Saade and Australian Postal Corporation [2005] AATA 49 (18 January 2005)

Last Updated: 20 January 2005

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 49

ADMINISTRATIVE APPEALS TRIBUNAL

GENERAL ADMINISTRATIVE DIVISION N2004/190

Re: VICTORIA SAADE

Applicant

And: AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal: P.J. Lindsay, Senior Member, Dr I. Alexander, Member

Date: 18 January 2005

Place: Sydney

Decision: The tribunal affirms the decision under review.

. . . . . . . . . . . . . . . . . . . . . . . .
P. J. Lindsay, Senior Member

(c) Commonwealth of Australia (2005)

CATCHWORDS

WORKERS COMPENSATION – liability accepted in 1997 for occupational overuse syndrome – compensation claim in 2003 in respect of occupational overuse syndrome – finding that 1997 injury and 2003 injury are not same – role of depression in onset of symptoms – injury found not to be work related – decision affirmed.

Administrative Appeals Tribunal Act 1975 s.35

Safety, Rehabilitation and Compensation Act 1988 s.4, 14

Power v Comcare [1998] FCA 1783; (1998) 89 FCR 514

Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659

Rosillo v Telstra Corporation Limited [2003] FCA 1628; (2003) 77 ALD 396

Re Liu and Comcare [2004] AATA 617; (2004) 79 ALD 119

REASONS FOR DECISION

P.J. Lindsay, Senior Member

Dr I. Alexander, Member

1.	This is an application for review of a decision made by Australia Post on 15 December 2003 denying liability for a claim for compensation made by Victoria Saade on 22 October 2003.

BACKGROUND

2.	In April 1997, the applicant lodged a claim for compensation with Australia Post under the Safety, Rehabilitation and Compensation Act 1988 (the Act), complaining of soreness in her right upper limb and right side of her neck. By determination dated 16 May 1997 Australia Post accepted liability for "occupational overuse syndrome right upper limb". In the following months, she received physiotherapy and Dr L Reiter, rheumatologist, gave her several cortisone injections in the right shoulder and elbow. Gradually her work program was upgraded. She resumed her normal duties from 2 September 1997 and her rehabilitation case was closed in October 1997.
3.	Ms Saade lodged another claim for compensation on 23 October 2003 in respect of occupational overuse syndrome affecting her hand, arm, shoulder and neck. In the claim, she described the events that led to her injury as being the overuse of her arm in performing her normal duties at the counter. She stated she first noticed the injury on 30 April 1997 (T34 in the documents lodged with the tribunal under s. 37 Administrative Appeals Tribunal Act 1975) (the AAT Act).
4.	Dr J Tong, her GP, wrote to Australia Post on 18 November 2003 referring to consultations with Ms Saade in October 2003 when she complained of a sore right shoulder, neck, forearm, headaches, back aches and generalised tingling in her right hand, swollen fingers and dropping of objects. Dr Tong added that Ms Saade was starting to develop symptoms on her left side. Dr Tong recommended restrictions on her duties, including a maximum of 5 kilograms for occasional lifting, no repetitive bending or rotation of the back, restricted keyboard work, no repetitive work, no gripping, no forceful pushing or pulling and no operation of powered equipment. Dr Tong’s medical certificate dated 29 November 2003 diagnosed occupation overuse syndrome and anxiety-depression.
5.	By determination dated 30 October 2003 Australia Post denied liability for compensation (T38). The delegate’s reasons noted that the applicant’s hand movements were "varied and non-repetitive" while performing her duties serving at the counter and that there was "little requirement for forceful use of the arm, because automatic staplers are used". The delegate went on to state that "there is no medical explanation for the widespread nature of [her] symptoms" and no explanation as to how her work caused them. The delegate determined that "Australia Post is not liable, under section 14 of the [Act] to pay compensation to you for any form of "overuse" injury to the neck, shoulder or arm".
6.	Australia Post arranged for Ms Saade to be examined by Dr N McGill, consultant rheumatologist, on 10 December 2003. Dr McGill concluded that she was currently fit to undertake her normal duties although it would be appropriate to upgrade to normal duties over the period of a few weeks. Dr McGill expected that she would continue to experience and report diffuse muscular-skeletal symptoms as the stressors in her life, due to marital difficulties, appeared likely to continue into the foreseeable future.
7.	On 15 December 2003 the reconsideration officer at Australia Post decided to affirm the determination of 30 October 2003 because the delegate was not satisfied that there was sufficient evidence to establish a connection between any injury as a result of overuse of the arms at work (T47).
8.	Ms Saade has applied to the tribunal for review of the decision of 15 December 2003.

