Adams and Comcare (Compensation) - [2022] AATA 3404

Adams and Comcare (Compensation) [2022] AATA 3404 (18 October 2022)
Division:GENERAL DIVISION
File Number: 2018/6286
Re:Susan Adams
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:A G Melick AO SC, Deputy President
Date:18 October 2022
Place:Hobart

I set aside the decision and find that the Respondent is liable to pay compensation in relation to the temporary aggravations of forearm pain which occurred during the Applicant’s employment after 19 March 2018, being the date noted by the Applicant as when she first noticed her symptoms.

...................[sgd].....................................................
A G Melick AO SC, Deputy President
Catchwords
Workers’ Compensation (Cth) — Injury — Whether injury arose out of or during the course of employment — Non-specific upper limb pain — Idiopathic pain — Whether physiological change necessary to establish disease — Whether experience of symptoms constitutes an aggravation of an injury – Decision set aside and substituted.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Arnotts Snack Products Pty. Ltd. v Yacob (1985) 155 CLR 171
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533
Commonwealth Banking Corporation v Percival [1988] FCR 176
Commonwealth and Beattie [1981] FCA 88
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Repatriation Commission v Yates [1995] FCA 1234
Tippett v Australian Postal Corporation [1998] FCA 335
Wuth and Comcare [2022] 260 FCR 89
Secondary Materials
Morten Waersted, Therese N Hanvold and Kaj Bo Veiersted, ‘Computer work musculoskeletal disorders of the neck and upper extremity: A systemic review’ (2010) 11(79) BMC Musculoskeletal Disorders
Sigurd Mikkelsen, ‘Does computer use affect the incident of distal arm pain? A one year prospective study using objective measures of computer use’ (2012) 85 International Archives of Occupational and Environmental Health 139
A I Kryger, ‘Does computer use pose an occupational hazard for forearm pain; NUDATA study’ (2003) 60(11) Occupational Environmental Medicine.
REASONS FOR DECISION
A G Melick AO SC, Deputy President
18 October 2022
Introduction

