Abdul and FedEx Express Australia Pty Limited (Compensation) - [2025] ARTA 1605

Abdul and FedEx Express Australia Pty Limited (Compensation) [2025] ARTA 1605 (1 September 2025)
Applicant/s: Clark Abdul
Respondent: FedEx Express Australia Pty Limited

Tribunal Number: 2022/8779
Tribunal:General Member F Eylward
Place:Sydney
Date:1 September 2025

Decision:The Tribunal affirms the decision under review.

...........................[SGD].............................................
General Member F Eylward
CATCHWORDS
COMPENSATION – claim for bilateral carpal tunnel syndrome – aggravation of carpal tunnel syndrome – section 14 of the Safety, Rehabilitation and Compensation Act 1988 – definition of 'injury' or ‘disease’ – ailment or aggravation of ailment – whether significantly contributed to by employment – constitutional condition – conflicting medical evidence – no prior symptoms – bilateral carpal tunnel release surgery – section 16 SRC Act medical expenses – not within Tribunal jurisdiction where liability declined
LEGISLATION
Safety, Rehabilitation & Compensation Act 1988 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential & Transitional Provisions No 1) Act 2024
CASES
Brazel and Australian Postal Corporation [2007] AATA 1264
Comcare v Canute (2005) 148 FCR 232
Comcare v Lofts (2013) 137 ALD 521
Comcare v Power (2015) 235 FCR 187
Comcare v Wuth (2018) 159 ALD 1
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Australian Postal Corporation v Burch (1998) 26 AAR 312
Borg and Australian Postal Corporation [2013] AATA 363
Comcare v Martin [2016] HCA 43; 258 CLR 467
Comcare v Mooi (1996) 69 FCR
Comcare v ZZRP [2019] FCA 952
Cox v Comcare [2006] AATA 521
Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10
Piercy and Military Rehabilitation and Compensation Commission [2016] AATA 156
Rana and Military Rehabilitation and Compensation Commission [2010] AATA 937
Rodriguez v Telstra Corporation Ltd (2002) 66 ALD 579
Stateships v Lawson (2009) 107 ALD 42
Wecker v Secretary, Department of Education Science and Training (2008) 249 ALR 762
Zdziarski v Telstra Corporation Limited [2015] FCA 207
Simeoni v Comcare [2025] 15 August 2025
SECONDARY MATERIALS
Administrative Review Tribunal (Common Procedures) Practice Direction 2024
Administrative Review Tribunal (Expert Evidence) Practice Direction 2024
Statement of Reasons

These proceedings arise from an Application for Review seeking review of a decision made by the licensed Respondent on 28 June 2022 (reviewable decision),[1] which affirmed an earlier decision dated 24 May 2022 denying liability to pay compensation for bilateral carpal tunnel syndrome (or an aggravation of) to the Applicant pursuant to section 14 of the Safety, Rehabilitation & Compensation Act 1988 (SRC Act).[2] The decision was stated to be on the basis of the claim not satisfying section 5B of that Act requiring that an ailment, or aggravation of an ailment, has been contributed to, to a significant degree, by employment with the Respondent in order for it to be liable under the SRC Act.
[1] T-Documents filed by the Respondent, T5, T20
[2] T-Docs, T17
This was in response to a claim for workers compensation submitted by the Applicant on 11 April 2022 relating to ‘carpal tunnel both hands’ (the claimed condition) with the initial date of injury being stated as 4 December 2021.[3]
[3] T-Docs, T13
The Application for Review dated 24 October 2022 (substantive application) was lodged with the (former) Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 (AAT Act).[4] Procedurally, the Tribunal notes that the substantive application was submitted outside the allowable timeframe set out in section 29(1) of the AAT Act, being 28 days from the date of the reviewable decision.
[4] T-Docs, T5
On application, the Applicant was granted an extension of time on 24 November 2022,[5] with no objection by the Respondent, after it was discovered that there was a jurisdictional error with an earlier Application on foot before the Administrative Appeals Tribunal (proceedings 2022/6207) at that time seeking review of the incorrect decision relating to the claimed condition. That Application was withdrawn and the substantive proceedings continued with all documents filed in the earlier matter properly transferred.
[5] Order of Senior Member G Lazanas dated 24 November 2022
Subsequently, the Administrative Appeals Tribunal was replaced with the establishment of the Administrative Review Tribunal on 14 October 2024. Any active applications before the Administrative Appeals Tribunal were deemed to be applications before this Tribunal with the appropriate authority and power under the transitional provisions to continue and determine any aspect of review not already finalised.[6]
[6] Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, schedule 16
Accordingly, because the Applicant’s substantive application had not been finalised by that date, it now proceeds, and is determined under, the authority of this Tribunal, and the Administrative Review Tribunal Act 2024 (ART Act) applies.
The Applicant seeks a decision of the Tribunal to have the reviewable decision set aside asserting that his claimed condition was caused, or significantly contributed to, by his employment as a truck driver with the Respondent and therefore he should be entitled to compensation under section 14, together with section 16 of the SRC Act for proposed surgery and any time off for surgery (section 19).
After having been vacated and adjourned on multiple occasions, the Hearing finally proceeded before me over a two-day Hearing on 5-6 March 2025. Mr Gary Smith of Counsel appeared, instructed by Santone Lawyers representing the Applicant, with Ms Kate Slack of Counsel for the Respondent, instructed by McInnes Wilson Lawyers.
PRIMARY ISSUES IN DISPUTE
The issues in dispute in this matter are relatively narrow. Solicitors for the parties have concisely set these out in their respective Statements of Facts, Issue and Contentions, filed with the Tribunal collectively as follows:[7]
(a)Has the Applicant suffered a physical ailment, or an aggravation of a physical ailment, being carpal tunnel syndrome, as per section 4(1) and 5B of the SRC Act;
(b)If so, was the condition contributed to, by a significant degree, by the Applicant’s employment with the Respondent;
(c)If so, is the Applicant entitled to compensation under section 14 of the SRC Act;
(d)If so, is the Applicant entitled to compensation pursuant to section 16 (and section 19) of the SRC Act for the recommended bilateral carpal tunnel release surgery?
[7] Statements of Facts, Issues & Contentions dated 14 March 2023 and 11 May 2023, Exhibit 1
It is accepted between the parties that the Applicant does have a diagnosed condition of bilateral carpal tunnel syndrome and, that surgery has been recommended by way of a carpal tunnel release as a form of treatment for his claimed condition.[8]
[8] Ibid; Outlines of Submissions filed 7 March 2025; T-Docs T9
The medical evidence overwhelmingly agrees that the diagnosis of bilateral carpal tunnel syndrome is the correct diagnosis of the Applicant’s presenting symptoms. This diagnosis is supported by each of the medical expert opinions and the Applicant’s treating general practitioner and hand specialist on the basis of a typical presentation of the condition together with objective neurophysiology testing including positive Tinel’s and Dunkan’s tests.[9] The results of the nerve conduction studies, performed by Dr Bassel Hassan on 21 February 2022 on referral from his treating general practitioner definitively concluded there is ‘bilateral moderately severe median nerve dysfunction at the wrists’. [10]
[9] T-Docs T9
[10] T-Docs T7
Based on the objective test results and the agreed medical evidence before the Tribunal (considered in more detail below) and, noting there appears to be no dispute on the diagnosis itself, nor that carpal tunnel release surgery is appropriate in the Applicant’s circumstances to treat the claimed condition, I make a finding of fact in this regard.