EVIDENCE

9.	Ms Saade, who is now 39, has two children aged 15 and 13. She has separated from her husband and has custody of the children. In her evidence she said she started working for Australia Post in 1987, resigned at the time of having each of her children, and subsequently rejoined. She became a permanent part-timer working 20 hours per week, four days a week in around June 1994. Ms Saade said she first noticed pain in her right arm around the end of 1988 or early 1989. She said the sorting work at the time was causing her strain. She did not seek any treatment for this pain until around April 1997 when it became severe.
10.	Ms Saade gave evidence about the claim for compensation that she made in 1997 which the respondent has accepted. In April 1997 she began to experience more intense pain in her right arm. The pain was so severe that it woke her at night. She stated that she was experiencing pain in her right hand, the palm of the hand, the fingers, the elbow, the shoulder and also some minor back pain. She described numbness in her fingers, swelling in the palm or her hand and arm, a feeling of heat in her arm, tender elbows and shoulder pain. Dr Tong diagnosed occupational overuse syndrome in the right upper limb as a result of her work as a postal services officer. Following cortisone treatment by Dr Reiter, she was still experiencing a small amount of pain but she was able to work and complete her household tasks. She did not experience any numbness and she was no longer dropping items. If she overdid things, she would feel pain but overall it was bearable. This dramatic reduction in symptoms lasted for approximately 14 months but then the symptoms gradually began to return.
11.	On 15 May 1997 Dr G McGroder, Consultant Occupational Health Physician, provided a report to Australia Post following his examination of Ms Saade on that date. He noted that she complained of intermittent pain for approximately twelve months and that it had become constant over the prior month. The pain was described as starting in the neck and radiating down the shoulder, arm and forearm and was associated with paraesthesia in the fingers. Examination revealed tenderness over the lower spine, muscles of the neck and shoulder, biceps, triceps and forearm flexors and extensors with no difference between the right and left side. No other abnormalities were noted. His conclusion was that Ms Saade suffered from nerve root irritation around C5/C6 but there was no relationship with this problem and her work. In his opinion Ms Saade was fit to work normal duties as a counter officer. He recommended some investigations that were not pursued.
12.	On 16 May 1997 the respondent determined that Ms Saade was entitled to compensation for "occupational overuse syndrome right upper limb." On 26 May 1997 she commenced physiotherapy treatment with no real improvement and Dr Tong continued to certify Ms Saade unfit for work. She spent several weeks off work after being certified unfit for work by Dr Tong.
13.	Dr Reiter prepared a report on 25 June 1997 (exhibit A9) following examination, on Dr Tong’s referral, of Ms Saade on that date. Dr Reiter noted that Ms Saade complained of a one-year history of intermittent right arm pain that had become constant in the last three months. The pain was present morning and night, radiated from hand to elbow to neck and was associated with some numbness in the hand. The pain was worse with housework and at work with various activities. There were often accompanying frontal headaches that settled with paracetamol. Treatment with physiotherapy had not helped. Ms Saade did not sleep well but denied any symptoms of depression. Examination revealed tenderness over the right medial and lateral epicondyle, generalized tenderness in the right forearm and arm musculature and tenderness over the subacromial bursa space of the right shoulder with pain radiating down the arm with abduction. Some tenderness was noted over the right C2/C3 and right C5/C6 zygoapophyseal joints. Dr Reiter concluded that Ms Saade had "a regional pain syndrome" originating from her cervical spine with signs and symptoms of rotator cuff disease and epicondylitis. She referred Ms Saade for further physiotherapy and cervical spine joint mobilization and also injected the lateral and medial epicondyles with Depomedrol/Xylocaine.
14.	The symptoms continued, although Ms Saade reported some improvement following the injections. On July 1997 she was reviewed by Dr Reiter who noted, in her report of the same date, that the forearm pain had settled but that shoulder and neck pain persisted. Examination revealed some residual tenderness of the epicondyles, continuing tenderness in the subacromial bursa space and extreme tenderness over the right trapezius muscle and C2/C3 and C5/C6 joints. Dr Reiter injected Celestone/Xylocaine into Ms Saade’s right shoulder and recommended further physiotherapy. Ms Saade said she thought her arm improved by about 80 per cent after receiving cortisone injections.
15.	By early September 1997 Ms Saade’s symptoms had improved significantly and she was considered fit for normal duties. On 2 September 1997 Ms Saade upgraded to normal duties. On 6 October 1997 the Rehabilitation Case was closed.
16.	Dr Tong’s clinical notes indicate that Ms Saade had mild upper limb symptoms on two occasions in 1999 and mild lower limb pain and sensory symptoms on several occasions in 2001, once following a session at the gym. In July 2002 symptoms consistent with a panic attack were noted. By October 2002 symptoms consistent with depression and anxiety were evident and following further deterioration he prescribed an antidepressant (Zoloft) in November 2002.
17.	By 20 October 2003 the applicant was experiencing high levels of pain which had gone up into her neck. She commented that "if you have an injury, that injury is going to stay with you for the rest of your life. It is not going to go. It might ease, it might get better. It doesn’t matter what medicine you get, what you do, it might ease it for that period of time, but it’s always going to come back. You’re going to have to live with it" (transcript p 76). She saw Dr Tong who certified her unfit for work that day and recommended light duties for approximately a week. She said that she had mentioned the problem to Dr Tong a few times prior to 20 October 2003 but did not take it any further because she knew what the outcome would be. She referred to knowing that her postal manager would be unhappy about it. On the same day Ms Saade visited Dr Chen, the facility nominated doctor, who also recommended light alternative duties. The light duties involved floor walking and some stocking, which she remained on light duties until she was directed to take sick leave without pay in January 2004. She said that she felt happy and was getting better. She has not worked with Australia Post since that time.
