Ajmal and Comcare (Compensation)
[2022] AATA 3978
•24 November 2022
Ajmal and Comcare (Compensation) [2022] AATA 3978 (24 November 2022)
Division:GENERAL DIVISION
File Number(s): 2021/4286
Re:Muhammad Ajmal
APPLICANT
AndComcare
RESPONDENT
Decision
Tribunal:Member W Frost
Date:24 November 2022
Place:Canberra
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
......................[SGD]......................................
Member W Frost
Catchwords
WORKERS’ COMPENSATION – section 14 of the Safety, Rehabilitation and Compensation Act 1988 – denial of liability for an aggravation of lateral epicondylitis (right) – ‘tennis elbow’ -- where Applicant worked as auditor – keyboard and mouse usage – where symptoms aggravated by employment and outside daily living activities – underlying degenerative condition – employment contribution not established to a significant degree – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss 37, 43(1)
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14Cases
Beezley v Repatriation Commission (2015) 150 ALD 11
Rodriguez v Telstra Corporation Ltd [2002] FCA 30
Comcare v Power [2015] FCA 1502REASONS FOR DECISION
Member W Frost
24 November 2022
INTRODUCTION
The Applicant, Mr Muhammad Ajmal, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision by the Respondent, Comcare, affirming its determination denying liability to pay him compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for ‘right lateral elbow tendinopathy’ (referred to as LET and commonly known as ‘tennis elbow’).
Mr Ajmal claimed to have begun experiencing pain while undertaking audit work in his employment with the Australian National Audit Office (ANAO). Comcare declined liability under the SRC Act because it found that Mr Ajmal did not suffer an ‘injury’ for the purposes of the SRC Act; it was not satisfied that the LET was contributed to, to a significant degree, by his employment.
The Tribunal has considered all documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) and the parties’ ‘Hearing Book’ bundle of documents, together with their submissions at the hearing.[1] For the following reasons, the Tribunal affirms Comcare’s decision because Mr Ajmal’s application fails to meet the requirements of the SRC Act and Comcare is therefore not liable to pay him compensation.
[1] Exhibits 1, 2 and 3.
ISSUE
The issue for the Tribunal to decide in this proceeding is whether Mr Ajmal suffered an ‘injury’ under the SRC Act.
BACKGROUND
Mr Ajmal is 46 years old.[2]
[2] Exhibit 1, page 28.
In 2011, Mr Ajmal commenced employment with the ANAO.[3] He is employed as a Team Member of the Assurance Audit Services Group at the Australian Public Service Level 5.[4]
[3] Ibid., page 34.
[4] Ibid., pages 75-76.
On 20 August 2020, Mr Ajmal completed an ANAO ‘Accident/Incident Report’ and relevantly stated that he ‘started experiencing pain in forearm and elbow region during the DFAT and DVA audit final field work’, ‘kept working’ and considered the pain to be ‘muscular and due to fast paced audit work environment and extra work’.[5] Mr Ajmal further stated that the ‘pain kept going for few days and started making me more uncomfortable during work with computer usage, writing and movements’.[6] Mr Ajmal noted that this issue was first reported on 4 August 2020.[7]
[5] Ibid., pages 11-15.
[6] Ibid., page 11.
[7] Ibid., page 12.
On 31 August 2020, Mr Ajmal was referred by the ANAO for a workstation ergonomic assessment and this was undertaken in September 2020.[8]
[8] Ibid., pages 16-22.
On 22 September 2020, Mr Ajmal participated in an early intervention return to work assessment with an exercise physiologist.[9] Mr Ajmal’s symptoms were recorded as including a ‘burning feeling in his elbow’; ‘sharp pain’ when gripping an object to pick up; ‘pain’ when lifting a cup of tea to his mouth; ‘pain at night’; not being able to ‘lift unilaterally with his right arm or bilaterally without experiencing pain in his elbow’; and ‘pain when pushing/pulling items such as a heavy door’.[10] Mr Ajmal also reported that he ‘currently has to start his car with his left hand before he gets in as he experiences pain when twisting the key with his right hand’ and ‘experiences pain’ when ‘twisting to place his right arm in his shirt’.[11]
[9] Ibid., pages 23-27.
[10] Ibid., page 24.
[11] Ibid., page 25.
On 15 October 2020, Mr Ajmal submitted a Workers’ Compensation Claim to Comcare.[12] In that claim form, Mr Ajmal stated that the condition for which he was seeking compensation was:[13]
Experiencing executing pain in the wright arm elbow due to computer key board and mouse’s usage and audit work on the workstation. [errors in original]
[12] Ibid., pages 28-35.
[13] Ibid., page 29.
Mr Ajmal further stated in his claim that he was doing auditing work ‘as prescribed as a APS 5’ when he was injured.[14] In response to the question in the claim form as to what happened and how Mr Ajmal was injured, he stated that:[15]
I started experiencing pain initially on 8 July onwards when I was working on DFAT and DVA final audit phase. Initially I thought it to be muscular pain due to extra effort (using ANAO computer, key board and mouse) to complete the assigned work and help the audit team to achieve the target. I took pain killer/applied ointment. The pain did not settle, and after few days I saw the doctor on 11 July 2020 and on the recommendation got ultrasound 21 July 2020 diagnosing tennis elbow problem there after on 3rd august recommended cortisone injection still then I have been undertaking medical treatment as per doctor advice including medication and physiotherapy. Incident report also was filled and provided to ANAO. More detail can be provided as required. [errors in original]
[14] Ibid.
[15] Ibid., pages 29-30.