It is further accepted between the parties that for the purposes of section 5A(1) of the SRC Act, the claimed condition satisfies the definition of ‘injury’ being ‘a disease suffered by an employee’ and that the criteria under section 5B of the SRC Act for ‘disease’ subsequently applies.[11] I agree with this.
[11] Applicant Statement of Facts, Issues & Contentions, Exhibit 1, pgs 15-17
The primary issue remaining in dispute is whether the onset or aggravation of the carpal tunnel syndrome was contributed to, by a significant degree, by the Applicant’s employment as a truck driver with the Respondent as required under section 5B of the SRC Act for the Applicant to be entitled to compensation.
The Applicant contends that his employment as a truck driver for 36 years, and specifically the repetitive nature of buckling and unbuckling the straps on the truck, but also including the steering of the wheel and changing gears, caused an aggravation of bilateral carpal tunnel syndrome and was the main contributing factor to it.
As a result, the Applicant asserts that since 4 December 2021, when the Applicant first attended his treating GP in relation to the claimed condition, he has reasonably required medical treatment and will further reasonably require the bilateral carpel tunnel release as the proposed treatment option by the Applicant’s treating hand surgeon, Dr Christopher Scott, for which he ought be entitled to under section 16 of the SRC Act.[12]
[12] Ibid
The Respondent’s position is that while the Applicant does suffer from bilateral carpal tunnel syndrome, it was not significantly contributed to, to the requisite threshold, by his employment, and so, it does not constitute a ‘disease’ and therefore not an ‘injury’ for the purposes of the SRC Act.[13] It concedes the Applicant does suffer from an ailment for the purposes of section 4(1) and 5B of the SRC Act, however contends the ailment is an idiopathic and/or constitutional condition, unrelated to employment.[14]
[13] Respondent’s Outline of Submissions
[14] Respondent Statement of Facts & Contentions Exhibit 1, pgs 196-197
Accordingly, the Respondent contends that the Applicant is not entitled to compensation under section 14 of the SRC Act, and as a result, it is not liable to pay the medical expenses associated with the proposed bilateral carpal tunnel release surgery recommended by the Applicant’s treatment surgeon under section 16 of the SRC Act (nor section 19 incapacity payments). The Respondent further asserts that there is insufficient evidence before the Tribunal relating to the specific detail and cost of the proposed surgery and whether ‘reasonable’, in any event, to satisfy the criteria required under section 16 to determine the Respondent is liable for those costs, even if the Applicant were to be entitled to compensation under section 14 of the SRC Act.
FACTUAL BACKGROUND
The Applicant is a 68 year old truck driver, who commenced working full-time with Riteway Express in 1983 driving semi-trailers before becoming a subcontractor with them in 1987. Riteway Express was then purchased by TNT and subsequently, the Respondent, FedEx Express. He has remained working in this capacity throughout and continues to work his pre-injury duties with the Respondent, despite his carpal tunnel symptoms.
In 2010, the Applicant purchased a 2010 model tautliner truck, which had curtains on the sides of the truck with 10 straps on either side. Prior to this, he drove a Pantech truck, which did not have curtains. Sometime in 2022, the tautliner truck curtains were replaced with new white curtains at the request of the Respondent in order to remove the Riteway branding. These new curtains have 5 straps on either side of the truck.[15]
[15] Statements of the Applicant dated 31 August 2022 and 31 March 2023, Exhibit 1, pgs 1-3, 19-21
As an inherent part of his role as a delivery truck driver for the Respondent, the Applicant is required to load his truck with freight and then drive his truck from the Erskine Park depot to various locations to deliver and pick up freight. The Applicant has a permanent restriction in place of lifting goods no greater than 10kgs due to a previous left shoulder/elbow injury with TNT, the subject of a workers compensation claim.[16]
[16] Summons clinical records of Casula Medical Clinic, Exhibit 1, NSW Workcover Certificate
In order to load the freight into the tautliner truck, the Applicant has to untighten the curtains by unbuckling the straps and pushing the curtain aside to open the truck for loading. Upon completion of loading, he then reverses that process, closing the curtains by pulling them across, and tightening the curtains of the truck by securing the strap buckles. The purpose of tightening the strap buckles is primarily for safety reasons to prevent car accidents caused by the curtains billowing out and obscuring his vision in the mirrors while driving, or creating a safety risk to other drivers, so is a necessary task.[17] Presumably it is also to protect the goods from falling out of the truck whilst driving.
[17] Applicant evidence
It is not in dispute that the Applicant is required to undertake this process in performing his role as a truck driver couriering and delivering freight for the Respondent, and, that this process occurs multiple times per day. I make a finding of fact that this process is a part of his daily duties and that the unbuckling and the tightening of the straps multiple times a day is necessary for him to safely fulfill his duties.
The Applicant first attended his treating GP, Dr Robert Yap, on 4 December 2021 in relation to symptoms in both hands and left calf pain where he was referred to neurologist Dr Bassel Hassan for nerve conduction studies of both hands and the left leg. The clinical note records:
‘Carpal Tunnel Synd both hands. For night splints. Lat Calf pains burning. Need to get out of car to walk around. 2 years ?peroneal nerve compression’[18]
[18] Ibid 16, pg 328
The clinical records of Casula Medical Clinic, produced under summons, date back to 26 July 2016. There are a number of reports within the summonsed clinical records of the Applicant’s increased weight and a need to reduce his weight, particularly by his cardiologist relating to his ischaemic heart condition (the importance of which will become evident later). There is no reference to symptoms being reported by the Applicant in either hand prior this consultation, notwithstanding regular, appropriate, attendance at the medical centre for other unrelated issues, including a work-related left shoulder injury, ischaemic heart disease, low B12 levels, pancreatitis and emphysema.[19] The Applicant also has a hearing impairment and requires a hearing device.
[19] Ibid
The first record noted in the medical notes accords with the Applicant’s evidence given at Hearing and is generally consistent with his reports to each of the medical experts that he first attended Dr Yap relating to the claimed condition on that date only after starting to notice some pins and needles in his hands shortly beforehand. I accept this to be true and that the Applicant had not experienced any pre-existing symptoms in either hand prior this time based on the clinical records and the consistency of reporting, though he had suffered from similar symptoms of left leg pain and burning for two years prior to consulting Dr Yap at the same time as the initial presentation of the claimed condition.
The Applicant next attended Dr Yap on 27 January 2022 in relation to the claimed condition, again reporting pain and numbness in both hands, especially at night. Dr Yap advised him to wear night splints and prescribed Mobic nocte for the pain.[20]
[20] Ibid, pg 330
Following the nerve conduction studies referred to in paragraph 11, the Applicant was referred to hand specialist, Dr Christopher Scott, for opinion.
On 5 April 2022, Dr Scott confirmed the diagnosis of carpal tunnel syndrome in his report to Dr Yap, noting a 4-month history of pain and numbness in both hands, slightly worse on the right, occurring “on and off during the day and aggravated by holding a telephone and sometimes by holding a steering wheel” with the pain and numbness waking him at night. He further states:
“He tells me that his usual occupation involves multiple stops throughout the day and at each stop he has many straps to release and fasten on the truck… [the Applicant] feels that his condition is related to his work as a truck driver and he is therefore looking into lodging a worker’s compensation claim.”[21]
[21] T-Docs T9
Dr Scott recommended bilateral carpal tunnel release and provided a quote to the Applicant for the surgical fee estimate as a self-funded patient[22] but made no comment on any causal link between employment and the development of symptoms other than stating he would be happy to request approval through the insurer if the Applicant proceeded down that route or lodging a workers compensation claim.
