Crofts and Comcare [2010] AATA 71 (2 February 2010)

Last Updated: 2 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 71

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos. 2007/5924 & 2009/3406

GENERAL ADMINISTRATIVE DIVISION		)
	Re		GABRIELLE CROFTS

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Ms N Bell, Senior Member Dr I Alexander, Member Air Vice-Marshal T Austin, Member

Date 2 February 2010

Place Sydney

Decision

The decisions under review are affirmed.

........................[sgd].............................
Ms N Bell, Presiding Member

CATCHWORDS – Compensation – prior medical condition – employment causation – differing medical opinion – expert evidence

REASONS FOR DECISION
Ms N Bell, Senior Member
Dr I Alexander, Member
Air Vice-Marshal T Austin, Member

1. Gabrielle Crofts was employed by the Child Support Agency as a complaints resolution officer, initially in Canberra and from February 2006 in Newcastle. Ms Crofts worked part time in Canberra and in Newcastle until May 2006 when she commenced fulltime work.
2. On the afternoon of Friday 23 June 2006, after she had worked two days with two hours overtime, Ms Crofts noticed a “heavy, dead” feeling in her right arm from her wrist to her shoulder. When she woke the following day she had severe pain from her neck down to her right shoulder. Her pain continued and she attended her doctor on the following Tuesday. She returned to work but was unable to perform tasks with the keyboard or use the mouse. She said she then developed pain across her mid forearm and up to her shoulder and had pins and needles in her hand. Her neck pain was easing.
3. Ms Crofts gave evidence of difficulties with using a keyboard and a mouse at work as well as difficulties when performing some tasks at home. She said her arm symptoms abated when she was off work for some 12 weeks but returned when she recommenced work and persisted notwithstanding rehabilitative measures taken in her workplace.
4. Ms Crofts has not worked since February 2008.
5. There is no dispute that Ms Crofts suffers from an underlying cervical spine condition, a congenital abnormality at C7, and that she has been involved in two motor vehicle accidents in which she suffered cervical spine injury. But Ms Crofts contends that the pain in her right arm is the result of epicondylitis and that it was caused by her work. She says the symptoms in her cervical spine have settled.
6. Comcare contends that Ms Crofts does not suffer from epicondylitis at all but rather the symptoms in Ms Crofts’ right arm are the result of her cervical spine condition. Nevertheless, Comcare contend that even if Ms Crofts suffered from epicondylitis, it could not have been caused by her work at the Child Care Agency.
7. This contest gives rise to the central issues in this application:
   • did Ms Crofts have epicondylitis in July 2006 or at all?; and
   • if so, was it caused by her work?
     

DID MS CROFTS HAVE EPICONDYLITIS IN JULY 2006?