18.	Ms Saade gave evidence that she is still suffering from pains in her right limb but not as bad as in the past. It comes and goes and there is a break in between, whereas before there had been no break, it was constant.
19.	In cross examination Ms Saade was extensively questioned about her feelings of depression and the medical treatment that she had sought for her depressive condition. Ms Saade agreed that on the first occasion she met with Dr McGill in December 2003 she told him that she was suffering from depression. At the same time, she told Dr McGill that she had separated from her husband just over a year before and the separation had been likely for a few years. She confirmed that she had told the doctor during her medical examinations that she was taking medication for her depression. She also confirmed that she had told Dr McGill in September 2004 that she was suffering from stress and depression and that this was not helping her situation with her injury.
20.	Ms Saade denied telling Dr Tong on 4 July 2004 that the pain can completely disappear if she does nothing. She also denied that she experienced periods where she did not suffer from pain at all. She explained that she did not tell Dr McGill or Professor Sambrook about first noticing the pain in her right arm in the late 1980s because she did not think that it was relevant. Asked why she did not give the medico-legal experts a history of symptoms prior to April 1997, Ms Saade said the pain was not bad enough at that time to bring it up. She agreed that she had told Dr McGill that domestic activities such as vacuuming or hanging out the washing also made her symptoms apparent. She agreed that she had complained of suffering from frontal headaches of varying intensity to Dr Tong from the early to mid 1990s.
21.	Ms Saade could not identify any particular event that she thought may have caused her symptoms. Instead, she thought it was the generally repetitive nature of the work that she was undertaking, serving customers behind the counter.
22.	Ms Saade confirmed that she did not take time off work because of her symptoms the subject of these proceedings between 1997 and 2002.
23.	In November 2002, Ms Saade consulted another General Practitioner, Dr Maroun, who changed her antidepressant medication and referred her to Dr Benjamin, a psychiatrist. Dr Benjamin saw her on 2 December 2002 and in a report of the same date diagnosed "Adjustment Disorder with Depressed Mood" and commented that the differential diagnosis of "Major Depressive" had to be considered. He again changed her antidepressant medication because of side effects related to the medication she had been prescribed by Dr Maroun. During the course of the hearing, the tribunal issued an order pursuant to s.35(2) of the AAT Act prohibiting publication or disclosure of the contents of the report of Dr Benjamin dated 2 December 2002 that describe Ms Saade’s history leading up to the onset of her emotional and psychological symptoms. Access to the report was restricted to the tribunal, its staff, legal representatives, a representative of the respondent and the medico-legal experts. The tribunal further directed that the oral evidence given by Ms Saade, Dr McGill and Professor Sambrook regarding Ms Saade’s history leading up to the onset of her emotional and psychological symptomatology noted in Dr Benjamin’s report, be heard in private and that publication of that oral evidence be restricted to a general description of that history.
24.	In his medical report, dated 2 December 2002, Dr Benjamin noted that Ms Saade had suffered from insomnia, poor appetite and lack of energy and had suffered symptoms that led Dr Benjamin to make a diagnosis of Adjustment Disorder with Depressed Mood. Dr Benjamin advised her that there was a need to treat her depression as a separate issue. Dr Benjamin advised her to cease taking the Luvox that she had been prescribed due to the persistent side-effects that she was experiencing. As a replacement, he prescribed Zoloft 50 mg daily. He also certified Ms Saade unfit for work.
25.	Ms Saade was seen by Dr Tong on 27 February 2003 when she complained of a sore right neck and numbness in the right hand. Dr Tong noted that on examination she had some tenderness in the right paravertebral muscles and right upper limb. Dr Tong prescribed a non-steroidal anti-inflammatory agent. Ms Saade saw Dr Tong on two occasion in April 2003 for counselling. One of Ms Saade’s children was having problems at school. The notes make no reference to her previous symptoms. Ms Saade did not see Dr Tong again until 20 October 2003 when she again complained of her right sided symptoms. Dr Tong provided a medical certificate on that date diagnosing occupational overuse syndrome and recommended less repetitive duties and physiotherapy.
26.	On 20 October 2003, Ms Saade contacted her employer to advise she was not attending work because she had a swollen arm and hand. Ms Saade lodged a Claim for Rehabilitation and Compensation on 23 October 2003 in relation to occupational overuse of the hand, arm, shoulder and neck that she said was materially contributed to by her employment. She nominated 30 April 1997 as the date of injury. Dr Chen agreed with Dr Tong that Ms Saade was unfit for work on 20 October 2003 and fit for restricted duties from 21 October 2003 to 27 October 2003. The respondent has determined that it is not liable under s.14 of the Act to pay compensation to Ms Saade. On 15 December 2003, the respondent affirmed the determination dated 30 October 2003.
27.	On 3 March 2004 Ms Saade had neurophysiologic testing of the right and left upper limbs performed by Dr Brimage, a Neurologist on referral by Dr Tong. The reported result was that there was no evidence of carpal tunnel syndrome or any neuropathy affecting the upper limbs.