[22] Summons documents of Dr Christopher Scott, Exhibit 1, pg 496
I accept that while there is a quote provided for the proposed surgery, this is the only document in evidence identifying the potential cost of the surgery as would be necessary to properly consider medical expenses under section 16 of the SRC Act. As per Dr Scott’s letter, the fee estimate only appears applicable if the Applicant funds the surgery himself, and therefore I have inferred that to mean the cost estimate may very well be different if the surgery is ultimately funded by an insurer.
I further note that the quote states the fee estimate is only valid for 3 months from the date of issue and only includes Dr Scott’s fee and his surgical assistant. It does not include anaesthetist fees, hospital fees, or other associated fees, such as physiotherapy or pathology. It specifically states that if surgery is scheduled more than 3 months after the date of issue, a new fee estimate and/or further consultation may be required. I do not accept that fee estimate to be correct and valid as at the date of the Hearing or this decision.
On 9 April 2022, the Applicant returned to his treating GP to discuss the surgical treatment recommendation by Dr Scott and receive test results from a Body Scan with SPECT CT relating to his left leg/shin pain when driving his car after no abnormality of the leg was recorded by Dr Hassan in the nerve conduction study. The radiological imaging showed mild arthritic changes.[23] At that consultation, Dr Yap certified the Applicant as fit to return to pre-injury duties.[24]
[23] Ibid 16, pg 371
[24] T-Docs T10
The Applicant subsequently submitted his workers compensation form to the Respondent on 11 April 2022. The Applicant states in his claim form that ‘undoing 300 straps and buckels [sic] a day on my truck and strapt [sic] down’ caused, or contributed to, his condition, which he first sought medical treatment for on 4 December 2021 after noticing symptoms in both hands while sleeping and driving.[25] He further describes what happened at work as, “hands go numb and tingle of a night some time during the day depending on position of hands”.[26]
[25] T-Docs T13
[26] Ibid
The Applicant supplied the medical certificate from Dr Yap dated 9 April 2022 in support of his claim. The medical certificate provides a diagnosis of ‘bilateral carpal tunnel syndrome’ and relates the condition to ‘work as a truck driver undoing or tightening straps all the time’ with treatment recommendations including night splints and surgery.[27]
[27] Ibid
Within his claim form, the Applicant cites first reporting his claimed condition to his manager, Mr Matt Dawson, on 15 March 2022. He explained the delay in reporting it to the Respondent since the deemed date of injury as being, “Because I did not know what was wrong with my hands and wanted to find out.”

The Respondent confirms the Applicant first reported the claimed condition to it on 15 March 2022 in the Employers section of the claim form.[28]
[28] Ibid, pg 35
I do not entirely accept the explanation for the Applicant’s delay in reporting his claimed condition until 15 March 2022 as being because he did not know what was wrong with his hands. It was clear from the first consultation record on 4 December 2021 that Dr Yap considered the diagnosis of the presenting symptoms to be bilateral carpal tunnel syndrome and, accordingly, referred him to Dr Hassan for a nerve conduction study.
It is logical to assume that Dr Yap advised him during that consultation of his preliminary diagnosis and the reason for the referral. It is, however, plausible that the Applicant wanted to wait until he had a definitive diagnosis and the treatment options for his level of symtpoms after the testing before informing his workplace, particularly in circumstances where he was still performing his pre-injury duties and hours. In any event, the Respondent has not taken issue with the delay in reporting, nor is it a matter of contention affecting the determination of the substantive application.
The Respondent denied the claim by way of initial decision listing the injury as ‘aggravation of bilateral carpal tunnel syndrome’ on 24 May 2022. This decision determined that while the Applicant has a disease as defined under the SRC Act and has been diagnosed as having bilateral carpal tunnel syndrome, they had not yet received an independent medical opinion in relation to the significant cause of the injury (emphasis added in decision).[29]
[29] T-Docs T17
The delegate then indicated she would review the decision on receipt of the medical report of Dr Stephen Potter, rheumatologist, following the independent medical examination arranged for 14 June 2022. It is not clear to me as to why the Respondent listed the claimed injury as ‘an aggravation of bilateral carpal tunnel syndrome´ in this decision as there is no reference to ‘aggravation’ in the documentation that was before them at the time of the decision to explain why.
Following the receipt of Dr Potter’s report dated 20 June 2022,[30] the Respondent then issued a further determination, being a Review of Own Motion dated 28 June 2022 pursuant to section 62 of the SRC Act, reconsidering the earlier decision with the benefit of the independent medical evidence. This, as the reviewable decision subject of the proceedings, declined liability for the claimed condition under sections 5B, 14 and 16 of the SRC Act and affirmed the earlier decision, citing from Dr Potter’s report that:
“[the Applicant] has a history, examination, investigations all consistent with bilateral carpal tunnel syndrome, idiopathic and constitutional... [he] is suffering with a particular condition and that condition is not due to any workplace responsibilities by initiation or sustained aggravation. It follows therefore that the nature of duties given over time have never been a condition caused or aggravated by the workplace…. There has been a recent onset in spite of 30 years work and therefore, it follows that I have no evidence of aggravation… the man’s complaints are reasonable, genuine, constitutional and common.”[31]
[30] T-Docs T19
[31] T-Docs T20 pg 412-413
The Applicant, through his solicitors, then ultimately lodged the substantive application with the Tribunal on 24 October 2022.
EVIDENCE
Evidence was given in this matter both viva voce by the Applicant and four medical experts, together with documentary evidence tendered during the course of the proceedings, including written evidence of Dr Stephen Potter in addition to the four medical experts who gave oral evidence.
The parties helpfully also filed a Joint Hearing Book for the Tribunal’s assistance and the efficient running of the Hearing, tendered in full as a whole (Exhibit 1).
The Tribunal was also aided by the parties each providing an agreed chronology of the Applicant’s medical history and an outline of submissions supplementing their oral closing arguments, together with a list of authorities relevant to the substantive application for the Tribunal’s benefit.
Admissibility of Applicant’s extended video footage
Video footage showing the Applicant opening the straps of his truck was shown and relied on by the Applicant, having previously been served on the Respondent and filed with the Tribunal. This was also provided to the medical experts.[32]
[32] Exhibit 1.14
A second lot of video footage of a Fed Ex employee demonstrating the manoeuvre of unbuckling and buckling the straps was relied on by the Respondent, also having been previously served and filed.[33] The Applicant was shown a copy of this footage and confirmed it was generally accurate, but the curtain was a different type of curtain, though the unbuckling and buckling manoeuvre of the straps on the curtain was the same.
[33] Exhibit 2.8
Both sets of footage were shown to the medical experts, although it became apparent on the second day of Hearing during the concurrent evidence given by Professor Peter Youssef and Dr Terry Kwong that there was some confusion regarding a third set of extended video footage taken by the Applicant including footage of him also tightening the straps. Notably, this was after medical evidence had already been given by orthopaedic surgeon, Dr Christopher Soo called by the Applicant, and occupational physician, Dr Angus Forbes, by the Respondent.
