Andrea Davies and Australian Postal Corporation
[2014] AATA 578
•20 August 2014
[2014] AATA 578
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1188
Re
Andrea Davies
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 20 August 2014 Place Melbourne The Tribunal affirms the decision under review.
.......[sgd].................................................................
Miss E A Shanahan, Member
WORKERS’ COMPENSATION – injury or disease – liability for right forearm strain accepted in 2009 – liability for bilateral carpal tunnel syndrome denied in October 2010 – repetitive movement claimed during mail sorting – complex medical history arising from craniopharyngioma of pituitary gland – cause of carpal tunnel syndrome multifactorial – work contribution material but not significant – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 sections 5A, 5B and 14
Cases
Australian Postal Corporation v Bessey [2001] FCA 266
Comcare v Etheridge (2006) 149 FCR 522
Commonwealth v Beattie (1981) 35 ALR 369
Kennedy Cleaning Services v Petkoska [2000] 200 CLR 286
Tippett v Australian Postal Corporation (1998) 27 AAR 40REASONS FOR DECISION
Miss E A Shanahan, Member
20 August 2014
On 23 September 2009 the Australian Postal Corporation (Australia Post) accepted liability for compensation for a right forearm strain suffered by the applicant, Mrs Davies. While the diagnosis of this particular condition fluctuated over the following 11 months, a subsequent diagnosis of probable bilateral carpal tunnel syndrome (CTS) was made in August 2010. Australia Post denied liability for this condition in February 2011. Mrs Davies underwent surgical procedures on both wrists at her own expense in late 2010 and early 2011.
In October 2012 Mrs Davies lodged an incident report and a certificate of physical capacity following a recurrence of her bilateral CTS symptoms. Mrs Davies lodged a claim for compensation dated 4 October 2012. A claims manager of Australia Post rejected liability on 30 October 2012. Mrs Davies requested a reconsideration. A delegate of the respondent affirmed the earlier decision on17 January 2013, denying liability for recurrent probable carpal tunnel syndrome bilaterally. Mrs Davies sought a review of that decision by the Administrative Appeals Tribunal on 8 March 2013.
At the hearing Mrs Davies was represented by Ms Frederico of counsel, instructed by Ms Jacinta Lewin of Maurice Blackburn solicitors. Mr Ben Dube of counsel appeared for Australia Post and was instructed by Mr Nam Nguyen of Sparke Helmore solicitors. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) which have been assigned the Exhibit number of R1. Mrs Davies, Dr Leslie Sedal and Mr Murray Stapleton gave evidence before the Tribunal. Both parties tendered further reports as follows:
For the applicant:
·the applicant’s statement of 4 May 2014 – Exhibit A1
·the report of Dr Sedal dated 27 August 2013 – Exhibit A2
·the report of Dr Sedal dated 29 October 2013 – Exhibit A3
·the clinical records of the Willandra Medical Clinic – Exhibit A4
and for the respondent:
·the report of Mr Murray Stapleton dated 20 March 2014 – Exhibit R2
·the report of Dr Kenneth Muirden dated 24 September 2013 – Exhibit R3
·Australia Post Occupational Health and Safety Section’s publication titled ALL IN A DAY’S WORK – DELIVERY – Exhibit R4
·clinical records of Mrs Melissa Radcliffe relating to Mrs Davies – Exhibit R5
·the report of Mr Timothy Bennett, plastic surgeon dated 21 January 2010 – Exhibit R6
·the report of Mr Timothy Bennett, dated 9 February 2010 – Exhibit R7
·the clinical records of Dr Lyndsey Kabat – Exhibit R8
·an article entitled: Personal and workplace psychosocial risk factors for carpal tunnel syndrome: a pooled study cohort – Harris-Adamson, C, Eisen, EA, Dale AM, et al. Occup Environ Med 2013; 70: 529-537 (the medical article on CTS) – Exhibit R9
BACKGROUND TO THE APPLICATION
Mrs Davies started working at Australia Post in 1996 on a part-time basis. She obtained this employment as part of a disability service placement. Initially, she worked as an administrative officer at the Elwood post office and then in a mail sorting position at St Kilda, working 25 hours per week. She later transferred to Heidelberg West and has been there ever since. Mrs Davies cannot remember the time spent at each of these facilities.
In 1992 Mrs Davies underwent resection of a benign tumour of the pituitary gland, known as a craniopharyngioma, after presenting with visual symptoms and signs of hydrocephalus. Prior to this presentation, she had given birth to her only child who is now an independent married adult. Mrs Davies’ cranial surgery was presumably a transphenoidal resection, although we have no information regarding this procedure.