The Applicant seeks review of a reconsideration determination dated 12 October 2018 (the reviewable decision) by Comcare (the Respondent) which affirmed a determination dated 3 August 2018 denying her compensation claim for “early osteoarthritis and some soft tissue pain”.
The Applicant was employed by Services Australia from July 2000 as a Services Officer Level 3. At the time of the hearing, she was 43 years old and had recently resigned from her role at Services Australia. The Applicant claims that her injury, affecting her fingers, wrists and elbows, gradually developed as a result of an extended period of overtime work she performed between late October 2017 to March 2018.
On 30 October 2018, the Applicant sought review of the reviewable decision by this Tribunal. It is the Respondent’s determination to deny liability for “early osteoarthritis and some soft tissue pain” that is the subject of this application for review.
Facts
The following facts are either agreed or not disputed.
The Applicant commenced her employment with the then Health Insurance Commission on 24 July 2000, working part-time as a Service Officer level 3. On 18 June 2001 the Applicant commenced as a full-time employee.
The Applicant’s Statement of Facts, Issues and Contentions noted some of the duties included in the Service Officer role:
The Applicants’ duties in the Service Officer role include assisting customers with their enquiries, entitlements and determining and facilitating payments to customers in line with their entitlements. The role is sedentary involving data entry (ie computer processing tasks) and answering of phones. Whilst answering phones there is limited capacity to change posture or move away from the desk. The Job and Person Specification for this role indicates that: a. fine motor skills being used for computer and word processing duties are performed more than 66% of the time on an ordinary work day including:
grip, reaching and twisting associated with using the phones, computer and the mouse and stapler are estimated to be performed 34-66% of the work day; and standing and walking being performed somewhere between 1-33% of the time on a given work day.
Following the birth of her first child in 2004, the Applicant worked in a part-time capacity through 2005 with her hours of work varying from time to time. The Applicant has continued to work in a part-time capacity ever since.
In mid 2011 the Applicant developed a lump in the pad under the third knuckle on her right hand, and pain in the joint of the index finger on her right hand. The Applicant also experienced weakness and/or fatigue in her right forearm and right wrist. The Applicant lodged an Injury Report with her employer on 16 September 2011.
On 29 September 2011 a workplace assessment was conducted. Recommendations included the trial of an EZ vertical mouse and to trial a roller mouse. The Assessor noted that the position of the Applicant’s hand when using the standard mouse was such that her right hand was lifted over the mouse (with wrist extension) and with the third finger of the right hand held rigidly up off the mouse when scrolling so as to create an awkward right hand posture. The vertical mouse allowed the Applicant’s hand to adopt a more relaxed position. The applicant was also provided with a slimline keyboard.
On 29 September 2011 the Applicant had a workstation assessment performed and was provided with recommendations in relation to using the left hand for periods to rest the right hand and was provided with an alternative mouse to trial. She had further ergonomic reviews on 19 October 2011 and 11 November 2011.
The Applicant’s symptoms eased and were manageable with the new equipment.
As time passed, the Applicant again began to experience noticeable fatigue and/or weakness in her forearms. The pain presented primarily on the right-hand side, but the symptoms were also present on the left-hand side, noting that at the relevant time the Applicant reported fatigue and/or weakness in her right forearm.
From March until the end of August 2013, the Applicant’s workload increased. The Applicant developed a swollen index finger, again on the right hand and increasing pain around the knuckle area as a result of the increased use of the keyboard and mouse at this time. The Applicant lodged a second Incident Report on 27 November 2013 with her employer in relation to a swollen index finger on the right hand. The Applicant advised that the symptoms in her hand were due to her mouse use.
A further workplace assessment was undertaken on 11 December 2013 and further changes were recommended. The recommendations on this occasion included trialing a change of keyboard to a soft touch keyboard.
For the next four years, the Applicant managed her symptoms with topical treatments and over the counter medications. Although the Applicant would feel ‘better’ she would still experience some aching in the elbows, a feeling of weakness in the hands/wrists and fatigue in the forearms.
The Applicant moved into the ‘Complex Drugs’, formally known as ‘Specialised Drugs’ in the Pharmaceutical Benefits Scheme (PBS) area in or about 2015. The Applicant experienced a noticeable change in the pace, intensity, and complexity of the work in this team.
Between 2017 and 2018, overtime was readily available to staff, including the Applicant due to a peak in workloads following system enhancements and the introduction of Health Professional Online Services (HPOS). Between February 2017 and March 2018 the Applicant worked at least 14 additional shifts.[1]
[1] T-documents, T14.
By October 2017 the Applicant was finding it increasingly difficult to manage her condition. The Applicant started to use her annual leave to help her cope with her condition. The Applicant finds some difficulty in performing tasks such as gardening, cutting vegetables or unscrewing jars, but these tasks have not caused any flare-ups in the symptoms of her upper limb condition. The ability to perform these tasks is affected by the Applicant’s upper limb condition, specifically her lack of grip strength.
By 11 March 2018, the Applicant decided she could no longer work overtime. The Applicant’s sleep was being affected by her condition and she saw her general practitioner Dr Clair McCartney on 27 March 2018 to discuss ongoing management of her condition. Celebrex 100mg, and pain relief, Targin 50mg were prescribed at this time.
The Applicant went back to her general practitioner on 5 April 2018 and was prescribed, Naprosyn 500mg, and was referred for x-ray. Following the x-ray on 10 April 2018 the Applicant was referred to Dr Helen Cooley, rheumatologist, for a second opinion and was advised to take time off work from 11 to 13 April 2018 inclusive.
The Applicant returned to work on Monday 16 April 2018 and met with Lisa Woehler, Team Leader, to discuss her ongoing discomfort. As a result of this meeting, the Applicant lodged her third Incident Report. The Applicant was certified fit to work 3 days per week at 5.5 hours at this time, noting that prior to this the Applicant had been working 5 days per week at 5.5 hours per day since 18 February 2018.
The Applicant continued to suffer from her upper limb condition.
An Early Intervention Rehabilitation Provider assessed the Applicant and provided a report on 1 May 2018 which detailed the daily tasks and functions of the Applicant which result in constant bilateral upper limb use.[2] The Applicant’s condition was presenting as pain in the interphalangeal joints, fingers bilaterally, the webspace between the thumb and finger on the right hand, wrists bilaterally, forearms bilaterally and elbows bilaterally. The Report noted that the Applicant’s pain was not related to her level of activity.
[2] T-documents, T8.16.
The report noted that the Applicant had been using an office chair with a broken back rest, the EZ Minicute mouse and the Contour roller mouse (which was not functioning correctly and was missing its wrist rest) which were all noted as factors that may have been aggravating her symptoms. A new soft-touch keyboard, replacement roller mouse and an alternative chair was adjusted and provided to the Applicant.
The Applicant first saw Dr Cooley on 18 May 2018, whom prescribed Endep 10mg. Dr Cooley also referred the applicant to a hand physiotherapist Jennifer Woodward at Bodysystem.
On 21 May 2018 the Applicant returned to her pre-injury hours of 9am-3pm Monday to Friday as a trial for 2 weeks. By the end of the 2 week period, the Applicant’s pain had returned to the levels she was experiencing prior to taking leave. The Applicant’s duties were then modified so that she would have time on and off the phones with regular breaks from use of a keyboard and mouse.
The Applicant commenced receiving physiotherapy treatment on or about 28 May 2018 with Bodysystem. A program of postural stretches and strengthening was implemented.
On 7 June 2018 Dr McCartney recommended the Applicant reduce her working hours to four hours per day (10.30am to 2.30pm), three days per week with no more than 2 hours per day being computer-based tasks and with a 15 minute break every hour.
The Applicant lodged a claim for compensation on 7 June 2018 for osteoarthritis and soft tissue injury claiming the injury arose as a result of ‘data entry/processing - involving excessive keyboard and mouse work’.
On 28 July 2018 the Applicant took three weeks of leave and her condition settled. However, within 2 weeks of returning to work, the Applicant’s symptoms had returned to the level she was experiencing prior to taking leave.
On 3 August 2018, a delegate of Comcare denied liability for the Applicant’s claim under s 14 of the Act on the basis that the claimed condition was not contributed to, to a significant degree, by her employment with the Department of Human Services (now Services Australia).
A further workplace assessment was conducted by Mr Leigh Brumby on 24 August 2018. Mr Brumby noted in his report that the wrists were bent or flexed off the end of the desk due to inadequate desk depth to accommodate all the Applicant’s ergonomic equipment. He opined the Applicant could benefit from increased forearm support, and recommended a desk lozenge as a suitable option.
On 12 October 2018, a delegate of Comcare affirmed the determination dated 3 August 2018.
On 17 October 2018, Bodysystem recommended a strength and stability exercise-based program for the Applicant’s upper limbs, initially under the supervision of a physiotherapist of 8-12 weeks duration then to continue independently in a commercial setting. The Applicant continues to use this program.
On 18 October 2018 a fitness for duty assessment with Dr Brett Oppermann recommended the Applicant work 7.5 hours per day for four days with no more than two consecutive days worked. The Applicant worked four days per week 9am – 3pm until 15 April 2019 at which time she increased her hours to 8am to 3pm.
In a report dated 20 November 2019 (as supplemented by email on 18 December 2019) Dr Cooley opined that the Applicant suffers from an upper limb condition, and that her employment has significantly contributed to the development of her condition. Dr Cooley attributed the development of the condition to:
(a)an increase in hours
(b)excessive keyboard use with the increased load in the setting of less than ideal posture and muscle tension could trigger the pain.
By a subsequent report dated 7 May 2020, Dr Cooley indicates that the applicant is suffering from a chronic non-specific upper limb pain condition with a degree of central pain sensitization.
In a report dated May 2020 Mr Nick Campbell, Physiotherapist, considers that the cause of the Applicant’s condition to be:
(a)mouse use specifically relating to her forearm pain and neck pain both due to prolonged use but also due to the angle of the mouse;
(b)prolonged computer use most likely related to her neck pain which in turn is impacting her forearm pain.
Evidence
The Applicant
The Applicant had commenced her new role in the complex drugs unit prior to the onset of her symptoms. She explained that there was a notable change in the pace of work in her new role:
“…the complexity of the work that we were required to do was – sometimes it was – we’re not medically trained so a lot of the work we had to learn on the job, more and more of the work was shifted onto us, (indistinct) there was just too much for us to – well for the pharmaceutical advisors to do, so a lot of the programs we began to assess a lot of the applications. Yes, so 20 for us that weren’t medically trained, it was complex. A lot of it was learning (indistinct) it was up to us to be up with all the changes in the schedules, pharmaceutical benefit schedules or the changes or the additions, the restrictions, the (indistinct) you could have for certain drugs and so that part was complex without that medical background, it was intense, the phones – we got more and more of the phone component, even more now it’s becoming more of a call centre type scenario there. In the space of three hours you could take 114 phone calls just - and the calls would drop in auto answer, so you didn't even have enough time to actually get a coffee cup to your mug and have a sip, it was full on”.[3]
[3] Transcript, 12 April 2021, 11.
The Applicant indicated that she did not feel she was able to take breaks and that her workday was constantly busy.
The Applicant also indicated that the chair she was using was broken, however she did not realise it was not working properly at the time and the issue was only addressed when she undertook an occupational assessment by a rehabilitation provider. When asked about other adjustments that the rehabilitation providers made, the Applicant explained:
“Because I required so much equipment on my desk the depth of the desk was (technical malfunction) all of the equipment so I had my monitors, I had (indistinct) I had soft touch keyboard and I had a separate roller mouse and then there was no room for my wrist to sit comfortably on the desk. So later on, through another assessment - workplace assessment - that was acknowledged and they fitted a - what do you call it - a desk lozenge to give me a little bit more depth on the space so that I had more space on the desk so I could actually comfortably rest my wrists”.[4]
[4] Transcript, 12 April 2021, 13.
She received the desk lozenge in 2018 and worked from 2011 without one.
The Applicant explained that when she was not working, her symptoms improved. When asked about a period of three weeks leave she took in 2018, the Applicant stated:
“[My symptoms] settled down to a point that I didn't feel the pain - the sharp pains, the aches, the disturbed sleep at night with aching elbows, so it had settled down to a point that I felt almost symptom free”.[5]
[5] Transcript, 12 April 2021, 13.
During cross-examination, counsel for the Respondent clarified whether the Applicant thought her injury was confined to periods of time when she was working overtime. She indicated that she thought there were more factors than just her overtime work. She commenced working in the complex drugs area in 2015 but reported problems with her upper limbs as early as 2011.[6]
[6] Transcript, 12 April 2021, 15.
Counsel for the Respondent sought to identify when the Applicant began experiencing upper limbs symptoms, but the Applicant explained that there was a gradual onset, particularly during the first year of her work in the complex drugs area.
Counsel for the Respondent referred to the Applicant’s medical records to highlight the absence of any contemporaneous complaints of a deterioration in the Applicant’s upper limbs throughout the period she was working in the complex drugs area, from 2015 to 2018. The Applicant then explained why she failed to report her symptoms to her general practitioners:
“Because I didn’t want to come across as this needy employee, like, I’d already had so many workplace assessments, and then interventions, and so much equipment, that, on my desk. Like, they’d given me, I’d gone from that style of mouse to the joystick, they’d given me a slimline keyboard, then they gave me a soft touch, then I got the roller mat, like (audio malfunction) workplace assessments and interventions that at some point I tried to manage stuff myself. How much, you know, I was, I didn’t say anything to work initially, I was going to the GP, I started physio, I tried to manage it myself, to a point that I was starting to take my own leave, my long service leave, to try and resolve the symptoms, (audio malfunction) leave, (audio malfunction) got to a point I had to tell work”.
Despite this, the Applicant had reported her symptoms to a rehabilitation provider on at least three occasions, in 2000, 2013 and 2018, which resulted in workplace assessments.[7]
[7] Transcript, 12 April 2021, 25.
When prompted, the Applicant clarified that the tasks that she believes contributed to her injury were the repetitiveness and speed of her typing, coupled with the lack of variation in the tasks she performed for long periods of time.[8] Counsel also clarified that the Applicant felt her claim extended to her fingers and she confirmed.[9]
[8] Transcript, 12 April 2021, 24.
[9] Transcript, 12 April 2021, 26.
The Applicant was asked whether she experienced any symptoms when she was undertaking non-work-related tasks, such as housework. The Applicant explained that her symptoms may occur to a lesser extent, and only when performing certain tasks, such as squeezing a bottle of sauce.[10] The Applicant explained that she was able to control the activities that she performed at home but, although she had the assistance of her family, there were some things she still had to do.
[10] Transcript, 12 April 2021, 26.

The Applicant agreed that the nature of her work was to process higher complex work types, and that she was working towards a particular quota depending on whether she was processing a complex or simple work type. When she was performing overtime, the Applicant gave evidence that there was greater pressure on her to complete more work because she was being renumerated at a higher rate:
“On a Sunday, when you knew you were getting paid double time, it was a sense of obligation to process more than the minimum amount, because of the amount you were getting paid. And when we were working as a team to achieve work demands, it was not as intense. But as the direction of the business changed, it became more of a focus on you as an individual, and how much as an individual you could do”.[11]
[11] Transcript, 12 April 2021, 29.
When asked whether there was competition between staff to secure overtime work, the Applicant said “not necessarily. If you couldn’t do the required quota, you weren’t allowed to do overtime”.[12]
[12] Transcript, 12 April 2021, 29.
The Applicant agreed that she had not had any issues meeting her quotas until she started to struggle to work due to her symptoms and ceased work in around April/March 2018.
The Applicant was asked about two coaching sessions she had with Ms Lisa Woehler in January and again in February 2018. Counsel for the Respondent highlighted that the Applicant did not report her symptoms at her coaching session and the Applicant agreed. It was not until April 2018, after the Applicant saw Dr Cooley, that she reported her symptoms to Ms Woehler. The Applicant stated “That’s correct, I spoke to my doctor about it first”.[13]
[13] Transcript, 12 April 2021, 30.
The Applicant was asked about whether any of the medications she had been prescribed had an effect on her symptoms. She explained that some anti-inflammatory medication had a marginal effect, but they also had an adverse effect by causing stomach ulcers.[14]
[14] Transcript, 12 April 2021, 32.
During re-examination, counsel for the Applicant asked whether the Applicant’s symptomatology was reduced during periods when the Applicant took leave. She confirmed that when she was not working, any symptoms she experienced doing non-work-related activity, such as gardening or housework, did not cause her pain. Since ceasing work, she had become pain free.[15]
[15] Transcript, 12 April 2021, 32-33.
Mr Nicholas Campbell, physiotherapist
Mr Campbell prepared a report dated August 2020 which was tendered in evidence.[16] Mr Campbell first saw the Applicant in July 2019 after an exacerbation in her symptoms.
[16] Exhibit 2.
Mr Campbell identified symptoms consistent with tennis elbow and/or golfer’s elbow including lateral elbow pain, wrist pain bilaterally, distal interphalangeal joint pain, less prominent neck pain and more prominent forearm and elbow pain. He opined that the issues identified with the Applicant’s right lateral epicondyle and medial epicondyle are “more likely than not” related to her work.[17] In his opinion, the Applicant’s grip strength could also have been reduced by the symptoms she was experiencing in her medial epicondyle, which was, in his view, work-related.[18]
[17] Transcript, 12 April 2021, 34.
[18] Transcript, 12 April 2021, 35.
During cross-examination, counsel for the Respondent highlighted that the Applicant’s lack of symptoms when performing non-work-related activities could be correlated with her control over the frequency and duration of those activities, rather than suggesting the underlying cause was work-related.[19] Mr Campbell agreed that chopping vegetables, for example, would “similarly have a potential to aggravate symptoms in her right upper limb”.[20]
[19] Transcript, 12 April 2021, 41.
[20] Transcript, 12 April 2021, 41.
Counsel for the Respondent also asked Mr Campbell to identify the physiological change that would substantiate a medical diagnosis of the Applicant’s condition. Mr Campbell had diagnosed the Applicant with “cervical radicular pain” and noted that there were some changes identified on the Applicant’s MRI which showed a thickening of the tendon, however he was unaware of any other physiological change.[21] He did not consider the Applicant’s daughter’s arthritis to be a relevant consideration.[22]
[21] Transcript, 12 April 2021, 42.
[22] Transcript, 12 April 2021, 43.
Mr Campbell agreed that working from home during covid-19 had exacerbated the Applicant’s symptoms due to the ergonomic set-up available to her at home. He also opined that the headaches she had experienced could be linked to her neck pain.[23]
[23] Transcript, 12 April 2021, 43.
I note Mr Campbell made reference to several research articles that did not seem to assist in this matter. The ‘Does computer use pose an occupational hazard for forearm pain; NUDATA study’ by Kryger and others was published in 2003 and concluded:
Intensive use of a mouse device, and to a lesser extent keyboard usage, with the main risk factors for forearm pain. The occurrence of clinical disorders was low, suggesting that computer use is not commonly associated with any severe occupational hazard to the forearm.
In “Computer work musculoskeletal disorders of the neck and upper extremity: A systemic review”, published in 2010, Waersted and others concluded:
There is limited epidemiological evidence for association between aspects of computer work at some of the clinical diagnoses studied. None of the evidence was considered moderately strong there is a need for more and better documentation.
In “Does computer use affect the incident of distal arm pain? A one year prospective study using objective measures of computer use”, published in 2011, Mikkelsen and others concluded:
Computer work was not related to the development of prolonged or chronic pain. Mouse Tom is associated with acute distal arm pain, but the impact was quite small.
I consider that nothing in these articles assisted the Applicant’s assertion that computer work is commonly associated with the type of injury suffered by her.
Dr Helen Cooley, rheumatologist
Dr Cooley prepared a report dated 20 November 2019 tendered in evidence as part of the Applicant’s Tribunal Book.[24] She also produced reports that were tendered dated 18 December 2019 and 7 May 2020.
[24] Exhibit 2.
In a letter of instruction dated 28 October 2019 Dr Cooley was asked the following question:
4. Is it unlikely, possible or probable that excessive keyboard and mouse use can cause a condition (or cause aggravation to a pre-existing condition) described by Ms Adams? If so, please provide recent arrests including whether they support this is a cause and effect of condition.
In her report dated 20 November 2019 Dr Cooley noted, inter alia, the following:
She described pain in the distal interphalangeal joints and first web space of the right hand and pain in both elbows. The pain had begun 6 months prior to consultation and she atttributed the pain to increase in workload due to working overtime.
She has tried a range of therapies including oral and topical non steroidal anti-inflammatory agents, analgesic, compression splinting and work place modifications. She had not found any of the interventions to be helpful. Susan was disturbed at night by pain. There were no symptoms to suggest inflammatory arthritis such as rheumatoid arthritis.
Examination findings 18/5/ 2018 were bilateral mild bony DIP swelling, tenderness at the right first web space and tenderness at both lateral epicondyles.
My clinical impression was that of early osteoarthritis in her fingers and soft tissue pain.
Given the sleep disturbance and soft tissue pain, I suggested a trial of Endep and Palexia and a physiotherapy review.
I next reviewed Susan in October 2018. At that stage the right elbow was the biggest problem in terms of pain not have clear signs of lateral epicondylitis.
She went on to have an MRI which did not demonstrated (sic) those signs but did have changes around the medial epicondyle.
I then reviewed her in November 2018 and she was identifying 3 areas of pain..
She had pain in the right first web space, she had positive clinical signs for right lateral epicondylitis. She had pain around her right shoulder/scapula in the right shoulder was depressed and forward with tilting of the scapula and lack of the normal scapula-humeral rhythm.
My last review was November 2019 and she had the same clinical signs.
2. I think she has an upper limb work related disorder. She has developed pain in the right hand elbow and shoulder which has become chronic with sleep disturbance and static loading.
She has minor osteoarthritis in her distal interphalangeal joints and I do not believe that this work related or contributing significantly to her current presentation.
4. I think it is possible that excessive keyboard use could cause the condition think (sic) with the increased load in the setting of less than ideal posture of muscle tension could trigger the pain. Susan's report little no pain when she has been on leave.
Upper limb pain disorders are well described in medical literature.
…
6. I think her work has contributed, additional hours provoked the pain. I do not think there is an aggravation of a pre-existing condition. While she does have changes of mild hand osteoarthritis in both hands, her ongoing and predominant symptoms are right-handed.
7. I don't think her condition is related to a pre-existing condition.
Dr Cooley first assessed the Applicant in May 2018. She understood the Applicant to have had been referred to her because Dr Cooley had experience in idiopathic arthritis. Dr Cooley’s initial clinical impression was that the Applicant was suffering from early osteoarthritis in the fingers and soft tissue pain was a secondary diagnosis. She opined that the cause of the Applicant’s condition was “probably coming on because of excess – or the sudden increase in her workload and the intensity of her workload seemed to correspond with the time that (indistinct) pain over the elbows”.[25]
[25] Transcript, 13 April 2021, 4.
On further examination in October 2018, Dr Cooley explained that she performed further tests on the Applicant, including an MRI of her right elbow, which excluded intersection syndrome and inflammatory arthritis. Dr Cooley agreed that by excluding those conditions, it made it more likely that the Applicant’s work duties had played a role in her condition.[26]
