Cousins and Comcare [2001] AATA 788 (14 September 2001)

Last Updated: 26 November 2001

DECISION AND REASONS FOR DECISION [2001] AATA 788

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/185

GENERAL ADMINISTRATIVE DIVISION )

Re KATHRYN COUSINS

Applicant

And COMCARE

Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date 14 September 2001

Place Canberra

Decision The decision under review is affirmed. The Applicant is not entitled to costs.

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

Senior Member

CATCHWORDS

WORKERS' COMPENSATION - cervical brachial neuralgia syndrome - repetitive duties as part of employment - occupational overuse injury - conditions of work causing or materially contributing to the development of an occupational overuse injury

Safety, Rehabilitation and Compensation Act 1988, ss 4(1) definitions of "disease", "injury", 14(1), 16(1).

REASONS FOR DECISION

14 September 2001 M J Sassella, Senior Member

History of application

1. On 2 February 2000 Ms Kathryn Cousins (the "Applicant") made a claim (T69) for compensation in relation to cervical brachial neuralgia syndrome incurred on 6 June 1997. The Applicant described the injury as affecting both her right and left arms and hands. She said that any task requiring the use of her hands was "very painful".

2. In her claim form, the Applicant described in some detail the events which had contributed to her injury. She claimed she was required to carry out continuous repetitive duties as a Head Cashier from 1991 at the Australian National University ("the University"), including large amounts of carrying. From 1994 the Applicant claims she had to do a lot of computer work as an Accounts Receivable Clerk, within the environment of a new computer system. The Applicant said that on 6 June 1997 she "first experienced severe pains in both [her] left and right wrists." According to the Applicant, the pain subsided some time after this but again occurred in 1998.

3. The Applicant was involved in a motor vehicle accident on 15 July 1998 while on a journey from work to her home. She sustained muscular and ligamentous injury to her spine. She made a claim (T5) in relation to this injury on 11 August 1998, and Comcare ("the Respondent") accepted liability for the injury on 9 February 1999 (T24). The injury was described as "syndromes affecting cervical region". The Applicant continued to receive treatment in relation to this injury.

4. During September 1998 the Applicant claimed that her workload was heavy, and that she experienced pain in her neck and wrists (oral evidence at the Tribunal hearing). In December 1998 she said there was a painful episode when her right forearm "froze" (T18). The pain in her hands, she said, continued to get worse and the Applicant had surgery in August 1999. Although the surgery helped to reduce the pain for some time, the Applicant claimed the pain returned and has continued (oral evidence). The Applicant is no longer working at the University. She ceased in November 1999 (oral evidence).

5. On 28 February 2000 the Respondent disallowed the Applicant's claim dated 2 February 2000 in relation to an injury it described as cervicobrachial syndrome (diffuse) (bilateral) sustained on 6 June 1997 (T76). The Respondent found that there was insufficient evidence available to establish that the injury occurred as claimed and that the available evidence as to the cause of the injury was not reasonable or work related, including by way of contribution.

6. On 7 March 2000 the Applicant made a request for reconsideration of the decision dated 28 February 2000 (T79). The Applicant's representative stated that the Applicant had sustained an occupational overuse injury as a result of her employment and that she continues to suffer "significant disability in her hands, including loss of digital dexterity and considerable pain in both the right and left hands and arms."

7. On 19 May 2000 the Respondent decided to affirm the decision of 28 February 2000 (T100). In the reasons for decision, the Respondent focused particularly on a report provided for the Applicant by Dr Scott, occupational physician (T64). The Respondent interpreted Dr Scott's report as meaning that "nearly all" of the Applicant's problems were caused by the motor vehicle accident on 15 July 1998. The Respondent noted that a number of problems in relation to the Applicant's neck and arm seemed to follow from the motor vehicle accident, and more so than from the reports of an occupational overuse injury in 1997 that was work related. The Respondent suggested that the severity of the Applicant's spinal injury from the motor vehicle accident produced pain symptoms in the Applicant's arm. In general, the Respondent was not prepared to accept that there was sufficient evidence to establish that the Applicant suffered from an occupational overuse syndrome in 1997 which was materially contributed to by her employment.

8. On 24 May 2000 the Applicant applied to this Tribunal for review of the decision dated 19 May 2000 (T1) on the basis that it is "wrong in fact and in law".

Relevant legislation

9. Relevant legislation consists of the following provisions from the Safety, Rehabilitation and Compensation Act 1988 ("the Act"): ss 4(1) definitions of "disease", "injury", 14(1), 16(1).

"Section 4 Interpretation

...

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;

..."

"Section 14 Compensation for injuries

14. (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.

..."

"Section 16

Compensation in respect of medical expenses etc.

16. (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.

..."

Hearing and appearances

10. The Tribunal convened a hearing which took place in Canberra on 5 February 2001. The Applicant was represented by Mr Wodrow of counsel and the Respondent was represented by Mr O'Donovan, Australian Government Solicitor counsel.

11. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T documents") (Exhibit TD1). Also received into evidence were other correspondence, medical reports and clinical notes. These were given exhibit numbers as follows:

* Exhibit A1 - Statement by Dale Brosnahan, 3 January 2001.

* Exhibit A2 - Statement by Applicant, 3 January 2001.

* Exhibit A3 - Letter by Dr A Viketos, general practitioner, 22 March 1999.

* Exhibit A4 - Letter by Dr Viketos, 17 September 1999.

* Exhibit A5 - Writing Disability and Students Procedures Manual, Australian National University, 1996.

* Exhibit A6 - File notes by Rehabilitation and Workers' Compensation Unit, Australian National University, 15 June 1999 - 4 November 1999.

* Exhibit A7 - Letter by Dr Viketos, 28 October 1999.

* Exhibit A8 - Letter by Dr Viketos, 21 December 1998.