As a result of the resection of the pituitary tumour, Mrs Davies has since suffered from a hypo‑pituitary state and has required replacement hormonal therapy in order to attain normal adrenal, thyroid, and female hormonal levels and serum osmolality. She has proven hypothyroidism and hypo-adrenocortical function. She has also been in a menopausal state since her surgery and has diabetes insipidus. In addition, she lacks the normal satiety mechanisms controlled by the hypothalamus so that she overeats and has suffered from morbid obesity. While Mrs Davies has not been diagnosed with diabetes mellitus, she does have slightly raised blood glucose levels which may reflect a pre-diabetic state.
Mrs Davies’ duties with Australia Post have been mostly mail sorting on night shift. She normally works seven hours on a Sunday night and four hours on four other nights of the week. Her work involves the opening of mail bags (which weigh 12 kilograms on average) and emptying them into a Colby trolley. She stated she sorts 20 to 30 trays in an hour holding the mail in her left hand and sorting with her right hand. The sorting takes one to one-and-a-half hours per shift and she would place the mail into slots for the postal officers who will perform the postal delivery round. In addition, she would count the Reply Paids for ten to fifteen minutes per session, scan the Express Posts for twenty minutes per session and clear mail from VSF frames and rocket launchers.
On 7 September 2009 Mrs Davies noted pain in her right forearm. The pain commenced in the lateral aspect of her right elbow and radiated down the border of her forearm to the palm of her hand. Mrs Davies completed an incident report and an Australia Post officer referred Mrs Davies to a facility-nominated doctor, Dr Shaun Salimi. Dr Salimi made a diagnosis of right forearm strain. Mrs Davies lodged a claim for compensation for right forearm strain. Australia Post accepted liability for that condition on 23 September 2009. Mrs Davies had time off work and commenced a return-to-work (RTW) programme in November 2009. Ms Melissa Radcliffe, a physiotherapist, treated Mrs Davies and continued performing physiotherapy on her until 24 June 2010. On 20 October 2009 Dr Michael Flaim, a facility-nominated doctor, made a diagnosis of neuropraxia of right radial nerve.
Subsequently, Mr Timothy Bennett, hand surgeon, examined Mrs Davies and found tenderness in and around the right common extensor tendon origin from the lateral epicondyle. In particular, he found tenderness over the posterior interosseous branch of the radial nerve at the level of the neck of the radius. He did not find any other abnormal neurological signs. X-rays and ultrasounds of the right elbow were normal and a nerve conduction study on the right side showed mild carpal tunnel compression, that is, mild median nerve conduction latency. Mr Bennett considered it more likely than not, Mrs Davies had compression of her posterior interosseous branch of the radial nerve and arranged for a more precise ultrasound examination of the radial nerve. This ultrasound showed no sign of radial nerve compression. Mr Bennet then made a diagnosis of repetitive wrist and forearm injury having excluded a symptomatic median nerve compression.
Mrs Davies’ RTW program was instituted with her returning to her normal hours but with minimal use of her right hand. Weight lifting on the right was limited to half a kilogram. The RTW plan resulted in Mrs Davies using her left hand predominately in the sorting of mail. In July 2010 Mrs Davies complained of pain in her left forearm. Subsequent nerve conduction studies showed bilateral carpal tunnel compression of the median nerve, mild on the left and mild to moderate on the right. Dr Grant Scott, a neurologist, assessed Mrs Davies and performed nerve conduction studies. Based on her symptomatology, Dr Scott referred her for consideration of surgery by Mr Mark Baldwin, a plastic surgeon. Dr Scott was aware of Mrs Davies’ past history of pituitary craniopharyngioma and her need for replacement hormonal therapy.
Mr Baldwin sought authorisation to proceed with carpal tunnel release and acceptance of liability by Australia Post. A claims manager, Andrew Hooper, rejected liability on 30 September 2010.
As Mrs Davies had private health insurance, she proceeded to have the surgery performed by Mr Baldwin. The release of her right and left carpal tunnel nerve compression was performed on 5 October 2010 and 21 January 2011, respectively. Mrs Davies was off work from approximately 25 August 2010 until 20 November 2010 recovering from her right carpal tunnel release and from 25 January to 8 March 2011 following the procedure on the left side. She states that she had an excellent symptomatic result from her surgery and resumed normal duties in March 2011.
Mrs Davies remained well and worked her normal 25 hours per week until 2 October 2012 when she lodged an incident report relating to the recurrence of symptoms in both hands and wrists. She complained of paraesthesia and swelling in both hands. Nerve conduction studies were performed on 17 October 2012 and confirmed recurrent median nerve compression on both sides, the results being very similar to those recorded during 2009 and 2010. On 30 October 2012 Australia Post denied liability for the recurrent CTS on both wrists.
