Hill v Monroe Aust Pty Ltd [2000] SAWCT 10

3 The worker has been unable to work at all on account of his condition since 1 September 1997. His claim for compensation on that date, specifically relating to left wrist pain and swelling and pins and needles, was accepted and weekly payments commenced. By notice to the worker dated 29 June 1998 Monroe determined that the worker's payments should be discontinued on the basis of reports and certificates to hand from the rheumatologist Dr Begg and occupational physician Dr Thoo to the effect that the worker had ceased to be incapacitated for work by reason of his compensable disability and that his ongoing incapacity for work was due solely to his non-work related condition of rheumatoid arthritis. Essentially what is in issue is whether the accepted compensable disabilities resulted in more than temporary incapacity so as to invalidate the s 36 notification given some ten months after the worker stopped work.

4 On 3 December 1998 Monroe further determined that the worker had not suffered any permanent impairment of the arms as a consequence of his injuries sustained in 1991, 1992, 1996, 1997 and/or at any other time in the course of his employment with the company. This determination was disputed by the worker and raises the further issue as to whether his compensable disabilities have resulted in any permanent disability so as to give rise to entitlements under s 43 of the Act.

5 A third dispute, encompassing action 6416 of 1998, concerns Monroe's rejection of liability for an account of the worker's treating rheumatologist, Dr Henderson. I am informed that there are in fact a number of treatment accounts for which payment is sought pursuant to s 32 of the Act. It was agreed that these matters be left in abeyance pending my decision on the s 36 and s 43 claims on the basis that the parties will likely then be able to resolve these s 32 matters themselves.

6 It is not in dispute that rheumatoid arthritis is a progressive disease commonly affecting the joints, as the worker has experienced. The specialists involved in this matter agree that the worker's experience, reflecting progression of the disease and requiring increasingly stronger medications to control same, has been typical for the disease - per Dr Henderson tr 163, Dr. Begg tr 209 - 210.

7 The evidence establishes that the worker was first diagnosed by Dr Henderson with rheumatoid arthritis in January 1982. For at least two years before that he had experienced the effects of that condition, particularly in his hands, feet and shoulders, and had taken an anti inflammatory analgesic Indocid. In 1982 Dr Henderson substituted Clinoril for the Indocid and prescribed in addition Plaquenil aimed at controlling his arthritis.

8 The evidence further establishes that the worker has since then been taking various medications directed at controlling his arthritis. In 1996, when his attacks became more severe, Dr Henderson added Salazopryryn, and in 1997 Dr Henderson further added Methotrexate. The worker has continued to take Clinoril, Plaquenil, Salazopyrin and Methotrexate on a regular basis to date.

9 The worker said in evidence that he gave away playing football in 1984 at least in part due to increasing disablement caused by his rheumatoid arthritis.

10 At Monroe the worker was initially employed as a packer on a production line and then subsequently on various spot welding and assembly machines. Throughout his employment there he was engaged in fast, repetitive work requiring the almost continuous use of his hands and arms.

11 It is a known and accepted fact that rheumatoid joints exposed to physical stress, particularly repetitive activities, will be more inflamed and painful as a result - per Dr Begg Book of Docs 113, Dr Henderson tr 176, 179. The worker experienced these effects as a result of his work at Monroe, leading to the lodgment of claims for compensation in October 1991 (sore left wrist), March 1992 (sore right wrist), September 1996 (sore and swollen right wrist and forearm), February 1997 (sore and swollen right hand, wrist and forearm - continuation of previous claim), May 1997 (painful elbows and forearms) and September 1997 (sore and swollen left hand and wrist). These claims were all accepted as compensable disabilities.

12 The worker had carpal tunnel surgery on his left wrist in October 1991 and then right wrist in February 1992. Carpal tunnel syndrome is recognised as a common sequelae of rheumatoid arthritis.

13 By August 1997 the worker found it increasingly difficult to cope with his work duties and he finally stopped work altogether, on medical advice, on 1 September 1997. Although criticism was made of some aspects of Monroe's rehabilitation efforts, I am satisfied that it acted reasonably and did its best to accommodate the worker. The situation was, however, that by September 1997 the worker's rheumatoid arthritis as aggravated by his work activity had progressed to a point where he was simply unable to cope further with the repetitive type work available to him.

