and he spoke of the appellant having "loss of control of herself". But in those observations the doctor addressed an issue of causation - though obviously not from a legal standpoint. Such evidence did not suggest that the witness had abandoned his opinion that here had been physical injury at the outset. Indeed it is plain that the doctor was emphasizing a change in the appellant's condition, this being entirely compatible with the "initial problem" having been physically determined.
26 I must say that I do not understand, in all the circumstances of the doctor's evidence, the learned judge's observation that the doctor had "refer[red] hypothetically to a minor" initial injury or problem. (My emphasis).
27 Fourth, to my mind the judge's reasons addressing compensability of the paragraph (c) disorder which she found was established are not without their difficulties. On their face, the reasons at that point only address linkage between any compensable (physical) injury and the paragraph (c) disorder which her Honour found was established. But at least her Honour was not satisfied that there had ever been physical injury which was compensable. In that case no question of possible linkage arose. Perhaps her Honour was saying, in effect, that regardless whether the appellant had suffered any compensable physical injury, the same was not shown to be linked to the paragraph (c) disorder, the latter having arisen at the time of the appellant's dismissal. But that would give rise to its own problems - neither any compensable physical injury nor the paragraph (c) disorder being specified, and asserted temporal connection between dismissal and onset of the latter not itself denying sufficient causal linkage between the former and the latter.
Resolution of the appeal
28 The appeal is to be resolved on the basis of the concession by appellant's counsel noted at [11].
29 The judge found that the appellant was suffering from a disorder which met the criteria of paragraph (c). In my opinion she was obliged by the evidence so to find.
30 The judge did not plainly identify in her reasons the nature of the paragraph (c) disorder which she found to be established. There was material before her which entitled a finding that it was either or both a depressive/adjustment disorder and a chronic pain syndrome.
31 Her Honour was satisfied that the appellant was suffering from a chronic pain syndrome at the time of the hearing - which is not to say that it was the unidentified disorder to which I referred a moment ago. In my opinion that finding is impregnable.
32 The next question is whether the judge was constrained to find that the appellant had suffered compensable physical injury affecting her arms, shoulders and neck. In my opinion the material before her obliged that conclusion. I have referred to some of that material when discussing her Honour's reasons.
33 The threads of the material which was before the judge were these: First, the appellant's evidence, not challenged on cross-examination, that she had suffered symptoms in response to repetitive work over a period of years. True it is that the appellant was cross-examined as to her credibility in a number of respects. But the judge did not make a broad finding that the appellant was not a credible witness; and, specifically, she accepted that the appellant had suffered symptoms for a period of years.
34 Second, Dr El-Khoury's evidence revealed a history of complaints by the appellant of symptoms variably affecting her arms, shoulders and neck over a period of years preceding dismissal, described positive clinical signs which the doctor had observed on occasions, offered a diagnosis of physical injury, at least implicitly related the injury to circumstances of the employment, and gave explanation why the appellant had neither made complaints at work nor lodged an accident compensation claim before her dismissal. Significant aspects of that evidence were not subjected to challenge at all. The doctor did say in cross-examination that the appellant had occasionally suffered symptoms of depression before September 1997. But that cross-examination was directed to the compensability of the depression which was later evident. It was not put to show, nor did it show, that the arm, shoulder and neck symptoms of which the appellant had complained before September 1997 had been manifestations of a depression.
35 Third, Mr Mangos, the first doctor to examine the appellant on behalf of the respondent after her dismissal, diagnosed carpal tunnel syndrome and overuse syndrome of both arms, neck, back and shoulders, which he attributed to the appellant's repetitive work. He held to that opinion in his supplementary report.
36 Fourth, it should be accepted, on a view most favourable to the respondent, that negative nerve condition studies denied a diagnosis of carpal tunnel compression.[8] But that does not exclude the plaintiff having suffered an initial compensable overuse injury which affected her arms, shoulders and neck, an injury which in part mimicked carpal tunnel compression. There is, of course, a difference between carpal tunnel compression and carpal tunnel syndrome. It is of much significance, I consider, that each of the doctors who examined the appellant before she was overtaken by a chronic pain syndrome - that is, Dr El-Khoury, Mr Trevor Jones and Mr Mangos - diagnosed overuse injury and/or carpal tunnel syndrome; and, in the case of Dr El-Khoury and Mr Mangos, concluded that the same was compensable.[9]
37 Fifth, Mr Rustomjee's first report shows that by late 1997 the appellant was displaying a chronic pain syndrome affecting her neck, shoulders and arms. This had been forecast by Dr El-Khoury in his report dated 24 November 1997. Thereafter, the appellant was examined by a number of doctors practising in a number of specialities. Reports spanned the period March 1998-May 2003. Their contents need not be addressed seriatim. Generally speaking they focused upon the particular doctor's speciality. Most often they expressed opinion concerning the appellant's then-current status. In some instances they recorded a history inconsistent with the history contemporaneously documented by Dr El-Khoury[10]. There are instances in which they opined upon the connection between the appellant's chronic pain syndrome and her depressive/adjustment disorder - sometimes with and sometimes without the advantage of a reliable history. In other instances they apparently treated the occurrence of physical injury at the outset as a given.[11] Overall, none of them provides any persuasive reason for rejecting the contemporaneous and near-contemporaneous material to which I have referred - material which is persuasive that the appellant initially suffered compensable physical injury. I include in that observation the first report, dated 12 March 1998, provided by the rheumatologist engaged for the respondent, Dr Karna. It illustrates the problem of assessment which by then was present. The doctor said this: