Adams and Comcare (Compensation)

Case [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

  1. 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”.  

  2. 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.

  3. 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

  4. The following facts are either agreed or not disputed.

  5. The Applicant…

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Details
AGLC
Adams and Comcare (Compensation) [2022] AATA 3404
Case
[2022] AATA 3404
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review by the Applicant against a determination by Comcare, the Respondent, which denied liability for the Applicant's claim of "early osteoarthritis and some soft tissue pain". The Applicant had been employed by Services Australia since July 2000, initially part-time and then full-time from June 2001, in a Service Officer role involving sedentary duties such as data entry and phone use, with significant reliance on computer and mouse operation. The Applicant alleged that her symptoms, affecting her fingers, wrists, and elbows, developed gradually due to prolonged overtime work between late October 2017 and March 2018.

The Tribunal was required to determine whether the Applicant's condition constituted an "injury" for the purposes of the relevant workers' compensation legislation, specifically whether it arose out of or in the course of her employment. This involved considering whether a physiological change was necessary to establish a disease, and whether the experience of symptoms, rather than a diagnosed disease, could amount to an aggravation of an injury. The Tribunal also had to assess whether the nature of the Applicant's work, including the intensity and duration of computer and phone use, and the ergonomic issues identified, contributed to her condition.

The Tribunal reasoned that an injury under the legislation does not necessarily require a distinct physiological change, and that the aggravation of a pre-existing condition or the experience of symptoms can constitute an injury. The evidence indicated that the Applicant's role involved repetitive fine motor skills and awkward postures, particularly with computer and phone use, and that ergonomic adjustments were made in 2011 to alleviate symptoms. Furthermore, the Applicant's testimony suggested that her symptoms significantly improved during periods of leave, indicating a link between her work and her pain. The Tribunal found that the cumulative effect of the Applicant's work duties, including the intensity of her role in the complex drugs unit and the ergonomic challenges, led to an aggravation of her condition, which constituted an injury arising out of or in the course of her employment.

The Tribunal set aside the Respondent's decision and substituted it with a determination that the Applicant had suffered an injury arising out of or in the course of her employment.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.EvidenceThe 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.