14 The preamble of the s 36 notice refers to the worker's "compensable disability, namely injury to your hands, wrists and arms, arising out of or in the course of your employment with Monroe Australia Pty Ltd", such disability being alleged to have occurred "on various dates to 1 September 1997" and recites that the worker has been and is in receipt of weekly payments in relation to "the alleged disability". In fact, the worker had had five relevant claims accepted over the period from October 1991 to September 1997. The weekly payments he was receiving in June 1998 were, it is agreed, payments consequent on the acceptance of his fifth and last claim made on 18 September 1997, this having been lodged by the worker following him stopping work and being in respect of "pain and swelling and pins and needles" experienced in his left hand and wrist. This has been the principal area of concern for the worker from the time he stopped work.

15 It is agreed that the s 36 notice relates to all of the worker's previously accepted compensable disabilities and that for it to be upheld the respondent must show that at the date of the notice the worker had ceased to be incapacitated for work by reason of the effects of any and all of his compensable disabilities.

16 I heard oral testimony from the worker, his general practitioner Dr Hughes and former treating rheumatologist Dr Henderson. For the respondent, I heard from the rheumatologist Dr Begg, occupational physician Dr Thoo and Mrs B Muller-Destro, an occupational health and safety officer from Monroe. In addition, I received into evidence many medical reports, records, statements and other data relating to the worker's employment, work aggravations, compensation claims and medical treatment.

17 The s 36 notice expressly asserts that Monroe's state of satisfaction as to the worker having ceased to be incapacitated for work by his compensable disability was founded on reports of Dr Begg and Dr Thoo dated 15 May 1998 and 9 June 1998 respectively and a certificate of Dr Begg dated 5 June 1998.

18 Dr Begg's testimony, and also the testimony of Dr Henderson and Dr Thoo, must be considered against the background of his/their written reports. The opinions of both Dr Begg and Dr Thoo, as expressed both before and after June 1998, were somewhat equivocal on the key issue as to the duration of the incapacitating effects of the work aggravations. In the witness box Dr Begg explained his equivocation by saying that he had, with the passage of time, changed his opinion (tr 230 - 231). Thus he was able to say, or perhaps more accurately was able to agree to the proposition put to him under cross-examination, that he had no doubts at all that by the time of his examination of the worker on 13 May 1998 the worker's previous work activities were no longer playing any part in his ongoing disability (tr 227).

19 Following review of the worker on 27 November 1997 Dr Begg reported (Book of Docs 113):-

"Without doubt the prime reason for his present symptoms and signs is ongoing rheumatoid arthritis. It is a known fact that rheumatoid joints exposed to physical stress, particularly repetitive activities, will be more inflamed and painful as a result. As previously stated, cessation of that provocative activity allows the inflammation to settle back to its state of self perpetuation. I would consider that three months was a reasonable time to expect the effects of this incident of repetitive activity to pass and this time had almost been reached at the time of this examination. However, it is not possible to say that each provocative work incident which has occurred over the years has not left its mark to some extent in terms of the level of pathology and associated disability which now prevails. In regard to his left wrist and hand I would consider that he had a 45 per cent disability due to rheumatoid arthritis, with 10 per cent of this figure being work related in terms of longer term disability. This 10 per cent work input will reduce to nought per cent within the next 5 years or so, and as the basic disease process continues and renders a work contribution meaningless."

20 On 13 May 1998 Dr Begg re-examined the worker. He said in evidence that he found little different on this occasion from his previous examination in late November 1997. He noted that the intensity of the worker's medical treatment had increased, his medication now including Methotrexate. He noted that the worker had been seen by the orthopaedic surgeon Mr G Morrison on 9 April 1998 on referral from Dr Henderson to consider surgical treatment on his troublesome left wrist. He concluded (Book of Docs 116):-

"Mr Hill had symptoms and signs of an ongoing aggressive and severe rheumatoid tenosynovitis affecting in particular the flexor tendon sheath in the left carpal tunnel. This high tempo of disease activity was persisting despite the fact that Mr Hill had not worked for over 6 months. The presenting condition for which surgery was being contemplated was clearly due to the effects of disease, not trauma. The phase of work aggravation has passed. I agree with Dr Henderson's opinion that the appropriate treatment at this stage is a flexor tenosynovectomy of his left wrist."