Mrs Davies underwent repeat surgery on the right wrist on 3 September 2013 and the left on 17 December 2013. She returned to work on light duties in early February 2014, having been off work for 12 months.
In her evidence before the Tribunal, Mrs Davies stated that she was seeing her endocrinologist at six monthly intervals since her pituitary resection in 1992, taking her replacement hormones as prescribed and having regular biochemical blood tests all of which had been satisfactory. She had difficulty in maintaining her weight at reasonable levels, such that by early 2013 she weighed 146 kilograms. On the advice of her endocrinologist and her general practitioner, Dr Kabat, Mrs Davies underwent a gastric sleeve procedure in July 2013 to decrease her appetite and increase her satiety levels. She has since lost 46 kilograms in weight.
During examination-in-chief by Ms Frederico, Mrs Davis was asked to demonstrate the actual movements involved in sorting of the mail. This question was posed because Dr Sedal had described the activity as a flicking movement. Mrs Davies’ demonstration of the action revealed that most of the movement involved the elbow joint and very little movement took place at a wrist level.
On 8 January 2013 Mrs Davies lodged a request for reconsideration of the decision of 30 October 2012. She had not challenged any of the denials of liability previously. A reconsideration delegate subsequently affirmed the earlier determination.
EVIDENCE BEFORE THE TRIBUNAL
Mrs Davies’ evidence to the Tribunal has been summarised under BACKGROUND TO THE APPLICATION. It is to be noted that she gave evidence under oath that she was seeing her endocrinologist at regular six monthly intervals and that all her monitoring blood tests had been normal. She also stated that she took all her medications as prescribed.
Dr Leslie Sedal, Consultant Neurologist
Dr Sedal provided two reports dated 27 August 2013 and 29 October 2013. Based on the history he obtained from Mrs Davies and the documentation with which he was provided, Dr Sedal considered the causation of Mrs Davies’ bilateral CTS to be very complex in that there were probably multiple contributing factors. In relation to the resection of Mrs Davies’ pituitary tumour in 1992, he considered that she had become prone to hypothyroidism despite replacement therapy, to a disturbance of growth hormone and to the development of morbid obesity because of hydrocephalic changes associated with the pituitary lesion.
Dr Sedal regarded Mrs Davies as being at a high risk of developing CTS since 1992. Dr Sedal also considered that had there been a contribution related to sex hormones deficiency, the CTS would have become manifest many years earlier. He considered this given that Mrs Davies had undergone early menopause as a result of her surgery and menopause is a known contributory factor in the development of CTS.
Dr Sedal concluded that while there were multiple predisposing factors in Mrs Davies’ case, work had also contributed and had been a major contributing factor. He understood that most of Mrs Davies’ work involved a constant flicking action of both her wrists. Dr Sedal considered Mrs Davies’ work was the triggering factor to her development of symptoms. He advised review by an endocrinologist, recommending Professor Richard O’Brien. He also advised Mrs Davies to contact her neurosurgeon, Mr Michael Pullar, who had performed the tumour resection in 1992, to obtain an opinion regarding the details of the pituitary tumour and the surgical and endocrine complications.
Dr Sedal’s report in October 2013 related to his interpretation of the nerve conduction studies performed in 2009, 2010 and 2012. He advised that the initial study of 5 November 2009 demonstrated a mild CTS. However, by 25 August 2010 there had been a significant deterioration in the right hand from a mild to moderate degree. In the third study of 17 October 2012, conducted after the carpal tunnel release procedures on both wrists, he reported that there had been only minor improvement on the left side and minimal improvement on the right.
In his evidence before the Tribunal, Dr Sedal maintained his opinion and in particular that a hypothyroid state was associated with an increased risk in developing CTS. The Tribunal informed him that Mrs Davies gave evidence that the blood tests and endocrinology reviews had been conducted six-monthly and her biochemical tests were all within normal limits. Dr Sedal said that this information made it far less likely that the hormonal consequences of her pituitary resection had played a role in the development of her CTS on both wrists.
Mr Dube suggested to Dr Sedal that the relationship between work activities and the development of CTS was still scientifically undecided other than in the use of vibrating tools or working in very cold environments. Dr Sedal disagreed and said that most neurologists disagreed with this approach and that the neurology medical literature still supported an aetiological relationship between excessive use of the hands producing micro-trauma and compression of the median nerve in the carpal tunnel. Dr Sedal was aware of the conflicting studies and agreed that the incidence was higher in older females with certain medical conditions.
As Dr Sedal had referred to Mrs Davies’ work as involving mostly flicking of the wrist, he was asked by Mr Dube to demonstrate what he meant by this term. Dr Sedal moved his wrist in a certain manner which was later repeated and could be described as flexion of the wrist followed by rapid extension in order to impel an envelope into a slot. Dr Sedal did allow that if this flicking action was not the predominate action Mrs Davies employed in her mail sorting duties, then the contribution of work to her development of the condition would be dubious. However, the other duties of lifting trays of mail, scanning mail and counting Express Post and Reply Paid documentation involved constant use of the wrists which would have some impact on the development of the condition.