On 16 November 2020, the ANAO provided Comcare with a Statement of Facts in relation to Mr Ajmal’s compensation claim.[16] The ANAO confirmed that Mr Ajmal’s normal duties ‘are that of an APS auditor in the assurance audit group’, comprising ‘undertaking audit procedures that includes assessment of information, research, analysis and documentation. This involves constant computer use including typing and mouse clicking’.[17] It also confirmed there had been ‘no change in Muhammad’s normal duties in the hours leading up to his injury’.[18] Mr Ajmal’s manager at the time of his claimed injury reported that his role ‘involves being on the computer constantly unless there are work meetings’, but that ‘the majority of his work is computer based’.[19]
[16] Ibid., pages 73-74.
[17] Ibid., page 73.
[18] Ibid.
[19] Ibid., page 74.
On 14 December 2020, Comcare made a determination declining Mr Ajmal’s claim for compensation for an ‘aggravation of lateral epicondylitis (right)’ under section 14 of the SRC Act.[20]
[20] Ibid., pages 92-96.
On 4 May 2021, following a request by Mr Ajmal for reconsideration, Comcare affirmed its determination from December 2020 declining liability to pay him compensation under section 14 of the SRC Act in respect of ‘right lateral elbow tendinopathy’.[21]
[21] Ibid., pages 107-116.
On 23 June 2021, Mr Ajmal applied to the Tribunal for review of Comcare’s decision.[22]
[22] Ibid., pages 1-3.
LEGISLATION
Subsection 14(1) of the SRC Act provides:
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.
‘Injury’ is relevantly defined in subsection 5A(1) of the SRC Act to mean:
(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;...
Section 5B of the SRC Act regarding the definition of ‘disease’ states that:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
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. [emphasis in original]
Section 4 of the SRC Act defines ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. It also provides that ‘aggravation’ includes ‘acceleration or recurrence’.
EVIDENCE
Mr Ajmal
The Tribunal has considered in its decision the witness statement filed by Mr Ajmal in this proceeding on 28 September 2022, together with his Statement of Facts, Issues and Contentions dated 12 May 2022.[23] Mr Ajmal gave evidence in-person at the hearing of the proceeding and confirmed adherence to his witness statement. Mr Ajmal confirmed his employment as an auditor with the ANAO commenced in 2011 and comprised the responsibilities set out in the position description for his role.[24] Mr Ajmal told the Tribunal that his work hours did not increase in the time from March 2020 until the time of the claimed injury and he was using a computer, keyboard and mouse for his work.
[23] Exhibit 3, pages 251-252 and 261-269.
[24] Exhibit 1, pages 75-76.
Mr Ajmal told the Tribunal he experienced symptoms on or around 7 or 8 July 2020. His work duties had not changed around this time. Mr Ajmal considered the pain would resolve within a matter of days and he used pain medication. However, the pain became worse and he attended his general practitioner who diagnosed ‘tennis elbow’. In August 2020, Mr Ajmal continued work while in pain, but when he felt swelling in his hand he reported it to his manager at the ANAO through the incident report from 20 August 2020.[25] He agreed that his symptoms came on progressively. After his incident report, Mr Ajmal underwent an ergonomic assessment.
[25] Ibid., pages 11-15.
Mr Ajmal told the Tribunal that he first saw his general practitioner, Dr Goel, on 11 July 2020 in relation to his right elbow. Mr Ajmal said Dr Goel was unsure of the diagnosis and had queried whether it was ‘tennis elbow’. Mr Ajmal agreed that the clinical notes from this consultation contained neither reference to his work duties nor his employment in relation to his right elbow condition. Mr Ajmal told the Tribunal that on the day he was unsure of the reason for his symptoms, but the ‘office’ always encouraged people to have breaks from keyboarding. He could not recall what he told the doctor at this consultation, but Mr Ajmal’s understanding was that his symptoms were because of keyboarding and he had given an account of his daily activities.
Mr Ajmal again saw Dr Goel on 3 August 2020 and told him that he considered his condition was work related because he uses the keyboard all the time. Mr Ajmal said that he told Dr Goel he was worse at work, but fine while at rest, although he also agreed that he had pain during the night and after five or 10 minutes while using the computer. After this, he used ‘Dragon’ voice to text software to avoid keyboarding. Mr Ajmal agreed that the pain in the middle of the night was ‘very, very worse’ at this time and that he also experienced pain when gripping, twisting, pushing and lifting objects using his right arm while not at work and during ‘normal life activities’, set out in the exercise physiologist’s report of 22 September 2020.[26] In this regard, he recalled experiencing pain ‘all the time’.
[26] Ibid., pages 24-25. See also Exhibit 3, page 134 and 140.
Mr Ajmal was referred to the report of the occupational physician, Dr Batchelor, dated 24 November 2020.[27] He confirmed to the Tribunal that at this time his pain was aggravated by pulling and pushing activities and that he sometimes had pain at night.[28] Mr Ajmal also agreed that he was ‘unable’ to perform ‘gardening or yard-work’, had ‘severe difficulty’ with activities such as pushing open a heavy door, making a bed, putting on a pullover and that he had ‘moderate difficulty’ with activities such as opening a tight or new jar, turning a key, cutting food and washing his hair.[29] These problems persisted beyond November 2020 and were activities he undertook when not working for the ANAO.
[27] Exhibit 1, pages 77-91.
[28] Ibid., page 79.
[29] Ibid., page 80.
Mr Ajmal agreed with the proposition that when he saw Dr Goel, Dr Banda, the occupational physician, and Ms O’Donovan, the physiotherapist, in relation to his right elbow symptoms, he told them he thought those symptoms were caused by his work duties.
Mr Ajmal told the Tribunal that his pain symptoms ceased in November 2021.