28.	Ms Saade gave evidence concerning her supervisor at the Bankstown Square Australia Post Shop, Mr Charlie Cunningham. She stated that Mr Cunningham harassed her during the first week that she had off work after 20 October 2003. She claimed that Mr Cunningham would ring and abuse her, and tell her that she was fit enough to return to work. She said that although she could not recall if Mr Cunningham used the word "malingering", she could definitely recall him telephoning her at home and using words to the effect that she was feigning her injury. Ms Saade alleged that in the same conversation, Mr Cunningham told her that he would make sure that she did not win any compensation claim that she was engaged in. However, Ms Saade did not recall an incident involving Mr Cunningham in 2003 where he reprimanded her for shouting at other staff members in front of customers. She denied that the pains in her arm, neck and shoulder were likely to be related to the stressors that were going on in her private life and thought it just a coincidence. She further denied that she was attempting to find a work-related reason for her symptoms.
29.	In his report to the respondent dated 18 November 2003 (T41) Dr Tong stated that he did not think Ms Saade’s symptoms had resolved since 1997. He did not agree that her duties were not repetitive as they involved the same muscle groups. In his opinion the correct diagnosis was occupational overuse syndrome involving her upper limbs, neck and back. He suggested that Ms Saade had been reluctant to complain or make a claim "due to the hostile reception at work" and that Ms Saade felt that she was being "hassled" and accused of being a malingerer. He noted that she was anxious and depressed and was also starting to have symptoms on the left side.
30.	Dr McGill provided a report on 10 December 2003 to the respondent (T46). Dr McGill noted Ms Saade’s history of "RSI" in 1997. He obtained a history of increasing pain over the previous twelve months, particularly in the neck, sometimes in the right arm, forearm and hand and frequently accompanied by headache. The pain was associated with intermittent numbness of the right hand. Occasional ache of the left upper arm and numbness of the left hand was also noted. The symptoms were worse at night apart from numbness in the right hand, which was more prominent in the morning. Although still present, the pains were said to be less during the previous weeks while away from work. Ms Saade indicated that she had separated from her husband about 12 months previously and complained of feeling depressed and sleeping poorly for several months. She reported that her mood was worse since the separation and that she found it difficult to look after two children on her own. Her medications included regular paracetamol, intermittent non-steroidal anti-inflammatory agents and a low dose antidepressant for about one month.
31.	Examination revealed no significant signs apart from reported tenderness in the right upper back and the entire right upper limb. The tenderness was not restricted to specific structures and was not consistent with any specific musculoskeletal disorder. Variable subjective sensation abnormalities were noted in the right forearm, hand and more generally not explicable on a dermatome or peripheral nerve basis. No other significant abnormalities were noted. Dr McGill’s conclusion was that her "symptoms are likely to be predominantly due to fibromyalgia secondary to feeling down or depressed and experiencing sleep disturbance " and he suggested that "it is unlikely that her work duties have played any significant role in her symptoms". He noted that fibromyalgia is very common in the general community and that Ms Saade’s marriage difficulties were likely to have contributed to her fibromyalgia. He thought that she "has genuine symptoms but that they are primarily a reflection of her mood and level of perceived stress rather than her physical activities" and considered her fit for normal work duties.
32.	Professor P Sambrook, Professor of Rheumatology, prepared a report for Ms Saade’s solicitors dated 16 April 2004 following his review of Ms Saade on 7 April 2004 (Exhibit A 1). The history was that Ms Saade had suffered from "RSI" in 1997, coped over the ensuing years but symptoms returned during 2002 and became significantly worse in about October 2003. The symptoms included numbness in all the fingers of the right hand as well as swelling of the fingers. In addition, there was pain in the right forearm, which would radiate into the upper arm, shoulder and neck. This pain was constant but fluctuated in intensity and seemed to be worse with upper limb activity. Ms Saade also reported the recent onset of lower grade symptoms on the left side. Examination revealed tenderness on palpation of the forearm and upper arm soft tissues consistent with allodynia and marked tenderness over right lateral epicondyle and the trapezius muscle in the shoulder. There was increased sensation in the right hand and forearm compared to the left and sustained wrist flexion produced tingling in the right forearm. Tinel’s sign produced discomfort in the forearm. No other abnormalities were noted.
33.	Professor Sambrook concluded that Ms Saade "has some features of a neuropathic pain syndrome with chronic pain with features of dysasthaesia and mild allodynia in the right upper limb". Further he concluded that "She had to perform quite repetitive work in terms of upper limb functioning on the counter and it is reasonable to consider her work has operated as an aggravating factor in its onset." He indicated that Ms Saade was fit to continue light duties with regular rotation and avoidance of repetitive upper limb activities
34.	Dr Tong provided a report dated 5 May 2004 at the request of Ms Saade’s solicitors (Exhibit A 6). He noted that Ms Saade’s current symptoms became more consistent in October 2003. He noted that she complained then of "tingling in her [right] hand, dropping things and swollen fingers. She was tender in her [right] trapezius, cervical & thoracic paravertebral muscles, forearm muscles, lateral and medial epicondyles ... Had tingling in her whole [right] hand on hyperflexion of her wrist". Dr Tong noted that he had contacted her supervisor at work regarding the provision of suitable duties and was informed that there were none available and was advised to certify her as unfit for work. Dr Tong reported that Ms Saade’s symptoms continued to wax and wane. He concluded that her overuse syndrome was compounded by anxiety/depression due to the chronic discomfort in her arms and neck and the lack of decorum by the respondent. Dr Tong considered that she was unable to return to her previous duties unless she was offered a far greater number of tasks that did not involve use of her forearm muscles.