8. Professor Philip Sambrook, consultant rheumatologist, gave evidence that he considered Ms Crofts suffers from both a cervical spine condition and from right lateral epicondylitis. Having first examined Ms Crofts in early 2008, he reached the conclusion that she suffered from epicondylitis in July 2006 on the basis of a letter dated 12 December 2006 by Ms Quinn, physiotherapist, which referred to the “classic signs and symptoms of R lateral epicondylalgia”. When pressed, Professor Sambrook was unable to point to the physiotherapist’s reasons for arriving at her diagnosis and conceded that he had just accepted it on face value. This was despite the fact that the report of Ms Quinn contained no reference to a provocative test for lateral epicondylitis, a test which Professor Sambrook himself relied upon in his diagnosis of whether Ms Crofts suffered from epicondylitis when examining her in 2008
9. We note that on 10 August 2006, Dr Richard Parkinson, neurosurgeon, said that an MRI scan confirmed quite marked scar tissue in the C6-7 foramen, displacing the C7 nerve root anteriorally.
10. Professor Sambrook said, in answer to a question from the Tribunal, that the presence of numbness in Ms Crofts’ fingers could be caused by the nerve root irritation described by Dr Parkinson.
11. In his evidence, Dr Neil McGill, consultant rheumatologist, was firm in his opinion that Ms Crofts does not suffer and never has suffered from lateral epicondylitis and any non fibromyalgic pain that she may experience in her upper limb is due to her cervical spine condition. He explained that a positive provocative test is only useful as a diagnostic tool if the person is also tested for responses to movements that are not expected to elicit pain from epicondylitis. Dr McGill found on examination that there was a pain response to movements that were not intended to elicit pain in the elbow region.
12. Dr McGill considered that the range of symptoms Ms Crofts complained of in July 2006 (“neck, shoulders and right arm, including hand and fingers” as listed in
    Ms Crofts’ claim form) is not a distribution of pain that is consistent with lateral epicondylitis.
13. Dr McGill was also of the opinion that the symptoms described by Ms Quinn, physiotherapist, in her letter of 12 December 2006 were not the symptoms of lateral epicondylitis. He noted that despite Ms Quinn’s claim that Ms Crofts had the “classic signs and symptoms of epicondylalgia”, she had in fact not listed any signs.
14. Dr McGill described the two separate mechanisms by which a person may feel pain in the upper limb by reason of an abnormality or injury in the cervical spine: referred pain and radicular pain. He considered that Ms Crofts most likely experienced a combination of both.
15. He described osteopath Rebecca Schwerdfeger’s description of “palpable fibrotic changes in the extensor muscle group” as “nonsense”, reasoning that in epicondylitis there is no inflammation of the muscle nor any fibrosis. Rather,
    Dr McGill explained that there is a change in the common extensor tendon where it inserts into the bone and sometimes epicondylitis may result in some structural changes in the bone.
16. Dr McGill agreed that Dr Parkinson’s findings at C 6-7 on the MRI could explain the pins and needles experienced by Ms Crofts. He also considered that the failure of the steroid and anaesthetic injections administered to Ms Crofts’ right epicondyle in August 2007 and November 2007 to provide relief indicated an absence of epicondylitis. He said such injections usually have impressive results in short term alleviation of the pain of epicondylitis.
17. Dr Michael Fearnside, neurological surgeon, gave evidence that he considered Ms Crofts suffers from both right lateral epicondylitis and a developmental abnormality at C 6-7. He had come to the conclusion that Ms Crofts’ epicondylitis had not been caused by her work at the Child Support Agency and was unlikely to have been aggravated by it. He considered that in the early stages of
    Ms Crofts’ claim, she more likely had a neck problem than a forearm problem because of the distribution of pain on the right side of her neck and across her shoulder.
18. Dr Fearnside agreed that the abnormality at C 6-7 reported by Dr Parkinson could cause symptoms in the upper limb. He also said that if he diagnosed epicondylitis in a patient, he would refer the patient to a rheumatologist for treatment. The treatment of epicondylitis would not be part of his practice.
19. Dr Peter Brimage, consultant neurologist, reported in June 2007 that
    Ms Crofts complained of pain around her right elbow, some pins and needles in her fingers of her hand and “a lot of pain” in her right subscapular region and in the top of her neck on the right side. On examination, Dr Brimage found tenderness over the insertion of the tendons of the lateral epicondyle on the right, consistent with epicondylitis. He found no sensory symptoms or motor or reflex signs. This was so despite the intermittent presence, noted by him, of pins and needles and the results of an MRI performed in August 2006. We note again that Dr Parkinson found from the August 2006 MRI quite marked scar tissue in the C 6-7 foramen, displacing the C7 nerve root anteriorly. Dr Brimage appeared to interpret this MRI result as being of no great significance.