This third extended video footage had not previously been served on the Respondent, nor were they aware of its existence. It had not been supplied to the Tribunal prior nor shown to the Respondent’s medical experts, although it appeared that Dr Kwong had viewed the extended version of the footage before the Hearing during his assessment with the Applicant. The Applicant sought leave to tender the extended version of the video footage once it became apparent during the concurrent evidence that the medical experts were each referring to different sets of video footage provided by the Applicant.
The Respondent strongly opposed the admissibility of the extended video footage on the grounds that it had not been provided prior to Hearing and it would be prejudicial to now allow it given the late stage of the proceedings, particularly after having already heard evidence from two expert witnesses and with neither expert called by the Respondent having had to opportunity to view it as part of their assessment of the Applicant and in preparation of their opinions (though they had been provided with the Applicant’s shorter video footage and the Respondent’s video footage, which incorporates a demonstration of tightening of the straps).
Section 66 of the SRC Act prohibits a claimant who has instituted proceedings from adducing any matter into evidence not previously disclosed at least 28 days before a Hearing without leave of the Tribunal. It further dictates that leave must not be granted unless the Tribunal is satisfied there are special circumstances justifying the admission of the new information into evidence at such a late stage of the proceedings. No special circumstances applied other than what appeared to be an oversight on behalf of the Applicant in serving the shorter video footage on the Respondent instead of the extended version and only including the shorter video footage in the joint hearing bundle.
Having regard to section 66 of the SRC Act, and the relevant circumstances applying to this matter, I did not allow the third extended video footage and leave to adduce it at such a late stage of proceedings was refused.
I formed the view that there were no applicable special circumstances in this instance that had prevented the extended video footage from being provided earlier, and further, that it was not warranted where there was video footage of a person demonstrating the tightening process already in evidence and supplied to all experts, together with a shorter version of the Applicant, himself, unbuckling the straps.
On balance, I considered allowing the extended video footage part way through the Hearing would have been be prejudicial to the Respondent, but also negatively impact on the efficiency of the Hearing where it would have been necessary for reasons of procedural fairness to recall the two medical experts who had already given their evidence as a relevant factor to take into consideration (together with the fact the Hearing had already been adjourned multiple times previously).[34]
[34] Section 9 and 53 of the ART Act
The Applicant
The Applicant’s evidence was given both viva voce and within two evidentiary statements dated 31 August 2022 and 31 March 2023.[35]
[35] Exhibit 1, pg1 & pg 19
He stated that he first noticed the symptoms of carpal tunnel syndrome including pain, pins and needles and numbness in both hands shortly before consulting Dr Yap on 4 December 2021. The Applicant gave evidence that these symptoms were not constant but occurred both at work and at home, irrespectively, even while holding a telephone requiring him to switch hands. They are gradually getting worse. He further described that the pain and numbness frequently wakes him at night, even when wearing a splint, which itself was uncomfortable and at time he would awaken to run his hands under hot water to ease the pain and discomfort. His treatment options thus far, have consisted of wearing night splints and anti-inflammatory and pain medications.
The Applicant confirmed that he had not experienced these symptoms previously, until shortly before consulting Dr Yap. It was noted in the Agreed Chronology of the Applicant’s medical history, that the Applicant was not particularly busier at work at the time he noticed the symptoms and his workload was as busy as it usually was as reported to Professor Peter Youssef.
In relation to work, the Applicant’s evidence was that he would often need to shake his hands or change his hand positioning on the steering wheel whilst driving to provide some relief from pain, pins and needles and/or numbness. His evidence was that the symptoms were not particularly worse depending on the day or night.
It is the Applicant’s evidence that he estimates he was required to unbuckle, and tighten the straps on the truck, initially about 300 times per day, five days a week from 2010 until June 2022 when the curtains on the truck were changed and the number of straps reduced. Since then, he estimates it is about 200 times per day, five times per week, depending on the number of deliveries. He stated he had not noticed any decrease in his symptoms despite the reduced number of straps on the new curtains, and if anything, his claimed condition is gradually getting worse the longer it continues.
The video footage of both the Applicant and the Respondent both helpfully showed a demonstration of the process involved in the unbuckling and tightening of the straps. Essentially, to open the curtain, a truck driver unclips the buckle to release it and to tighten, a truck driver slips their finger through the buckle to pull the inside of the straps up and down until tight and then secures the straps, with flexion and extension of the wrist to complete the manoeuvre.
The Applicant in chief stated that, particularly for tightening and securing of the straps, it would require effort and force to ensure the curtain was as tight as possible.
He stated that his role required repetitive tasks in addition to the unbuckling and tightening of the straps, including using the steering wheel and changing gears. During Hearing, the Applicant also first mentioned the vibration of the steering wheel as also being problematic and described experiencing numbness as a result of the vibrations. Previously he had denied vibration as being an issue for him to medical experts.
The Applicant presented as a stoic and genuine witness. His evidence was generally consistent with the various reports made by the medical experts who examined and assessed the Applicant for the purposes of providing medico-legal reports (other than the new report of experiencing symptoms with the vibration of the steering wheel). The medical experts each referred to the Applicant as being genuine without any concern of exaggeration.
Under cross-examination, the Applicant conceded he had not mentioned vibrations being a factor prior to giving his evidence in the Hearing. When it was put to him that this had only become a factor after receiving medical reports and medical literature including ‘vibration’ as a causative factor for carpal tunnel syndrome, the Applicant stated he had always experienced symptoms from vibrations but simply had not mentioned it.
The Respondent explored with the Applicant the level of vibration that would cause symptoms. The Applicant confirmed in oral evidence that it was the usual vibration through a steering wheel from driving a truck, and not excessive vibration, which he would otherwise immediately seek a service or wheel alignment of the truck (being his responsibility for service and maintenance of his truck as a sub-contractor). Given the Applicant’s extensive years of driving a truck, I accept his description that there has not been excessive vibration. On the evidence, I believe it likely there has always been some minor vibration felt through the steering wheel, especially over speed humps as noted by the Applicant, but not excessively so, otherwise the Applicant would have taken the truck in for service, but that it falls short of the level of vibration necessary to be a causative factor for carpal tunnel syndrome as set out in the medical evidence. I further accept there was no deliberate intention to gain advantage by adding this factor, only after reading it in the various medical reports and not including it in his list of symptoms to doctors earlier.
The Applicant conceded under cross-examination that in watching his shorter video footage of opening the buckles, he did not appear to brace himself or pause or use a great deal of force in opening the buckles and it was done relatively quickly, taking approximately one minute total. The Applicant then, by way of re-examination, described the tightening of the straps to require more force than the opening.
Dr Stephen Potter, rheumatologist
To properly consider the question of liability, the Respondent arranged for the Applicant to be assessed by Dr Stephen Potter, rheumatologist, on 14 June 2022. Dr Potter assessed the Applicant in person at his rooms and noted definite sensory loss in all digits of both hands, though no redness or heat in the wrists and no weakness or strength deficit in the hands.