* Exhibit A9 - Applicant's statement of facts and contentions, 21 January 2001.

* Exhibit R1 - Report by Dr R S Craven, neurologist, 11 December 2000.

* Exhibit R2 - Miscellaneous letters from Comcare to the Applicant, with an incapacity determination list.

* Exhibit R3 - Notes by Ms M O'Shea, occupational therapist, 8 July 1998.

* Exhibit R4 - Report by Dr T Watson, general practitioner, 18 July 2000.

* Exhibit R5 - Clinical notes by Dr Viketos.

* Exhibit R6 - Incident report, 6 June 1997.

12. Evidence was given by the Applicant in person, and by telephone the Tribunal heard evidence from Dr Robert Scott, occupational physician, Dr Tim Watson, general practitioner, Dr Harold Schaeffer, consultant neurosurgeon, and Dr Robert Craven, consultant neurologist.

Background and chronological details from the documents

13. The Applicant was born on 7 February 1952. She is married with children and employed by the University. The Applicant commenced employment as a Head Cashier at the University in 1991 (T69, p.109). In 1994 she was promoted to the position of Accounts Receivable Clerk. The Applicant has had a number of periods off work in relation to pain in her hands and arms. She is currently not working with the University.

14. The general history of the Applicant's medical problems has already been briefly outlined. She currently receives compensation for injuries related to the motor vehicle accident on 15 July 1998. The Applicant also has a common law claim for damages before the Australian Capital Territory Supreme Court in relation to that injury.

15. The T documents contain a number of assessments of the Applicant's work station, medical certificates and correspondence between doctors and University personnel in relation to the problems the Applicant claims she has experienced at work. On 16 June 1997 a work station assessment was carried out by the University (T3) following the Applicant's lodgment of an injury/exposure report on 6 June 1997 regarding pain in her wrists. The report states that the Applicant did not consult a medical practitioner in relation to this pain and that "the pain has since subsided" (T3, p.4). The assessment noted that the Applicant's duties involved mainly computer work, telephone enquiry work, checking, filing and calculating. The majority of the Applicant's work was performed at the computer and there was pressure to complete work before monthly cut offs. The report identified a number of ergonomic problems affecting the Applicant's work station and recommended that the Applicant be provided with a headset and an "ERGO ARM", which aims to reduce the load placed on muscles in the forearm and shoulder girdle.

16. On 15 September 1998 another work station assessment took place (T14). This assessment occurred at the request of the Rehabilitation and Compensation Unit of the University. The assessment report mentioned a history of pain in the Applicant's arms, with the worst pain on the right side, over a long period, and which had increased since the motor vehicle accident on 15 July 1998. The nature of the Applicant's duties appears to be the same as was noted in the previous work station assessment, except that the Applicant reported an increase of computer input work following changes to the system used in her area. The assessment recommended that the Applicant's keyboard platform be repaired and locked into a position level with the Applicant's desk height, that the Applicant be encouraged to take regular rest breaks, the provision of a single height adjustable work surface and that the Applicant "locate the headset provided last year and ensure she uses this equipment for all phone calls that are likely to exceed 60 seconds or require inputting the computer while taking the call" (T14, p.23).

17. The Applicant completed an injury/exposure report on 17 December 1998 (T16). She noted the cause of injury as being "severe pain in right arm, shoulder and neck". The Applicant was absent from work on 18 December because of this pain (T18). A file note from this date mentions that the Applicant had been experiencing pain "quite a bit" as a result of the "MVA" (T18, p.27). A file note from 21 December 1998 noted that the Applicant was back at work and that although the Applicant was not in as much pain as on the 18^th, she was still experiencing pain in her arms, neck and shoulders (T18, p.28). On 21 December 1998 Dr Viketos, general practitioner, provided a medical certificate which stated that the Applicant was suffering from "C5/6 subluxation and C6/7 disc lesion", which was caused by the "motor vehicle accident on the way home from work" (T19, p.29).

18. A work station assessment was again performed on 21 January 1999, as a follow-up assessment (T22). The assessment referred to duties that had not been noted in previous assessments, including the handling of cash floats between safes, moving float bags and the cash box once or twice a week. The floats contained, the assessment said, up to $400.00 in coins and notes weighing upwards of 2-3 kg each. The assessment identified this task as a problem which placed "significant strain" on the Applicant's arms and upper back and the placing and removing of float bags involving holding heavy loads "away from the body causing strain" across the Applicant's "arms, shoulders and back" (T22, p.34). Apart from being advised to take regular breaks, it was recommended that the Applicant "should be excluded" from the tasks identified.

19. Dr Viketos certified the Applicant fit for work with restricted hours and duties from 1 February 1999 to 9 April 1999.

20. A MRI scan of the Applicant's cervical spine was reported on 23 February 1999 (T28). There was "some disalignment at the C5/6 level but with slight forward displacement of C5 in relation to C6. There is also slight annular bulging of the C5/6 disc with slight deformity of the dural sac but no cord compression." The report also noted "slight posterior bulging of the C6/7 intervertebral disc...".

21. On 8 March 1999 an occupational therapy report was prepared concerning a home assessment of the Applicant by Ms Cathy Kennedy (T30). The report noted that prior to the motor vehicle accident in 1998 the Applicant had taken care of the "majority of the domestic duties" but that since the accident her husband and three children (aged 19, 22 and 24 years) assisted with the work. However, "due to time restraints" on other members of the family, the Applicant "continues to be responsible for much of the work". (T30, p.43) The report outlined a number of household tasks that the Applicant was involved in. Following most activities, such as ironing, cooking and cleaning, the Applicant experienced some pain. She was unable to do such things as lift shopping bags or vacuum. The report recommended the provision of domestic assistance and a number of aids to assist with home duties.