Dr Sedal was asked to comment on the fact that following the surgery in 2010 and 2011, Mrs Davies’ symptoms recurred in October 2012. Dr Sedal said that as the nerve conduction studies had not been repeated immediately after the carpal tunnel release, it was uncertain whether the symptoms were a recurrence or a persistence of the median nerve compression demonstrated pre-operatively. These alternatives remained possibilities although he noted that her symptoms really recurred when she returned to sorting duties.
Mr Murray Stapleton, Plastic Surgeon
Mr Stapleton provided a report dated 20 March 2014, having assessed Mrs Davies on that day. Mr Stapleton obtained the known medical history and at the time of his consultation noted that Mrs Davies had a constant burning and tingling sensation with numbness involving all but the little fingers on both hands. He was also aware of her past history of pituitary tumour resection resulting in diabetes insipidus and the need for replacement hormone therapy with Thyroxine, Cortisone and Minirin nasal drops.
He described Mrs Davies as being profoundly overweight at 104 kilograms and recorded her height as 5 foot tall. Mr Stapleton confirmed the diagnosis of bilateral recurrent CTS and was of the view that this condition was in no way contributed to by her employment. He regards CTS as a genetically predetermined disease of gradual progression suffered by women of menopausal age whether they work or not.
In his evidence before the Tribunal Mr Stapleton agreed that repetitive activities could give rise to symptoms in individuals with asymptomatic carpal tunnel nerve compression. He stated that work did not aggravate the underlying condition only the symptoms.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Dr Kenneth Muirden, Consultant Rheumatologist
Dr Muirden re-assessed Mrs Davies on 18 September 2013 having previously seen her in January 2011. He obtained the history that despite surgical correction to both the left and right carpal tunnel median nerve compressions in 2010 and 2011, Mrs Davies had only been asymptomatic for a period of six months, being the period she was off work having hand physiotherapy and using a splint at night.
In his report Dr Muirden stressed the complexity of Mrs Davies’ medical history of diabetes insipidus and hormonal deficiencies secondary to resection of the pituitary tumour, her morbid obesity and the need for replacement hormonal therapy with Cortisone and Thyroxine. When seen in 2013, Mrs Davies informed Dr Muirden that she had undergone a gastric sleeve procedure in order to reduce weight and had lost 22 kilograms. At the time of this consultation, Mrs Davies had undergone a further open procedure to release her right CTS and her symptoms had resolved. Physical examination of both wrists was essentially normal except for a mildly positive Phalen’s test on the left side.
Dr Muirden regarded the contribution of her employment to Mrs Davies’ symptoms of CTS as trivial, the condition being common in a female of her age, who works, is morbidly obese and smoke cigarettes. He classified Mrs Davies’ bilateral CTS recurrence in 2013 as being a pre-existing condition unrelated to employment. Dr Muirden regarded Mrs Davies’ prognosis as excellent.
Dr Muirden was not available to give evidence before the Tribunal as he has retired from practice.
Mr Timothy Bennett, Plastic Surgeon
Mr Bennett’s reports have been summarised under BACKGROUND TO THE APPLICATION. The Tribunal notes that he did not consider Mrs Davies’ condition in 2009 to be due to CTS in the right wrist. He had favoured a diagnosis of neuropraxia of the interosseous branch of the radial nerve. Whilst he did not report on his clinical findings in great detail, it is noted that the radial nerve has no anatomical relationship whatsoever to the carpal tunnel.
Mr Mark Baldwin, Plastic Surgeon
Mr Baldwin has performed carpal tunnel releases by open surgery on Mrs Davies on two occasions. He has not provided any reports, including operative reports, as to what was found at surgery or the extent of the decompression of the median nerve he performed.
Mr Baldwin did write to Mrs Davies general practitioner, Dr Kabat, on 19 February 2013 after Mrs Davies developed recurrent symptoms in October 2012. Mr Baldwin considered that the nerve conduction studies were indicative of recurrent median nerve compression but could also be due to persistent compression rather than a recurrence. He considered the recurrence of symptoms might be related to Mrs Davies’ hypo-pituitary state and requested an endocrinology review. If the prescribed hand therapy and night splinting of her wrists did not relieve Mrs Davies’ symptoms, he indicated repeating surgical decompression was the treatment of choice.