As referred to earlier, Dr Potter provided his initial report on 20 June 2022 setting out his opinion that on the history provided, the clinical examination and the documentation, the Applicant was suffering from bilateral carpal tunnel syndrome, though of idiopathic or constitutional origin and not related to his employment as a truck driver.[36]
[36] T-Docs T19
Attached to Dr Potter’s report were 17 medical journal articles of research (medical literature) into carpal tunnel syndrome and causative factors. Based on this research, Dr Potter was of the view that, in line with the consensus of the research (noting some articles were at odds), the nature Applicant’s duties as a truck driver, including the unbuckling and tightening of the straps on the curtains did not significantly contribute to the development of the claimed condition. He further states:
“He himself has a theory that using the straps by hand in the nature of work was a causative mechanism. But when we test evidence, no such data exists to support that speculation. Again, I found no inconsistency or exaggeration.”[37]
[37] Ibid, pg 51
Interestingly, Dr Potter opines in response to a question of whether there has been an aggravation of a pre-existing condition that, “there has been a recent onset in spite of 30 years of work and therefore, it follows that I have no evidence of aggravation… aggravation does not apply”.[38]
[38] Ibid, pg 55
Dr Potter subsequently provided a second report on 19 December 2022, which confirmed his earlier opinion of the claimed condition being constitutional and/or idiopathic and not work related taking into account the sum total of the research, and having had the opportunity to view the video footage provided by the Respondent, and the Applicant’s shorter video footage.[39]
[39] Exhibit 1 pgs 186-195
Admissibility of Dr Potter’s Reports
At the pre-hearing mention before me on 29 January 2025, the Respondent informed the Tribunal that it intended to rely on the medical reports of Dr Potter, having filed and served them previously, but noting that he would not be available for cross-examination because he had retired and therefore was without proper insurance coverage. The Applicant indicated at that time there would be a potential objection to the admissibility of Dr Potter’s reports when it could not be tested and particularly in circumstances where his reports were relied upon by other medical experts. Both parties agreed this issue would be best dealt with at the commencement of the Hearing, should it remain in issue.
Unfortunately, at the outset of the Hearing, the Respondent informed the Tribunal that Dr Potter was extremely unwell and was no longer practising as a result but contended his medical reports should be deemed admissible. In relation to Dr Potter’s initial report, the Respondent relied on section 23(b) of the ART Act in that it was obtained in the course of the claims management process to assist the Respondent in determining liability and had been cited in each subsequent medical experts report, so therefore it was a requirement pursuant to that section that any document in the possession of the decision-maker and relevant to the review must be provided to the Tribunal, and disentangling the inadmissible opinions from each subsequent report, if not allowable would be impossible.
With regards to the second report, the Respondent referred to sections 25 and 50 of the ART Act in that a decision-maker must give the Tribunal a copy of any document relevant to the review that comes into their possession or control within 28 days, and further that the Tribunal is to act with as little formality as the consideration of the matter allows.
I allowed the reports of Dr Potter into evidence in accordance with sections 23(b) and 25 of the ART Act, over objection by the Applicant, noting that, ultimately, it would then be a matter of how much weight can be placed upon Dr Potter’s written evidence in circumstances where that evidence was not able to be properly tested.
The Applicant contended that little or no weight should be placed on Dr Potter’s opinions, also asserting that Dr Potter had expressed no real reasoning as to how he arrived at his conclusions, as required under case law, citing Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705) (Makita), and asserting that merely attaching journal articles or commentaries was insufficient.
In Makita, the NSW Court of Appeal relevantly considered the use or value of expert evidence, succinctly stating:
“If Professor Morton’s expert report were to be useful, it was necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling the evaluation of the validity of the expert’s conclusions.”[40]
[40] As cited in Simeoni v Comcare [2025] 15 August 2025
Accordingly, I have given little weight to Dr Potter’s evidence in considering the substantive application in totality, other than as a base for the reviewable decision for the first report, and as a reply to the criticisms of his approach and opinion by Dr Christopher Soo in relation to his later report.
Dr Christopher Gavin Soo, orthopaedic surgeon
Dr Christopher Gavin Soo provided affirmed oral evidence on behalf of the Applicant, together with three reports of 15 December 2022, 23 April 2025 and 16 May 2024.[41]
[41] Exhibit 1, pgs 8-14; 171-173; 174-175

The Applicant was first assessed by Dr Soo at a telehealth consultation arranged by his solicitors on 15 September 2022.
Dr Soo reported the following history on the same date in providing his opinion:
“Mr Abdul is a 65yo man who presents today with bilateral hand injuries. Mr Abdul tells me that he has worked as a subcontractor for Fedex Express for 35 years as a truck driver. He tells me that the nature of his job as a truck driver requires him to perform repetitive opening and closing of curtains on the truck as well as tightly securing them with straps. He tells me that he would tighten and undo buckles on the straps approximately 300 times a day, 5 days a week. Tightening of straps requires him to perform a prolonged and repetitive gripping onto each buckle on the truck. At the time of his injury there was 10 straps on either side of his truck that he would regularly have to undo and do up... I believe that the nature of his job as a truckdriver requiring him to unbuckle and buckle up straps along his truck hundreds of times a day for a long period of time has resulted in the development of his carpal tunnel syndrome of his hands… I am of the opinion that his employment as a truck driver and the nature of his employment has been the MAIN contributing factor towards the development of his carpal tunnel to his hands.” [42]
[42] Exhibit 1, pgs 8-14
Dr Soo also responded to the first report of Dr Potter, specifically the medical literature relied upon by Dr Potter in concluding the Applicant’s claimed condition was idiopathic or constitutional in nature and not work related. He highlighted that the referenced articles do indicate that variables such as repetitive motions, wrist posture, vibrating hand tools, using twisting motions of the forearm, using the fingers or thumb as a pressing tool, using the fingers in a pinch grip, and forceful gripping were known risk factors for developing carpal tunnel syndrome, irrespective of other cofactors such as gender, age, BMI, wrist index and comorbid disease.
In his later report of 23 April 2024, Dr Soo confirmed his opinion that the claimed condition was work-related, having had the opportunity to review the report of rheumatologist, Professor Peter Youssef, stating:
“So in conclusion, I agree that constitutional factors do play a role in the development of carpal tunnel syndrome IN GENERAL, however if you look specifically at [the Applicant’s] case and his specific work-related activities, I believe that the cumulative repetitive work-related activities that he has had to perform over the last 35 years makes his work not only a substantial but the main contributing factor to the development of his carpal tunnel syndrome.”
Dr Soo’s final report of 16 May 2024 agreed with the conclusions reached by rheumatologist, Dr Terry Kwong.[43]
[43] Exhibit 1, pg 174-175
Under cross-examination, Dr Soo conceded that where risk factors (such as those he identified in the Applicant’s case) are associated with a condition, it does not necessarily mean they are causal and simply because there is a present work related factor, does not equate to work causing the injury or disease. He also agreed that for the purpose of a causal link, Dr Soo did not know what the definition of ‘repetitive’ would be. He accepted that an occupational physician would be best qualified to comment.
Dr Soo also confirmed that as a telehealth assessment, he had not had the opportunity to weigh the Applicant and weight gain prior to the symptoms first presenting was not mentioned by the Applicant for him to include that as a known risk factor into his opinion.
Dr Angus Forbes, occupational physician
Dr Angus Forbes, on behalf of the Respondent, provided oral evidence and two medical reports received into evidence dated 5 July 2023 and 26 July 2025.[44] Dr Forbes did not personally assess the Applicant, though was provided with video footage, together with the Applicant’s statements and various other documentation, including the clinical records. He was requested to undertake a file review from an occupational expertise.