[26] Transcript, 13 April 2021, 4.
During examination in chief, Dr Cooley explained that while there was evidence of an increased risk between siblings with juvenile idiopathic arthritis, there was no genetic correlation between children and parents.[27]
[27] Transcript, 13 April 2021, 5.
Dr Cooley diagnosed the Applicant with “upper limb work-related disorder” which falls under the banner of repetitive strain injuries. When Dr Cooley was asked about her opinion that it is possible that excessive keyboard use caused the Applicant’s condition, she stated:
“Well I think Susan has done this job for a number of years. She has had a couple of episodes in the past of pain in her arm that she’s managed successfully on her own. And this episode I think really came along when she had an increase in her work hours with overtime, both in terms of hours worked but also probably the intensity of the work as well. And I think the increased load in the setting of perhaps less than ideal posture has triggered the pain”.[28]
[28] Transcript, 13 April 2021, 7.
Dr Cooley agreed the Applicant’s lack of symptoms during periods of not working supported a positive correlation between her injury and work-related duties.[29] When asked whether non-work-related activities, such as walking her dogs, could also be contributing to her injury, Dr Cooley replied “I don’t think that gives you necessarily the same load as what you’re doing at work”.[30]
[29] Transcript, 13 April 2021, 8.
[30] Transcript, 13 April 2021, 8.
In Dr Cooley’s opinion, work significantly contributed to the Applicant’s condition.[31] When asked whether the Applicant had any pre-existing condition, Dr Cooley stated:
“Well, I don’t think she had a pre-existing condition as such. She had had episodes of pain before that possibly suggest that there was some underlying problems there. But I have not had the opportunity, you know, to see her with those (indistinct), but it is certainly possible that they then were there in the background and were part of the contributing factor as to why she developed more severe pain in 2018”.[32]
[31] Transcript, 13 April 2021, 9.
[32] Transcript, 13 April 2021, 9.
She agreed the Applicant could have a pre-disposition caused by individual factors but distinguished this from a pre-existing condition.[33]
[33] Transcript, 13 April 2021, 9.
When asked whether the physiological change present in the Applicant may take the form of a deterioration or worsening, Dr Cooley stated:
“Yes, I think so. She’s had previous episodes of similar pain that she’s been able to settle with self-management, physiotherapy et cetera, but I would say that would put her at risk of having a further, more severe episode”.[34]
[34] Transcript, 13 April 2021, 10.
Dr Cooley did not consider the Applicant’s condition to be systemic and therefore disagreed with the opinion of Dr Dale. She also didn’t consider the Applicant to be hyper-mobile, noting there were several clinical tests that could be done that would demonstrate hypermobility. She also disagreed with Dr Dale that there was a degenerative component to the Applicant’s condition.[35]
[35] Transcript, 13 April 2021, 14.
Dr Cooley was asked about whether other activities could cause the Applicant’s pain to use of her hands. She stated:
“Well again, after looking at Susan’s track record, you know, this hasn’t happened before, she’s never reported, you know, pain from using her hand at home after, you now, she’s never come in and said well just, you know, (indistinct) for three hours, you know I’ve been out in the garden, walking my dogs, then I’ve got this pain, there was none of that that proceeded her developing the pain”.[36]
[36] Transcript, 13 April 2021, 14.
During cross-examination, counsel for the Respondent described the Applicant’s experience of pain as a pre-disposition and challenged Dr Cooley to provide a diagnosis for the cause of that pain. Dr Cooley stated:
“I think she was in a situation where she had a load increase, that then caused pain, just you know, just because you can’t sort of see something, if you like, like you can with a fracture, that does not mean that pain is not real. And there’s plenty of good hard evidence about pain in terms of the biology, what happens with static loading, it can lead to an increase in pain where the pain system starts to make the wrong decisions, if you like, and you get maladaptive response. So you come back to the position you were doing and you do the same sort of load, you get an increase in pain”.[37]
[37] Transcript, 13 April 2021, 15-16.
While Dr Cooley agreed with the general proposition that a person’s psychological state could impact their pain sensitisation, she did not see evidence of this occurring in the case of the Applicant, despite awareness of her diagnosis of depression.
She agreed with the Respondent that in the Applicant’s case there hadn’t been a “frank incident” of sudden pain in her upper limbs but explained that this wasn’t to be expected because “its an intensity and load issue, as opposed to, you know, its not like you suddenly picked up, I don’t know, 50 kilos and felt something”.[38]
[38] Transcript, 13 April 2021, 18.
During re-examination, Dr Cooley corrected her previous opinion that it was possible that excessive keyboard use based on the facts could have contributed. She stated that in a legal context, she was prepared to increase this to probable “because you would give that more weight in terms of causality”.[39]
[39] Transcript, 13 April 2021, 20.
Ms Lisa Woehler, Applicant’s former line manager
Ms Woehler wrote two statements, respectively signed 22 June 2018 and 1 February 2021 which were tendered in evidence.
Counsel for the Respondent asked Ms Woehler about the expectations placed on the Applicant with respect to her workload when performing overtime. Ms Woehler stated:
“The expectations when working business as usual hours or overtime was the same. So, the higher complex work types from four per hour, and the simpler work types from 10 to 15 per hour. So the expectation was the same whether they were working through the week or after business hours or on the weekend”.[40]
[40] Transcript, 13 April 2021, 23.
Ms Woehler agreed that the Applicant had undertaken coaching sessions with her on several occasions in early-2018 but did not raise her pain with Ms Woehler until 16 April 2018.[41]
[41] Transcript, 13 April 2021, 23-24.
She explained during cross-examination that while staff were not usually reminded to take breaks, it was generally promoted for physical and mental wellbeing and there was technology available that assisted management to track breaks. Occasionally if a staff member had not taken a break for a long period of time, management would encourage the employee to have a break.[42]
[42] Transcript, 13 April 2021, 26.
Dr Jack Dale, medical practitioner in the field of occupational and environmental medicine
Dr Dale examined the Applicant on two separate occasions and produced three reports dated 13 July 2018,[43] 11 July 2019[44] and 26 February 2020.[45]
[43] Exhibit 1.
[44] Exhibit 3.
[45] Exhibit 3.
Dr Dale opined that the Applicant’s condition was “systemic”, when asked to expand on what he meant by that term, he responded:
“it’s a loose term basically to refer to something happening beyond the region that we’re talking about, and something more significant happening in the body that is causing those things to occur. And that might be, for example, a rheumatological condition such as rheumatoid arthritis or something similar”.[46]
[46] Transcript, 13 April 2021, 32.
Dr Dale agreed with Dr Cooley’s opinion that the Applicant was predisposed to this type of pain. He opined that she had certain risk factors, such as her gender and age. He explained that family history is also a risk factor, but the absence of a known systemic condition this was low in the case of the Applicant.[47]
[47] Transcript, 13 April 2021, 33.
Dr Dale described Dr Cooley’s findings as “non-specific” which he defined as “findings that don’t really match up well with the history, or findings that when put together don’t really give you a clinical syndrome that is – that gives you a specific cause”.[48]
[48] Transcript, 13 April 2021, 34.
He explained that in the case of the Applicant, “there were inconsistencies across the board. For example, with the location of her main finger pain and the location of the finger tenderness was different. And so it was – its basically saying that in the examination there were few findings made, but not enough to be able to confirm any specific diagnosis”.[49]
[49] Transcript, 13 April 2021, 34.
Dr Dale disagreed with Dr Cooley’s diagnosis of “upper limb work-related disorder”. When asked whether he would ever agree with that diagnosis, he described it as “not a very helpful diagnosis, in that it doesn’t tell you much about what is happening [..] its descriptive…”[50]
[50] Transcript, 13 April 2021, 37.
He went further to draw a distinction between a non-specific upper limb disorder and an upper limb disorder more generally, stating:
“when we are talking about a non-specific upper limb disorder, we’re essentially saying that this patient does not have any of those other recognised clinical entities, and so if we take it in that context, then the literature very clearly shows there is no good correlation – causative collection, between the type of work Ms Adams has done, and the production, or the causation of non-specific upper limb pain”.[51]
[51] Transcript, 13 April 2021, 38.
Dr Dale opined that in the Applicant’s case, there were no risk factors that made her vulnerable for a work related cause:
“…instead, we have a bilateral, symmetrical diagnosis that goes on to get work despite reduction in hours and exposure to what is said to be the work-related cause. And in that type of scenario, where its happening on both sides, where its happening reasonably symmetrically, and where the removal from exposure does not make an impact on the progression of the condition, you would have to say that it would be very hard to say anything like that is work-related”.[52]
[52] Transcript, 13 April 2021, 38.