22. The Applicant was certified unfit to work from 29 March 1999 to 23 April 1999. She was certified fit to return to work with modified duties and reduced hours from 28 April 1999 to 28 May 1999 (T39). The Applicant was again certified unfit for work by Dr Viketos from 31 May 1999 to 1 October 1999 (T41, T43, T45, T50). An x-ray on 5 July 1999 revealed that the subluxation of C5 and C6 of the Applicant's cervical spine was "unchanged" but with some degenerative changes at the C6/7 disc space (T44).

23. On the recommendation of Dr Chandran, neurosurgeon, on 20 July 1999, the Respondent agreed that the Applicant could have an anterior fusion of the C5/6 levels with decompression of the nerves and insertion of a titanium plate at Comcare's expense (T47). The Applicant underwent the anterior fusion on 10 August 1999. The Applicant was certified fit to return to work with restricted hours from 5 October 1999 to 5 November 1999. An x-ray report from 7 October 1999 revealed that the C5-C7 fusion with interbody grafts and an anterior plate and screws was "well consolidated" (T53).

24. A report was provided on 7 October 1999 which dealt with an initial needs assessment for the Applicant with a return to work plan (T52). The report commented on a number of adjustments that needed to be made for the Applicant's work space and recommended that the Applicant participate in a return to work plan. With regard to the Applicant's psychological status, the report noted that she "appears to be motivated to resume her duties gradually upgrading to full time hours. She appears concerned about the permanency of her position in the longer term and is keen to attempt to return to her former levels of productivity. (T52, p.70).

25. The University informed the Applicant that her position was soon to be redundant in late 1999. Her GP, Dr Viketos, reported that the Applicant developed symptoms of depression and she was prescribed Aurorix 150mg BD (T54). The Applicant was certified unfit for work from 27 October 1999 to 28 October 1999 because she was suffering from "neck and arm pain" (T55). Dr Viketos wrote that the cause of this pain was the "MVA". The "work related MVA" was again reported as a reason by Dr Viketos for the Applicant's "neck arm pain and depression", and for time off work, on 15 July 1998 (T57).

26. The Respondent accepted liability for weekly psychological treatment and home help assistance on 5 January 2000 (T65).

27. The Applicant was again certified unfit for work between 25 January 2000 and 8 February 2000. The reason reported by Dr Watson was the Applicant's cervico brachial neuralgia syndrome caused by "overuse at computer terminal" (T67) with the motor vehicle accident a pre-existing or contributory factor.

28. The Applicant's claim for compensation for cervical brachial neuralgia syndrome was made on 2 February 2000, the details of which have been described above.

Issue

29. The issue in this matter is whether the Applicant's conditions of work have caused or materially contributed to the development of an occupational overuse injury.

Applicant's evidence

30. In a statement provided to the Tribunal, the Applicant described in detail the introduction of a new computer system in her work place in 1995 (Exhibit A2). She claimed that she received minimal training with the new system and that her "work built up whilst [she] worked [her] way around the new system" (Exhibit A2, p.1). She recalled this as being a stressful time. She said that at "different times I had noticed slight pain in my wrists". Some time after the introduction of the new system, the University began to accept credit card and EFTPOS payments. The Applicant said that this also increased her workload, with longer hours.

31. The Tribunal took into evidence a statement by Ms Dale Brosnahan, a former colleague of the Applicant (Exhibit A1). Ms Brosnahan stated that:

"Kathryn was always flat out and was a very hard worker. Like myself, most of her work was computer based.

"I can recall, without knowing precisely when, that Kathryn told me she was getting sore arms, a sore neck and shoulders. The problem seemed to be mostly in the hand/arm that moved the mouse. I can recall her getting quite stiff."

32. In oral evidence the Applicant described her keyboard work with the University as highly repetitive work. On 6 June 1997, the Applicant said the pain in her hands, arms and wrists was very severe. However, although the Applicant said that she reported her problems to her supervisor, she claims she was told that occupational overuse was "difficult to prove". She said that she does not think she was provided with "proper information".

33. The Applicant said that she persisted with her work for some time despite the presence of pain. She learned the importance of taking regular breaks. Asked by her counsel why she did not consult a doctor during 1997 regarding the pain, she replied that she was "not advised to see a doctor".

34. The Applicant commenced a course at the Canberra Institute of Technology in February 1998. However, she said that she had to withdraw from the course in May 1999, "the reason being that working and studying became too much" (Exhibit A2, p.3). She also stated that she was "finding difficulty in keeping up with lecture notes, as writing was becoming increasingly difficult due to constant pain in my wrist and hand. Today I can only write a few lines because of this pain."

35. The Applicant said that she "constantly felt pain" before the motor vehicle accident on 15 July 1998. But she said that she had formed a view, on the suggestion of her counsellor, that she "didn't think [she]'d get any sympathy" from her employer because "I'd watched this other colleague and she was, you know, treated quite badly" by the University in relation to her own occupational overuse condition. The Applicant said that her employer had never counselled her at this time about her pain.

36. The Applicant described her workload as having increased after the motor vehicle accident on 15 July 1998.

37. Although the Applicant described the various work station assessments as useful, they did not result in a significant reduction in the pain in her arms or shoulders. She said that the sensation in her arms after the motor vehicle accident was similar to the pain she experienced before it. She did feel "a bit better" for a short time after the fusion operation on 10 August 1999, with no pain in her arms. However, she began again to feel a painful sensation in her arms. She found it difficult to operate things with her arms. The Applicant said that she was "under a lot of emotional stress" at this time.