[44] Exhibit 1, pgs 202-212; pgs 216-225
In summary, Dr Forbes’ evidence was that the Applicant’s claimed condition was not due to employment factors, but rather idiopathic. Having viewed the shorter video footage of the Applicant opening the buckles, he noted that the required occupational causal risk factors were not evident in the video from an occupational perspective, observing:
“He does not work in cold temperatures or with vibrating tools. The task shown in the video does not require significant force or awkward wrist postures and is performed quickly, taking approximately 60 seconds to undo and open the sides.”[45]
[45] Ibid, pg 208
He further expressed that “association is not analogous to causation” and that specific to the Applicant, “the definitions of repetition and force are not met by the tasks described and demonstrated in the documentation”.
Dr Forbes sets out in his report a number of factors contributing to the development of carpal tunnel syndrome:
(a)Female sex, middle age and heredity – probably due to a smaller carpal tunnel
(b)Diseases – metabolic (for example, diabetes) and autoimmune diseases (e.g. rheumatoid arthritis)
(c)Wrist bone injury (for example, dislocation or fracture) – protruding bones narrow the carpal tunnel
(d)Hormone status - between 20% and 60% of pregnant women develop carpel tunnel syndrome, most likely because of fluid retention.
(e)Body weight - Overweight or sudden gain in weight increases the risk of carpel tunnel syndrome.
(f)Occupation – carpel tunnel syndrome is more common in people who do certain types of work.
Dr Forbes explained that the current evidence suggests to fall into the occupational category, there needs to be a history of jobs involving one or more of the following activities before the development of symptoms:
(a)Frequent, sustained repetitive use with the same or similar movements of the hand or wrist on the affected side over prolonged periods requiring the generation of significant force.
(b)Regular or sustained task requiring awkward hand positions on the affected sides. Awkward hand positions predisposing to carpal tunnel syndrome include the use of pinch grip, extreme flexion, extension, or ulnar deviation of the wrist and use of the fingers with the wrist flexed.
(c)Regular use of vibrating handheld tools.
(d)Frequent or prolonged pressure over the wrist or base of the palm on the affected sides.
Based on the video footage and the statements particularly of the Applicant, and applying the above criteria, Dr Forbes did not consider that the definition of “sustained repetitive use with the same or similar movements of the hand or wrist on the affected side over prolonged periods requiring the generation of significant force” was met by the tasks performed by the Applicant. Dr Forbes provided definitions as follows:
“As per the Workplace Health and Safety Queensland Hazardous manual tasks code of practice (14), ‘repetitive’ refers to a movement or force that is performed more than twice per minute and ‘sustained’ means a posture or force is held for more than 30 seconds at a time. The work stated is repetitive in nature, however it is not sustained, nor forceful based on the evidence provided. It is the interaction of number of individual factors that needs to be taken into account in determining causation in this instance.”[46]
[46] Ibid
In his oral evidence, Dr Forbes noted that it was highly likely the Applicant had arthritis, given his age and the Body SPECT CT scan of the lower limbs and that his increased weight placed him at risk of significant health concerns. He relayed that obesity and/or weight gain increases the risk of developing carpal tunnel syndrome.
He did concede under cross-examination that the relevant literature indicated that some types of work-related tasks can be causative, but emphasised that for the Applicant, the tasks performed were not at the required level in order to significantly contribute to the claimed condition, or cause an aggravation of bilateral carpal tunnel syndrome in accordance with occupational medicine standards.
Dr Terry Kwong, rheumatologist
Dr Kwong assessed the Applicant on 30 January 2024, at the request of his solicitors and provided a report, which was then amended on 30 January 2024.[47]
[47] Exhibit 1, pgs 158-164
Dr Kwong was of the opinion that the Applicant’s claimed condition was due to a number of tasks required of him to perform his work as a truck driver, noting the medical literature referred to:
“Risk factors include female sex, family history, repetitive hand use, obesity, pregnancy and a variety of medical comorbidities including diabetes mellitus, rheumatoid arthritis and other connective tissue diseases”.[48]
[48] Ibid
Dr Kwong then related that the Applicant’s presentation and circumstances, inferring that:
“[The Applicant’s] job as a truck driver exposed him to constant vibration transmitted to the steering wheel. His duties also involved prolonged gripping of steering wheel, increased hand force and repetitive use of his hands to fasten and unfasten buckles repetitively… Therefore, [the Applicant’s] work exposed him to 3 risk factors (ie, excess vibration, increased hand force and repetitive hand use) for developing carpal tunnel syndrome. In my opinion, his bilateral carpal tunnel syndrome is due to the nature and conditions of his work as a truck driver.”
Dr Kwong also provided concurrent evidence in the Hearing with Professor Youssef, rheumatologist, discussed later. Notably though, Dr Kwong subsequently agreed that the excess vibration factor was not at the requisite level to be causative in this instance.
Professor Peter Youssef, rheumatologist
The Respondent arranged for the Applicant to be assessed by Professor Youssef following the adjournment of a previous Hearing due to Dr Potter’s health and unavailability to give evidence, with both being of the same specialty.
Prof Youssef’s report of 16 October 2023 opined that “the major cause of Mr Abdul’s carpal tunnel syndrome is constitutional, particularly related to his weight,”[49] and was not due to employment related factors. He concluded that the development of the claimed condition in the Applicant was constitutional in nature.
[49] Exhibit 1, pgs231-253
He further, relevantly, observed in his report that:
“The studies that have been provided clearly document that a high BMI, particularly a BMI of greater than 29.9 is associated with an increased risk of carpal tunnel syndrome. The article by Falkiner and Myers documents that a BMI of greater than 29 was associated with 2.5 times the risk of carpal tunnel syndrome and the study by Geoghan documents that a BMI of 30.1-40 was associated with a 2.4 times increased risk of carpal tunnel syndrome. Also, the review from BMJ Best practice documents that the importance of work activities is probably overstated once other risk factors such as BMI are taken into consideration. This is supported by the study of Kozak et al. in which it is documented that obesity was a significant confounder when assessing the role of forceful exertion in the development of carpal tunnel syndrome. [The Applicant’s] BMI is currently 31.6. The notes of Dr Robert Yap document an increase in weight from 76kg in September 2018 to 79.5kg in March 2021 with a current weight of 79kg on my scales. This increase in weight would increase his risk of developing carpal tunnel syndrome.”[50]
“There are also clinical indicators in the case of [the Applicant] that his work is not a significant contributor to the development of carpal tunnel syndrome. If the work of strapping the buckles on the truck was such that it significantly increased the pressure in the carpal tunnel, I would have expected him to report numbness and parasthesia directly related to this work. I would have expected his symptoms to be worse after these activities and towards the end of the work day which is not the case. In fact, his symptoms are worse at rest and particularly at night when he is not at work.”
[50] Ibid
On questioning at the assessment, Prof Youssef recalled the Applicant denying the use of any vibrating tools, and complaining that his symptoms were worse at night and not particularly so during the day on activity.[51]
[51] Ibid
Concurrent Evidence of Professor Youssef and Dr Kwong, rheumatologists
Prof Youssef and Dr Kwong gave concurrent evidence at the Hearing pursuant to the Administrative Review Tribunal (Expert Evidence) Practice Directions and the Common Procedures Practice Directions, having already engaged in a conclave conference and considered agreed questions posed to them by the parties. A joint report was provided setting out what they agreed with and the issues upon which they disagreed.[52] This was of great assistance to the Tribunal.
[52] Exhibit 3
The experts were in absolute agreement, without any doubt that the Applicant suffers from bilateral carpal tunnel syndrome and further agreed that obesity, diabetes, arthritis, vibration, repetitive force and prolonged hand flexion were risk factors for the development of carpal tunnel syndrome. Dr Kwong also added that gripping of the steering wheel while truck driving was another risk factor, to which Prof Youssef did not agree.