20. Dr E D Price, occupational health physician, reporting on 13 December 2006 for the purposes of Ms Crofts’ rehabilitation, described her as having pain on a daily basis affecting her neck, right arm and right shoulder. He considered she suffered from two previous whiplash injuries and ongoing myofascial pain syndrome which probably predated June 2006.
21. Dr Margaret Gibson, occupational physician, also writing in the context of rehabilitation, reported on 8 November 2007 that Ms Crofts had pain over the right side of her neck and pain in the anterolateral forearms in the area of the medial epicondyle, with the right arm worse than her left. She also reported pins and needles in her fingers when typing. Dr Gibson diagnosed mechanical neck pain secondary to congenital spinal changes, possibly aggravated by motor vehicle accidents. She found no objective neurological impairment. She said Ms Crofts has “features suggestive of bilateral medial and lateral epicondylitis”. She appeared to take a similar view of the MRI as Dr Brimage.
22. Dr Dwight Dowda, occupational physician, also involved in the rehabilitation of
    Ms Crofts, reported after an assessment of Ms Crofts on 22 August 2008 that
    Ms Crofts had chronic right lateral epicondylitis. In an earlier report dated
    13 March 2008, Dr Dowda also said Ms Crofts had referred somatic pain from her neck leading to symptoms in the cervical spine and in her upper limb. He found no neurological signs and appears to have interpreted the August 2006 MRI in the same manner as Dr Gibson. He based his opinion that Ms Crofts has epicondylitis on her reports of tenderness over the right lateral epicondyle. He also noted in his report of
    13 March 2008 that he had read the reports of Professor Sambrook, Ms Quinn,
    Dr Brimage and Dr Gibson, all of whom had diagnosed lateral epicondylitis. He noted that in August 2007 and November 2007 Ms Crofts was injected with steroid and anaesthetic in her right lateral epicondyle, with much pain and no benefit.
23. In his report of 30 July 2007, Dr Anthony Smith, orthopaedic surgeon, was of the opinion that Ms Crofts’ right upper limb symptoms are from her neck and involve her cervical degeneration and her congenital abnormality. As to epicondylitis,
    Dr Smith said he saw nothing on examination to suggest that diagnosis and maintained that her symptoms emanate from her cervical spine.
24. There is an array of medical opinion about the source of Ms Crofts’ arm pain. We are satisfied, on the basis of the opinions of Dr McGill, Dr Fearnside, Professor Sambrook, Dr Brimage, Dr Gibson and Dr Smith that Ms Crofts’ cervical spine causes pain and other symptoms. The question of whether she has the additional condition of epicondylitis received the most detailed attention in the evidence of
    Dr McGill and Professor Sambrook. Other medical opinions did not address in detail the question of the extent to which Ms Croft’s cervical spine conditions may be responsible for the pain in her arm.
25. Professor Sambrook relied, in his assumption that Ms Crofts had epicondylitis in June 2006, on the reports of the physiotherapist and the osteopath. The physiotherapist simply asserted her diagnosis after listing a range of symptoms that, on Dr McGill’s evidence, were not the symptoms of epicondylitis. Although she maintained that Ms Crofts had the classic signs of the conditions, she listed none of them. We find this reliance on her diagnosis to be unsafe. Similarly, the osteopath’s reference to his detection of of “palpable fibrotic changes in the extenor muscle group” was shown by Dr McGill to be misconceived.
26. Professor Sambrook also relied on a positive provocative test for lateral epicondylitis, that is, on extension of her wrist Ms Crofts experienced pain in the elbow region. We accept Dr McGill’s view that such a test will only be of diagnostic value when the administration of other tests not directed to epicondylitis do not elicit pain. We note that Dr McGill administered extensive testing.
27. On balance, we find the opinion of Dr McGill more persuasive. His opinion arises from more thorough testing, a clear evaluation of the physiotherapist’s and osteopath’s reports and a more thorough analysis of the likely effects of Ms Crofts’ undisputed cervical spine conditions. We also find that Dr McGill’s opinion is supported to varying extents by those of neurosurgeons, Drs Parkinson and Fearnside and by Dr Parkinson’s interpretation of the results of the MRI conducted in
    August 2006.
28. It follows that we find that Ms Crofts does not suffer from right lateral epicondylitis and did not suffer from that condition in July 2006. This makes it uneccessary for us to consider the second issue of employment causation.

DECISION

29. The decisions under review are affirmed.
    

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell,
Dr Alexander and Air Vice-Marshal Austin.

Signed:.......................[sgd].................................................

Associate: Lloyd Doherty

Date of Hearing 16 & 17 November 2009

8 December 2009

Date of Decision 2 February 2010

Date of written reasons 2 February 2010

Representative for the Applicant Mr George Giagios, Barrister

Instructed by Mr Doug Williams, Slater & Gordon

Representative for the Respondent Mr Matthew Gollan, Barrister

Instructed by Ms Lyn Brady, Australian Government Solicitors