not in any way assist or alleviate her pain. The Applicant reported riding her three-wheeled bicycle, predominantly using her right hand for steering and braking. She described attending an embroidery group once each week, spending most of the time talking and doing cross-stitch, which she can "do slowly for twenty or thirty minutes before the pain gets too bad". She told the Tribunal she attends a senior's group once each week for social reasons but has difficulty holding playing cards or picking up blocks.
23. The Applicant gave evidence that her current activities are very limited by her current symptoms, which include pain in her left wrist, left shoulder/neck and head, as well as twitching in her left eye. These symptoms, she reported, are made worse by movement and by the cold. She stated that she is unable to complete heavy household chores, such as washing clothes or vacuuming, and tasks in the garden, such as weeding or pruning, but agreed that she was able to do some chores with her right hand for limited periods of time. She stated that she has difficulty sleeping and is restless at night because of her symptoms and sleeps in a separate room from her husband for this reason.
EVIDENCE OF MR PETER ROE
24. The Tribunal had before it the statement of Mr Peter Roe (Exhibit A2), who also gave oral evidence.
25. Mr Roe told the Tribunal that he had been married to the Applicant since 1963. He stated that the Applicant was very active prior to her injury and enjoyed camping, bush walking, canoeing and socialising prior to the injury. They had two children and he described his wife doing most of the housework and all the gardening, except heavy digging and mowing. He recalled the Applicant being a keen seamstress who made her own clothes, for which purpose he had given her an overlocker sewing machine. His wife, he stated, never got to use the sewing machine because of her injury.
26. Mr Roe told the Tribunal his wife came home from work in 1995 complaining of a sore wrist, which had a lump he had never seen before. He recalled she had difficulty turning on taps, opening jars and with personal hygiene prior to having surgery on her injured wrist. He told the Tribunal the operation did not resolve his wife's pain in her left hand, wrist and arm, which is very sensitive to cold. He described his wife wearing gloves and using heat packs to keep her left hand and arm warm even in mild conditions.
27. Mr Roe told the Tribunal his wife is not able to do many of the chores she previously performed including vacuuming, cleaning toilets, mopping floors, peeling vegetables, chopping and cutting for meals, washing up, pouring tea and opening milk containers. He stated that the Applicant is able to do some cross-stitch embroidery for short periods using a frame he built specially for the purpose. The Applicant is able to water the garden with her right hand, but is not able to do any pruning or digging. Mr Roe told the Tribunal he and his wife shop on Saturdays so that he can assist, describing his wife being able to carry no more than two loaves of bread. He informed the Tribunal he and his wife have separate bedrooms as a result of the Applicant being restless and crying with pain at night.
28. Mr Roe opined that his wife had not at any time since becoming injured made a full recovery, describing her having "good days", when she is not in so much pain having not attempted any physical activity, and "bad days", when she has attempted to do something or has done too much. He described her symptoms before surgery were "always in her hand and wrist" but after surgery they were in her hand, wrist, shoulder and neck, noting that she had also complained of pain in her left eye. Mr Roe told the Tribunal he had cut back his hours of work over several months in order to assist his wife during a difficult period.
THE MEDICAL EVIDENCE
DR BROOK
29. The Tribunal had before it reports by Dr Brook, Rheumatologist, (Exhibits T24, T102, T216, A4, A5, A6, A7, A8, A9 and A10) who also gave oral evidence at the hearing.
30. Dr Brook told the Tribunal he was first consulted by the Applicant prior to surgery on her left carpal tunnel and has seen her, subsequently, on a number of occasions since surgery, diagnosing the three precipitative conditions of left carpal tunnel syndrome, left volar ganglion and left de Quervain's tenosynovitis. With regard to the cause of the left carpal tunnel syndrome, Dr Brook opined that the Applicant's left carpal tunnel syndrome was probably caused by persistent and repetitive gripping and holding activities, using scissors and squeezing bull-dog clips when recovering books in 1995.
31. With regard to the cause of the Applicant's left volar ganglion, Dr Brook pointed to the Applicant's repetitive work replacing dust covers and covering books. He opined that such repetitive activities conducted intensively over a short period may have been sufficient to cause herniation of the synovial lining in the left wrist joint, or, in the event of pre-existing herniation, to cause material aggravation of that condition. Dr Brook noted that de Quervain's tenosynovitis is a less common condition affecting the tendons that control the thumb. The condition arises, he informed the Tribunal, from pressure applied through the thumb when gripping, such as when squeezing bull-dog clips. Dr Brook opined that it was unusual to get these three conditions at once and this indicated that the synovium had been irritated in a serious way by the repetitively patterned intensive work activities described by the Applicant.
32. Dr Brook informed the Tribunal there was, in his opinion, little on which to base a diagnosis of fibrous myalgia or reflex sympathetic dystrophy. Dr Brook informed the Tribunal that the Applicant is suffering a regional pain syndrome, where unpleasant pain is experienced in association with dysaesthetic sensations, such as prickling, sensitivity to heat or cold, pins and needles. He noted the Applicant's pain is exacerbated by trivial activity and her left upper limb is sensitive to cold. He reported her experiencing tingling sensations in her left hand and wrist in 1998. Dr Brook told the Tribunal regional pain syndrome is a "descriptive diagnosis of inexplicable pain" which may arise from an injury close to but not of the nerve, of which, he opined, surgery to decompress the carpal tunnel is a reasonable example. He expressed the view that the Applicant's problems with pain in her left shoulder were probably muscular and related to her wrist injury, however the pain she experiences in her neck, face and eye were less likely to be related to the wrist injury.
33. Dr Brook told the Tribunal that the Applicant had difficulties grasping and holding with her left hand but had no wasting in her left arm or wrist. Such wasting, he explained, would not be expected in a person without a neurological lesion affecting the left upper limb where use of that limb is limited only by painful fatigue. Dr Brook reported on 22 February 2002 that the Applicant has a 20 percent whole person impairment applying Table 9.4 in the Comcare Guide, stating (Exhibit A5):
"...the level of impairment is 20% which in the Guide says "can use limb for self care but has no digital dexterity or has difficulties grasping and holding". In this case the problem is that she can use the limb for self care but has difficulties grasping and holding."
34. In his report dated 28 October 2002, Dr Brook is in limited agreement with Dr McGill, stating (Exhibit A4 pp2-3):
"In [Dr McGill's] view the ganglion resolved with which I agree and the carpal tunnel syndrome and de Quervain's tenosynovitis were cured surgically.
Up to this point I do not think there is too much disagreement amongst the various assessing doctors other than the type of emphasis that always occurs between different assessors.
Dr McGill has satisfied himself that the more widespread problems in the left upper limb are subsequent to surgery. In my report I set out my difficulties in coming to a judgement about this. In 1998 she told me that the surgery had not improved her hand and I am therefore inclined to the view that she had a regional pain syndrome before the surgery but it may well be that the problem follows the surgery and, as I said originally, I remain flexible on this point.
He then says there are no abnormalities on physical examination and this is of course characteristic of regional pain syndrome except for tenderness and dysaesthetic sensations.
Dr McGill also makes a diagnosis of cervical spondylosis which is constitutional and entirely unrelated to her former work. I agree with that but it is not clear whether he thinks her arm pain is due to cervical spondylosis. I took the view that it was not and I still take that view.
He makes the point that she can undertake tasks with her left upper limb and I agree that this is the case and indeed Mrs Roe says that she is capable of doing any normal activity with the left upper limb. The problem is that it becomes rapidly painful and then fatigues and pain is the main problem.
As set out in my original report the assessment of Dr Griffith, Dr Craven and Dr Dunlop and myself were in reasonable agreement given the nature of the case. Dr McGill believes that the antecedents to the problem stopped with the surgery and that there is no ongoing problem that can be related to her work. I do not agree with the latter view."
DR MCGILL
35. The Tribunal had before it reports by Dr McGill, Consultant Rheumatologist, (Exhibits R2 and R3), who also gave oral evidence.
36. Dr McGill told the Tribunal he had not found any evidence of any muscle wasting in the Applicant's left upper limb on examination, opining that muscle wasting could occur as a consequence of disuse and not solely as the product of nerve damage. The Applicant, he opined, had not fully cooperated in muscle power tests, which revealed a mild "give way" weakness. Dr McGill did not consider the Applicant had any difficulty with digital dexterity or grasping and holding, and he had not found any change in temperature or colour in her hands, wrists or arms.
37. Dr McGill opined that regional pain syndrome is merely a label that is applied differently by different people to describe pain that has no organic explanation. The question in Dr McGill's mind is whether the pain causes any impairment of function. Turning to the case of the Applicant, Dr McGill noted that if muscle wasting had been found on examination of the left upper limb, this would indicate under utilisation of that limb, however, no such muscle wasting had been found on examination thereby indicating normal functions in the left hand and arm.
38. Dr McGill acknowledged that he had not examined the Applicant prior to her injury and had not taken a detailed history of her activities before and after surgery, stating he did not believe she had reduced levels of activity consequent upon her injury.
39. Dr McGill informed the Tribunal that the Applicant's reports of pain were inconsistent, noting that she described symptoms in the same region but that these were not localised to the same site, and should not, therefore, be considered to be the same pain. He concluded from this that the Applicant's symptoms resolved on surgery and different symptoms emerged subsequently without causal connection. Dr McGill told the Tribunal people report pain for a variety of reasons and he applies a three-stage analysis to claims of regional pain syndrome: firstly, considering what led to the report of the symptoms; secondly, checking to see if something of an organic nature had been overlooked; and thirdly, considering issues of secondary gain. In the Applicant's case, he opined, he had not found any evidence to support the claimed syndrome under the first two categories, leaving the third category as the probable cause. On this reasoning, Dr McGill considered the Applicant to be fit to resume full duties on a full-time basis.
40. Dr McGill told the Tribunal that the only way to be certain about subjective claims of pain is to identify a lesion, impairment of function or disuse, none of which are in evidence in the Applicant's case. He concluded, to the extent that the Applicant suffers inexplicable pain, it is reasonable to apply the "regional pain syndrome" label.
41. Dr McGill reported on 8 November 2002 (exhibit R2 pp3-4):
"I note the report by Dr Brook dated 18 January 2002. In keeping with my findings, he found that there was no objective evidence of carpal tunnel syndrome or deQuervain's tenosynovitis nor any other local inflammatory or structural lesion. He further reported there was no wrist ganglion apparent.
Dr Brook listed a number of diagnoses in his report. With respect to the ganglion he recorded that it was no longer present. I have already mentioned that he found no evidence of residual carpal tunnel syndrome. I have also mentioned that there was no evidence of deQuervain's tenosynovitis. I agree with Dr Brook that she has cervical spondylosis. He also mentioned the presence of Dupuytren's lesion and I agree with Dr Brook that Dupuytren's represents a genetically determined condition and in her case is trivial and not a source of symptoms or disability.
The only area of disagreement between myself and Dr Brook relates to his diagnosis of "regional pain syndrome". At least when used by myself, that label refers to a situation where a person reports pain in an area for which there is no organic explanation. I do not attempt to assess the genuineness of the person's report but it is possible to assess whether there is any evidence of impairment. Dr Brook concluded that she had whole person impairment of 20%. I disagree. I am at a loss to understand how he could think that the function she demonstrates could be described as "can use limb for self care but has no digital dexterity or has difficulties grasping and holding".
DR B. ASHMAN
42. The Tribunal had before it reports by Dr Ashman, Orthopaedic Surgeon, (Exhibits T9 and T15) dated 19 December 1995 and 17 January 1996 respectively. Dr Ashman made the following observation in the latter report:
"It looks as if this lady has three separate problems around her left wrist comprising a carpal tunnel syndrome, a volar ganglion and De Quervains tendonitis. In my opinion none of these conditions are specifically work related but her symptoms appear to be aggravated by her work practices."
DR J. MCKESSAR
43. Dr McKessar examined the Applicant for the Respondent and reported on 22 August 1996 (Exhibit T26):
"If she does nothing "her wrist is good" if she uses it she "gets pain" which she indicates is in the palmar aspect of her wrist and the dorso radial aspect of her wrist really at the base of her thumb...
...She had reasonable power grip, although she complained that this did refer pain to the flexor aspect of her wrist where I could however detect no evidence of frank flexor tenosynovitis.
This patient has EMG evidence of carpal tunnel median compression. Her symptoms have abated significantly since she ceased work in February 1996, the small ganglion has also subsided and her symptoms of de Quervain's tenosynovitis have also largely settled, but she still has some minor signs relating to both these conditions and yes, I would accept that these three conditions have been work associated..."
DR C. ROBERTS
44. Four reports by Dr Roberts were in evidence, dated 3 March 1996 (Exhibit T16), 23 April 1997 (Exhibit T57), 1 July 1997 (Exhibit T64) and 18 October 1997 (Exhibit T81). In the 1996 report, Dr Roberts commented:
"I believe this lady has carpal tunnel syndrome, a ganglion around her wrist and DeQuervain's tenosynovitis. All of her symptoms seem to be related to her work."
In the April 1997 report, Dr Roberts notes:
"It is six months following her left carpal tunnel decompression and release of left DeQuervain's area. Her hand has gradually improved. She still has pain in the hand and has noticed tenderness and pain in the line of the fourth metacarpal. She noticed the wrist aches with use, she is unable to lift heavy objects, particularly restacking books and she has discomfort in her hand in the cold weather. Initially after surgery she had quite marked widespread pain radiating from the whole of her arm down to the hand, however in recent weeks the symptoms have focussed predominantly around her hand and wrist."
In the July 1997 report, Dr Roberts notes:
"Despite what appears to be a success of the surgery she still has pain in the hand with pain around the dorsal aspect of the hand over the MCP joints and pain in her hand and fingers in the cold weather...