Medical evidence
Dr Anil Goel – General Practitioner
On 2 November 2020, Dr Goel provided a report in response to questions from Comcare, which confirmed his diagnosis of Mr Ajmal’s condition as being ‘[r]ight sided Tennis elbow or lateral epicondylitis’ and that Mr Ajmal ‘presented with pain in the (R) elbow on 11/7/20. Pain, he said, was worse at work and fine at rest’.[30] Dr Goel reported that Mr Ajmal had ‘informed me that there was excess work load in the office’.[31]
[30] Ibid., pages 44-46.
[31] Ibid.
In response to a question regarding Dr Goel’s belief as to the causation of Mr Ajmal’s claimed condition, Dr Goel responded that it ‘is work related as per him. His work involves fine repetitive hand and wrist movements (Typing)’.[32] When asked to provide evidence to support this rationale, Dr Goel stated that:[33]
This is beyond my expertise of GP. I can provide you with facts only. I have searched and I have attached a few papers…which is evidence based…This clearly mentions the cause of tennis elbow and Mr Ajmal fits into the criteria.
[32] Ibid.
[33] Ibid., page 45.
Dr Goel also reported that he was ‘not aware of any factors other than work’, it was the first time Mr Ajmal had presented with ‘(R) tennis elbow’, he was not aware of any underlying or pre-existing conditions and, in response to a question about whether Mr Ajmal would suffer from his condition irrespective of his employment, Dr Goel responded that this ‘is an irrelevant question for me & should [be] addressed to a specialist’.[34]
[34] Ibid.
Dr Goel gave evidence to the Tribunal by telephone and confirmed that his report of 2 November 2020 was true and correct to the best of his knowledge and he maintained the opinions set out in that document. Dr Goel confirmed that he has been Mr Ajmal’s general practitioner since February 2012 and is a legally qualified medical practitioner, albeit with no specialist qualifications in occupational or orthopaedic medicine or epidemiology. He agreed that he tries his best to record in clinical notes what patients tell him and this is applicable in relation to Mr Ajmal.
Dr Goel agreed that Mr Ajmal attended his clinic for a consultation on 11 July 2020. Dr Goel recorded his diagnosis in clinical notes of suspected right tennis elbow and wanted to confirm this diagnosis through an ultrasound, including because anti-inflammatories had not worked. He agreed that these notes did not contain reference to Mr Ajmal’s employment or work duties in connection to his symptoms because Mr Ajmal did not make such reference.
On 3 August 2020, when Mr Ajmal returned to Dr Goel, it was Mr Ajmal that told Dr Goel he considered his symptoms were work related. In this regard, Dr Goel agreed that any conclusion he drew relating Mr Ajmal’s right elbow condition to his work was based on what Mr Ajmal told him during this consultation. On 13 January 2021, Dr Goel referred Mr Ajmal to the occupational physician, Dr Banda and agreed that he told her that Mr Ajmal had stated he developed right-sided tennis elbow due to excessive typing at work.
Dr Goel told the Tribunal that he could not recall having seen any reports from Dr Batchelor or Dr Journeaux in relation to Mr Ajmal’s condition and could not identify their reports in his notes.
Ms Margaret O’Donovan – Physiotherapist
In a letter to Comcare dated 5 November 2020, Ms O’Donovan stated that Mr Ajmal first attended her clinic on 7 September 2020 and ‘had pain in his elbow since July 2020’.[35] She reported that Mr Ajmal had seen her on six occasions up until 8 October 2020. Ms O’Donovan further stated that Mr Ajmal ‘has a severe, acute, right tennis elbow, presenting with 8/10 constant pain’ and considered that ‘the keyboard work he does is most likely to have caused this problem’, also noting that the ‘amount of keying and the pressure around June & July, has made this much worse’.[36] Ms O’Donovan continued as follows:[37]
I believe that Mr Ajmal’s problem has been caused by his repetitive keyboard work. There do not appear to be any other outside factors contributing to this pain.
I do not believe Mr Ajmal would have this problem if he did not work at the Audit Office. He is very conscientious – wants to be at work – and has taken a large amount of annual leave because the pain is so severe.
I do not believe there were any pre-existing underlying conditions relevant to this injury.
[35] Ibid., pages 50-52.
[36] Ibid., page 50.
[37] Ibid.
Dr Mpho Banda – Occupational Physician
On 4 February 2021, Dr Banda provided a report following an assessment of Mr Ajmal on the same date as a result of a referral from Dr Goel ‘requesting assessment and opinion of Mr Ajmal about reported work-related right-sided lateral epicondylitis’.[38]
[38] Ibid., pages 101-105.
Dr Banda recorded that the history provided by Mr Ajmal included that there was ‘neither a specific incident or injury at the time nor significant change in his work hours or duties in the months prior to reported symptoms’.[39] Dr Banda further relevantly stated that:[40]
Mr Ajmal is a 44-year-old right hand dominant APS5 Auditor at the Australian National Audit Office (ANAO). His GP, Dr Anil Goel, General Practitioner, is seeking an independent medical assessment seeking assistance for Mr Ajmal, based on Comcare rejected claim. According to Dr Goel’s [sic] the lateral epicondylitis is due to repetitive tasks performed at work resulting in the development of right-sided tennis elbow symptoms due to excessive typing.
…
Occupational injuries associated with elbow tendinopathy can involve repetitive motions in which the wrist frequently deviates from a neutral position (i.e., not held straight). Among other things, obesity, age 45 to 54, repetitive movement for at least two hours daily, and forceful activity appear to be risk factors in the general population for the development of elbow tendinopathy.
Even after ten years of working for the ANOA [sic] Mr Ajmal did not have any symptoms until he commenced working from home. There was an increase in his workload between March and July 2020 by way of having to switch between working with clients at the office to predominantly working from home and result of undertaking repetitive/excessive typing tasks, which more likely than not, have resulted in the development of Mr Ajmal’s right-sided tennis elbow symptoms.