The experts did not agree on whether those risk factors were present in the Applicant’s employment with the Respondent. Prof Youssef was of the view that the work activities did not satisfy the necessary criteria to cause the claimed condition, emphasising that if they were, it would be expected that the symptoms would be less at night when not performing those activities and would have developed much earlier in the Applicant’s truck driving career. He appropriately raised the question of, why, after 13 years of driving the tautliner truck, the symptoms suddenly presented and not earlier, though he noted the emergence of the symptoms coincided with weight gain and the cardiologists warning to lose weight for health reasons. The Applicant’s evidence was that even after reducing the number of straps, his symptoms did not decrease. I note this to be an important observation.
During the concurrent evidence, Dr Kwong acknowledged that with the benefit of the further oral evidence of the Applicant regarding the level of vibration experienced in the steering wheel, that this would be insufficient to satisfy the necessary levels, similar to the use of a jackhammer as described by Dr Forbes earlier, to be a causative factor of the claimed condition.
Dr Kwong agreed that weight gain can be a known risk factor for the development of carpal tunnel syndrome but maintained the view that it is the combination of the contributing factors that were the origin for the Applicant, including those work-related.
Importantly, there was minimal evidence or reference during the concurrent evidence regarding whether the Applicant’s employment was an aggravation of pre-existing (but perhaps asymptomatic) bilateral carpal tunnel syndrome with ‘aggravation’ being defined to include acceleration or recurrence.[53]
[53] Section 4 SRC Act
This is particularly relevant to the Applicant’s contention in his Statement of Facts, Issues & Contentions that his employment significantly contributed to an aggravation of the claimed condition. There is no evidence before the Tribunal to support this contention, and in fact the medical experts appear to either actively dismiss the possibility of an aggravation,[54] or proceed on the basis that the onset of the claimed condition, itself, as being the precipitating ‘injury’ caused by the work.
[54] Dr Potter, Professor Youssef
Considerable and robust discussion was provided by the concurrent experts about the medical literature and how it was to be interpreted for the benefit of the Tribunal’s determination, ultimately with both experts agreeing that a meta-analysis study is the highest authority for research in the medical industry, but that the studies all had some form of limitations.
LEGISLATIVE PROVISIONS
Pursuant to section 54 of the ART Act, the Tribunal may exercise all the powers and discretions conferred on the decision maker. Section 105 of the ART Act prescribes that in relation to the reviewable decision, the Tribunal must make a decision:
(a)affirming the reviewable decision; or
(b)varying the reviewable decision; or
(c)setting aside the reviewable decision and:
(i)making a decision in substitution for the reviewable decision; or
(ii)remitting the matter to the decision-maker for reconsideration in accordance with any orders or recommendations of the Tribunal.
The substantive application must be determined in accordance with the above, taking into account the legislative provisions of the SRC Act.
In order for an Applicant to be entitled to compensation under the SRC Act, section 14(1) sets out that:
14(1)Subject to this Part, Comcare or a licensee 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.
Relevantly, section 5A(1) of the SRC Act defines injury as:
Definition of injury
(1) In this Act:
“injury” means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Section 5B of the SRC Act provides (emphasis added):
Definition of disease
(1)     In this Act:
“disease” means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)     In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
(3)     In this Act:
"significant degree” means a degree that is substantially more than material.
Drummond J observed of ‘disease’ in Comcare v Mooi (1996) 69 FCR 439 that “only conditions involving a disturbance of the normal functions of body or mind are within the term ‘disease’, as defined, and thus, ‘injuries’ for the purposes of s 14(1) of the Act.”[55]
[55] Comcare v Mooi (1996) 69 FCR 439
As referred to above, it is not in dispute that the Applicant in this matter is suffering from an ailment to satisfy the definition of a ‘disease’ for the purposes of the SRC Act.
Applying the medical evidence to that definition, it is clear that the Applicant’s claimed condition is a disease and, accordingly, an injury and I find that it is.
The primary issue relates to the test of whether his employment contributed to a significant degree to the onset or aggravation of the Applicant’s disease. If so, simply put, he is entitled to compensation under section 14 of the SRC Act.
CONSIDERATION
It may very well be that an Applicant’s employment contributes to the development or aggravation of a disease, but the real question for consideration is whether the employment contributed to the disease, to a significant degree.

The definition of ‘significant degree’ under Section 5B of the SRC Act, and what satisfies that threshold has been well ventilated in a number of cases (Zdziarski v Telstra Corporation Limited [2015] FCA 207; Comcare v ZZRP [2019] FCA 95; Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10). ‘Significant degree’ is defined in s 5B(3) to mean, “a degree that is substantially more than material”.
It is generally accepted there needs to be a causal link and it is ‘more than a mere contributing factor’. The Respondent referred the Tribunal to the decision in Comcare v Power (2015) 238 FCR 187 at 201-205 where Katzmann J explained, most relevantly:
“In Comcare v Sahu-Khan (2007) 156 FCR 536; [2007] FCA 15 at [14] Finn J observed that the legislative history of the definition of “disease” makes it plain that the term “material” in the phrase “in a material degree” in the SRC Act was not used to denote a contribution which was only greater than de minimis. Thus, it appears that, despite the common law approach to “material contribution”, the intention of the SRC Act was that the contribution of the employment to the disease of an afflicted employee had to be not just greater than trivial. In Sahu-Khan Finn J noted (at [15]) that the Shorter Oxford English Dictionary defined “materially” to include “substantially” and “considerably”.
…
There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear…”[56]
[56] Cited in Respondent’s Outline of Submissions
In order to find that the Applicant’s employment as a truck driver has contributed to his bilateral carpal tunnel syndrome, to a significant degree, more than material, the Tribunal must be satisfied of that fact on the evidence before it.
The Tribunal in Re O’Callaghan and Comcare stated:
“Firstly, the balance of probabilities test requires reasonable satisfaction in a legal context - it is a departure from scientific assessment. Under the SRC Act it is for a decision maker to apply the legal test of causation and, in so doing, the decision maker must consider and evaluate all of the evidence. Where the language of medical experts does not rise above possibility of causation in medical terms, it is for the decision maker to determine, in consideration of the evidence as a whole, if this possibility amounts to a probable cause in the legal sense.
Secondly, where expert evidence does not provide clarity, the balance of probabilities reasonable satisfaction civil standard of proof may involve the drawing of inferences. But indefinite evidence or indirect inferences are not sufficient. An appropriate degree of confidence based on reason is required .. There is no authority for a decision maker under the SRC Act to simply choose between possibilities - reasonable satisfaction in a legal context requires more than conjecture, based on choosing between possibilities, theories or guesses of equal plausibility or likelihood on the ground that one seems more likely or probable than another. This is so even if a possibility is real rather than fanciful.
… Furthermore, reasonable satisfaction is a positive state arrived at on evaluation of evidence and the application of logic or reasoning.”[57]
[57] [2019] AATA 2511, as cited in Simeoni v Comcare [2025]
If the Tribunal “cannot be satisfied on the balance of probabilities that facts exist which warrant an exercise of the power, then the decision-maker or the tribunal should not exercise that power.”[58] In other words, the Tribunal needs to be persuaded as to the facts on the evidence before it, in these proceedings that the repetitive nature of the unbuckling and tightening of the straps and the force required in tightening the straps were enough to cause the carpal tunnel syndrome.