I am unsure of the exact nature of her pain. It may be a tendonitis type of picture but I am confident at this stage that no form of surgery would be of benefit."
In the October 1997 report, Dr Roberts states:
"She does have some mild pain in her hand which is activity related but there are no real clinical features that would fit with reflex sympathetic dystrophy. Her hand function is not classical of a patient with reflex sympathetic dystrophy....
I have no doubt that Mrs Roe's initial pathology, that of carpal tunnel syndrome, tenosynovitis of the 1st dorsal compartment and a ganglion, were related to work. She still has some mild symptoms related to the operation which was required to treat this work related condition."
DR G. ROSENDAHL
45. Numerous correspondence and opinions by Dr Rosendahl are in evidence before the Tribunal. The Tribunal accepts the Applicant's evidence that Dr Rosendahl assisted her with her left arm conditions, especially in her dealings with Comcare, and finds, however, that Dr Rosedahl assumed the role of advocate as well as treating doctor in his dealings with the Applicant. The Tribunal finds, therefore, Dr Rosendahl's opinions are advocatory and, for present purposes, commanding of less weight than expert opinions of a more balanced character.
46. On 16 December 1996, Dr Rosendahl commented (Exhibit T36):
"Ms Robyn Roe has come to see me, now six weeks post operation. She still has major weakness of her LEFT hand with persisting disability in control of fine movement, persisting thenar muscle wasting, and tenderness and pain in the operative site."
On 17 June 1997, Dr Rosendahl observed (Exhibit T62):
"At this time Ms Robyn Roe's clinical condition remains static with significant pain and disability."
On 11 December 1997, Dr Rosendahl wrote (Exhibit T87):
"...she was asked to sort posters, which required her to open and close large `architectural style' drawers, grasp large sheets of card and paper, place them on a table so that they could be seen and repositioned in the file archive.
Ms Roe described this work as substantially stirring up her pain, and although it would appear this work is relatively trivial, it does require the use of a pincer grip with both hands to grasp and move the posters, and also to open and close the drawers. Ms Roe's problem essentially is the increase in pain in her LEFT hand and arm.
...
Ms Roe has absolutely no complaint with her work associates or supervisor, they are very accepting of her disability and very solicitous to her welfare. Furthermore, she does enjoy her interaction with work mates, and as you yourself state is prepared to accept a significant increase in her pain levels so she can do something of worth and have a reason to enjoy the social interaction of the workplace."
On 5 January 1998, Dr Rosendahl referred the Applicant to Dr Higgins, noting (Exhibit T90):
"Robyn has returned to tell me that for the duration of her trial in the workplace in December 1997 her arm pain was increasing, and increased to the point where she suffered major disturbance to her sleeping pattern. During the Christmas break her sleeping pattern and pain levels have returned to the circumstance prior to the attempted return to work."
MR M. LAD
47. Mr Lad, treating Physiotherapist, reported on 20 January 1997 (Exhibit T41):
"On examination on 31st December 1996, there was restricted movement in the wrist flexion/extension due to tight wrist flexors and extensors. Robyn complained of constant aching in the left hand.
After four treatments over two weeks Robyn's hand pain was 50% improved; movements of the wrist were normal...
Last week Robyn tried doing some needlework and the next day had pain and spasm in the neck."
Mr Lad reported on 6 March 1997 (Exhibit T44):
"Active movements have returned to normal in the wrist & hand, there is no tightness in the soft tissue structures & strength in the hand is improving.
Robyn complains of increase in pain with
- drop in temperature
- cutting, chopping activities
- flicking pages of a book."
DR R. WHITTAKER
48. Dr Whittaker, Consultant Rheumatologist, whose report dated 14 March 1997 (Exhibit T49) was in evidence before the Tribunal, reported:
"Ms Roe's current symptoms include aching of all of her fingers on both the dorsal and the volar aspect and particularly the fourth left finger. There is some vague tingling but this is not necessarily confined to the fingertips and does not appear to be a major symptom.
There is no specific joint tenderness or swelling of which Ms Roe is aware and although the wrist appears to ache over the dorsal aspect, there is again no swelling. Her left radial wrist symptoms appear to be better, although the scar is still a little tender.
...
I believe that Ms Roe's ongoing symptoms are certainly organic, not functional, and require further investigation. Similarly, I believe these ongoing symptoms are a manifestation of her work related condition, as well as possible post-operative complications."
DR W. GLASER
49. Dr Glaser, Consultant Psychiatrist, reported on 8 April 1997 (Exhibit T56):
"Her left hand continues to "ache".. She has to wear a glove over it, even in summer, or else she might tuck it into her jacket.
...
On specific questioning, she confirmed that she experiences changes in sensation over the left hand, particularly a feeling of "pins and needles" over the index finger, thumb and ring finger which occurs in the mornings...
From a psychiatric point of view, there is currently little to find on interview. She appears to have experienced a degree of psychological distress following the discovery of her deafness. This was aggravated by the prevalence of a number of physical problems affecting her left upper limb which she attributes to the necessity for her to perform some fast repetitive work when covering and shelving books. It is particularly noted that, according to her, the work which produced these symptoms ultimately turned out to be pointless; after removing the dust covers from some 5,000 books, she then had to recover them all again."
DR R. SCOTT
50. Dr Scott, Occupational Physician, reported on 28 April 1997 (Exhibit T58):
"She said her left hand aches constantly.
In the mornings she experiences paraesthesia in her left hand, especially in her fingers.
Her aches are mainly in her thumb and fourth digit of her left hand. Flexion of her fingers causes an increase in her symptoms.
...
I do not doubt that her carpal tunnel syndrome and de Quervain's tenosynovitis are work-related.
In my opinion she is...in need of a carefully managed and/or supervised GRTW."
MS L. CASTLES
51. Ms Castles, Occupational Therapist, reported on 22 January 1998 (Exhibit T93 folio 188):
"Symptoms during the return to work were described as:
* Sleep disturbance due to pain
* Exhaustion
* Pain over the neck, shoulders and arms
* Increase in pain intensity at work, with no significant reduction in pain intensity in her days off work
* Relationship strain as husband was required to perform all the household needs when Mrs Roe returned to work
* Reduction in grip strength
* Incoordination of finger movements
* Need to totally focus on work, to the exclusion of all else."
DR R. CRAVEN
52. Dr Craven, Consultant Neurologist, assessed the Applicant and reported on 9 February 1998 (Exhibit T96):
"Her present condition is regional pain syndrome, developing consequentially to the earlier symptoms which were relieved by surgery. As far as I could determine from the history given, it is not that the symptoms leading to the surgery stopped immediately and some time later pain in her left arm developed, but it is that as the former slowly declined, the latter increased."
Dr Craven reassessed the Applicant and reported on 8 August 1998 (Exhibit T108 folios 222-223):
"There has been little change in Ms Roe's symptoms since she was last assessed six months ago...