21 On 5 June 1998, in response to a specific request from Monroe's solicitors, Dr Begg completed a certificate reiterating that "the phase of work caused aggravation of the disease has passed".

22 In August 1998 Dr Begg was asked to comment on a report of Dr Henderson dated 6 August 1998 (in which report Dr Henderson proffered the view that work activity had contributed to the severity of the worker's arthritis to the tune of 25 per cent of his total disability) and a report of Dr Bastian dated 10 August 1998. Dr Begg concluded "... I would accept that, allowing for the work related exacerbations of the disease, there could be a small component of permanency to the ongoing disability, possibly 10 per cent but not 25 per cent as quoted". (Book of Docs 119)

23 In his testimony, Dr Begg explained this modification of his opinion by suggesting that it could have been done "out of deference to Dr Henderson I wasn't going to be 100 per cent confrontational" (tr 231), but he denied that there had been any significant change in his view (tr 232):-

"I don't think that the opinion has changed all that much but I think that the overwhelming opinion, if one reads the reports in toto, is that I don't really think there's an ongoing work contribution."

24 By further report dated 30 October 1998 Dr Begg again clarified his opinion (Book of Docs 120):-

"However, referring to his rheumatoid disease status in general, I would confirm that my opinion is that there has been a 10 per cent input from his earlier working years, but as I said in one of my reports I would expect over a period of time that the pathology of the rheumatoid disease itself would be the overwhelming factor dictating his disability without having to consider that an increasingly remote work history was continuing to have any effect of substance. I expect that this 10 per cent factor would have dissipated by the time of my certificate dated 5/6/98."

25 On review of the worker on 29 October 1999 Dr Begg found that his condition had improved to some extent since his previous examination.

26 Monroe's s 36 notice also cited a report of the occupational physician Dr Thoo dated 9 June 1998. For some 13 years Dr Thoo has been Monroe's medical officer, attending its medical centre twice weekly. It was Dr Thoo's opinion following review of the worker on 9 June 1998 that his "current incapacity for work is related solely to the rheumatoid arthritis and that any aggravation he suffered whilst performing repetitive work at Monroe Australia is no (sic) longer contributing to any these incapacities" (Book of Docs 133).

27 However, he also seems to have been influenced by Dr Henderson's report of 6 August 1998 for after being provided with same he reported on 31 August 1988 (Book of Docs 134):-

"The question that needs to be answered is, whether this increase in symptoms represents a permanent worsening of his primary condition, or whether it is a temporary exacerbation and if this is the case, whether the exacerbation has now settled, given he has not been back at work for almost twelve months. Although there is no clear answer to this particular issue, I am of the opinion that his years of work at Monroe Australia, has left a degree of permanent worsening of his condition and in this respect, I am in agreement with Dr Henderson's opinion.

With regard to the percentage of his total disability that can be attributed to his employment, I believe that 25 per cent (25%) as stated by Dr Henderson is a reasonable figure."

28 Yet in a fax to Monroe's solicitors dated 3 November 1998 Dr Thoo confirmed that it was his opinion that the worker's current incapacity for work was due solely to his rheumatoid arthritis.

29 In his final report dated 27 October 1999 Dr Thoo made it clear that in his view the "substantive cause" of the worker's current symptoms and disability related to his rheumatoid arthritis and not the aggravation he suffered at work. In his view, however, it would be "very difficult, if not impossible, to disprove that work has not contributed to his current status in any manner". (Book of Docs 138)

30 In his testimony Dr Thoo explained his view thus (tr 250 - 251):-

"My opinion of the situation is that any contribution that he had from his employment at Monroe's would be very minor. I think that it's not medically possible to stand up and say with confidence that there has been none at all. I don't think you can actually say that. I think that there is always the possibility that there may still be some minor contribution from it but my feeling is that as far as his capacity to work is concerned any contribution from such an aggravation is minor and not the determining factor in determining his ability to work. The determining factor there is his rheumatoid arthritis."

31 Dr Henderson was the worker's treating rheumatologist until his recent move to Queensland. It was Dr Henderson's view that the worker's work duties at Monroe had aggravated his underlying condition and had contributed in a permanent way to the severity of his arthritis. In his reports and in his testimony, taken by video link from Brisbane, Dr Henderson acknowledged the difficulty of determining this issue of work contribution one way or the other given the progressive nature of the disease process. His doubts are, I think, fairly summarised by this passage from his cross-examination at tr 184:-

"Q Doctor isn't it really the position at the end of the day that sure, his symptoms may have been aggravated and indeed probably were aggravated whilst he was at work, but once we go beyond the work period - particularly once we go beyond that by a year or more, it's really impossible to say that there's any ongoing contribution from his work. That's right, isn't it.

A I think it's difficult to know what, if any, contribution his work has made as time - it becomes progressively more difficult to know how much, if any, contribution his work has made to the overall problem as time goes on, yes.

Q Indeed, if one goes - as I think you really agreed with Dr Begg, if one went, lets say, five years down the track, the progressive disease is likely to have overtaken any contribution from his work at all. That's right, isn't it.

Q In some ways the only difference then between you and Dr Begg might be at what stage that happens, what stage in respect of this man. It may be that his progressive disease was overtaken what, if any, contribution there was from his work. I'm not sure there's even a difference between you on that, but that's the difficult question.

A That might be a fair comment. The only - yes, I think that might be a fair comment. I think it depends on how much of a contribution that his work made to the very severe exacerbations he had in 1996."

"Q Doctor, would the ill effects of such aggravation diminish with the passing of time in the ordinary situation.

A Certainly, they - I mean, if the aggravating factor was removed then it couldn't be attributing to - continuing to precipitating or to maintaining the activity of the flare up of the arthritis; the inflammatory activity. But once the inflammatory activity has started it has a self-generating effect. I don't think its possible to answer the question. It's really because the - if any aggravating effect which is caused by the worker - is really only one of a number of factor which are contributing to the activity of the arthritis."

33 In examination-in-chief he was asked by Mr Saies at tr 149:-

"Q ... are you able to offer any insight as to what period of time would see return to the base line level of symptoms that we can then attribute to the underlying condition.

A I think this is very difficult because normally in work-related problems there is not another factor which is - people don't have arthritis. For someone to work in this sort of job with his sort of arthritis is, in my experience, fairly unusual and so there's another factor in the time to resolution which has been added in, and that I think adds another degree of uncertainty and probably adds another degree - probably adds to the time you'd expect or the time that, yes, the time that you would expect him to take to go back to the base line, because when you set off a process of the inflammation it's really like a sort of production line of its own and you have - there's a long way between the cause and the eventual effect. So I think it's very difficult to say, yes, you could expect a resolution in six months or twelve months or whatever. We see exacerbations of arthritis which are caused by other things and it often takes a much longer than you'd expect - once the initiating factor has been removed. It just doesn't happen immediately."

34 Dr Henderson thought that it "might be taking it a bit far" (tr 147) to suggest that work activity had had an irreversible effect.

35 Reporting on 6 August 1998, Dr Henderson noted the difficulties there had been in controlling the worker's inflammatory arthritis in the months after he stopped work. His report also records the introduction of a new medication, Methotrexate. It was Dr Henderson's opinion, expressed in that report, that the exacerbation of the worker's condition by his work activity in the period prior to him stopping work had not yet fully resolved despite "some improvement in recent months since he has not been working".