38. Counsel for the Applicant asked her about a file note which her case manager had written on 25 June 1999 (Exhibit A6). It was noted in this entry that the Applicant has "good and bad days" and that the Applicant was unsure if her pain was connected with the "injury" (motor vehicle accident) "or a separate problem". The Applicant said that staff were telling her that if she had occupational overuse "it should have settled down". There were regular weekly conversations between the Applicant's case manager and herself after the operation on 10 August 1999. It seems that although there was some gradual improvement in the Applicant's pain, it still persisted. A file note by her case manager from 23 September 1999 states that the Applicant "expressed her ongoing concern re her continued pain of her arms. She states that the pain was present prior to the surgery and describes the symptoms as general weakness with an overall feeling of tightness and pain in her elbows" (Exhibit A6). In her statement, the Applicant said (Exhibit A2, pp.3-4):

"For months leading up to the surgery I experienced severe pain in my neck and shoulders and arms. The arm pain became increasingly worse; I spoke to my Case Manager and Rehabilitation Providers many times about the arm pain and my concern that it was becoming worse. I also spoke to my doctor about it on many occasions. It was thought that this would be corrected with the surgery.

"The first weeks following the surgery I was pain free. However as I became more active my hands and arms became more painful. I again spoke to my GP and my Case Manager. At one stage I suggested to my GP that perhaps I should be having some treatment for this pain before I return to work. I also spoke to her about the possibility of having to make a claim for Occupational Overuse Syndrome, as I didn't think that the motor vehicle compensation should be responsible for the part of my injury which I believed was work related. On 17 September I was referred to Physiotherapist Ms Marita O'Shea for treatment of arm pain and weakness. During one of my visits to Marita, she expressed the opinion that the symptoms I was experiencing were the same as those of patients she was treating for Occupational Overuse Syndrome."

39. The Applicant said that her chiropractic and chronic pain management treatment had been beneficial "in many ways" but that she still experiences pain. She has difficulty taking notes and holding the telephone. The Applicant was asked about voice activated systems. But the Applicant said that she is having trouble with her voice box, which is not closing properly. In this situation, the computer will increasingly find it difficult to pick up the Applicant's voice.

40. Approximately "two months ago", the Applicant located a document called "Writing Disabilities and Students: Procedures Manual" (Exhibit A5). This document was located on the University Internet web site. It describes risk behaviours for the development of the "Occupational Overuse Syndromes" ("OOS"), "warning signs", how students can prevent OOS and the various treatments that are available for those suffering from the condition. The Applicant was asked whether she had ever been counselled "about this", but she said only by Ms Veal, the Applicant's Rehabilitation Case Manager. She said that no one had told her about the existence of this document at the time of her complaints with her hands.

41. The Applicant said in her statement that today she suffers from a "strained" feeling in her neck, "with pain across my shoulder muscles down to my thoracic spine and in both arms and hands. There are feelings of weakness in both arms" (Exhibit A2, p.5).

42. The Applicant confirmed in cross-examination that she first noticed "severe" pain of the type the subject of this application in 1997. However, counsel for the Respondent put it to the Applicant that she did not complain to her GP, Dr Viketos, about pain in her wrists until after the motor vehicle accident in July 1998. The Respondent also put it to the Applicant that she did not need her employer to advise her to see a doctor in relation to these pains, before July 1998. The Applicant replied that she was told, apparently by Ms Veal, that occupational overuse problems are "difficult to prove".

43. The Applicant also agreed that another reason for not raising the matter was that she saw that another employee had been "victimised" by the University after claiming occupational overuse problems were related to her work. The Respondent suggested that a complaint of pain to the Applicant's GP would have been confidential, but the Applicant said it would become public once she made a claim in relation to OOS and that "the whole university would know about it".

44. Counsel for the Respondent put it to the Applicant that the reason why she did not advise her GP of an OOS-type injury at any time in 1997 or prior to the motor vehicle accident in 1998 "was because the condition had resolved". The Applicant denied this suggestion. She was also questioned about the occupational therapist's report on 16 June 1997, where it was stated that the pain in her wrists had "subsided" (T3, p.4). The Applicant answered that the "severity" of the pain had subsided but that it did "return from time to time". However, the Applicant agreed that she did not report this to her GP at the time or complete an injury report form at the University, which was part of the well-understood procedure regarding work-place injuries.

45. There was further cross-examination of the Applicant on the basis that she had reported her wrist pain from 1997 had subsided well before the motor vehicle accident in 1998. The Applicant maintained that any statement by her to the effect that the pain had subsided referred to the severity of the pain. She said that she had continued to experience pain in her wrists and arms between 1997 and the accident in 1998, and continues to do so.

Medical evidence

46. In evidence was a medical report from Dr Scott, dated 22 December 1999 (T64). Dr Scott noted the Applicant's symptoms of pain in both upper limbs. He said that the Applicant had a "strained" feeling in her neck, and that the Applicant described her arm pain as a "tension" pain in her hands, wrists, forearms and upper arms. He further noted that the Applicant could not sit for longer than 30 minutes without needing to move about, and that after 15 minutes of standing she needed to sit. Writing was noted as difficult and bending, with neck flexion, was painful. The Applicant also could not lift in excess of 5kg. Dr Scott also wrote that the Applicant said her arms were "so-so" until the until the motor vehicle accident, "and then became very sore and tense" (T64, p.94).

47. The opinion provided by Dr Scott was that the Applicant had an OOS "about which she complained in 1997. This was assessed, as was her workstation, and she was given advice re ergonomics, tasks and rest. I believe that some of her present problems are residual effects of this OOS ..." (T64, p.95). After providing advice regarding treatment, Dr Scott said that it "is always difficult to accurately apportion the effects of 2 events - in her case the OOS in 1997 and the MVA in 1998." He went to say:

"In my opinion she had a minor/moderate OOS which was aggravated and made worse by the subject MVA. As well, the MVA caused damage to her cervical discs needing surgery. As a consequence of both of these factors, and with continuing pain, she has developed an understandable reactive depression.