Ms Roe's condition of regional pain syndrome is traceable to the results of the work she performed leading to the injury in October 1995.
...
I consider that Ms Roe is still suffering the effects of the injury on 19 October 1995 and I do not consider this effect could be held as temporary at this stage.
...
I am no less pessimistic in my prognosis now than I was at my earlier examination, and is should be accepted there is a strong likelihood of permanent disability and consequent inability to return to work."
DR M. DUNLOP
53. Dr Dunlop, ACT Rehabilitation, assessed the Applicant and reported on 5 November 1998 (Exhibit T120):
"Mrs Roe reports constant left upper limb, shoulder girdle and neck pain. She has some increased sensitivity to touch primarily affecting both the dorsal and volar aspects of the wrist. She has difficulty with any form of forceful grasp or repeated gripping with her left hand. The pain is aggravated by shoulder abduction and internal rotation.
Increased activity results in a predictable and consistent increase in pain in the neck shoulder girdle and distal left arm."
DR R. FELTHAM
54. Dr Feltham, Senior Medical Adviser Health Services Australia, examined the Applicant and reported on 6 April 1999 (Exhibit T130, folio 259):
"The current consensus of agreement with regard to diagnosis is regional pain syndrome affecting the (L) upper limb, shoulder and neck, the precise aetiology of which is uncertain. However the effects of it are clear for anyone to see. Whether or not there is a degree of overlay in the description of symptoms is difficult to assess, would involve a large amount of just pure speculation and does not alter the final outcome, namely a 53 year old woman who suffers considerable functional limitation of the use of her dominant upper limb...
I see no realistic prospect of any return to work and so I would recommend retirement on the grounds of total and permanent incapacity."
DR J. BURVILL
55. Dr Burvill, Consultant Psychiatrist, assessed the Applicant and reported on 24 June 1999 (Exhibit T144):
"I do not consider she suffers from any work-related pyschiatric injury.
...
Her prognosis is for continuing state of disability until her arm symptoms settle, but she is obviously very heavily engaged in her enjoyment of outdoor activities and I consider that she will eventually extend these as her arm allows."
DR G. GRIFFITH
56. Dr Griffith, Consultant Surgeon, examined the Applicant and reported on 7 June 2000 (Exhibit T180):
"In my opinion, your client undoubtedly suffered from:
1. Ganglion of the volar aspect of the left wrist, associated with flexor carpi radialis tendon (resolved).
2. Left carpal tunnel syndrome (median nerve compression) - resolved post operatively.
3. Left de Quervain's tenosynovitis, left wrist, resolved post-operatively.
Sequelae:
1. Significant depressive reactive depression and anxiety - largely resolved at this time.
2. Persistent pain in the left wrist.
3. Synovitis left wrist.
4. ?Regional pain syndrome.
...
On the balance of probabilities as opposed to possibilities, it is my opinion that the terms and conditions of her employment, and in particular the repeated manipulative activities of covering books and removing and replacing 5000 dust covers in a short space of time contributed to the contraction of carpal tunnel syndrome, and to her de Quervain's tenosynovitis. It may also have been responsible for the ganglion...
...
Her current symptoms attract a level of impairment of 20% in my opinion, based on the history and clinical findings.
...
In regard to the regional pain syndrome, this is a diagnosis of otherwise inexplicable pain and is purely descriptive.
...
The prognosis is excellent in regard to the three conditions from which she suffered, ie the ganglion, the carpal tunnel syndrome and the de Quervain's disease. Dr Roberts has dealt with them definitively. They are not the cause of her pain. It is the pain syndrome from which she suffers and which needs to be addressed. It is not possible to state with certainty the outcome, except to say that I am of the opinion that more can be done than has been done, and that with explanation, positive attitude (which she does seem to possess) and more effective manipulation of her pharmacological environment with regard to pain management and perception of pain she should improve considerably."
DR W. MICKLEBURGH
57. Dr Mickleburgh, Consultant Psychiatrist, assessed the Applicant and reported on 22 December 2000 (Exhibit T208 folio 438):
"At the time of my examination the major depression had resolved and she appeared to have achieved a good stable remission back to normal mood.
...
The symptom pattern appears to be consistent with the stated cause and there is no evidence of other related problems, nor of any conscious exaggeration (malingering) or unconscious exaggeration (conversion reaction).
There is no evidence of deviation into a chronic sick role.
...
In my opinion the continuing pain and suffering in her left hand, wrist and shoulder cause the somatic and the associated mood disorders.
The physical and emotional symptoms were related to the task of continuously fitting book covers at work."
CONSIDERATION OF THE ISSUES, SUBMISSIONS AND FINDINGS
CREDIT
58. Ms Walker, for the Respondent, attacked the credibility of the Applicant's evidence, contending she was prone to exaggeration and inconsistency in her evidence. Ms Walker submitted the Applicant's claim that replacing dust covers on 5,000 books over a two day period had contributed to her injury was exaggerated, noting this would require a person to replace dust covers at the rate of one every 8.6 seconds for the entire period. The Applicant noted, however, and the Tribunal accepts that she did not count the number of books she covered in the two-day period, the amount being large, but was told there were 5,000 books.
59. Ms Walker submitted the Applicant's evidence concerning her experiencing "groin pain" as a consequence of moving books in November 1995, was inconsistent with the incident report filed by the Applicant at the time (Exhibit R4). Ms Walker noted the incident report did not include any reference to "groin pain". The Applicant's evidence, however, was that she recalled experiencing muscular pain in her left leg and groin, that could possibly have been in the whole of her left body. The Tribunal accepts that the Applicant did not clearly recall the particularity of symptoms that led her to lodge an incident report at the time and that she placed little importance on it, stating that she did not tell her treating doctors because she did not think it had anything to do with her left arm conditions, for which she was, at that time, scheduled for surgery. The Tribunal finds the claimed inconsistency inconsequential and innocent of intent to deceive.
60. Ms Walker submitted that the Applicant's evidence she did not play Prime Ball contradicts the evidence given on this point by her husband. Mr Roe gave evidence that the Applicant did attend Prime Ball "for the exercise", but was not sure for how long she attended. Ms Godtschalk, for the Applicant, submitted the Applicant had become confused giving evidence about her various activities at that time. The Tribunal accepts this submission, noting the Applicant gave evidence regarding her efforts to play badminton and tennis, about which, in relation to the latter, Mr Roe admitted he was unaware.
61. Ms Walker relied on Dr McGill's evidence contending that the Applicant was not being entirely truthful about her abilities or her symptoms. The Tribunal finds that these contentions are not supported by the preponderance of the evidence. Dr McGill found no evidence of muscle wasting in the left upper limb and reported the Applicant had not fully cooperated in the examination, especially when performing strength tests. Dr Griffith, however, found the Applicant's left arm was smaller in diameter than her right arm and noted a reduction in grip strength in her left arm, the latter finding was also noted by Dr Craven.
62. On balance, the Tribunal finds the Applicant to be a straight-forward witness of truth who gave evidence openly and without embellishment or intent to deceive.
INJURY
63. It is not in contention and the Tribunal finds that the Applicant developed a volar ganglion of the left wrist, carpal tunnel syndrome of the left wrist and de Quervain's tenosynovitis of the left wrist ("the compensable conditions") in 1995 following repetitively patterned intensive work activities. The compensable conditions constitute an injury pursuant to section 4 of the Act.
64. The question before the Tribunal is whether the Applicant continued to suffer the effects of the compensable conditions on or after 28 August 2001. The medical evidence indicates the volar ganglion on the Applicant's left wrist resolved without treatment prior to surgery in 1996 and has not re-emerged, and the Tribunal so finds.
65. There is a high degree of concurrence between the medical opinions in evidence that the primary features of carpal tunnel syndrome and de Quervain's tenosynovitis resolved with surgery in November 1996 (Dr Brook, Dr McGill, Dr Roberts, Dr Craven, Dr Griffith), and the Tribunal so finds.
66. The Applicant, however, complained of continuing diffuse pain in the left upper limb and neck, with sporadic pain in her face, which persists to the present day. The Tribunal accepts the Applicant continued to experience dispersed pain in her left upper limb after surgery. Ms Walker noted there is no objective measure for the experience of pain and it is necessary, in the case at hand therefore, to accept the Applicant's claims concerning her pain symptoms. While this may, in part, be true, the Tribunal notes the Applicant's subjective claims are corroborated in contemporaneous medical reports in evidence and by her husband. Dr Roberts, for example, operated on the Applicant's left wrist and, thereafter, noted the continuation of pain "radiating from her whole arm down to her hand" that he could not explain.
67. A Dupuytren's lesion emerged in the Applicant's left hand following surgery. There is, however, broad agreement between the medical experts, for example at Exhibit R2 page 4, that the Dupuytren's lesion is a genetically determined condition that is not a cause of the Applicant's pain or any incapacity, and the Tribunal so finds.
68. The aetiology of the pain is in issue, especially whether the pain is attributable to the compensable conditions or the surgical treatment of those conditions, or whether the Applicant's employment materially contributed to the pain. On this point medical opinions differ. There is, however, broad agreement that the terms "regional pain syndrome" and "chronic pain syndrome" are descriptors for the Applicant's otherwise inexplicable pain symptoms. The Tribunal accepts, therefore, that the Applicant has a regional pain syndrome in her left upper limb.
69. The medical evidence reveals that the Applicant exhibits symptoms of constitutional and degenerative cervical spondylosis, and the Tribunal so finds. Dr Griffith suggests (Exhibit T180 folio 373):
"One could explain the presence of focal myalgia in the left sided cervical and trapezius and shoulder girdle musculature on the basis of a reaction to aggravation of her spondylosis. This could have been precipitated by the nature of her work also, with repeated use of the dominant left arm, the head in a flexed position, plus the necessity to carry heavy boxes of books and to repeatedly access and shelve them. Once triggered, such myalgia is often long lasting..."
The Tribunal is not persuaded Dr Griffith's explanation is other than a discussion of the possibility that the Applicant's employment may have aggravated her cervical spondylosis causing a focal myalgia. This opinion is, however, not supported by other medical opinions in evidence and does not provide medical explanation of the Applicant's other persistent pain symptoms in her left upper limb. Dr Brook opined that regional pain syndrome may arise from any injury close to the nerve where the nerve itself is not injured, such as in carpal tunnel syndrome surgery. Dr McGill did not attack this proposition, but noted regional pain syndrome is merely a descriptive label used in cases of pain symptomatology without organic explanation.
70. The question remains whether the Applicant's symptoms of pain and regional pain syndrome are sequelae of the compensable conditions or were otherwise contributed to by her employment. Ms Godtschalk submitted the preponderant weight of medical opinion on this point is that a regional pain syndrome arose either before or soon after the Applicant's surgery in 1996 and was consequent upon her compensable conditions. Ms Walker urged the Tribunal to accept Dr McGill's contrary opinion, contending that that the Applicant's compensable conditions resolved with surgery, whereupon the effects of those conditions ceased and subsequently, de novo and without organic explanation, new symptoms emerged that were unrelated to the compensable conditions. This, however, is not consistent with the evidence of Dr Roberts, who performed the carpal tunnel surgery on the Applicant's left wrist and reported, at the time, unexplained symptoms of pain continuing after surgery.
71. Dr Brook reports that the Applicant described pain in her left arm prior to and after surgical treatment for carpal tunnel syndrome and de Quervain's tenosynovitis (Exhibit A4). This opinion is consistent with medical opinions expressed soon after the Applicant's surgery for her compensable conditions in November 1996. Dr Whittaker reported the Applicant's symptoms of pain in March 1997 were a manifestation of her work-related conditions, as well as possible post-operative complications, and warranted further investigation (Exhibit T49). Dr Roberts reported in April, July and October 1997 the Applicant continued to experience pain in the whole of her left arm and hand after surgery (Exhibits T57, T64 and T81), opining that the pain was not amenable to a surgical remedy. Dr Craven diagnosed regional pain syndrome in February and August 1998, opining that as the symptoms of the compensable conditions declined, the symptoms of the regional pain syndrome increased (Exhibits T96 and T108). Dr Dunlop reported pain in the left upper limb, shoulder girdle and neck with some sensitivity to touch and difficulties with forceful grasping or gripping with the left hand in November 1998 (Exhibit T120). Dr Glaser, Dr Scott and Dr Brook report symptoms of paraesthesia (Exhibits T56, T58 and A4) in the left upper limb during the period 1997 to 2002.
72. The Tribunal accepts that the primary symptoms of the compensable conditions were surgically resolved, but finds the Applicant continued to experience pain in her left hand and wrist after surgery. There is, however, insufficient evidence to determine whether or not the Applicant had a regional pain syndrome, prior to surgery in November 1996. It is clear, however, that the Applicant exhibited pain symptomatology that was attributed to the compensable conditions prior to surgery and that her experience of pain in her left wrist and hand continued after surgery and became diffuse thereafter without explanation. Weighing the medical evidence, the Tribunal prefers the contemporaneous opinions of Dr Roberts and Dr Brook and finds, on the balance of probabilities, as the symptoms of the compensable conditions diminished, the symptoms of regional pain syndrome increased.
73. Relying on Re Beer and Australian Telecommunications Commission [1997] AAT 5974 and Re Wood and Comcare [1999] AATA 263, Ms Walker submitted the Applicant's pain symptoms are inexplicable and without known organic cause, whereby it is not possible for the Tribunal to find that the pain is caused, in whole or in part, by the Applicant's employment. The Tribunal is unable, on the evidence before it, to determine with certainty the precise scientific explanation of the pain experienced by the Applicant described as a regional pain syndrome. That is a matter of some debate and divergence of views among the medical profession, which has been ventilated in previous cases over a long period of time. There can be little doubt, however, the Applicant's symptoms are real and that she has suffered continuing symptoms of pain and dysaesthesia following surgical relief of the compensable conditions in November 1996. Her claims are supported by medical reports in evidence over an extended period from 1996 to the present.