Dr Dale agreed the Applicant suffered a flare-up of her symptoms when engaged in work-related activity, because he understood that to be where she used her upper limbs the most.[53]
[53] Transcript, 13 April 2021, 40.
When asked whether this could support a hypothesis that work-related activity was exacerbating her condition or symptoms, he opined:
“…it’s really a function of the reduced tolerances isn’t it, so if you have reduced tolerances, and you do something that goes beyond your tolerances, then you’re going to get a flare up. Whether that happens at work, or elsewhere, it just depends where you were actually doing the activity that goes beyond your tolerances”.[54]
[54] Transcript, 13 April 2021, 41.
Dr Dale did not believe there had been a significant aggravation or acceleration in the Applicant’s condition, which he described as “non-specific arm pain”.[55] In his opinion, the Applicant’s pain manifested itself when she engaged in activities using her upper limbs, but the activities were not the cause of her condition.[56] Rather, Dr Dale opined that the Applicant’s pain was caused by “her reduced tolerances”.[57]
[55] Transcript, 13 April 2021, 42-43.
[56] Transcript, 13 April 2021, 44-45.
[57] Transcript, 13 April 2021, 45.
He clarified that in his view, she has reduced tolerances and it is going beyond her tolerances that causes her pain, regardless of what activity she is doing: “The noticing of the condition is not the cause of the condition.”[58]
[58] Transcript, 13 April 2021, 45.
During cross-examination, Dr Dale was asked about the Applicant’s evidence that her symptoms ceased when she took long service leave. In Dr Dale’s opinion, if it were the case that work was the cause of her symptoms, it would have taken a longer time for her symptoms to redevelop upon returning to work: “You would not expect that to occur again bilaterally on the same day you came back to work. And that again more significantly shows we are dealing with a condition that reduces tolerance for work, rather than a condition that is caused by work”.[59]
[59] Transcript, 13 April 2021, 50.
Dr Dale was questioned about the methodologies he used to test the Applicant’s flexion, grip strength and his diagnosis of a mild medial epicondyle ache on the right hand. He clarified that when he was talking about bilateral non-specific findings, it is that there were non-specific findings bilaterally, not necessarily a symmetrical pattern on both sides.[60]
[60] Transcript, 13 April 2021, 52.
He opined that there was no contribution by her employment to her non-specific arm pain condition, to any significant degree.[61] He agreed this opinion was largely based on the literature which suggested there is not sufficient causal connection to show that computer use could indeed cause the symptoms, or non-specific arm pain.[62]
[61] Transcript, 13 April 2021, 54.
[62] Transcript, 13 April 2021, 55.
Dr Dale agreed with counsel for the Applicant that it would not be reasonable to suggest that other household-based activities the Applicant engaged in could be the cause of her pain, such as weeding or chopping vegetables. He opined that the condition was idiopathic in nature.[63]
[63] Transcript, 13 April 2021, 58.
As to what condition is suffered by the Applicant, I note the following:
(a)In her report of 20 November 2019, Dr Cooley diagnosed an ‘upper limb work-related disorder’.
(b)In that report she opined that it was possible that excessive keyboard work could cause that condition or aggravate a pre-existing condition.
(c)However, in re-examination she changed “possible” to “probable” and I note that in an email dated 18 December 2019 she opined that the Applicant’s work contributed substantially to her condition.
I was, and remain, concerned about the increased certainty absent any intervening examination between the two opinions but because, as noted below, I prefer the findings and opinions of Dr Dale, I find it unnecessary to resolve this matter.
I am also concerned with the inconsistencies noted by Dr Dale set out above at [90] and I agree with him when he notes that Dr Cooley’s findings are non-specific, in that they were findings that do not match up with the Applicant’s history, and they do not provide a specific cause for the Applicant’s condition.
In the absence of evidence showing any strong correlation or causative connection between the type of work undertaken by the Applicant and the cause of her non-specific upper limb pain, the only basis upon which I could find a causative relationship would be the coincidence of the Applicant’s work causing her pain.
But as noted by Mr Campbell at [58] and Dr Dale at [101] non-work related use of the Applicant’s upper limbs also caused her pain and there was no suggestion that ordinary household activities were responsible for whatever condition is suffered by the Applicant. Dr. Dale was firmly of the opinion that the Applicant’s pain is idiopathic in nature [101].
There was a clear distinction as to the cause of the Applicant’s pain within the opinions of Drs Cooley and Dale.
When considering the evidence above I note in particular the following from the various witnesses:
(a)Mr Campbell agreed that chopping vegetables, for example, would “similarly have a potential to aggravate symptoms in [the Applicant’s] right upper limb”.[64]
(b)Dr Cooley’s clinical impression as outlined at [68] was that of “early osteoarthritis the fingers and soft tissue pain”, with Dr Cooley opining the Applicant has “has an upper limb work related disorder”, with “little or no pain when she has been on leave”. Dr Cooley was of the view that the Applicant’s condition was unrelated to a pre-existing condition.
(c)Dr Cooley opined that the Applicant’s pain episode arose after an increased in her work hours with overtime, both in terms of hours worked but also probably the intensity of the work as well. And I think the increased load in the setting of perhaps less than ideal posture has triggered the pain”.[65]
(d)Dr Cooley opined that the Applicant has had episodes of pain before that put her at risk of a further, more severe episode.[66]
(e)Dr Cooley did not record any complaint of pain from the Applicant after engaging in other non-work related activities, such as gardening or dog-walking.[67]
(f)Dr Cooley identified the cause of the Applicant’s pain to be a load increase leading to a maladaptive response.[68]
(g)At [88] Dr Dale opined the Applicant’s condition to be systemic, with no correlation between the type of activity undertaken and the causation of non-specific upper-limb pain.[69]
(h)Dr Dale noted that the removal of the exposure did not result in an impact on the progression of the condition, although he noted that her symptoms improved when she took leave. He considered this to be evidence of her reduced tolerance for a certain level of activity, regardless of what activity she was undertaking.[70]
(i)At [98], Dr Dale drew a distinction between the experience of pain, and the cause of that pain – he opined that just because the Applicant noticed her condition when undertaking certain activities, did not mean those activities were the cause of her condition.
[64] Transcript, 12 April 2021, 41.
[65] Transcript, 13 April 2021, 7.
[66] Transcript, 13 April 2021, 10.
[67] Transcript, 13 April 2021, 14.
[68] Transcript, 13 April 2021, 15-16.
[69] Transcript, 13 April 2021, 32.
[70] Transcript, 13 April 2021, 38, 41.
After consideration of the medical evidence set out above, I consider the evidence of Dr Dale to be more consistent and objective than that of Dr Cooley and accordingly, where there is conflict, I prefer the evidence of Dr Dale. In particular, I rely upon the evidence summarised at [108] above together with my comments at [102] and make the following findings:
(a)the Applicant has undergone an exhaustive range of diagnostic examinations relating to her complaints of upper limb symptoms;
(b)the Applicant suffers from non-specific upper limb pain and there has been no identified physiological change relating to those symptoms and there has been no alteration of the underlying pathology;
(c)the Applicant is predisposed to experience pain in her upper limbs when performing some activities involving those limbs;
(d)the Applicant has, at times, suffered an aggravation of her symptoms when peforming some tasks at her work place as well as when performing certain upper limb-related tasks away from her workplace;
(e)the Applicant has a constitutional pre disposition to suffer pain when using her upper limbs to an extent beyond certain ill defined limits;
(f)there has been no significant contribution to the Applicant’s underlying condition by her work;
(g)the underlying condition has not been significantly rendered more susceptible to dehabilitating pain by the Applicant’s employment; and
(h)the Applicant’s condition is one that reduces tolerance for work, rather than a condition that is caused by work.[71]
[71] Transcript, 13 April 2021, 50.
Issues
The issues for determination in this matter are:
(a)Has the Applicant suffered a frank injury or any other injury as defined by the Act?
(b)If a frank injury, did it arise out of or in the course of her employment? If it is a disease, has it been contributed to, to a significant degree, by her employment?
Legislation
Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) provides for the Respondent’s liability to pay compensation in respect of an injury:
(1)       Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)       Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)       Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Section 4(1) of the SRC Act states that “injury” has the meaning given by s 5A.
“Injury” is defined in s 5A of the SRC Act to include:
(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 Act provides that “disease” is defined as:
"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.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Case law
I have found the application of the Act to be confusing and difficult. The delivery of this decision has been been delayed, in part, by me awaiting the decision in Wuth v Comcare [2022] FCAFC 42 (Wuth) which has helped clarify some aspects as set out below.
The High Court considered the meaning of injury (other than a disease) in the case of Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (May).
At [60]-[62] it was stated in the joint-judgment of French CJ, Kiefel, Nettle and Gordon JJ:
Thirdly, as seen earlier, the word “injury” in “injury (other than a disease)” has a different meaning from the defined term “injury” in s 4(1) – it means “injury” in its primary sense. That necessarily requires consideration of the “precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change” (80).
Put another way, the proper construction of the Act recognises that an employee may genuinely complain of being unwell, but, in the context of the “injury (other than a disease)” limb of the definition of “injury”, unless that employee can satisfy the tribunal of fact that he or she has suffered an “injury” (in the primary sense of the word), s 14 of the Act will not be engaged.
The “nature and incidents of the physiological [or psychiatric] change” (81) will determine whether there was an “injury (other than a disease)”. The evidence to be adduced, of course, will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events (82). To take an extreme example, the dismemberment of a limb involves a physiological change as a matter of common sense. But there must be more than an assertion by an employee that he or she feels unwell.
In closing oral submissions, counsel for the Applicant relied on a passage from the separate judgement of Gageler J in May at [80] where his Honour states:
“The Full Court was right to point out in the decision under appeal that the Act and the case law do not “preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion” and to observe that “[w]hether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case”.
His Honour then states at [81]:
“The Tribunal demonstrated that it understood the ultimate question which it needed to answer to determine Mr May’s claim when it stated its conclusion in terms that it was “not satisfied on the balance of probabilities that Mr May suffered a physical injury – an injury simpliciter – amounting to a sudden or identifiable physiological change in the normal functioning of the body or its organs” (108)”.
These passages both suggest that to the extent that the High Court was laying down essential criteria for the establishment of an injury (as defined in s 4(1)), those criteria applied to injuries (in the ordinary sense of that word) rather than ailments. To the extent that there was doubt about that question, it was resolved by the Full Court recently in Wuth.
Wuth provides further clarification on the meaning of “injury” in the context of s 4(1) of the SRC Act.
In Wuth, the Full Court considered whether the requirement for there to be evidence of an identifiable physiological change in the case of an injury (other than a disease), also extended to ailments for the purposes of determining whether an applicant suffered an injury as defined in s 4(1) of the SRC Act.
The Full Court held that May had established no such precedent, and that the requirement for an “identifiable physiological change” was limited to the establishment of an “injury (other than a disease)” in the second limb of s 4(1) of the SRC Act.[72]
[72] Wuth v Comcare [2022] FCAFC 42, [104].
This clarification of the precedent established in May is relevant to my finding in this matter because the Applicant contended the injury she continues to suffer from is a “disease” within the meaning of injury in s 4(1) of the SRC Act, and it is the same injury for which compensation was initially claimed.
The Respondent, by contrast, contended the Applicant no longer suffered from a compensable injury because the medical evidence before the Tribunal failed to identify a physiological change in her current condition. This was premised on the basis that May made an identifiable physiological change a prerequisite for a compensable injury, no matter which sub-set of “injury” was relied upon.
In view of the decision of the Full Court in Wuth, I accept that the presence of an identifiable physiological change is not a prerequisite for a finding that the Applicant is suffering from a “disease” within the first limb of the definition of injury in the SRC Act.
It was accepted in Wuth that the definition of “disease” within the first limb of the definition of injury in the SRC Act:
“carries a defined meaning” requiring that there be an ailment or aggravation of an ailment that “was contributed to in a material degree by the employee’s employment. What is required is that employment be a material contributing factor, and not merely a temporal nexus”.[73]
[73] Wuth and Comcare [2022] FCAFC 42, [87].
When May is read in light of the conclusions in Wuth, the apparent tension between the plurality in May and Justice Gaegler who joined with the majority in the result but wrote separately largely dissolves. In particular, provided Justice Gaegler’s comments cited above are read as restricted to the consideration of ailments, it reflects the approach the Tribunal should take to its task.
To re-iterate, the Act and the case law do not “preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind” and there is no “necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion”. Whether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, ‘will be a matter for the Tribunal’s satisfaction on the evidence in each particular case’.
This perhaps represents a departure from or clarification of the approach stipulated in Comcare v Stefaniak [2020] FCA 560 in a consent judgment where Thawley J held at [3]:
The Tribunal made that decision in circumstances where it was unable to identify a “biological cause” for Mr Stefaniak’s asserted “pain symptoms”. In that respect, the Tribunal essentially found that the evidence established that the “biological cause” of Mr Stefaniak’s pain could not be connected with any identifiable physical injury or an ailment which was the “root cause” of that pain. The Tribunal additionally found that there was no aggravation of Mr Stefaniak’s underlying pathology, in the sense that “whatever underlying condition [he] suffered from” was not made worse in any permanent or significant way by his work activity.
Although there was no clear understanding of the “biological cause” of Mr Stefaniak’s pain, the Tribunal ultimately found that Mr Stefaniak’s duties at the ONA aggravated an underlying disease which could not be identified with any precision. In making that finding, the Tribunal made two essential assertions. Those assertions were: first, that an aggravation of symptoms, in the absence of alteration of underlying pathology, could amount to an injury for the purpose of the SRC Act; secondly, that an inability to make a diagnosis is “no barrier to a successful compensation claim”.
In holding Comcare liable to pay compensation to Mr Stefaniak for “pain symptoms” in the circumstances, the Tribunal made the following legal errors.
6. The Tribunal misconstrued and misapplied s 5B(1)(b) of the SRC Act.
(a) Properly construed, s 5B(1)(b) of the SRC Act requires that a decision-maker be satisfied that an employee has suffered an “ailment”, as defined in s 4(1), before the decision maker can find that the employee has suffered the “aggravation of such an ailment”.