[58] Re ACT Department of Health and Nikolovski (AAT Decision 19826, 27 March 1996) cited in Dean and Comcare [2003] AATA 606
The Applicant contends that the totality of the evidence before the Tribunal requires that the reviewable decision be set aside. He contends that the evidence of Dr Soo and Kwong, together with his treating GP, Dr Yap, and hand surgeon, Dr Scott ought be preferred, and the medical literature is supportive of that.
The Applicant further states that these reports should be preferred over Dr Potter, Dr Forbes and Prof Youssef as these reports do little more than review and rely on the medical literature, and this is insufficient to justify expert opinion.[59]
[59] Respondent’s Outline of Submissions
Applicant’s Counsel noted that Prof Youssef, particularly, relied on the Applicant’s weight being the primary risk factor, though under cross-examination he agreed that the weight gain had not been excessive just prior to the onset of symptoms and the medical literature provided no specific calculation of the extent of weight gain required for the development of carpal tunnel syndrome. To this end, the Applicant submitted it was speculative as to whether the Applicant’s weight gain would be sufficient to cause the condition.
With respect to Dr Forbes, the Applicant contended that in relation to his evidence that it was highly likely the Applicant had arthritis, a known constitutional risk factor, this was an assumption only. In relation to this, I am not convinced it was mere assumption. The Body SPECT CT of the Applicant’s lower limbs identified arthritis, so in my view it is more than an assumption that the Applicant also suffers arthritis in his upper limbs and, given the age of the Applicant, it may be inferred from the arthritic changes already evident on objective scanning that he does likely have arthritis elsewhere.
The Respondent contends that, rather, the evidence of Prof Youssef and Dr Forbes (and Dr Potter) that the claimed condition is constitutional and/or idiopathic is to be preferred above that of Dr Soo and Dr Kwong as the more qualified specialists and supported by the medical evidence. Dr Forbes, particularly, is a qualified occupational physician, whose specialty is to assess occupational causes and their impact or correlation with injuries or conditions within various industries. Dr Soo, in cross-examination agreed that Dr Forbes was the best placed, as an occupation physician to comment on what constitutes occupational factors and their definitions to determine if employment significantly contributed to a condition. This was an appropriate concession, and one with which I agree.
The most qualified expert to provide an opinion on whether the Applicant’s employment related tasks were capable of significantly contributing to the bilateral carpal tunnel syndrome is Dr Forbes. As an occupational physician, greater weight must be placed on his evidence, above the other experts, notwithstanding he did not personally assess the Applicant. The definitions provided by Dr Forbes of the occupational risk factors are clear and concise. When provided to Dr Kwong, he resiled somewhat from his earlier opinion that forceful grip and prolonged repetitive activity were demonstrated by the Applicant.
The Respondent further contends that Prof Youssef’s evidence was objectively reliable providing a carefully considered review of the medical literature and properly applying it to the Applicant’s circumstances. He had before all available medical evidence, it does not appear that Dr Kwong did, specifically in relation to the summonsed clinical notes setting out the Applicant’s weight and cardiologist advice following a myocardial infarct.
Prof Youssef’s evidence was compelling, both in his written evidence and during the concurrent evidence, and soundly reasoned. He made appropriate concessions that carpal tunnel syndrome can be caused by occupational factors, but in this case, he was of the opinion it was of constitutional origin, having regard to the timing of onset, the myocardial impact, weight and that the symptoms themselves did not improve with the reduction of the straps on the truck.
The Applicant’s evidence is that his symptoms are worsening. The difficulty I have with this, if taken to be related to occupational factors as the significant contributing factor, is that his evidence is that the symptoms emerged without any particular changes to his workload after over a decade of doing the same tasks, and further, the symptoms did not decrease, even marginally upon the reduction of straps with the installation of the new curtains. His evidence is that symptoms do not abate overnight while not performing the unbuckling/tightening of the straps.
Having carefully considered the Applicant’s evidence, together with the medical evidence, I am persuaded by the evidence of Prof Youssef and Dr Forbes above that of Dr Soo and Dr Kwong. The definitions provided by Dr Forbes when applied to the Applicant’s evidence do not reach the requisite standards, as conceded by Dr Kwong. Dr Soo further agreed that the best qualified specialist would be an occupational physician.
It is not for this Tribunal to go behind the medical evidence and decide what caused the Applicant’s carpal tunnel syndrome, only whether the Tribunal is satisfied on the evidence before it if his employment significantly contributed to it, to a material degree. I am not satisfied so, having regard to the actual medical evidence. I find that the Applicant’s employment with the Respondent did not significantly contribute to the onset of the carpal tunnel syndrome to a material degree.
In relation to whether employment significantly contributed to an aggravation of the Applicant’s carpal tunnel syndrome, the Applicant did not put forward any real evidence that there was an aggravation, within the meaning of section 4 of the SRC Act. Rather, the evidence seems to wholly centre on and consider the onset of the condition as being work-related. In the absence of any such evidence, I do not find that the Applicant’s employment caused an aggravated of an underlying condition.
DECISION
For the reasons set out above, and where I cannot be satisfied of the causal link between the claimed condition and the Applicant’s employment with the Respondent, to the necessary degree, the decision under review is affirmed.
It consequently follows that where the Respondent has no liability under section 14 of the SRC Act, it is beyond the Tribunal’s power and jurisdiction to determine there to be liability for medical expenses under section 16 of the SRC Act.
It is not in dispute the Applicant would greatly benefit from the recommended carpal tunnel syndrome release surgery to improve his symptoms, and indeed the medical evidence is (quite rarely) unanimously in support of this as his next treatment option. Unfortunately, however, it goes beyond the Tribunal’s jurisdiction to determine there is an entitlement to these medical expenses where liability is not been made out generally under the SRC Act, as is the case here. Logically, liability under section 14 of the SRC Act is the prerequisite precursor to an entitlement to compensation under section 16 (or 19) of the SRC Act for medical expenses and incapacity payments respectively.
Further to that, even had the Tribunal been satisfied that the Respondent was liable pursuant to section 14, I am of the view that the question of section 16 medical expenses for the proposed surgery would properly need to be remitted back to the decision-maker in any event, as there is insufficient evidence presently before me on the actual cost of the surgery and associated expenses arising his recovery, or his recuperation generally to assess it’s ‘reasonableness’.
In Comcare v Lofts (2013) 137 ALD 521 at [14], Mortimer J held that it was not possible for the Tribunal to be satisfied that the Applicant was entitled to compensation under section 16 because the Applicant has failed to provide evidence about “specific and identifiable amounts of compensation for specific and identifiable medical treatment” which is what is required for liability to exist under section 16.
As referred to earlier in this decision, while treating hand surgeon, Dr Scott, provided a self-funded estimate of fees, the quote is out of date, excludes a number of additional expected fees, and provides no information regarding recovery, or costs associated with that recovery (for example physiotherapy)., I am not satisfied this is sufficient information to be able to determine an entitlement to medical expenses under section 16, even had the Respondent been found to be liable under section 14 of the SRC Act.
Accordingly, the reviewable decision is affirmed.
Counsel for the Applicant:            G Smith
Solicitor for the Applicant:             Santone Lawyers
Counsel for the Respondent:         K Slack
Solicitor for the Respondent:         McInnes Wilson Lawyers