74. The evidence does not support a finding that the Applicant is malingering, or that her claims concerning her symptoms and abilities are either false or grossly exaggerated, whereby the present case is distinguished from Re Wood (supra). The Applicant's subjective claims are supported by medical reports over time, whereby the present case and does not fall with the category of unproven cases referred to at paragraph 54 in the case of Re Beer (supra):
"Next, there may be cases where, despite unsatisfactory or even contradictory medical evidence presented in support of the employer's case, the medical evidence called for the employee is not strong enough to take the employee's complaints of pain to a point beyond the mere assertions of the employee. Such assertions may not be enough. The claim may fail on that account as an unproven case."
75. Both parties made submissions concerning the onus of persuasion. Jenkinson J observed in Commonwealth v Borg (1991) 20 AAR 299n at pp306-307:
"To assert that the effects of a personal injury have ceased is necessarily to assert that the injury does not at the time the assertion is made contribute to any incapacity for work then existing, and so does not result in the incapacity.
...
I think that the Act required on its proper construction that the delegate should not make the determination he did make unless he was persuaded that one of the entitling circumstances had on or before 28 July 1988 ceased to exist."
In the matter of Re Quinn and Australian Postal Corporation (1992) 15 AAR 519, that Tribunal observed at p525:
"In our view, as it is clear from the statutory intention that the respondent can only reconsider a determination when there has been a change in circumstances, it seems justifiable to expect the respondent to be able to produce material in these proceedings supporting its assertion that the applicant is no longer entitled to compensation. There is no strict burden of proof as such but there must be additional evidence to indicate that there has been such a change in circumstances."
In The Commonwealth v Muratore (1978) 141 CLR 296 the High Court held that where a worker applies for judicial review of an adverse variation on a previous compensation decision, the Commissioner bears the onus of persuasion, demonstrating the facts and circumstances which justify the variation.
76. In the case at hand, the Respondent determined to cancel the Applicant's weekly payment of compensation for incapacity and medical treatment costs, ceasing liability for the Applicant's injury. Applying Muratore (supra) it is the Respondent, therefore, that bears the onus of proving the facts and circumstances justifying the determination. Ms Walker contended the change in circumstances justifying the Respondent's determination to cease liability was the surgical resolution of the compensable conditions in November 1996.
77. The Tribunal notes the determination to cease liability was made on 28 August 2001, almost five years after Dr Roberts surgically relieved the compensable conditions. The Tribunal has found as a fact that the Applicant continued to suffer pain and dysaesthetic symptoms in her upper left limb following the operation in 1996 and that the symptoms persist to the present day.
78. While there is doubt concerning the precise scientific explanation of the Applicant's pain, the Respondent has not persuaded the Tribunal that the Applicant's on-going symptoms of pain, and regional pain syndrome, were not caused by the compensable conditions or the surgical treatment of those conditions as it sought to do. The evidence before the Tribunal does not point to a finding, on the balance of probabilities, that the Applicant's pain is not caused, in whole or in part, by her compensable conditions and, therefore, her employment. The onus being on the Respondent so to prove, and having failed to do so, the Applicant must succeed on this point. On this subject, Heerey J said in Comcare v Nichols, [1999] FCA 209 at par 18:
"If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing.. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled."
79. The Tribunal notes, however, in the present case and on the basis of the evidence before it, the only question of fact that cannot be determined either way on the balance of probabilities is the precise scientific explanation of the the Applicant's pain. The Tribunal is mindful that the ability to apply a medical label to a condition is not determinative of a worker's entitlement to compensation if that condition places the worker outside the normal range of function or behaviour as is clearly the case for the Applicant; Comcare v Mooi (1996) 42 ALD 495. Considering the "salt in an open wound" dictum of Moffitt J (as he was) in Semlitch v Federal Broom Co. Pty. Ltd (1963) 110 CLR 626 and the Full Federal Court's consideration of questions relating to incapacitating pain in Commonwealth v Beattie (1981) 53 FLR 191, albeit in a different context, it is clear that pain, doing no pathological harm but causing incapacity, may constitute an injury under the Act. The contribution of employment to the creation or aggravation of the claimed condition must not, however, be left open as a possibility, but must be determined on the probabilities; Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.
80. On the evidence, the Tribunal makes the following findings on the balance of probabilities:
(a) the Applicant suffered an injury within the meaning of the Act during the course of her employment in May 1995 which either caused or aggravated the compensable conditions and gave rise to symptoms, inter alia, of severe pain in the left upper limb;
(b) her return to work on modified duties covering books six weeks later aggravated her compensable conditions and pain symptomatology;
(c) the organic features of the compensable conditions resolved with surgery in November 1996 but the Applicant continued to experience disabling dispersed pain and dysaesthetic heat sensitivity in her left upper limb, described as a regional pain syndrome;
(d) the pain caused the onset of a depressive disorder thereafter that has subsequently resolved.
81. The precise science of causation of the Applicant's regional pain syndrome is not in evidence, and medical minds may differ when considering this question. The Tribunal has found the evidence called for the Respondent, concerning changed circumstances and the alleged cessation of effects of the Applicant's injury, is not sufficient to justify the Respondent's determination to cancel the Applicant's compensation entitlements. The Tribunal is persuaded, however, by Dr Brook's assessment and the conclusions of Dr Griffith, Dr Craven, Dr Whittaker and Dr Dunlop that the Applicant's regional pain syndrome is causally related to the compensable conditions and the Applicant's work-related injury and so finds, on the balance of probabilities.
82. The Tribunal finds, therefore, on the balance of probabilities, that the Applicant's pain syndrome, being an ongoing effect of her work injury, is an injury as defined at section 4 of the Act for which the Respondent is liable to pay compensation pursuant to section 14 of the Act. In so finding, the Tribunal notes Tippett v Australian Postal Corporation (1988) 27 AAR 40 in which Finklestein J observed:
"What Beattie [Commonwealth v Beattie (supra)] also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which compensation is payable. This proposition was confirmed by the Full Court in Commonwealth Banking Corp. v Percival (1988) 20 FCR 176; 9 AAR 206 where it was said that while for many medical purposes it may be necessary to draw a distionction between the underlying injury and the symptoms of it that is not so for compensation law where it is fundamental that the symptom of an injury is a part of that injury.
Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee's employment then the employee will have suffered a compensable injury: Commonwealth Banking Corp. v Percival at 179-180;209-210. The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the cause of an employee's employment: Canberra Abattoir Pty. Ltd. v Asioty (unreported Fed Ct, FC, 26 April 1988) a proposition which was not disturbed on appeal at Asioty v Canberra Abattoir Pty. Ltd. (1989) 167 CLR 533."
INCAPACITY
83. Ms Walker urged the Tribunal to accept Dr McGill's opinion that the Applicant is fully fit to resume her previous duties without modification, suffering no incapacity for work as a consequence of any compensable condition. The Tribunal does not accept this submission, finding the weight of medical evidence reveals the Applicant's pain causes some functional loss and fatigue. The Tribunal accepts that the Applicant can perform most tasks and movements for short periods, enduring some pain within a reasonable threshold of tolerance. Dr Brook reports, however, the result of such activity is an increase in pain and fatigue thereafter, whereby the Applicant seeks to avoid activities previously within her ability. The Tribunal accepts the Applicant's evidence that her reluctance to return to work was founded on her fear that work duties may aggravate her pain and related fatigue. Ms Walker's contention that the Applicant avoided returning to work because of previous conflict at work and lifestyle reasons is neither well supported nor persuasive on the evidence before the Tribunal. The fact is the Applicant did attempt to return to work but was not able to perform the light duties she was assigned without causing an aggravation of her pain symptoms.
84. The Tribunal accepts that, prior to the injury, the Applicant did not experience any difficulty using her left hand and arm, being left hand dominant, in performance of household, recreational and employment activities without restriction. Thereafter, however, the Tribunal finds the Applicant returned to work for a short period performing duties that were progressively modified on account of her incapacity and, subsequently, was totally incapacitated for work for an extended period before and after surgery on 4 November 1996.
85. Ms Taylor-Paton, Occupational Therapist, conducted a functional capacity assessment and reported on 14 March 2000 (Exhibit T172 folio 337):
"1. The results of the assessment should be correlated of the results of the Work Capability Assessment.
2. Ms Roe should avoid any work involving repetitive use of her hands. She may be capable of performing some activitiies [sic] in the sedentary work category if she had adapted equipment. Eg headset, dictaphone etc."
The Work Capability Assessment report of Mr S Bale and Ms B Crain, Rehabilitation Consultants, dated 15 April 2000 contained the following recommendations (Exhibit T174 folios 353-354):
"1. That Ms Roe has demonstrated sufficient physical stamina to participate in sedentary part time or full time employment at this stage.
2. That this report be considered in relation to the Functional Capacity Evaluation report.
3. That limited skills were identified for consideration towards employment due to her decision to terminate the WCA and her inconsistent effort.
4. That a Psychiatric evaluation be considered to clarify her work related concentration, emotional outbursts and compulsive behaviour.
5. That Ms Roe not be considered totally and permanently disabled at this stage until further investigation be conducted as recommended above."
86. Subsequently, Dr Griffith opined on 7 June 2000 (Exhibit T180 folio 374):
"I am optimistic that positive intervention may perhaps assist her in returning to the workforce in some capacity. Unless and until her symptoms are better controlled and her wrist function restored, it is unlikely she could perform useful duties in the workplace."
Dr Brook opined on 5 February 2001 (Exhibit T216 folio 458-459):
"Disability is considerable...
...
The injuries have reduced her future earning capacity to virtually zero."
87. The Tribunal finds the Applicant has an incapacity to engage in work at the same level at which she was engaged prior to the injury and has been incapacitated for work as a consequence of her injury during all relevant periods.
88. The Tribunal notes the Applicant's condition may be amenable to further treatment and improved management, whereby the extent of her incapacity may be reduced and a graduated return to work program considered. The Tribunal notes there is considerable uncertainty attaching to the likely efficacy of any further treatment of the Applicant's condition. However, the possibility remains that further treatment may offer symptomatic relief or improved pain management, whereby the Applicant's prospect of returning to work may be improved if suitable restricted duties could be found. For this reason, the Applicant's participation in a pain management program is recommended.
IMPAIRMENT
89. Relying on Dr McGill's evidence, Ms Walker submitted the Applicant is not suffering a permanent impairment as a consequence of her injury in 1995, contending the only impairment she suffers derives from cervical spondylosis that is not work caused. Ms Godtschalk urged the Tribunal to accept the evidence of Dr Griffiths and Dr Brook, indicating a 20% level of impairment with reference to Table 9.4 of the Guide concerning the left upper limb.
90. When assessing the degree of impairment using the tables in the Guide, it is necessary to first consider whether the impairment is permanent, whereby regard is to be had the matters set out at subsection 24(2) of the Act:
* the duration of the impairment,
* the likelihood of improvement in the employee's condition,
* whether the employee has undertaken all reasonable rehabilitative treatment for the impairment, and
* any other relevant matters.
The Tribunal has found as a fact the compensable conditions commenced in May 1995 and the Applicant's resultant pain symptomatology in her left upper limb is ongoing.
91. It is clear that a degree of uncertainty attaches to the likely outcome of further treatment of the Applicant's pain syndrome, whereby it is not possible to say that any improvement would be achieved. Medical opinions may differ on this point. The Tribunal notes Dr Griffith's view in June 2000 that (Exhibit 180 folio 374):
"It is not possible to state with certainty the outcome, except to say that I am of the opinion that more can be done than has been done, and that with explanation, positive attitude (which she does seem to possess) and more effective manipulation of her pharmacological environment in regard to pain management and perception of pain she should improve considerably."
Dr Brook noted Dr Griffith's opinion "...is to some extent is [sic] based on the diagnosis of a synovitis of the [left] wrist, but this was not present when I examined her in 1998 and 2001 and 2002" (Exhibit A6 p4). It is Dr Brook's opinion that "Future medical treatment of her condition is not indicated" (Exhibit T216 folio 459).
92. There is no evidence the Applicant has received any treatment for her condition since the Respondent determined to cease liability and related payment of medical treatment costs on 28 August 2001. Ms Godtschalk submitted and the Tribunal finds the Applicant undertook reasonable rehabilitative treatment and psychological counselling for pain management following the surgical treatment of the primary compensable conditions. The Applicant's evidence, which the Tribunal accepts, is that she attempted various rehabilitative activities, including physiotherapy, playing ball sports with her right hand and aquarobics over the course of one-year post operatively, but these "didn't work". She told the Tribunal she did, however, learn some useful techniques from Dr J Higgins, Occupational Psychologist, concerning "pacing myself" in order to better manage her pain, that she continues to use. There is no evidence the extent or severity of the Applicant's pain symptoms have diminished with the passage of time or as a consequence of rehabilitation treatments, although pain management techniques have improved the Applicant's ability to cope with her pain and the Tribunal so finds.