In percentage terms I would opine that the subject MVA is responsible for 80-90% of her current problem, and the original OOS being responsible for the remainder."

48. Dr Scott gave telephone evidence in which he said that he based his conclusion that OOS from before the motor accident was still affecting the Applicant on the Applicant's history. He found the Applicant's history credible and in line with the general presentation of OOSs. He also was firm that the OOS symptoms can be easily differentiated from the cervical symptoms stemming from the motor vehicle accident. He considered that the arm pain complained of was not the sort of arm pain usually occurring subsequent to an injury to the cervical spine. Dr Scott gave evidence that, if Ms Cousins's OOS had completely resolved before the motor vehicle accident then the accident would not have brought about a recrudescence of OOS. Any later detected OOS would be a fresh occurrence. He agreed with Dr Watson that because all four of Ms Cousins's epicondyli were inflamed that could not be attributed to her cervical spinal injuries.

49. There is a report from Dr Eaton, occupational physician, dated 26 April 2000 (T95). Dr Eaton noted that there was "some dispute as to whether her current symptoms are largely due to her neck injury and surgery or the occupational overuse injury. There is no doubt a contribution from both however she does have symptoms very typical of an occupational overuse injury" (T95, p.168).

50. A report from Dr Schaeffer, consultant neurosurgeon, was provided to the Respondent on 30 April 2000. Dr Schaeffer opined that neither "occupational overuse syndrome" nor "cervical brachial neuralgia syndrome" constituted a "true diagnosis" (TT96, p.176). Dr Schaeffer went on to say:

"... I can find no evidence to support the allegation to the effect that Mrs Cousins developed some such condition as a result of an increased workload that was placed on her position due to the installation of a new computer system in 1996 and again in 1998. I must indicate in this regard that anyone can experience symptoms of muscle fatigue following a hard-day's work, but that such symptoms are very readily reversible, even within a period of minutes and muscle fatigue does not translate to chronic disability. Muscle fatigue is physiological and not pathological in origin. It is not associated with any tissue damage and where there is no tissue damage there can have been no injury.

"I in fact consider that her condition has been essentially of a nonphysical type, related to simple muscle tension. This is not a serious medical condition. It is very readily reversible."

51. Dr Schaeffer also said that he had found no evidence to support the Applicant's contention that she suffered from "any true medical condition in June 1997", that she may have had symptoms of muscle fatigue but this does not translate to chronic disability (T96, p.177). He did not think that when the Applicant was involved in the motor vehicle accident in 1998 she was suffering from "any pre-existing condition relating to the events that had occurred in June 1997" (T96, p.178). He considered that "100%" of her difficulties result from the motor vehicle accident "and the concatenation of happenings subsequent that accident" (T96, p.180).

52. Dr Schaeffer also gave telephone evidence. The gist of his evidence was that there is no acceptable discrete medical condition of OOS. Where a person complains of subjective pain symptoms associated with work done these are probably muscle discomfort that is eminently reversible. However, a worker could have carpal tunnel syndrome, epicondylitis or a pain condition referred from the cervical spine that is aggravated by work. Such conditions can be treated but are described not as OOS but by their correct medical terminology. Dr Schaeffer was unable to assist in relation the theories of Drs Watson and Scott about the significance of the presence of Ms Cousins's epicondylitis. It is a condition outside his area of expertise and he did not test for it in Ms Cousins.

53. The Tribunal took into evidence a medical report by Dr Watson, general practitioner, dated 18 July 2000 (Exhibit R4). He reported that the Applicant's current condition is a "combination of factors", which includes both the OOS "injury" and the "neck injury". He said:

"This lady's current pain symptoms is the result of tight musculo ligamentous structures inflamed cervical structures and neuropathic pain. Independent to the cervical pain origin the epicondylitis and inflamed forearm muscles bellies are causing pain. This is a result of the above combination of motor vehicle accident and occupational overuse injury.

...

This lady's condition since the motor vehicle accident has been intensely chronic. The motor vehicle accident has compounded the existing occupational overuse injury."

54. In telephone evidence Dr Watson who had fist seen the Applicant on 24 May 1999, was adamant that the Applicant suffered from OOS before the motor vehicle accident in July 1998. She had not seen a doctor about it or lodged a compensation claim because she was work-conscious and wanted to work on. "[S]he just didn't believe what was happening to her" (transcript, 55). The current overuse injury was, in Dr Watson's view, not caused by the motor vehicle injury. She has epicondylitis and "forearm problems", later described as "very tight musculature and tender muscle bodies and so forth in the forearms" (transcript, 64), that the motor vehicle accident could not have caused. She had more recently developed a chronic pain situation.

55. In cross-examination Dr Watson agreed that he had to rely on the Applicant's history to reach the conclusions he had stated. He held to the view that certain symptoms such as the epicondylitis could not be explained by the motor accident. Dr Watson had to agree that the Applicant had not complained of epicondylitis before the motor vehicle accident. He conceded that the overuse could have developed from unspecified non-work activities done by the Applicant.

56. Exhibit R1 is a report by neurologist Dr R S Craven, dated 11 December 2000. He found few restrictions when he examined the Applicant. There was some restriction in the cervical spine when he examined her head and neck. Her upper limbs were normal to inspection. His diagnosis was of mild soft tissue injury to the neck. This was attributable to the motor vehicle accident. A disc protrusion in the cervical spine seems to have occurred necessitating an operation. She has activity induced pain in her wrists and lower forearms. These symptoms are attributable to OOS. In relation to the neck and shoulders, he wrote, "there is a degree of nervous over-reaction to her persisting pain and that pain and discomfort is more easily produced in her case by psychological stressors than is usually the case."