35.	In a supplementary report dated 11 May 2004 (ex A2) Professor Sambrook provided his views about Dr McGill’s report dated 10 December 2003. He noted that Dr McGill did not rule out an underlying physical problem but still indicated it unlikely that Ms Saade’s work duties played a significant role in her symptoms. Despite Dr McGill’s diagnosis of fibromyalgia secondary to depression and sleep disturbance, Professor Sambrook did not alter his overall conclusions of his earlier report.
36.	In Dr McGill’s supplementary report dated 3 June 2004 (ex R4) he explained, noting the report of Professor Sambrrok dated 16 April 2004, that he and Professor Sambrook were in agreement that Ms Saade’s symptoms were not due to any organic or structural disorder. He noted that the two diagnoses that each doctor applies to Ms Saade’s condition "are different labels for similar/overlapping conditions". He felt that the main difference between the opinions of the doctors was the cause of the syndrome itself and noted that it was more likely that her symptoms were a reflection of her unhappiness and depression, rather than physical activity at work or elsewhere.
37.	Dr McGill provided a further report on 9 September 2004 (ex R2) following his review of the applicant on that date. He confirmed the details of the history taken at the time of the previous consultation. He noted that Ms Saade had not worked for Australia Post since January 2004 but was working for Dr Tong as a receptionist approximately seven hours per week. Ms Saade reported that she continued to experience symptoms but that it was easier to cope when at home, as she is free to take a break if needed. She continued to experience pain in the fingers and tightness in the shoulders, worse at night with similar symptoms in the neck. She expressed unhappiness and annoyance at Australia Post and Dr McGill’s previous opinion and indicated that "the stress and depression isn’t helping." She complained of headaches and that housework such as vacuuming, hanging out the washing or other household tasks made her symptoms worse. Examination revealed similar results to the prior consultation with no significant abnormalities apart from reported tenderness of the entire right upper limb, right shoulder, right neck and right upper back. This tenderness was not localized to muscles, joints, bony prominences or any other specific structure. Dr McGill noted that Ms Saade was still taking low dose antidepressant medication as well as regular paracetamol and non-steroidal anti-inflammatory agents. His conclusion was that "the appropriate label for her constellation of symptoms is fibromyalgia" and that "she is physically fit for the full normal duties of a postal services officer." He suggested that treatment with antidepressant medication was appropriate but questioned the low dose.
38.	In a supplementary report dated 12 October 2004, Professor Sambrook commented on Dr McGill’s reports dated 3 June 2004 and 9 September 2004. Professor Sambrook reported that depression and headaches seemed to be a more prominent feature of her current symptoms. He noted the normal results of the nerve conduction studies, conducted by Dr Brimage on 3 March 2003. Professor Sambrook disagreed with the Dr McGill’s diagnosis of fibromyalgia on the basis of the extrapolation of the physical findings of Dr McGill. He notes that, unlike Dr McGill, he would expect to identify tenderness "in the more specific trigger points of fibromyalgia and that the condition would be not unilateral but symmetrical in the upper and lower limbs". Instead, he maintained his diagnosis of neuropathic pain considering the features of dysaethesia and allodynia that Ms Saade was displaying. Further, Professor Sambrook disagreed with Dr McGill’s claim that the two practitioners’ diagnoses were the same. He maintained that although they had some common features such as widespread pain, poor sleep pattern and affective changes such as depression, they are distinguishable, as "medical literature generally distinguishes fibromyalgia on the basis of its characteristic and specific trigger points, which are not a feature of neuropathic pain. Similarly allodynia and dysaesthesia are characteristic of neuropathic pain but are not features of fibromyalgia".
39.	Professor Sambrook gave oral evidence by telephone. He was not previously aware that Ms Saade had sought treatment for anxiety and depression in late 2002. He was asked whether his diagnosis would change on account of his further insight into Ms Saade’s medical history but he said it did not. He noted that it was difficult to establish whether the neuropathic pain that patients suffer from was primary or secondary to the depression that some patients, including Ms Saade, experienced. Professor Sambrook stated that it was feasible that there could be an amplification of her physical symptoms if there was continuing anxiety and depression in the intervening 10 months between her being diagnosed with a depressive condition in 2002 and her complaints of pain in 2003. However, he also noted that if she had sought treatment in that period then it was less likely that it was still having a causative role some ten months later. Nevertheless, having regard to the history, he stood by his opinion that her work contributed to her condition of neuropathic pain syndrome. Professor Sambrook stated that time would suggest that the condition that Ms Saade suffered in 1997 and the condition that she suffered in 2003 were the one and the same, and that the episode in 2003 was simply a reactivation of the problems that she was suffering in April 1997. He noted that as neuropathic pain conditions can be quite chronic, they can go through stages where they can improve, yet there is a likelihood that the condition will return. Consequently, he was of the opinion that the history of Ms Saade’s pain reducing, between 1997 and 2003, was consistent with the natural history of neuropathic pain conditions.