[39] Ibid., page 102.
[40] Ibid., pages 104-105.
Dr Patricia Batchelor – Occupational Physician
Following an in-person assessment of Mr Ajmal on 17 November 2020, Dr Batchelor provided a report to Comcare dated 24 November 2020, which relevantly stated that:[41]
[41] Ibid., pages 77-91.
Based on history, examination and ultrasound findings Mr Ajmal has right sided lateral elbow tendinopathy (LET). This is commonly known as ‘tennis elbow’.
Lateral elbow tendinopathy (LET) is the preferred term for what was previously called lateral epicondylitis. This reflects current understanding that ‘elbow tendinopathy represents a chronic tendinosis, rather than an acute inflammatory process.’ Histopathologically, the condition has been shown to have a paucity of inflammatory cells and is therefore considered to be a form of tendinosis, which is defined as a degenerative process.
LET is diagnosed by a combination of the history of pain at the lateral elbow, and examination findings of tenderness over the lateral epicondyle and positive provocative tests such as Maudsley’s and Cozen’s manoeuvres. Mr Ajmal fulfilled these criteria.
The diagnosis is usually clinical, but in this case is further supported by the ultrasound report and the short-term positive response to cortico-steroid injection int o the lateral epicondylar area.
…
In my opinion Mr Ajmal’s current condition is an underlying degenerative disorder, with the symptoms being exacerbated/aggravated by his occupational activities of keyboard and mouse work.
…
Mr Ajmal did not report any significant change in his workload in the weeks or months preceding the development of his symptoms. He reported that the busy time at ANAO is usually July to September. He did however report that working from home resulted in less incidental breaks from the computer, and this resulted in a small increase in workload and a decrease in task variation.
In summary based on the information provided to me there are no non-occupational factors apart from Mr Ajmal’s age that appear to have contributed to the causation of his condition.
Mr Ajmal experiences pain after two hours of keyboard work and needs to take a break for 20 minutes. He also experiences pain with activities of daily living. It is important to distinguish causation from symptom exacerbation/aggravation with activities.
…
Summarising the relevant literature:
The most recent edition of AMA Guides to Disease and Injury Causation in regard to LET summarise the evidence for occupational risk factors:
·Combination of risk factors e.g. force & repetition, force & posture – strong evidence
·Forceful work – low risk evidence
·Awkward postures – low risk evidence
·Keyboard activities – insufficient evidence
The AMA Guides note that while there is insufficient evidence to link keyboard use to the causation of LET, ‘the symptoms may persist longer in keyboard workers who have developed tennis elbow from some other cause.’
…
In summary, the current literature does not provide sufficient evidence for a causal association between keyboard use and the development of LET.
…
Mr Ajmal is a 44-year-old Auditor at the ANAO who has submitted a claim for right lateral elbow pain. He has lateral elbow tendinopathy (LET). Current evidence does not support a causal association between computer work and the development of LET.
LET is considered a degenerative condition with age being the most relevant non-occupational risk factor. The AMA Guides to Disease Causation state that computer work can prolong the symptoms of LET. In Mr Ajmal’s case there was a small increase in load prior to the onset of his symptoms and his pain is aggravated by his computer work. In my opinion, his work has aggravated the symptoms of his underlying degenerative condition. [emphasis in original]
Dr Batchelor also provided a supplementary report dated 10 March 2022, which relevantly stated that:[42]
[42] Exhibit 3, pages 16-28.
at the time of Mr Ajmal’s assessment I was unable to find evidence to support a causal association between computer use and LET, particularly as computer-based work cannot be reasonably considered forceful or involving awkward postures such as one would see in manufacturing or processing type roles.
…
I was unable to find any new evidence to support a causative association between computer-based work and LET. It appears that there is increasing evidence that force and awkward postures are significant factors in work-related LET.
…
In my medical opinion Mr Ajmal has an underlying degenerative condition affecting his common extensor tendon (right). This was previously asymptomatic and became symptomatic in July 2020. This symptomatic expression was evident both within the workplace and outside of the workplace. The details of this are recorded in my initial assessment.
This symptomatic expression in all aspects of life is supported by the Physiotherapy assessment recorded on 01-09-20 which asks Mr Ajmal to ‘identify three activities that you have difficulty with as a result of your health problem’. These are then rated from 0% (unable to do activity at all) through to 100% (able to perform with no problems). Mr Ajmal rated 10% for ‘regular typing work’, ‘lifting small weights’ and ‘driving’.
My original report stated that in my opinion Mr Ajmal experienced an aggravation of his symptoms related to LET while in the workplace. As noted in my assessment many other activities of daily living also caused Mr Ajmal’s symptoms to be aggravated.
It may seem logical and intuitive to link causation of a condition to a purported occupational exposure in lieu of any other obvious reason. An assessment of workrelatedness must however take into consideration both the current medical evidence as it stands and an individual’s reported exposure to known risk factors.
…
In Mr Ajmal’s case the dominant predisposing factor is his age, as LET is dominantly a degenerative condition.
…
If the medical definition of aggravation is used i.e., the permanent worsening of an underlying pathology, it is difficult to support the assertion that Mr Ajmal’s employment contributed to a significant degree based on the nature of his work which does not involve forceful activity with awkward posture. In my medical opinion, on the balance of probabilities, Mr Ajmal’s employment could only be considered a minor aggravating factor at most.