57. He considered that Ms Cousins's pre-motor vehicle occupational overuse affects her work in a minor degree but is not having a material effect on the symptoms from her injury of 15 July 1998 (ie the motor vehicle accident injuries). He said that employment factors affecting the Applicant's current condition were her need to type repetitively and cope with demanding staff. He concluded that Ms Cousins's capacity for employment is affected in the main by the results of the motor vehicle accident. That accounts for 90% of the effect with 10% attributed to the pre-motor vehicle accident condition. She was not fit to return to work but could return to different work within six to eight months. She requires no further massage therapy or chiropractic treatment.

58. Dr Craven gave telephone evidence. He said that he thought that the motor vehicle accident had injured the Applicant's neck damaging ligaments surrounding the disc spaces. Over a period of time the ligaments weakened with the resultant protrusion of the disc as seen in x-ray. He told Mr O'Donovan that, if the Applicant's 1997 OOS had resolved by the time of the motor vehicle accident, then the entire symptomatology after the accident would be attributable to that, with none explained as OOS. He had examined (in December 2000) for epicondylitis and found no evidence that it was present. He considered that others may have detected it because it can come and go depending on a patient's recent activities. He disagreed with the other doctors that there can be no link between cervical spinal injury and epicondylitis. He said that "there could be an indirect relationship in the sense that an injury to the cervical spine and the symptoms which flow from it can be associated with the need for the person to use one arm in an abnormal way or in an excessive way in order to avoid pain, and the abnormal use of such of this arm might itself induce epicondylitis" (transcript, 86). Dr Craven addressed the situation if Ms Cousins's 1997 OOS had not resolved fully by the time of the motor vehicle accident. If that condition was improving before the accident then the improvement would have continued, assuming no material change in her work duties or any other factor.

Submissions for the parties

Respondent

59. Counsel for the Respondent submitted that the injury the Applicant experienced in 1997 had resolved well before the motor vehicle accident in 1998. For example, there was the report by the occupational therapist that the condition had resolved in 1997 (16 June 1997, T3). In T3 the writer recorded, 10 days after the Applicant's original report of pain, "She indicated at that time that she was unsure of the cause of this pain. She did not consult a medical practitioner and the pain has since subsided." Dr Viketos became the Applicant's general practitioner in August 1997. From then until after the motor vehicle accident there is no mention of any fluctuating pain, or of any wrist pain at all. She did, however, seek medical assistance over the period for fluctuating back pain. She also sought referrals to physiotherapists. She reported to Dr Viketos minor work incidents such as distress at her treatment by her boss. It is odd that she did not report any wrist symptoms if she was experiencing any. In Exhibit R3, a report on the Applicant's first treatment after her motor vehicle accident, there is reference to bilateral arm pain, gradually worse, with an insidious onset. She did not describe a continuation of fluctuating arm pain that she had been experiencing throughout 1997-98. She reported that she had "RSI" in forearms and wrist 12 months before but that it had resolved. She attributed the pains to the motor vehicle accident.

60. Mr O'Donovan referred also to the history the Applicant gave Dr Blum at T40 in May 1999. She told him that she had no major symptoms until she had a minor rear-end collision. She told Lisa Castles, occupational therapist, on 7 December 1999 that, "prior to her motor vehicle accident on the 15/7/98, that she experienced no other medical condition, other than bilateral wrist pain in 1997. These symptoms lasted three weeks, resolving after this" (T63). Mr O'Donovan referred to T5, the Applicant's compensation claim form. She referred to "arm pain some 18 months ago" when asked about any similar illness she had had. The inference is that that pain was in the past and not continuing.

61. Mr O'Donovan referred to the character of the pain in 1997 as compared to 1998. In 1997 the Applicant described a pain that was at first localised in the wrists and was activity related (Exhibit R6). The later pain was not activity related, as the Applicant conceded in her oral evidence. An example in December 1998 (T18) was of a severe pain shooting down the arm which came out of nowhere. This, said Mr O'Donovan, is not consistent with an occupational overuse injury and is the kind of pain from which the Applicant suffered in 1998 and currently suffers from.

62. The Applicant's post-surgery pain was described by her as fluctuating pain in the upper neck, upper arms, epicondylitis, in addition to swollen hands headaches, lower back pain and other symptoms. These are nothing like the localised wrist pain reported in 1997.

63. The Respondent submitted that the cause of the Applicant's current incapacity was the combination of two traumas, the first from the motor vehicle accident in 1998, and the second from the surgery on the Applicant's cervical spine carried out in August 1999 (T53).

64. The Respondent submitted that the Applicant has "convinced herself" that she experienced fluctuating symptoms of wrist and arm pain between 1997 and 1998. Further, submitted the Respondent, none of the reasons for not reporting the 1997 pain at the time make sense. For example, the Applicant's suggestion that she did not report the pain to a doctor, despite being in severe pain, because of possible "victimisation" by her employer in the context of a view to making a claim in relation to the pain "does not make sense". The Respondent submitted that people do not attend doctors just to make a compensation claim. You primarily attend a doctor for treatment and pain management. An employee can then, as an independent exercise, determine whether to lodge a claim. The only interpretation of this, said the Respondent, was that the pain had either subsided or was too clinically insignificant to warrant reporting to her GP or completing an injury report form.

65. As regards the medical evidence Mr O'Donovan made the following submissions. Dr Scott's evidence offered only limited support to the Applicant in any event. He saw the motor vehicle accident as the key to her problems. His and Dr Watson's attribution of any contribution to overuse is compromised because they accepted that the Applicant had continuing overuse symptoms in 1997-98.

66. Dr Schaeffer's main evidence was that nothing that was described to him was sufficient to cause permanent injury arising out of the 1997 period of employment.