The Medical Records of Willandra Medical Clinic regarding Mrs Andrea Davies
Dr Salimi, Dr Tunaley and Dr Flaim are general practitioners at this clinic and are all facility-nominated doctors for Australia Post. Mrs Davies consulted this clinic between 11 September 2009 and 25 August2010. Their medical evidence has been summarised under the BACKGROUND TO THE APPLICATION. Following Mrs Davies’ last visit of 25 August 2010, a copy of her records was transferred to her then general practitioner, Dr Kabat.
The Medical Records of Dr Lyndsey Kabat of Epping Health Care regarding Mrs Andrea Davies (Exhibit R8)
Dr Kabat’s records date from 7 May 2010 to 26 April 2013. These records were tendered into evidence upon completion of the hearing. The parties addressed them briefly in their submissions.
At Dr Kabat’s request, Mrs Davies underwent various haematological and biochemical tests on 1 June 2010, relating to her hypo-pituitary state. Minor abnormalities were detected. Mrs Davies was reviewed by Dr Erosha Premaratne, an endocrinologist, at The Northern Hospital on 18 August 2010. As a result of various investigations, Mrs Davies’ Cortisone acetate dose was increased to 12.5 mg twice daily and her Thyroxine from 100 micrograms (mcg) to 200 mcg. Her Minirin intranasal spray remained at .05 mL per day. Mrs Davies was also started on the contraceptive pill Microgynon 30, having been on this medication previously to augment her extremely low endogenous oestrogen levels.
As Mrs Davies was very concerned about her weight and worried that her cortisol replacement therapy was increasing her weight, Dr Premaratne referred Mrs Davies to the Austin Hospital Weight Loss Clinic for consideration of laparoscopic gastric banding. Dr Premaratne attributed Mrs Davies’ weight gain to the loss of sensation of satiety that followed resection of the craniopharyngioma.
Mrs Davies was reviewed again at The Northern Hospital on 8 December 2010. Repeat investigations of Mrs Davies’ biochemistry and haematology had not been performed. Mrs Davies complained of poor energy levels, poor sleep and advised that she had reduced her Cortisone dosage herself because of weight gain. Mrs Davies was again instructed to take the contraceptive pill although she was keen not to do so. It was explained to her that this was to reduce the risk of endometrial cancer and osteopenia. Mrs Davies did not like having periods and was resistant to the suggestion. It was decided that she would take the Microgynon for three or four cycles per year.
From 14 September 2011 Dr Kabat repeatedly ordered the monitoring haematology and biochemical tests, which were supposed to have been done at six monthly intervals. Dr Kabat has recorded at regular intervals that Mrs Davies has not had her blood tests done as yet. In fact there are no records of these tests being repeated until 20 March 2013. Thus there was a period of two years and nine months during which Mrs Davies did not have any of the required six monthly biochemical and haematological investigations or at least any ordered by Dr Kabat. Those ordered in early 2013 were requested by Dr Ahmed Ali, the surgeon who performed Mrs Davies’ gastric sleeve procedure for weight reduction.
There are no further reports from an endocrinologist other than those referred to above and at which time the dosage of both Mrs Davies’ replacement Cortisone acetate and Thyroxine were significantly increased but later altered by Mrs Davies.
Medical Article on CTS
This article was an analysis of the pooled cohorts of six research groups who, between 2001 and 2010, performed prospective studies of CTS in workers from various industries in the United States. This analysis revealed that women have an elevated risk compared to men, the risk increased linearly with age and body mass index (BMI). There was an inverse relationship between the incidence of CTS and years worked; that is, the workers who had worked for longer periods had a lower incidence of CTS. The study identified risk hazards which in addition to the female gender, age and weight, were slightly increased with smokers and significantly increased in patients with thyroid disease. The study also looked at job strain, which was measured in terms of demand and control and social support in the workplace. No interaction with gender, BMI or medical conditions was demonstrated with either job strain or social support.
RELEVANT LEGISLATION
The relevant sections of the Safety, Rehabilitation and Compensation Act 1988 (the Act) are extracted below.
Section 5A of the Act defines the term injury as:
5ADefinition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 5B of the Act defines disease as:
5BDefinition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(2) In this Act:
significant degree means a degree that is substantially more than material.
Australia Post is a body corporate to which the Act applies and thus falls within the definition of a Commonwealth authority in section 4 of the Act.
Section 14 provides for liability for compensation for injuries and states:
14Compensation for injuries
(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.
SUBMISSIONS
The Applicant
In her written submission, Ms Frederico contended that Mrs Davies suffered an aggravation of underlying carpal tunnel pathology rendered symptomatic by her work duties. The CTS of both wrists had become overt when Mrs Davies resumed work on full unrestricted duties. Ms Frederico submitted that whether Mrs Davies’ condition was found to be an injury under s 5A of the Act or a disease under s 5B of the Act, work was a significant contributing factor to the aggravation of the bilateral CTS.
Ms Frederico outlined the evidence given and pointed out that Mrs Davies suffered from an acquired brain injury as a result of surgery to remove her pituitary tumour and as a consequence suffered from a memory defect and ready fatigue. Despite this, Ms Frederico argued that Mrs Davies’ evidence should be accepted at least to the extent that the incapacitating pain in her hands was caused by her employment activities. The applicant relied on the report and evidence of Dr Sedal that the work contribution was significant and more than material, and the sole factor rendering her asymptomatic medical condition symptomatic.
In her written submissions, Ms Frederico addressed the decision of the Full Court of the Federal Court in Commonwealth v Beattie [1981] FCA 88, where the Court found that the increase in a symptom equated to an aggravation of a physical injury without there being further underlying pathological change. Reference was made to Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 where the High Court found that a sudden physiological change in the form of an embolic stroke arising from a diseased mitral valve was an injury and not a disease.
Reference was also made to the decision of Finklestein J in Tippett v Australia Postal Corporation (1998) 2 AAR 40, where his Honour found that if pain, arising from an underlying condition was aggravated, that is, increased in intensity as a result of the employee’s employment, then the employee would have suffered a compensable injury.
The Respondent
Mr Dube contended that the decision under review should be affirmed, given that Mrs Davies’ CTS of both wrists are diseases rather than injuries. He further contended that while her symptoms of wrist and hand pain increased during her employment, the symptomatic response to work activities did not equate to an aggravation within the meaning of the Act; that is, there was no change in the underlying pathological process. In the alternative, if there was an aggravation, it was not significantly contributed to by Mrs Davies’ employment with Australia Post.
The respondent relied on Mr Stapleton’s evidence that Mrs Davies’ work activities would contribute to her symptom of pain and that the greater the severity of the compression of the median nerve in the carpal tunnel the greater the severity of the symptoms, but that these work duties did not have an aetiological role in the development of CTS.
Mr Dube argued that Dr Sedal’s opinion was based on his belief that Mrs Davies’ work duties involved constant flicking of her wrist. He noted that Dr Sedal had said that if this was not a predominate part of her duties it would raise doubt as to whether employment had contributed to the development of CTS. Mr Dube addressed Mrs Davies’ evidence as to how she held and sorted mail, and described her demonstration as showing little in the way of wrist movement, with the majority of the movement occurring at the elbow.
Mr Dube cited the decision of the Full Federal Court in Commonwealth v Beattie wherein the majority concluded that:
... there can be cases where there will be an exacerbation — and thus in our view an aggravation — of a previously existing injury by activity which increases or precipitates pain.
Mr Dube pointed out that the majority of the Court had added the qualifier that an increase in pain would not in every case reflect an aggravation of the injury and each case must depend upon its own facts.
Mr Dube also cited the Federal Court decision in Australian Postal Corporation v Bessey [2001] FCA 266, where Gyles J said:
[6] It has been well settled by a series of decisions ... that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.
In Bessey the applicant was an Australia Post delivery officer who experienced back pain while riding a motor bicycle for mail delivery. His Honour said:
... The mere fact that incapacity resulting from the spondylosis caused pain whilst working does not mean that the symptoms resulted from a work related injury (including aggravation) but rather resulted from the underlying condition.
Counsel for both parties acknowledged that CTS was multifactorial in aetiology.
TRIBUNAL’S DELIBERATIONS
DIAGNOSIS
The Tribunal agrees that the correct diagnosis of Mrs Davies’ condition is CTS of both wrists. This however, is not the original diagnosis made in relation to her right forearm and for which liability was accepted on 23 September 2009 and continued until 3 February 2011. The onset of Mrs Davies’ symptoms consistent with CTS was in May 2010. The Tribunal notes that a syndrome is by definition a collection of symptoms.
Nerve conduction studies performed on 5 November 2009 as part of the investigation of her right forearm strain were aimed at determining conduction in the radial nerve as a possible diagnosis of neuropraxia of this nerve had been raised. These nerve conduction studies were performed only on the right upper limb. The only abnormality detected was a mild latency of conduction in the medial nerve compatible with mild right median nerve compression in the carpal tunnel. The only medical expert to see Mrs Davies at that time was Mr Bennett. Mr Bennett did not consider CTS to be the appropriate diagnosis for her then symptoms.
Mrs Davies’ symptoms of pain and tingling of the fingers was first manifest in the left hand after she had returned to restricted work duties which limited her to the use of her left hand. Some months later she developed symptoms in her right hand. Based on the medical reports, the Tribunal differentiates between the original injury of right forearm strain and the development some nine months later of symptoms of CTS.
The nerve conduction study performed on the right forearm in November 2009 indicates that mild carpal tunnel median nerve compression was pre-existing and asymptomatic at that time.