If aggravation is defined as a worsening of symptoms, as stated in my original report ‘In my opinion, his work has aggravated the symptoms of his underlying degenerative condition’. In my medical opinion, the employment relationship is a worsening of the symptom of pain when Mr Ajmal undertakes some of his employment related activities. [emphasis in original]
Dr Batchelor provided evidence to the Tribunal by video and confirmed adherence to the opinions she expressed in her abovementioned reports. Dr Batchelor also confirmed she is a legally qualified medical practitioner practising in the field of occupational medicine.
Dr Batchelor told the Tribunal that because Mr Ajmal’s occupational exposures are not consistent with the medical literature regarding the cause of LET, which refer to ‘forceful-type exposures’, she therefore attributes the cause of his condition to an age-related idiopathic degenerative condition. Dr Batchelor’s opinion was that Mr Ajmal’s work duties were not forceful, given his keyboard and mouse work. In relation to the type of occupations involving repetition that may lead to LET, the literature refers to manufacturing work, such as packing and sorting, but not keyboarding. Dr Batchelor did not consider typing to be repetitive in relation to this particular condition. She told the Tribunal that Mr Ajmal’s work duties make no ‘material’ or ‘significant’ contribution to his condition and said it was ‘minimal, if any’.
Dr Batchelor acknowledged that Mr Ajmal experienced pain associated with his work activities, but noted that he also experienced pain in a range of activities of daily life. In this regard, Dr Batchelor likened Mr Ajmal’s condition to carpal tunnel syndrome, where the underlying cause is not typing, although this activity can often bring about pain, as with other non-work related activities. Pain experienced at work is therefore an ‘expression of symptoms’, but this is ‘a different question to causation’. The example of angina was also used by Dr Batchelor. That is, chest pain could be experienced when walking up a flight of stairs and the heart requiring more oxygen, but the cause of the chest pain, or angina, is the ‘underlying pathophysiology’ such as genetics, smoking, high cholesterol or diabetes and expressed under a certain circumstance while walking up stairs, at the shops or at work.
Dr Batchelor told the Tribunal that her diagnosis of Mr Ajmal’s condition is ‘lateral elbow tendinopathy’, or LET, being a degenerative, painful condition of the tendon affecting the movement of the elbow and wrist. She said that Mr Ajmal’s condition was consistent with this diagnosis. The relevant risk factor applying to Mr Ajmal is his age; LET most commonly affects those aged between 35 and 55. Dr Batchelor also considered Mr Ajmal’s playing of badminton, but noted that he had not done so for some months before the onset of symptoms. Additionally, there was no particular change in Mr Ajmal’s hours and duties at work, other than having less incidental breaks, but this does not change the fundamental issue of causation. In relation to the resolution of Mr Ajmal’s symptoms, Dr Batchelor said that the condition can occur during this time of Mr Ajmal’s life and resolve through management.
Under cross-examination from Mr Ajmal, while Dr Batchelor agreed that typing is repetitive work as generally understood, when referring to ‘repetitive’ work the studies she cited considering the particular condition of LET ‘were not talking about keyboard work’ in their definition of that word. Dr Batchelor confirmed that the ‘causation’ of Mr Ajmal’s condition attributable to employment was ‘minimal to none’, because the type of work he was undertaking does not meet what the literature describes as the risk factors linked to the condition of LET.
By way of re-examination, Dr Batchelor told the Tribunal that for repetitive duties to meet the requisite contribution also required those duties to be both ‘repetitive’ and ‘forceful’ and that Mr Ajmal’s work duties were not forceful. Mr Ajmal’s work duties could therefore not make the requisite contribution to his condition because they needed to be both repetitive and forceful. Dr Batchelor also confirmed her opinion that Mr Ajmal experienced symptoms both at work and in non-work settings, which is to be expected of an idiopathic condition of the kind he experienced in relation to his right elbow.
Dr Simon Journeaux – Orthopaedic Surgeon
On 21 October 2021, Dr Journeaux provided a report regarding Mr Ajmal’s condition following their video consultation on 13 October 2021.[43] Dr Journeaux stated that ‘there was no specific incident or injury’ and that Mr Ajmal had referred to ‘the gradual onset of right outer elbow pain which he relates to the nature of his employment’, which Dr Journeaux reported as being ‘primarily sedentary but there is a significant amount of keyboard work’.[44] Dr Journeaux also noted that Mr Ajmal told him that ‘between July and September of each year his workload is more intense although he does not work increased hours’.[45]
[43] Ibid., pages 3-13.
[44] Ibid., page 6.
[45] Ibid.
Dr Journeaux diagnosed Mr Ajmal with ‘[l]ateral epicondylitis right elbow’ and relevantly stated that:[46]
Mr Ajmal on the medical evidence has an unequivocal diagnosis of right tennis elbow. With the passage of time and the treatment to date, there would appear to be improvement in his condition, and I would anticipate that by 18 months following the initial onset of symptoms i.e. circa February 2022 he will more likely than not have made a full recovery.
The underlying condition is that of a tendinosis which is a constitutional age-related condition. The condition has not been caused by his employment. His employment I would consider a minor aggravating factor. There is no significant relationship to his employment other than the fact he would suffer pain whilst performing repetitive activities such as keyboard work or prolonged static positioning.
[46] Ibid., page 11.
Dr Journeaux also noted that he was ‘in full agreement’ with Dr Batchelor’s report dated 24 November 2020.[47]
[47] Ibid., page 12.
Dr Journeaux provided evidence to the Tribunal by video and confirmed adherence to the opinions expressed in his report of October 2021. He told the Tribunal that he is a legally qualified medical practitioner specialising in orthopaedics since 1997. Dr Journeaux also noted that he had read Dr Batchelor’s supplementary report from March 2022 and agreed with the opinions expressed therein.