36 In May 1998 the worker was seen by the orthopaedic surgeon Mr G Morrison on referral by Dr Henderson for consideration of surgical synovectomy to his left wrist. In his report of 25 June 1998 Dr Morrison advised that a synovectomy of the volar aspect of the wrist would play a role in preventing progression of the disease if the synovitis was not controlled by his medication in the next few months. It seems that this procedure was not performed. In his report Mr Morrison made clear his view that the worker's ongoing disability and incapacity was due to the progression of his rheumatoid arthritis and that "while it is highly probable that the type of work aggravated his hands at the time any such aggravation has long since past (sic) and in my opinion his current condition is due to the severe underlying rheumatoid arthritis". (Book of Docs 169)

37 Dr Hughes' contribution was of assistance in adding to the history of the worker's symptoms and treatment.

38 In the net result, I do not think that the views expressed by the two specialist rheumatologists Dr Begg and Dr Henderson are greatly apart. Aside from their contributions I have been assisted by the reports and other data presented, and not least the testimony of the worker himself. I found the worker to be a credible witness. Significant in his testimony was his assertion of continued improvement beyond June 1998. He said that he continued to use his arm casts to assist him sleeping "Right through 1997 until about the end of 1998. I was using these almost nightly but all 1999 onwards, you know, my arms, I hardly use them at all now." (tr 92). He said that from 1999 onwards he felt that he had more range of movement in his left wrist. He said that grip of his right hand had increased "in the last twelve months or so" so that he was now comfortable with it (tr 94). He said that "the last year has probably been the best year I've had for some time as far as what I can do with my hands" (tr 94). As for writing, he said that whereas back in 1997 he couldn't write or even hold a biro properly and "up until around late 1998 I was struggling to write", he could now probably write a letter (tr 95). He could now do things that he could not do in 1997. He agreed that there had been much change for the better in his ability to undertake house-work and other social activities and to do these things more comfortably than when he left Monroe (tr 97).

"Q Do you still have particularly bad days or is it just generally an improvement on the last twelve months.

A You do have particularly bad days with the arthritis and that, and some days you wake up and it is sorer than what the other days were; even with the medication, you know, it still makes you uncomfortable. I don't know; you kind of learn to live with a certain kind of pain all your life but there are just some days I feel worse than others.

Q Do the temperature conditions make any difference.

40 The worker's signed statement dated 10 March 1999 records that his symptoms had by then improved, that his left hand was not as bad, his ability to make a fist had improved, he no longer experienced regular pins and needles, he no longer experienced numbness and could feel his hand at all times and his fingers no longer cramped or got as sore although he still experienced some tingling. (Book of Docs 204)

41 My impression from the worker's evidence is that sometime in 1999 he returned to a "base-line level of symptoms" attributable to his underlying condition. Dr Begg found in October 1999 that his condition had improved from when he had last seen him in May 1998, with the worker reporting moderation of the pain level in his left hand/wrist since the earlier examination. The rheumatologist Dr Van Den Berg, who took over the worker's treatment from Dr Henderson in May 1999, reported continuing improvement in symptoms and signs through 1999.

42 I am satisfied that the worker was expressing his honestly held belief when he told Dr Bastian in August 1998 that "since being off work, his left wrist and hand pain/swelling, and paraesthesias have settled considerably, but not to the level he was experiencing prior to working on the rotary seal cap welder". (Book of Docs 190)

43 On the whole of the evidence I am satisfied that the worker has now reached a point where his ongoing symptoms are attributable solely to his underlying condition and not the effects of his work aggravations. Put another way, I am satisfied that his continuing symptoms can no longer be said to arise from his employment at Monroe. I find that he reached this point sometime within the past twelve months. I am not persuaded on the evidence that this point had been reached by June 1998. I am thus not persuaded that he had by then ceased to be incapacitated by his compensable disabilities. I set aside Monroe's notice dated 29 June 1998.

44 I am satisfied on the evidence that the worker had by June 1998 recovered from any employment related epicondylitis condition affecting his elbows. I accept and find that he does have some continuing symptoms in the elbows, but these symptoms are solely attributable to his rheumatoid arthritis.

45 It follows from my finding that the worker's ongoing symptoms are attributable solely to his underlying condition of rheumatoid arthritis without contribution from his work aggravations that the worker has no entitlement to lump sum compensation pursuant to s 43. That is to say, he does not have any assessable ongoing permanent disability resulting from his compensable disabilities. I confirm Monroe's determination dated 3 December 1998.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.