40.	In cross examination Professor Sambrook agreed that an individual who suffers from psychiatric problems could present with the complaints similar to those of Ms Saade. He further agreed that if suffering from depression, it was possible that you could get musculo-skeletal symptoms. Professor Sambrook stated that Dr McGill’s diagnosis of fibromyalgia was a diagnosis that he was not willing to make in this case. He explained that for him to be confident to diagnose fibromyalgia, he would have to identify specific trigger points and tenderness along with pain on both sides of the body. He agreed that there are some overlapping features of the two diagnoses such as poor sleep pattern and depression however, he was not confident in making the diagnosis without these other symptoms. Professor Sambrook stated that he was not saying that Ms Saade’s work completely caused her condition of neuropathic pain syndrome however, he was of the opinion that her work has acted as an aggravating factor. He also believed that despite there being medical argument as to the actual patho-physiology of neuropathic pain syndrome, it is still regarded as a physical malady rather than as just being a matter of some underlying psychiatric condition.
41.	Dr McGill gave oral evidence before the tribunal. He reaffirmed his conclusion that the appropriate diagnosis for the applicant’s symptoms was "fibromyalgia" in the setting of unhappiness and sleeplessness. On being given the additional information with regard to the applicant’s personal situation and psychiatric history, he indicated that this information reinforced his opinion and may provide an explanation for the her symptoms. He admitted to some uncertainty with regard to the similarity between the 1997 symptoms and the current symptoms. He indicated that in his opinion allodynia was similar to so-called trigger points and that in fibromyalgia, tenderness can be present without trigger points. Also patients with fibromyalgia frequently report abnormal sensations, for example, dysasthesia. He pointed out that when he saw the applicant, her symptoms were not solely unilateral but also present on the alternate side and that asymmetrical symptoms were not uncommon in fibromyalgia. He reaffirmed his view that the applicant had no physical disability and should be able to perform full duties.
42.	On cross examination, Dr McGill conceded that the applicant had symptoms with genuine distress but he believed that at present, there was no evidence of a physical disorder and that the applicant was reporting pain because of psychological distress. He believed that in 1997 it was likely that the applicant’s symptoms had a psychological component but was not able to exclude a concurrent physical problem. He disagreed with Professor Sambrook’s opinion with regard to fibromyalgia and trigger points. He explained that at an earlier time it had been considered that trigger points were necessary for the diagnosis of fibromyalgia, but that this position had been criticized and that it is now accepted that tenderness can be more generalized. He also maintained that regional fibromyalgia is well described and that although symmetrical symptoms are more characteristic, unilateral symptoms are not uncommon. In the applicant’s case, he considered the symptoms to be less symmetrical than is typical but well within the parameters of the diagnosis. On direct questioning he said he disagreed with Professor Sambrook’s analysis of allodynia and dysasthesia.
43.	In response to questions by the tribunal with regard to the diagnosis of "regional pain syndrome" made by Dr Reiter, Dr McGill commented that this was a useful but more general working diagnosis, whereas regional fibromyalgia is a more committed diagnosis but in practice there are similarities. With regard to Dr McGroder’s diagnosis, he commented that nerve root irritation was unlikely, as the symptoms did not conform to a dermatome distribution.
44.	After Dr McGill read the report of Dr Benjamin, which before the hearing was unfamiliar to him, he explained that he thought his diagnosis and opinions had been reinforced due to the revelation. It gave an insight into the reason for her unhappiness that is causing her fibromyalgia. Dr McGill felt it was a "very clear explanation for the pattern of symptoms that she expresses". In cross examination Dr McGill explained that he thought it very possible that considering the report of Dr Benjamin, Ms Saade experienced a psychological disturbance in 1997 in relation to her marriage. Dr McGill stated that on the basis of Dr Benjamin’s report, the likelihood of her being "psychologically well adjusted, relaxed and happy" was slim. He felt that if that were the case, then it may provide some explanation for the symptoms that Ms Saade experienced in her right limb at that time and that ultimately, the most likely way of explaining the symptoms she suffered in 1997 was on the basis of psychological upset.
45.	Mr Charles Cunningham is the postal manager at Bankstown Square Australia Post and was Ms Saade’s supervisor. In his evidence he agreed that he telephoned Ms Saade at her home but denied ever calling her a malingerer. He denied ever saying anything abusive to her at any stage of their working relationship. He further denied harassing Ms Saade and attempting to make her come back to work after she had called in sick in late October 2003.
46.	Dr Tong gave evidence before the tribunal by telephone. He said that Ms Saade came to see him on one occasion on 17 June 1999 and that she complained of tingling over the whole of the right hand, of dropping objects and of a reduction in grip strength. He said that the symptoms that he recorded on that occasion were similar to those reported to him during the consultations in 1997 when Ms Saade complained of pains in her right arm. Dr Tong’s evidence did not add any significant additional information apart from clarification of some entries in his practice notes. Under cross-examination he admitted to knowing about the full scope of the applicant’s personal circumstances and the diagnosis of reactive depression. During cross-examination it was put to him he had tried to conceal these issues in his assessment of the applicant’s condition. He responded that in his opinion it was not relevant and subsequently added that he did not agree with the opinion given by Dr McGill.