Dr Journeaux confirmed his diagnosis of Mr Ajmal’s condition as tendinosis of the right elbow, which can be known by various terms including ‘tennis elbow’ or lateral epicondylitis. He told the Tribunal that this is ‘primarily a degenerative condition’, which is common from middle age. Dr Journeaux maintained his opinion, having considered the nature of Mr Ajmal’s employment, that it did not ‘contribute significantly to the condition’. He therefore agreed that the only matter of significance for Mr Ajmal is that he would experience pain at work, rather than work being the cause of the pain. Dr Journeaux also agreed that a ‘typical history in relation to this condition’ would be resolution within 18 months; it arises idiopathically and resolves spontaneously after the passage of around 18 months.
Under cross-examination, Dr Journeaux told the Tribunal that he would consider keyboard use to be repetitive work if someone was in a sedentary job at a computer. By way of re-examination, Dr Journeaux confirmed his opinion that the activities Mr Ajmal was performing at work were one of many settings in which he experienced symptoms, rather than the cause of the condition. Dr Journeaux told the Tribunal that it is therefore typical of the condition that Mr Ajmal was not only experiencing symptoms while performing work activities, but also while performing other activities of daily living. In conclusion, Dr Journeaux confirmed his opinion that none of Mr Ajmal’s work or non-work related activities are a significant cause of the condition.
CONTENTIONS
Mr Ajmal
Mr Ajmal contended that his injury was contributed to, to a significant degree, by his employment with the ANAO and therefore met the definition of ‘disease’ under section 5B of the SRC Act. He submitted that his injury was caused by his employment and specifically due to repetitive activities such as typing on a computer keyboard in or around July 2020. Mr Ajmal further contended that his symptoms were solely due to his employment and not to any pre-existing or underlying degenerative condition. Mr Ajmal therefore submitted that Comcare was liable to pay him compensation in respect of his injury pursuant to section 14 of the SRC Act.
Comcare
Comcare contended that the medical evidence does not establish that Mr Ajmal’s condition met the requirements of a ‘disease’ under the SRC Act. While Comcare accepted that Mr Ajmal suffered from an ‘ailment’, being his LET or right-sided ‘tennis elbow’, it submitted that this was a degenerative condition and was not contributed to, to a significant degree, by Mr Ajmal’s employment with the ANAO. Therefore, Comcare sought an affirmation of its reviewable decision that it is not liable to pay compensation to Mr Ajmal under the SRC Act.
CONSIDERATION
The Tribunal’s task
The issue before the Tribunal is whether Mr Ajmal suffered an ‘injury’, as defined by the SRC Act, in order to be paid compensation by Comcare. While it is well established that there is no onus of proof in the Tribunal’s jurisdiction, the Tribunal must be satisfied, based on relevant and probative material, that the requirements of the relevant legislation are met for a particular statutory power to be exercised in favour of an applicant. The Federal Court of Australia in Beezley v Repatriation Commission (2015) 150 ALD 11 at [68] held that:
If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest.
Additionally, Justice Kiefel (as her Honour then was) said in Rodriguez v Telstra Corporation Ltd [2002] FCA 30 at [25] that, although the Tribunal is not bound by the rules of evidence, this ‘does not justify decisions made without a basis in evidence having probative force’.[48] In this regard, it was held at [26] that:[49]
It may be said that expert evidence is sometimes over-utilised and is called in situations where an arbiter of fact is in a position to determine the matter for itself. Sometimes all that is necessary is for a method or process to be explained, so that the Court or Tribunal can then apply it to the facts it finds. On the other hand, there are cases where a whole question is, in effect, relegated to experts to give evidence upon it. This was such a case. The Tribunal was not put in a position where it could simply draw its own inferences. In an area which required an understanding of a disorder it could only receive the opinions, have the bases for them explained if they differed and apply logic to determine which were to be accepted.
[48] Pochi v Minister for Immigration and Ethnic Affairs[1979] AATA 64; (1979) 36 FLR 482, 492, referring to Consolidated Edison Co v National Labour Relations Board [1938] USSC 176; (1938) 305 US 197, 229; The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott[1933] HCA 30; (1933) 50 CLR 228, 256.
[49] These paragraphs were referred to in Comcare v Wuth [2018] FCAFC 13 at [98].
In summary, in reaching its decision, the Tribunal must make findings of fact based on the probative evidence in this proceeding.
Did Mr Ajmal suffer an ‘ailment’ or an aggravation of an ‘ailment’?
There was no dispute regarding the diagnosis of Mr Ajmal’s condition, being variously described as right lateral epicondylitis, right lateral elbow tendinopathy, LET or ‘tennis elbow’. In this regard, the medical evidence established that Mr Ajmal suffered from an ‘ailment’ under subsection 4(1) of the SRC Act, being ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
Mr Ajmal’s general practitioner, Dr Goel, opined that Mr Ajmal had right sided ‘tennis elbow’ or ‘lateral epicondylitis’.[50] The physiotherapist, Ms O’Donovan also described Mr Ajmal’s condition as being ‘right tennis elbow’.[51] The occupational physician, Dr Banda, referred to Mr Ajmal having ‘lateral epicondylitis’, elbow tendinopathy and ‘right-sided tennis elbow symptoms’.[52] The orthopaedic surgeon, Dr Journeaux, stated that Mr Ajmal has an ‘unequivocal diagnosis of right tennis elbow’ or ‘tendinosis’.[53] The occupational physician, Dr Batchelor, diagnosed Mr Ajmal as having ‘right sided lateral elbow tendinopathy (LET)’, said that this ‘is not in doubt and has been affirmed on many occasions’.[54]
[50] Exhibit 1, page 44.
[51] Ibid., page 50.
[52] Exhibit 1, pages 104-105.