67. Dr Craven's evidence was compromised to the extent that he also had accepted that the Applicant experienced symptoms in 1997-98. However, he helped explain how the Applicant's neck injury could cause the range of symptoms experienced currently by the Applicant.

68. Mr O'Donovan also suggested that Dr Eaton's evidence was tainted by his acceptance of an incorrect history covering 1997-98.

69. The Respondent in summary contended that the 1997 injury would have made, at most, only a "minor contribution" to the Applicant's ongoing symptoms. The bulk of the medical evidence, including the medical evidence, relates mostly to the role of the motor vehicle accident in 1998.

Applicant

70. Counsel for the Applicant submitted that the Applicant was frank, open and a truthful witness, and that her position was consistent throughout the giving of evidence. The Applicant completed an injury report on 6 June 1997 (Exhibit R6). If she did not do so at other times, it was because she chose to bear the pain. It was submitted that the Applicant should not be "penalised" for not drawing attention to her pain as she endured it. She had been conscientious, stoical and concerned for her job. She explained adequately that she also failed to report continuing severe pain because of the experiences of other workers who had been ostracised and treated differently when they had reported such pain.

71. It has never been suggested that the Applicant's overuse injury has been attributable to any activity other than her work.

72. Further, she was never directed to such documents as the OOS management guide (Exhibit A5) to which University students had been directed. This guide demonstrated that the University accepted that OOS does exist as an injury which can lead to serious injury, including surgery. The University was also concerned about ergonomics, and called in a number of therapists to check that the Applicant's work station was ergonomically sound.

73. Mr Wodrow referred to Exhibit A1, the statement by Dale Brosnahan. Mr or Ms Brosnahan had worked alongside the Applicant and recalled the Applicant complaining of sore arms, sore neck and sore shoulders. However, the Tribunal notes, the writer of Exhibit A1 cannot recall when this was occurring.

74. After the motor vehicle accident in 1998, the Applicant returned to work and the pain increased because of the nature of her work. Counsel for the Applicant submitted that the balance of the medical evidence was in favour of the Applicant's contentions. It was also put that the pain related to the motor vehicle accident was quite different from the pain the Applicant claims is caused by OOS and so can be separately identified.

Findings of material questions of fact with reference to the evidence or other material on which the findings are based

75. The Applicant seeks to have the Tribunal find that Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by her resulting in incapacity for work. This would be a finding of liability under s 14 of the Act.

76. The issues raised in respect of the desired outcome are:

* Issue 1 - Has the Applicant suffered an injury that has resulted in incapacity for work (s 14(1) of the Act)? If the answer is yes then liability for compensation arises under s 14 of the Act.

* Issue 2 - The answer to issue 1 depends on whether the Applicant has suffered an injury. This depends on whether the Applicant has had a disease, or an injury (other than a disease) being a physical or mental injury, or an aggravation of a physical or mental injury, arising out of, or in the course of, the Applicant's employment (s 4(1), definition of "injury", the Act).

Issue 1 - Has the Applicant suffered an injury that has resulted in incapacity for work (s 14(1) of the Act)? If the answer is yes then liability for compensation arises under s 14 of the Act.

77. On the basis of the answer in relation to issue 2, the Tribunal finds that the Applicant very probably suffered a compensable incapacity for work in June 1997 but the effects of her injury in 1997 ceased within weeks or months of the onset of her compensable condition. No liability for compensation arises under s 14 of the Act.

Issue 2 - The answer to issue 1 depends on whether the Applicant has suffered an injury. This depends on whether the Applicant has had a disease, or an injury (other than a disease) being a physical or mental injury, or an aggravation of a physical or mental injury, arising out of, or in the course of, the Applicant's employment (s 4(1), definition of "injury", the Act).

78. Clearly the Tribunal's findings depend on the strength of the Respondent's theory that the Applicant had no continuing overuse problem through 1997 and into 1998. Mr O'Donovan mounted a formidable case for that proposition. The arguments have been adequately covered already in paragraphs 59 to 69 above. The Applicant offered some responses in respect of particular matters put to her.

79. As regards the events of 6 June 1997 she said in examination in chief that she had severe pain in her hands, wrists and top of arms. The pain was unprecedented. The pain settled but was worse in the right arm. She was given an arm rest following a work station assessment. This exacerbated the problem. She was referred to an outside occupational therapist who was expert in the Alexander technique. She also spent a day at Lisa Castles and Associates doing a course on OOS. She told the Tribunal that she had spoken with Alan Whitehead, her supervisor, before filling in an incident report form. She had asked Ms Veal, the University's rehabilitation case manager, for advice before lodging a compensation claim. She said that Ms Veal had told her to take sick leave days instead of claiming compensation. Ms Cousins's workload remained heavy. She took more breaks as she had been told to do in the Lisa Castles training. She did not see her doctor at the time because she was not advised to see a doctor. This was when she spoke also of another worker who had taken time off work with OOS and who was criticised by other staff for taking time off. Others on the Lisa Castles course said that they had reported OOS injuries in their workplaces and it had proved counter-productive. She decided in view of all of this to get on with life and not make it an issue. Nevertheless, the pain returned constantly up to July 1998. She found writing at lectures at the Canberra Institute of Technology difficult. In short, she said, she expected no sympathy from her employer having seen the attitude to other workers. The ongoing pain was in the neck, shoulders and arms.

80. The Applicant gave evidence also as to her return to work in November 1998. There was no change in her duties and her computer was sabotaged. This meant that she had to extend her hours of work. She self-managed by taking breaks and was offered no counselling as to OOS. She still experienced pain and a number of work station assessments, with revisions to her work station, did not alleviate this.

81. The Applicant had neck surgery on 10 August 1998. She had arm pain after the operation similar to that she had before. However, she had pins and needles in some fingers, a new condition. Her forearm pain remained the same, a burning pain. She returned to work on 5 October 1999 for about half time. Her arm sensations persisted. The threat of redundancy then emerged. In three weeks three workers would have to apply for the only two jobs that would be continued.