APPLICABLE LEGISLATION

47.	The following definitions in s. 4 of the Act are relevant:

aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
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.
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
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; ...

The Act makes provision for liability as follows:

Section 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. ...

CONSIDERATION AND FINDINGS

48.	Counsel for the applicant, Mr Richards, submitted that the injury or disease in both claims the subject of the 1997 determination and the 2003 determination are the same. The neck injury referred to in the latter claim was no more than sequelae to the actual injury, being the right upper limb injury. Rather than make a specific diagnosis of the injury, the tribunal was required merely to make a finding that Ms Saade has suffered an injury/disease under s.4 of the Act. Then having regard to the fact that a s14 determination has already been made, there cannot be a later determination. It was open for the tribunal to conclude that Ms Saade’s 1997 injury continued, and was of a similar nature and is the same injury as occurred in 2003. He conceded that there was no evidence to establish that the symptoms between 1997 and 2003 were due to anything Ms Saade did at work. In relation to injury, he submitted that Professor Sambrook’s opinion that the applicant suffers from neuropathic pain, should be accepted. He submitted that Dr McGill, who disagreed with the findings of Professor Sambrook, did not agree with the statement that medical literature genuinely distinguishes fibromyalgia on the basis of specific trigger points. Prof Sambrook believed that neuropathic pain was a preferred diagnosis given Ms Saade’s symptoms were unilateral, being right upper limb. The tribunal should prefer the opinion of Prof Sambrook, because there was no evidence of some psychological event to indicate there was something in 1997 that caused Ms Saade’s symptoms. It would be too much to ask that Ms Saade had suffered a psychological injury causing a physical injury in 2003 when there is no psychological aggravating factor of any degree in 1997 to cause the same symptoms.
49.	In his submission, Dr McGill’s evidence is actually consistent with a finding that Ms Saade is suffering the same injury in 2003 as she suffered in 1997. Mr Richards conceded that Dr McGill did not go so far as to say the injuries were the same, but the doctor gave evidence that she believed the pain in her right arm was of a similar nature and he accepted and agreed that she was suffering from a right upper limb condition in 1997 and a right upper limb condition in 2003.
50.	Mr Richards submitted that Ms Saade’s evidence and Dr Tong’s opinion support a finding that she was still symptomatic until 2003 when she deteriorated. In conclusion he submitted that it was not open to the tribunal to affirm the 2003 reviewable decision and effectively make a further finding under s.14, given there is the 1997 determination for the same injury for right upper limb, that is neuropathic pain syndrome, which is a disease. He submitted that what Ms Saade suffered in 1997 was not an aggravation but an ailment and in 2003 she suffered aggravated symptoms.
51.	For the respondent, Mr G Johnson submitted that Dr McGill explained that there need not be a psychiatric diagnosis to cause fibromyalgia. It can arise from depression or depressive type conditions and from the condition Dr Benjamin diagnosed. Also unhappiness and distress falling short of a psychiatric diagnosis can also bring on fibromyalgia. Dr McGill thought the label he chose for Ms Saade’s condition and that chosen by Prof Sambrook were really quite the same, because even if Professor Sambrook’s diagnosis was correct, he would still say the pains suffered by Ms Saade were due to an underlying psychological stressor. McGill noted differences between Ms Saade’s symptoms as relayed to him in 1997 and what she presented with in 2003/4. Mr Johnson submitted that Dr McGill had properly concluded that it was more likely than not that the 1997 condition was also psychological in origin. Dr McGill concluded either that Ms Saade had had a physical problem in 1997 that resolved or the symptoms in 1997 were caused by a psychological condition. Dr McGill indicated that it was possible that there had been an epicondylitis in 1997 that had resolved. He did not accept that either symptoms she was presenting with in 1997 and in 2003 were more likely to be due to her work. Mr Johnson therefore submitted that the 1997 and the 2003 conditions were different and that it was more likely that the root of the symptoms was psychological and not the result of work activity. Mr Johnson noted that Dr McGill found support in for his conclusions in Ms Saade’s ability to work between 1997 and 2003 with few complaints made to her GP whom she was seeing regularly.
52.	Mr Johnson further submitted that Dr McGill was of the opinion that the sort of stressors that were recorded that she was suffering were quite capable of bringing on fibromyalgia in 1997. Ms Saade had not revealed those stressors to Professor Sambrook, who accepted in general terms that if someone was under a psychological stressor for a number of years that that could bring about symptoms rather than the other way around. Mr Johnson submitted that her general practitioner was taking on the role of advocate in failing to reveal Ms Saade’s history of depression which he omitted from his report, particularly as he gave an opinion as to the cause of that depression. His opinion should be discounted in favour of Dr McGill.
53.	Mr Johnson submitted that the evidence of Ms Saade’s supervisor should be preferred regarding the alleged complaints of harassment particularly regarding Ms Saade’s confused evidence regarding the malingering episode and her pre conception of hostile reactions. Mr Johnson referred to Ms Saade’s sick leave history and submitted it did not appear to support a persistent condition. He noted the significant absences from work in late 2002 during the period when the issues revealed in Dr Benjamin’s report were significant. He highlighted Ms Saade’s perception that if you have an injury, you are going to have it for the rest of your life.
54.	In Mr Johnson’s submission the pains Ms Saade suffered when she performed sorting work in 1988/9 should be disregarded because she had no time off and made no complaint until about 1997. No reference to this history was put to her GP, Dr McGill or Professor Sambrook. He submitted that the work she had done before 1997 was not repetitive and there was no particular work activity associated with increased symptoms. He noted upon her re-entry to employment with the respondent in 1995 she had acknowledged persistent and frequent headaches. The complaints of headaches, tension and stress, dizziness, feeling tired, difficulties in relation to her children from time to time, were going on before and after April 1997.
55.	In relation to the s.14 issue, he submitted that the decision in Power v Comcare [1998] FCA 1783; (1998) 89 FCR 514 was authority for the proposition that the decision maker can revisit and change an earlier decision taking into consideration all the evidence before him. The first tier decision maker in 2003 was saying that he was not satisfied that there had been an injury and that there is no liability. The same could be said of the s.62 determination. He submitted the review of the reviewable decision in 2003 was a review of the 20 October 2003 determination. He submitted that the most likely scenario was that the 2003 condition was not the same as the 1997 condition.
56.	It is clear from the decisions of the Federal Court in Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659 and Rosillo v Telstra Corporation Limited [2003] FCA 1628; (2003) 77 ALD 396, and this Tribunal in Re Liu and Comcare [2004] AATA 617; (2004) 79 ALD 119, that it would be contrary to the Act to cease liability for the injury, the subject of the 1997 determination. A determination under s.14 will include findings, amongst other matters, that the employee has suffered an injury pursuant to s.4(1) and that the injury has resulted in death, incapacity for work or impairment. The time at which the respondent’s liability will give rise to a present obligation to make payments is determined by other sections of the Act.
57.	In the present proceedings therefore, the issues to consider and the potential resulting outcomes are:
(a)	What is the correct and preferable diagnosis of the condition the applicant suffered, the subject of the 2003 reviewable decision,
(b)	What is the correct and preferable diagnosis of the condition she suffered, the subject of the 1997 reviewable decision
(c)	Whether the diagnosis for a and b are the same. If they are, then the 2003 reviewable decision must be set aside.
(d)	If the diagnosis for a and b are not the same, whether the diagnosed condition, the subject of the 2003 reviewable decision, is a compensable injury within the meaning of s.4(1) of the Act. If it is not, then the 2003 reviewable decision must be affirmed.