[53] Exhibit 3, page 11.
[54] Exhibit 1, page 83; Exhibit 3, page 20.
The Tribunal is satisfied, based on the abovementioned medical evidence, that Mr Ajmal suffered an ‘ailment’ under the SRC Act, being right sided lateral elbow tendinopathy, LET, commonly known as ‘tennis elbow’, which occurred in or around early July 2020. For the avoidance of doubt, the Tribunal finds that Mr Ajmal did not suffer from an ‘aggravation’ of an ailment because the evidence establishes that this ailment first arose in early July 2020, which led to Mr Ajmal’s workers’ compensation claim, and had not been previously experienced by Mr Ajmal. The definition of ‘aggravation’ under subsection 4(1) of the SRC Act includes ‘acceleration or recurrence’. To this end, the Tribunal finds no evidence to establish that Mr Ajmal sustained an ‘aggravation’ of his ‘ailment’, being LET, under the provisions of the SRC Act.
Was Mr Ajmal’s ‘ailment’ contributed to, to a significant degree, by his employment?
For completeness, the Tribunal finds that there was no incident or sudden physiological change or disturbance of the normal physiological state giving rise to ‘an injury (other than a disease)’ or an ‘aggravation’ of such a physical injury suffered by Mr Ajmal arising out of, or in the course of, his employment pursuant to section 5A of the SRC Act. The medical evidence set out above did not establish such an injury under the SRC Act. The Tribunal’s consideration is therefore focused on whether Mr Ajmal’s ‘ailment’ met the requirements of a ‘disease’ under section 5B of the SRC Act.
In order to meet the test of a ‘disease’ under section 5B of the SRC Act, Mr Ajmal’s ‘ailment’ must have been ‘contributed to, to a significant degree’, by his employment with the ANAO. As previously noted in this decision, subsection 5B(3) of the SRC Act defines ‘significant degree’ to mean a degree that is ‘substantially more than material’. In Comcare v Power [2015] FCA 1502, the Federal Court of Australia held that a ‘contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial’ and that the purpose of the 2007 amendments to this provision of the SRC Act ‘was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease’.[55]
[55] At [78] and [93].
For the below reasons, and based on the weight of evidence before it, the Tribunal is not satisfied that Mr Ajmal’s right sided lateral elbow tendinopathy, or LET, was contributed to, to a significant degree, by his employment with the ANAO. The Tribunal finds, on the weight of medical evidence, that Mr Ajmal’s ailment is an underlying, age-related constitutional condition. The Tribunal is therefore not satisfied that Mr Ajmal’s ailment amounted to ‘disease’ under the SRC Act.
Mr Ajmal claimed that he started experiencing pain in the right elbow while he was using a computer keyboard and mouse during his normal work duties as an auditor with the ANAO.[56] He also noted that these work activities were ‘purely repetitive in nature’.[57] In support of his claim, Mr Ajmal relied on the reports of Dr Goel, Ms O’Donovan and Dr Banda. However, Dr Goel conceded in his evidence to the Tribunal that, as a general practitioner, he did not have the requisite level of expertise to provide evidence to support his reference to Mr Ajmal’s condition being work related, that is, in relation to its causation, and told the Tribunal that he recorded in his notes what had been described to him by Mr Ajmal during their consultations. Additionally, Mr Ajmal’s treating physiotherapist, Ms O’Donovan, stated that she believed that Mr Ajmal’s condition had been caused by his repetitive keyboard work, but did not refer to any specific medical evidence or literature to support this assumption.[58]
[56] Exhibit 1, page 29.
[57] Ibid., page 108. See also Exhibit 3, page 261.
[58] Exhibit 1, page 50.
Furthermore, Dr Banda, the occupational physician, who was not called to give evidence at the hearing, referred in her report to Dr Goel’s opinion that Mr Ajmal’s condition is ‘due to repetitive tasks performed at work’. She also referred to risk factors including ‘age 45-54, repetitive movement for at least two hours daily, and forceful activity’.[59] Dr Banda stated only that an increased workload ‘more likely than not’ resulted in the development of Mr Ajmal’s ‘symptoms’.[60] In this regard, and critically, Dr Banda did not provide an opinion on the cause of Mr Ajmal’s condition; she refers to the development of ‘symptoms’ due to work, but not their origin. Additionally, Dr Banda did not make any express finding that Mr Ajmal’s condition itself, not the symptoms, was contributed to, to a significant degree, by his employment. This is in contrast to the thorough assessment of the medical literature undertaken by Dr Batchelor in relation to the cause of Mr Ajmal’s LET; she did not find, and was not satisfied, that there was any evidence to suggest that Mr Ajmal’s employment made a significant contribution to his ailment.
[59] Ibid., page 105.
[60] Ibid., pages 104-105.
To this end, the Tribunal accepts the evidence of the occupational physician, Dr Batchelor, and the orthopaedic surgeon, Dr Journeaux, including because of their specialist medical qualifications, training and, especially in relation to Dr Batchelor, the detailed consideration of the medical evidence and literature regarding LET and its causation. The weight of expert medical evidence was that Mr Ajmal’s ailment was not contributed to, to a significant degree, by his employment.
In this regard, Dr Batchelor and Dr Journeaux gave clear and detailed evidence to the Tribunal, including by reference to the current medical literature regarding the cause of LET, that Mr Ajmal’s ailment was not related to his employment, including not having been contributed to, to a significant degree, by his employment with the ANAO.