93. Ms Walker submitted the Applicant had failed to pursue medical treatment options to improve her condition. The Tribunal finds the Applicant has neither sought nor received medical treatment for her condition since August 2001 and she has consistently declined to accept analgesics or other pharmacological medication. The Applicant claimed and the Tribunal accepts that she could not afford to pay the cost of specialist medical treatment following the Respondent's decision to cease liability and she did not take any medication for pain as a matter of principle, believing the treatment may provide some temporary symptomatic relief with possible adverse effects, exacerbating her pain, thereafter. There is no evidence before the Tribunal to enable findings to be made regarding the likely efficacy of pharmacological treatment, although Dr Griffith commented inconclusively about the possible beneficial effects of tricyclic antidepressants in the management of chronic pain (Exhibit T180 folio 374). The Tribunal notes the comments of Dr Brook, Dr Craven and Dr Feltham regarding the Applicant's poor prognosis and the permanent nature of her condition.
94. Taking these matters into account, the Tribunal finds the Applicant's condition is permanent for present purposes pursuant to the Guide and subsection 24(2) of the Act.
95. Ms Walker contended Dr McGill's assessment of 0% impairment under Table 9.4 pertaining to the left upper limb and 5% under Table 9.6 pertaining to the cervical spine were appropriate and correct. It was Dr McGill's view that the Applicant's ability to pursue needlework and other activities clearly indicated that she did not have any difficulty with digital dexterity or grasping or holding using her left upper limb. Ms Godtschalk submitted this view is not supported by the preponderance of the medical evidence, contending that the Applicant is able to undertake most tasks for limited periods until the level of pain becomes too severe. The Tribunal finds the Applicant, enduring pain, is able, briefly, to undertake activities such as embroidery using a special frame, but the severity of the pain increases the longer she pursues the activity.
96. Table 9.4 of the Guide provides the following threshold criteria:
"Limb Function - Upper Limb
(Percentage Whole Person Impairment)
% DESCRIPTION OF LEVEL OF IMPAIRMENT
10 Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity
20 Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding
30 Retains some use of limb BUT has difficulty with self care
40 Cannot use limb for self care"
97. The Tribunal is mindful of the case law concerning the imprecision of the wording of relevant phrases in Table 9.4 of the Guide, specifically relating to "difficulty". "Difficulty" is neither defined nor given adjectival focus and, given its ordinary meaning as set out in the Macquarie Dictionary (3rd ed, 1997), covers a spectrum of conditions from "not easy" to "hard to do" to "requiring much effort". Adopting the interpretation applied in Whittaker v Comcare (1998) 86 FCR 532 and Fielder v Comcare (2001) 115 FCR 328, for "difficulty" to be found something more than minimal problems are required.
98. Considering all the evidence, the Tribunal finds the Applicant can use her left upper limb for self care and has some digital dexterity, but has difficulty grasping and holding. Her difficulties grasping and holding are not such that she cannot grasp and hold at all, but that grasping and holding causes an aggravation of her condition, whereby the more she attempts to grasp and hold the more her pain increases and the greater her ensuing fatigue. The fact is the Applicant's injury occurred following repetitively patterned work activities that involved pincer gripping movements with her left thumb and fingers. These movements, which are essential to grasping and holding, cause her pain to increase. The Tribunal finds the Applicant has difficulties grasping and holding to the extent that, initially, grasping and holding is not easy because of the pain and becomes progressively harder, requiring increased effort as the pain increases, until a threshold level is reached where the pain is too great for her to grasp and hold. The Tribunal has found as a fact the Applicant has some digital dexterity and can use her left upper limb for self care.
99. Dr Brook and Dr Griffith assessed the level of impairment of the Applicant's left upper limb and expressed this as 20% whole person impairment under Table 9.4 of the Guide. The Tribunal agrees and so finds.
100. The Tribunal accepts Dr McGill's assessment of the Applicant's cervical spine impairment and finds, on the balance of probabilities, the cervical spine impairment, comprising minor restrictions on movement, is caused by constitutional and degenerative cervical spondylosis that is not related to the Applicant's employment.
CONCLUSION
101. Considering all the evidence, the Tribunal finds the Applicant has a regional pain syndrome, that is, on the balance of probabilities, an ongoing effect of her compensable conditions or the surgical treatment of those conditions and, therefore, is traceable to her work-related injury in May 1995. The surgical change in circumstances pointed to by the Respondent, whereby the organic features of the compensable conditions resolved but the pain did not, are not sufficient to justify cancellation of the Applicant's compensation entitlements in relation to her work-related injury. The Applicant's entitlement to payment of compensation in relation to the injury, pursuant to section 14 of the Act, has not, therefore, ceased as of 28 August 2001 and is ongoing.
102. The Applicant has been incapacitated for work during all relevant periods, and so remains. While pharmacological treatment of the Applicant's pain syndrome may provide some symptomatic relief, there is no evidence that such treatment is curative or that the Applicant's refusal to accept such treatment has delayed her recovery or impeded her capacity to return to work. Further pain management assistance may improve the Applicant's functional capacity and the possibility of her return to work on a suitable graduated return to work program, if appropriate restricted duties can be found. The Applicant is entitled, therefore, to compensation pursuant to section 19 of the Act.
103. The Tribunal has found that the Applicant's condition is permanent and that she has a whole person impairment of 20% under Table 9.4 of the Guide. The Applicant is entitled, therefore, to compensation for permanent impairment pursuant to sections 24 and 27 of the Act.
104. The Applicant is entitled to compensation for reasonable medical treatment costs in relation to her work-related injury pursuant to section 16 of the Act.
DECISION
105. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal ("the Tribunal") determines:
(a) In relation to the reviewable decision dated 19 September 2001 (A2001/421), to set aside the decision under review and, in substitution therefor, decides:
(i) The Applicant suffers an injury pursuant to section 4 of the Act in the form of a regional pain syndrome that is attributable to work-caused carpal tunnel syndrome, de Quervain's tenosynovitis and volar ganglion;
(ii) The Respondent is liable to pay the Applicant compensation pursuant to section 14 of the Act on 28 August 2001 and thereafter;
(iii) The Applicant is entitled to compensation for reasonable medical treatment costs in respect of her work-related injury pursuant to section 16 of the Act on and after 28 August 2001;
(iv) The Applicant has been and remains incapacitated for work as a consequence of her work-related injury from 28 August 2001 and is entitled to be paid compensation for incapacity pursuant to section 19 of the Act on and after that date.
(b) In relation to the reviewable decision dated 13 July 2001 (A2001/341), to set aside the decision and, in substitution therefor, decides:
(i) The Applicant has a 20% whole person impairment of her left upper limb pursuant to Table 9.4 of the Guide and is entitled to compensation for permanent impairment pursuant to section 24 of the Act and compensation for non-economic loss pursuant to section 27 of the Act.
106. The Respondent is liable to pay the Applicant's reasonable legal costs in these matters as agreed or taxed.
I certify that the 106 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member
Signed:
...........(Trevor Mobbs)....................................
Associate
Date/s of Hearing 25-26 November 2002
Date of Decision 7 February 2003
Counsel for the Applicant Ms J Godtschalk
Solicitor for the Applicant Mr R Coen (Pamela Coward & Associates)
Counsel for the Respondent Ms L Walker
Solicitor for the Respondent Ms L Tolland (Dibbs Barker Gosling)
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