58. The specific findings to issues above are:

(a) Notwithstanding the difference of opinion between Dr McGill and Professor Sambrook as to the specific diagnosis, the tribunal is of the opinion that the evidence suggests that the applicant’s current condition has no clear physical basis.

We prefer Dr McGill’s diagnosis of fibromyalgia in preference to Professor Sambrook’s diagnosis of neuropathic pain syndrome. Dr McGill appears to be well aware of the similarities between the two diagnoses and he was persuasive in rebutting the claims of deficiency in his diagnosis about not finding specific trigger points. Dr McGill contended that the more recent research indicates that for a diagnosis of fibromyalgia, these trigger points do not need to be identified.

Professor Sambrook appears to accept that there is a primary physical problem that is compounded by the depression and anxiety that Ms Saade suffered through the years. We are satisfied that without any physical findings showing a physical abnormality (such as xrays, scans etc ) Professor Sambrook’s opinion is less persuasive.

(b) The medical evidence before the tribunal is such that we are satisfied that in 1997, the applicant had a condition where her symptoms and signs could be attributed to a physical condition that responded to treatment and appeared to resolve. Notwithstanding the contention by the respondent that the condition was work related, the tribunal remains uncertain as to the actual cause of the condition at that time.

Her level of complaint of symptoms during the intervening years was minimal despite her regularly consulting her general practitioner on unrelated matters.

We note there was a flare up at the time at the psychological distress in the closing months of 2002, without any other apparent physical triggers. Dr McGill suggested any connection between the two conditions was a matter only of possibility.

(c) Although the applicant’s current symptoms have similarities to those described in 1997 the tribunal is not satisfied, for the reasons given, that the applicant’s current condition is the same as in 1997.

(d) The tribunal is not satisfied that there is convincing evidence that the applicant’s current medical complaints are work related. We point out that both experts accept the applicant’s complaints of pain as being genuine.

There is a correlation between the time of the onset of her current symptoms and her emotional condition diagnosed as a reactive depression or adjustment disorder by Dr Benjamin.

Dr McGill’s opinion, which we find persuasive, postulated such a connection. His diagnosis, and more importantly its confirmation by Dr Benjamin’s report, lead us to conclude on balance that the injury being the subject of the reviewable decision 15 December 2003, is not an ailment that was suffered by the applicant and which was contributed to in a material degree by her employment. We favour the diagnosis of Dr McGill that the applicant is fit for her work duties without restriction and her condition is more likely than not to be a consequence of her long standing personal issues and associated psychological problems.

59.	It follows that the decision under review should be affirmed.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member:

Signed: .....................................................................................
Associate

Date of Hearing 14-15 October 2004
Date of Decision 18 January 2005
Counsel for the applicant Mr Richards

Counsel for the respondent Mr Johnson