As set out above in these reasons, Dr Batchelor’s opinion, grounded in her thorough review of the medical literature, was that Mr Ajmal’s condition is an ‘underlying degenerative disorder’ or condition.[61] She specifically stated that ‘[h]istiopathologically, the condition has been shown to have a paucity of inflammatory cells and is therefore considered to be a form of tendinosis, which is defined as a degenerative process’.[62] While Dr Batchelor opined that Mr Ajmal’s ‘symptoms’ were ‘exacerbated/aggravated by his occupational activities of keyboard and mouse work’,[63] she referenced the American Medical Association Guides to Disease and Injury Causation detailing the insufficient evidence to provide a causal association between keyboard activities and the development of LET.[64] To address her comment regarding the aggravation of Mr Ajmal’s symptoms while in the workplace, Dr Batchelor noted that ‘many activities of daily living also caused Mr Ajmal’s symptoms to be aggravated’.[65] Mr Ajmal agreed in his evidence to the Tribunal that he experienced symptoms at work and in non-work settings, including while at rest in the middle of the night. Both Dr Batchelor and Dr Journeaux confirmed in their evidence that this is consistent with the condition and none of the work or non-work activities were causative of the LET. In this regard, Dr Batchelor told the Tribunal that this is to be expected of an idiopathic condition of the kind Mr Ajmal experienced in relation to his right elbow. Dr Batchelor’s evidence was that it is therefore an ‘expression of symptoms’, but this is ‘a different question to causation’. The examples of carpal tunnel syndrome and angina were used by Dr Batchelor to highlight her point that while a person may experience symptoms in a certain setting or undertaking a particular activity, including while at work, this does not mean that particular place or activity caused the underlying condition; it manifests in pain when undertaking most activities involving the arm or elbow, including at work and when performing activities of daily living outside of employment. To this end, Dr Batchelor opined that ‘it is difficult to support the assertion that Mr Ajmal’s employment contributed to a significant degree based on the nature of his work which does not involve forceful activity with awkward posture’[66] and, in her evidence to the Tribunal, said that Mr Ajmal’s work duties made no ‘material’ or ‘significant’ contribution to his ailment; it was, in her words, ‘minimal, if any’. As previously stated in these reasons, under subsection 5B(1) of the SRC Act, an ailment or aggravation of an ailment must have been contributed to, to a significant degree, by a person’s employment with the Commonwealth. Subsection 5B(3) of the SRC Act provides that ‘significant degree’ means a degree that is ‘substantially more than material’.
[61] Ibid., pages 83-84. See also Exhibit 3, page 24.
[62] Exhibit 1, page 83.
[63] Ibid., page 84.
[64] Ibid., pages 85-86. See also Exhibit 3, pages 16-28.
[65] Exhibit 3, page 24.
[66] Ibid., page 25.
Dr Journeaux was ‘in full agreement’ with Dr Batchelor’s opinion expressed in her initial report of November 2020.[67] Dr Journeaux’s evidence was that Mr Ajmal’s LET ‘is a constitutional age-related condition’, which ‘has not been caused by his employment’, which would be a ‘minor aggravating factor’.[68] Dr Journeaux further stated that there is ‘no significant relationship’ to Mr Ajmal’s employment.[69]
[67] Ibid., page 12.
[68] Ibid., page 11.
[69] Ibid.
The Tribunal has found that Mr Ajmal had an ailment that became symptomatic in or around July 2020, which is concordant with an underlying degenerative condition, as the medical experts detailed in their evidence to the Tribunal.
For completeness, the Tribunal’s reasons have considered the matters set out in subsection 5B(2) of the SRC Act that ‘may be taken into account’ in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment with the Commonwealth. These matters include the duration of the employment; the nature of, and particular tasks involved in, the employment; and any activities of the employee not related to the employment. Having regard to this provision and the evidence set out above in this decision, the Tribunal finds that Mr Ajmal’s ailment was not contributed to, to a significant degree, by his employment with the ANAO. The Tribunal accepts the comprehensive and detailed evidence of Dr Batchelor, with which Dr Journeaux agreed, which expressly considered those matters set out in subsection 5B(2) of the SRC Act, that Mr Ajmal’s work duties made no ‘material’ or ‘significant’ contribution to his LET. Following a comprehensive review, Dr Batchelor found no evidence in the medical literature, including the most recent studies regarding LET, to support a connection between this condition and the work activities or tasks of the nature involved in Mr Ajmal’s employment. She also told the Tribunal that the overwhelming medical evidence on this condition required both forceful and repetitive activities if there was to be any contribution by a person’s employment to the onset of LET and that the nature of, and particular tasks involved in, Mr Ajmal’s employment did not meet this threshold.
While Mr Ajmal experienced pain symptoms at work, this is not sufficient in itself to establish that his ailment was contributed to, to a significant degree, by his employment. The weight of expert medical evidence does not establish that Mr Ajmal’s ailment was contributed to, to a significant degree, by his employment with the ANAO. Based on that medical evidence, the Tribunal finds that Mr Ajmal’s condition was the result of an underlying constitutional and age-related process, which was not caused by his employment. Therefore, the Tribunal is not satisfied that Mr Ajmal’s ailment was contributed to, to a significant degree, by his employment with the ANAO. As a result, Mr Ajmal has not suffered a ‘disease’ under section 5B of the SRC Act and therefore has not suffered an ‘injury’ pursuant to section 5A of the SRC Act. For these reasons, Mr Ajmal’s claim for compensation under the SRC Act is unsuccessful. Accordingly, Comcare is not liable to pay compensation to Mr Ajmal pursuant to section 14 of the SRC Act.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
.........................[SGD]...............................................
Associate
Dated: 24 November 2022
Date(s) of hearing:
26 October 2022
Date final submissions received
12 May 2022
Applicant: In person
Counsel for Respondent:
Ms Anella Bortone
Solicitors for Respondent:
Ms Briana Briggs, Minter Ellison
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