IS THE CONDITION AN INJURY OR A DISEASE?
The Tribunal finds that Mrs Davies’ bilateral CTS due to median nerve compression in the carpal tunnel is an ailment, thus meeting the definition of a disease under s 5B(1)(b) of the Act. As a result, there is a requirement that any contribution to the aggravation of the disease by the employee’s employment must be of a significant degree. The temporal relationship between Mrs Davies’ development of the CTS symptoms and her return to work on restricted duties indicates that these work duties did contribute to the development of symptoms in the previously asymptomatic condition.
Mrs Davies was placed on restricted duties from 29 September 2009 until 23 June 2010, which consisted of normal working hours but with minimal use of her right hand. In June 2010 she complained of left forearm pain and Dr Tunaley restricted her use of both hands. Mrs Davies was off work from 25 August 2010 to 20 November 2010 and then again from 25 January 2011 to 8 March 2011.
WAS THERE A SIGNIFICANT CONTRIBUTION BY EMPLOYMENT?
Mrs Davies lodged her claim for compensation for bilateral CTS on 1 October 2010. Australia Post denied liability for this condition on 3 February 2011. Mrs Davies did not seek review of the decision and prior to the decision underwent bilateral carpal tunnel releases at her own expense. Mrs Davies’ symptoms improved post-carpal tunnel release but the duration of the improvement is not entirely clear. Mrs Davies describes her result as being good and enabling her to resume her normal duties. She dates the recurrence of her symptoms as 2 October 2012. Professor Muirden in his report relates the history given to him in which Mrs Davies said that the improvement lasted for only six months.
There is likewise some confusion as to whether Mrs Davies has suffered a recurrence of the CTS of both wrists in 2012 or whether it is in fact a persistence of the pre-existing level of median nerve compression that has once more become symptomatic.
Mrs Davies’ treating surgeon, Mr Baldwin, raised the possibility that this was a persistence of compression rather than a recurrence given the similarity of the repeat nerve conduction studies of 17 October 2012 to those performed pre-operatively on 25 August 2010. This similarity of results caused Mr Baldwin to obtain the opinion of Professor O’Brien as to whether there was any endocrine hormonal contribution to Mrs Davies’ development of CTS of both wrists. The Tribunal was not provided with a report from Professor O’Brien save for Mrs Davies’ statement that Mr Baldwin told her that Professor O’Brien said everything was fine.
Mrs Davies lodged a further claim for worker’s compensation on 4 October 2012. The rejection of this claim forms the basis of the reviewable decision of 17 January 2013 now before the Administrative Appeals Tribunal.
The Act was amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006, assented to on 12 April 2007. Of relevance to this matter is the amendment of the definitions of disease and injury. In the Second Reading Speech on 30 November 2006, the Minister said:
...the courts have read down the expression ‘in a material degree’ to emphasise the causal connection between the employment and the condition complained of rather than the extent of the contribution itself.
The Bill therefore includes an amendment to restore the initial legislative intent [a reference to the 1988 second reading speech] by requiring that an employee’s employment must have contributed in a significant way to the contraction or aggravation of the employee’s ailment.
The causal relationship between repetitive wrist movements and the development of CTS remains a matter of debate in the medical literature, with the majority opinion rejecting a relationship except for work involving use of hand-operated power tools and work in very cold environments. Dr Sedal has informed the Tribunal that neurologists as a group, along with neurosurgeons, consider repetitive wrist movement to be a causal factor in the development of CTS. The opinion among hand surgeons appears to be divided.
The reports of the medical experts and the treating medical practitioners reflect the general medical consensus. Dr Muirden and Mr Stapleton do not believe there is any causal relationship between repetitive wrist movement and the development of CTS. Dr Sedal is of the opinion that CTS can be caused by repetitive wrist movement, in particular what he described as a flicking movement.
Mr Baldwin, the treating hand surgeon, has not provided an opinion regarding the relationship between Mrs Davies’ work duties and her CTS. Mr Bennett’s comments related only to the original right forearm pain, which he determined was not of a neurological basis but having excluded these other causes he concluded that Mrs Davies suffered from a repetitive wrist and forearm injury. Mr Bennett had described the action causing Mrs Davies’ pain as reaching up to place mail in mail slots.
Doctors Muirden and Sedal and Mr Stapleton have all commented on the complex nature of Mrs Davies’ medical history. All three have referred to the well-publicised and accepted risk factors for CTS, namely age, female gender, cigarette smoking and hypothyroid states. To these four risk factors, Dr Sedal added the effects of menopause, obesity and work duties.