(b) In the present case, the Tribunal was unable to be satisfied that Mr Stefaniak’s subjectively experienced symptoms of pain arose from an “ailment”. That was because of the findings of fact made by the Tribunal that the “biological cause” of Mr Stefania ’s pain could not be connected with any identifiable physical injury or an ailment which was the “root cause” of that pain.

(c) In circumstances where it was unable to be satisfied that Mr Stefaniak’s pain arose from an “ailment”, the Tribunal was not permitted to find that Mr Stefaniak had suffered the “aggravation of such an ailment” for the purpose of s 5B(1)(b) of the SRC Act.
7. For the above reasons, the Tribunal was obliged to conclude on the findings of fact that it made that Mr Stefaniak had not suffered an “injury” for the purpose of the SRC Act. Accordingly, the Tribunal’s decision must be set aside, and Comcare’s decision declining liability to pay compensation restored.

If I am to find, as I am inclined to do, that the applicant has an underlying ailment which is aggravated by work, I have to identify the basis on which I find an ailment present and what the ailment is, but I don’t need to go so far as to reach a formal diagnosis. That is the discipline which the statute imposes as identified by Stefaniak when read in light of May and Wuth.
As should be clear from my findings above, I do consider that the applicant had specific limited constitutional tolerances for certain kinds of work (which I am satisfied constitutes an ailment) which was prompted into pain symptoms when her work reached a certain intensity. The underlying pathology never changed but the work induced the symptoms. The question that arises is whether this constitutes an aggravation of an ailment for the purposes of the Act.
A helpful starting point, although dealing with different legislation, is the High Court’s decision in Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533.
Toohey J, with whom the Court agreed, set out the relevant facts at 536 and the relevant legislation at 536-537:
The approach taken by the Federal Court appears from a passage which it is necessary to set out in full:
"The evidence before the Court of Petty Sessions established that Mr  Asioty  was suffering from a disease of the chronic type which was not caused by his work as a slaughterman. It was a constitutional condition called Amyloidosis Cutis. That condition was not subject to any perceptible progress if some external stimulus was applied. Nevertheless the evidence established that the congenital condition was aggravated by Mr  Asioty 's work as a slaughterman, in that the work produced additional symptoms or an intensifying of existing symptoms which were temporarily incapacitating. Thus the worsening or itensifying (sic) of existing symptoms may properly be described as an aggravation. It does not follow, in our view, that once those worsened or intensified symptoms had abated the likelihood of a return of the symptoms, or the fact that the condition may be harder to control at some time in the future, amount to an aggravation of the pre-existing condition. An aggravation involves the onset of additional symptoms or the intensifying of existing symptoms.
A return of the symptoms of the disease if Mr  Asioty  resumed certain types of work could amount to a further aggravation or recurrence of the pre-existing disease, but the likelihood of a return of the symptomscould not be described as an aggravation or recurrence within the meaning of the definition of 'disease'. The fact that it may be inadvisable for Mr  Asioty  to return to his work as a slaughterman is due to the nature of the congenital disease itself and not to the aggravation which incapacitated him until 18 August 1983 and which was the basis of compensation payments to that date." restoration of the orders made by Kelly J.
The appellant's entitlement to compensation depends on s.9(1) of the Ordinance which, at the relevant time, read:
" Where - (a) a workman is suffering from a disease and is thereby incapacitated for work; or (b) . . . and the disease is due to the nature of the employment in which the workman was employed, his employer shall . . . be liable