82. The Applicant addressed Exhibit A5, the University's procedures manual on writing disabilities in students. A list of warning signs appears on page 3 of that document. The Applicant said that she had experienced all of them. The major signs are "fatigue, aching, pain in arms, shoulders, hands and neck". These could progress to "swelling and/or numbness in and around affected muscles or tendons, weakness of grip and tingling". Symptoms could become worse as a day progressed. The Applicant addressed the material in Exhibit A5 on available treatment. Amongst other things it suggests consulting a doctor and obtaining a medical certificate. The Applicant admitted that she had not consulted her doctor in 1997-98 and attributed that to the advice by Ms Veal.

83. Mr O'Donovan put to the Applicant that she had seen Dr Viketos, her general practitioner, for a large number of conditions in 1997-98 without having to be referred there by the University. Some of these consultations bore on her working life, eg her consultation about her problems with her boss. The Applicant said in response that she was influenced by Ms Veal's comments to her that OOS can be difficult to prove. The Applicant insisted that she had lingering pain in 1997-98 whenever she brushed her hair, wrote or cleaned the shower.

84. Mr O'Donovan asked the Applicant to confirm that she had told physiotherapist, Ms O'Shea (Exhibit R3), the truth when she saw her on 28 July 1998. The Applicant agreed that she had. Ms O'Shea recorded the Applicant as saying she had "RSI" in the forearms and wrist "12 months (?) ago" and it had resolved. There was no mention of continuing, fluctuating pain. The Applicant explained this by saying that she had meant that the severe pain had resolved.

85. Mr O'Donovan referred the Applicant to T5, her compensation claim following the motor accident. In answer to question 18(a) the Applicant referred to a "similar injury" as "arm pain some 18mth ago". This suggested that there was no significant pain continuing to the date of the motor accident. The Applicant said that she had taken the question to refer to severe pain only. She had had pain but it had not been severe. Mr O'Donovan referred to the answer to question 24, the sequence of events. She had written, "Started having pain [following the motor vehicle accident] in my neck, shoulder and arms". The Applicant answered Mr O'Donovan by saying that the pain that started then was a different type of pain from her pre-existing OOS pain.

86. Ms Cousins explained her history as given to Lisa Castles (T63) (referred to above, paragraph 60) as concentrating on severe pain. It was severe pain that had resolved in 1997 after three weeks, not other, less severe, pain.

87. Ms Cousins explained her history as given to Dr Blum (T40), which contained no reference to ongoing fluctuating pain in 1997-98, in a similar way.

88. The Applicant places a great deal of reliance on three propositions. First, She says that she differentiated between her attitude to severe pain experienced between June 1997 and July 1998 and underlying pain experienced in the same period. She did not report or refer to the underlying pain at any stage during that period. Second, she says that she refrained from reporting that pain to her doctor during that period because no one at the University said she should do so. Third, she says that she refrained from claiming compensation in 1997 because of fear of retribution by her colleagues and by the University.

89. The Respondent has challenged each of these propositions. The Tribunal finds force in the Respondent's arguments. The Tribunal agrees with Mr O'Donovan that it is inconsistent of the Applicant to argue that she did not report her wrist and associated pain to her treating doctor over a period of nearly a year when she was continuing to experience underlying pain and when she reported a significant number of other conditions. It is also inconsistent of her to argue that she feared retribution in respect of the wrist pain when she did report problems with her boss, problems of potentially a far more insidious and sensitive nature than wrist injuries.

90. The Tribunal does not consider that the Applicant has in any way set out to mislead. The Tribunal thinks it possible that the Applicant has experienced disappointment with her physical condition since her neck operation and has been looking for causes and explanations. Clearly she did have an episode of some sort in 1997 and it is understandable that she sees some connection between it and her current symptoms. However, in the Tribunal's view, there is none of the evidence one would normally find to corroborate the Applicant's version of events. Treating doctor, Dr Viketos's reports in Exhibits A3 (22 March 1999), A4 (17 September 1999), A7 (28 October 1999) and Exhibit A8 (21 December 1998) come closest to offering support to the Applicant in that they refer variously to her having had mild and intermittent pain in both arms for 12 to 18 months after keyboard work, to her having been treated for RSI two years ago and improving but with pain having returned, to having felt pain in wrists, forearms, hands and upper arms intermittently since 1997 with significant worsening following the car accident, to pain and tingling in both arms since June 1997, initially severe but improved with work station adjustment. However, these comments, made in referral letters well after the period of interest, are based on the Applicant's retrospectively reported symptoms.

91. The Tribunal finds for these reasons, and more generally for the reasons advanced by Mr O'Donovan in final submissions, that the Applicant's OOS with onset on 6 June 1997 resolved well before July 1998. The Tribunal further finds on the same bases that the Applicant's subsequent and ongoing symptoms are more likely to be attributable to the motor vehicle accident and neck surgery than to the OOS incident of 1997.

92. The Respondent has accepted liability to compensate the Applicant in respect of the car accident. That, in the Tribunal's view, is the correct or preferable result and reflects the Tribunal's view of the situation. The Tribunal finds that, while the Applicant did suffer an injury in June 1997, and that the injury arose out of or in the course of the Applicant's employment. However, the effects of that injury, the Tribunal finds, ceased within weeks or months of June 1997 and no longer contribute to the Applicant's condition.

Decision

93. The decision under review is affirmed. The Applicant is not entitled to costs.

I certify that the 93 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.

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

Associate

Date of Hearing 5 February 2001

Date of Decision 17 September 2001

Counsel for the Applicant Mr Wodrow

Counsel for the Respondent Mr O'Donovan