Mrs Davies has undergone resection of a craniopharyngioma of the pituitary gland, a tumour that is benign in nature. We are told that Mrs Davies presented hydrocephalus (commonly termed water on the brain) and visual disturbances due to the size of this tumour. Resection of the tumour has resulted in the development of a hypo-pituitary state.
By virtue of the Tribunal’s medical qualifications and experience, the Tribunal notes that the pituitary gland controls the function of the adrenal glands, the thyroid gland, growth, gonadal function and fluid balance in the body by way of an antidiuretic hormone the absence of which causes diabetes insipidus. The latter hormone also affects the control of blood pressure. The anterior lobe of the pituitary produces several trophic hormones – growth hormone, thyroid stimulating hormone (TSH), and adrenocorticotrophic hormone (ACTH) and several gonadotrophins.
Mrs Davies is required to take Cortisone acetate for her adrenal function, Thyroxine to replace the normal thyroid-produced hormone, and Minirin to replace vasopressin. She has also been recommended to take the contraceptive pill to replace oestrogen and progesterone and protect her against carcinoma of the cervix and osteopenia.
Mrs Davies was required to see her endocrinologist at six monthly intervals and undergo various blood tests to establish the levels of the various hormones to make sure her replacement therapy was adequate. She gave evidence, at the hearing, that she had her blood tests performed regularly six monthly and saw her endocrinologist every six months. Dr Kabat’s medical records regarding Mrs Davies reveal that she has not followed these instructions. There was an almost three year gap during which time there are no records of these tests being done. There is a record of her seeing her endocrinologist on two occasions in 2010, at which time she was not taking her replacement therapy according to directions, and both her Cortisone acetate and her Thyroxine had to be increased.
Mrs Davies has manipulated her doses, particularly of Cortisone acetate, because of her continuing weight gain. Mrs Davies did eventually undergo a gastric sleeve resection to diminish her appetite and has reduced her weight from 146 kilos to 104 kilos.
The Tribunal informed Dr Sedal in the course of his evidence that Mrs Davies gave sworn evidence that she had seen her endocrinologist six-monthly, had all her blood tests performed at six-monthly intervals and followed all directions in the taking of her replacement medication. Given this information, Dr Sedal then ruled out the effects of menopause, the effects of a hypothyroid state and any contribution due to varying cortisol levels in Mrs Davies’ development of CTS.
The Tribunal does not believe that Mrs Davies meant to mislead the Tribunal or any of the reporting medical experts. Her counsel has stated that Mrs Davies’ memory is extremely poor and it is noted she obtained employment with Australia Post through a disabled persons’ program. However, Dr Kabat’s medical records (or more accurately, the absence of medical records) clearly refute Mrs Davies’ oral evidence and must carry greater weight.
In light of the three year gap in the monitoring of Mrs Davies’ hypo-pituitary state, the Tribunal cannot eliminate any of the risk factors posed by the medical experts. The evidence concerning risk factors is supported by the analysis of 3,500 patients with CTS as reported by the medical article on CTS. While it has been said that Professor O’Brien ruled out a hormonal cause of Mrs Davies’ recurrent CTS in 2013, this information was provided by Mrs Davies to Dr Kabat and presumably also to Mr Baldwin. There is no documentary evidence to support this claim.
The Tribunal has no alternative but to consider all the risk factors operating in Mrs Davies’ case, in terms of causation of her bilateral CTS and its recurrence post-carpal tunnel releases in 2010 and 2011. Statistically, the major factors appear to be her gender, age, morbid obesity and probably hypothyroid status in 2010.
The contribution by what was thought to be the menopause is difficult to assess, given she has been taking replacement oestrogen/progesterone therapy, at the best, intermittently. Smoking is said to be of lesser importance and Mrs Davies has tried on several occasions to cease smoking and appears to have succeeded in 2013.
The Tribunal believes this decision is based entirely on the facts of the case and that the legal precedents cited can be distinguished on their facts and are not relevant to the determination. Mrs Davies’ work was certainly a contributing factor in 2010 when she was placed on restrictive work duties and directed not to use her right hand. Her sorting of mail using her left hand only did produce a degree of overuse.
The Tribunal decides that, given the multitude of contributing factors such as the overall risk factors, her complex medical history and her failure to follow instructions in terms of investigations, regular consultations with her endocrinologist and her modification of her prescribed dosages of replacement hormonal therapy, the contribution made by Mrs Davies’ work duties to CTS of both wrists was material but not of a significant degree.
The Tribunal affirms the decision under review.
I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member ...[sgd].....................................................................
Associate
Dated 20 August 2014
Date(s) of hearing 12 and 13 May 2014 Date final submissions received 2 July 2014 Counsel for the Applicant Julia Frederico Solicitors for the Applicant Maurice Blackburn Solicitors Counsel for the Respondent Ben Dube Solicitors for the Respondent Sparke Helmore
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