to pay compensation . . . as if the disease were a personal injury by accident arisingout of or in the course of his employment."
The term "disease" is defined by s.6(1) to include - "any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease" be whether the pre-existing disease (the basic dermatitis) was so aggravated as a result of the nature of Mr  Asioty 's employment by the company that in its the quiescent state it constituted anaggravation, acceleration or recurrence of the pre-existing disease which causes the incapacity from which Mr  Asioty  suffers."
His Honour later held at 540-541:
While it is apparent that an aggravation of the appellant's underlying dermatitis may take the form of immediate incapacitating symptoms, the existence of some more permanent aggravation is not precluded because those symptoms abate on each occasion that the appellant ceases work. The proper conclusion is that the condition of the appellant's hands, with their now enhanced susceptibility to dermatitis, has intensified the disease from which the appellant suffers. This enhanced susceptibility constitutes an aggravation of the disease and, in the circumstances, falls within the language of the Ordinance.
But, in that form, is the disease due to the nature of the appellant's employment with the respondent and is the appellant thereby incapacitated for work? The answer to each of those questions is "yes", for the reasons given by Kelly J. His Honour said:
"If - (a) a workman has a chronic, non-incapacitating pre-existing disease; (b) the nature of his employment causes for the first time a temporary incapacitating aggravation of the disease; (c) the aggravation ceases when the workman stops work; (d) the aggravation is renewed when he again starts work in the same employment; and
(e) the pre-existing disease rendered more recalcitrant by the episodes of aggravation now prevents the workman from working in a large range of occupations because such work will cause a similar aggravation it seems to me that the nature of the employment has aggravated the pre-existing disease to the point where it is incapacitating."
I have underlined the words "for the first time" and "now" in Kelly J.'s summary because I think it was the failure of the Federal Court to direct attention to what underlies those words that led their Honours into error. To say, as their Honours did, that "the likelihood of a return of the symptoms could not be described as an aggravation or recurrence" is to overlook that it was the appellant's employment with the respondent that caused for the first time an aggravation which was incapacitating and which is still incapacitating because it prevents the appellant from returning to work, at any rate work of a certain kind.
The Federal Court concentrated on the fact that once the appellant ceased work with the respondent his symptoms abated. That is not disputed but, in treating that fact as conclusive, their Honours applied the dicta of Moffitt J. in Federal Broom Co. Pty. Ltd. v. Semlitch too strictly. It is true that Moffitt J. spoke of the aggravation of a disease as consisting of the production or intensifying of its symptoms. And this will often be the case. However, there is no reason why a disease which produces susceptibility to some debilitating condition should not be regarded as aggravated when that susceptibility is heightened by a circumstance such as work of a particular type or in particular conditions. The Ordinance does not require an aggravation of the symptoms of a disease. The Federal Court did not meet the appellant's claim that, by reason of the aggravation caused by his employment with the respondent, he is now unable to return to work because to do so will produce symptoms which have already prevented him from continuing at work.
19. To reach the conclusion that the appellant is suffering from an aggravation of a disease (and therefore a disease within the terms of the Ordinance), that that disease was caused by the nature of his work with the respondent and that he is thereby incapacitated is not necessarily to hold that the appellant is totally, as distinct from partially, incapacitated for work. That is a matter with which the Federal Court did not deal because, on its approach, there was no relevant incapacity. In addition to the medical evidence, the arbitrator heard from Kenneth Kinnane, an employment counsellor with the Commonwealth Employment Service, that given the need for the appellant to avoid irritant substances, blood, prolonged wet work and high temperatures and any job requiring the wearing of rubber or leather gloves, coupled with his limited knowledge of English, there were no jobs available to the appellant in Canberra. Kelly J. held that, in the light of that evidence, the appellant must be regarded as totally incapacitated for work.
That was a conclusion Kelly J. was entitled to reach on the evidence. It is consistent with the approach taken by this Court in Arnotts Snack Products Pty. Ltd. v. Yacob [1985] HCA 2; (1985) 155 CLR 171 and there is no reason why this Court should interfere with it.
What distinguishes the present case from Asioty, is that I am not satisfied that the applicant’s work increased her susceptibility to suffer recurrences. The applicant’s work at a particular intensity prompted her into symptoms and when she rested, the condition resolved. Can a sequence of this kind amount to an aggravation for the purposes of the Act?
The Applicant relied on the case of Tippett v Australian Postal Corporation [1998] FCA 335 (Tippett) which considered the meaning of s 5A(1)(c) – an aggravation of a physical or mental injury (other than a disease).
In that case, Finklestein J found that the Tribunal had failed to give the word “injury” its proper and required meaning by deciding that an applicant’s injury had not been aggravated by his employment because his injury had not become worse, he had only suffered symptoms.
In Tippett, the Applicant was diagnosed with “mild rotator cuff impingement of his left shoulder” and it was not possible to diagnose the cause of the injury, however it was agreed by his treating practitioners that his work may have aggravated his injury.
Finklestein J referred to the judgement of Kitto J in the High Court decision in Federal Broom Co Pty Ltd and Semlitch (1964) 110 CLR 626 which considered the meaning of “exacerbation”. His Honour stated:
“There will be an exacerbation of an injury where the experience of the injury is increased or intensified without any alteration to the underlying physical or mental condition”.[74]
[74] Tippett and Australian Postal Corporation (1998) AAR 40.
His Honour noted that it had been held in Commonwealth and Beattie [1981] FCA 88 that the same principles apply to considering the term “aggravate”. Beattie was also cited as authority for the principle that “the symptom of an injury, that is the experience of the injury, is part of the injury in respect of which compensation is payable”. His Honour stated:
“Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee’s employment then the employee will have suffered a compensable injury”.[75]
[75] Tippett and Australian Postal Corporation (1998) AAR 40.
However, in light of the subsequent decisions referred to above, I consider that to be an overstatement in that further analysis then needs to be made to determine whether the statutory test has been made.
The Applicant also relied on Commonwealth Banking Corporation v Percival [1988] FCR 176 to similarly submit that no distinction should be drawn between an underlying injury and the symptoms experienced:
“No doubt, for many medical purposes, it is useful and often necessary to distinguish between the underlying pathology of a disease and mere symptoms of the disease. […]
But that is not to say that the symptoms of a disease are not a part of the disease. It is indeed fundamental to compensation law that a symptom of an injury or disease is a part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity”.[76]
[76] Re Commonwealth Banking Corporation v Raymond William Percival (1998) 20 FCR 176
The Respondent described the judgement of Lindgren J in Repatriation Commission v Yates [1995] FCA 1234 as the correct approach:
“In my view the AAT was distracted from addressing the question whether there had been aggravation of Yates’ spondylarthritis as distinct from a temporary worsening of symptoms. It accepted (correctly in my view) that an aggravation of a disease need not be literally “permanent”. It accepted (as it was entitled to) that Yates’ defence service had temporarily worsened the disease’s symptoms and associated discomfort. Its error was, without more, to link the two to reach the conclusion that the temporary worsening of symptoms was equivalent to a temporary aggravation of the underlying disease”.[77]
[77] Repatriation Commission v Yates [1995] FCA 1234, 250.
However, the statute being considered in this case is very different to the Act and so I do not consider that this reference assists.
Both the Applicant and Respondent referred the Tribunal to the case of Commonwealth of Australia v Beattie (1981) 53 FLR 191, which deals with the aggravation of an injury or disease. I refer to the following passage, per Evatt and Sheppard JJ at 201:
“It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place”.
The Respondent conceded that in both Beattie and the case of Caldipp Pty Ltd trading as Slaven Motors v Delov [2002] FCAFC 352:
“the Applicant was found to have suffered an aggravation of a pre-existing condition in circumstances where the claim was based on subjectively reported intensification of pain symptoms related to the performance of work-related activity and the medical evidence did not establish any worsening or deterioration in the pathology involved in the pre-existing condition”.[78]
[78] Respondent’s closing submissions, [53].
The Respondent submitted however, that the High Court case of May, discussed at [116]-[120] casts doubt on Beattie and Calditt by emphasising that the discernment of a frank injury on a background of a pre-existing disease depends on the identification of a physiological change. That submission cannot be sustained in light of Wuth.
CONTENTIONS
The Applicant contended she suffered from a compensable injury, identifiable as a “non-specific upper limb condition”.
In the Applicant’s submission, if she is suffering from a frank injury, then it would be compensable as an aggravation of a pre-existing injury, regardless of whether it was caused by work-related activity.
The Applicant also submitted that if it were found the Applicant had a disease, then “an aggravation can occur irrespective of whether there is a finding the originating disease is work-related (s 5B(1)(b))”.[79]
[79] Applicant’s response to Respondent’s closing submissions, 1.
In the Applicant’s submission, I should prefer the evidence of Dr Cooley because of her qualification as a rheumatologist and significant research in this area.
The Respondent contended, relying on the opinion of Dr Dale, that the Applicant suffers from “non-specific upper limb pain” and it was not compensable under the SRC Act. As noted above I prefer the opinion of Dr Dale.
The Respondent contended that the Applicant had experienced pain in her neck and her back, prior to commencing work at Services Australia and there is an absence of a physiological change that explains her pain.
If the Applicant is found to have suffered an injury for the purposes of the SRC Act, the Respondent contends that her injury is not causally connected to her employment.
Findings
Has the Applicant suffered a frank injury or any other injury as defined by the Act?
Even without any changes to an underlying pathology, an aggravation of symptoms may be sufficient to amount to an injury for the purposes of the Act. See Semlitch (supra) at [634], Beattie (supra) at 201 and Tippett (supra).
However, consistent with May and in the absence of any sudden and ascertainable, or dramatic physiological change or disturbance, I find that the Applicant has not suffered a frank injury. Applying the law as set out in Wuth above, in particular [123], the absence of a physiological change only rules out an injury (other than a disease) as set out in the second limb of s 4(1) and s 5B of the Act.
As noted above, Dr Dale opined that the Applicant’s pain was caused by “her reduced tolerances^”.[80] He clarified that in his view, she has reduced tolerances. In Dr Dale’s opinion, he was satisfied that ‘we are dealing with a condition that reduces tolerance for work, rather than a condition that is caused by work”.[81]
[80] Transcript, 13 April 2021, 45.
[81] Transcript, 13 April 2021, 50.
This condition meets the description of an ailment, although it derives only from the descriptions of the applicant and is not the subject of formal diagnosis – I am satisfied such an approach is permissible based on Justice Gaegler’s comments in May.
If a frank injury, did it arise out of or in the course of her employment? If it is a disease, has it been contributed to, to a significant degree, by her employment?
I consider that the Applicant’s pain constitutes an ailment but consistent with my findings at referred to above, that ailment was not contributed to by any, let alone a significant, degree by her employment.
However, I have found that her ailment was aggravated at times by her employment and, for those periods, she suffered a disease as defined by s 5B(b) of the Act and that disease was, at times, significantly contributed to by her employment.
Because the Applicant’s employment has not significantly contributed to her constitutional condition and the aggravations have caused no change to her underlying condition, any subsequent aggravations outside of her employment are not compensable.
Contrary to the position in Asioty (supra), I have found that the underlying condition has not been significantly rendered more susceptible to dehabilitating pain by the Applicant’s employment and hence I do not find that the work-related aggravation has significantly contributed to any permanent incapacity.
Decision
Accordingly I set aside the decision and find that the Respondent is liable to pay compensation in relation to the temporary aggravations of forearm pain which occurred during the Applicant’s employment after 19 March 2018, being the date noted by the Applicant as when she first noticed her symptoms.

165. I certify that the preceding 164 (one hundred and sixty-four) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President.

..................[sgd]...............................
Associate
Dated: 18 October 2022

Date of hearing: 13-14 April 2021, 9 June 2021

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Andrew Wright

Boylan Lawyers

Counsel for the Respondent:

Solicitor for the Respondent:

Mr Jo Ferwerda

Australian Government Solicitor