Andreas Baltruweit and Australian Postal Corporation
[2014] AATA 394
•20 June 2014
[2014] AATA 394
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5566
Re
Andreas Baltruweit
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 20 June 2014 Place Melbourne The Tribunal sets aside the decision under review and substitutes a decision that the respondent is liable under s 14 (1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) to pay compensation to Andreas Baltruweit in respect of the following injuries: synovitis and tendonitis of the right wrist and hand, termed repetitive strain injury right forearm/wrist, and left thumb tendonitis.
.....................[sgd]...................................................
Miss E A Shanahan, Member
WORKERS’ COMPENSATION – acute inflammatory process right wrist and hand – tenosynovitis and synovitis – underlying joint disease of uncertain origin – repetitive wrist movements – failure to respond to treatment for gout or rheumatoid arthritis – aggravation of an underlying arthropathy of uncertain aetiology – left thumb tendonitis – decision set aside.
Legislation
Safety, Rehabilitation and Compensation Act 1988 sections 5A, 5B, 14, 4, 67
Cases
Australian Postal Corporation v Lucas (1991) 33 FCR 101
Asioty v Canberra Abattoir Pty Ltd 167 CLR 533
Canberra Abattior Pty Ltd v Fadel Asioty [1988] FCFCA [1988] FCA 132, 26/4/1988
Commonwealth v Beattie (1981) 35 ALR 369
Tippett v Australian Postal Corporation VG 86 1997; (1998) 27 AAR 40
REASONS FOR DECISION
Miss E A Shanahan, Member
20 June 2014
Mr Baltruweit is a postal delivery officer who commenced work with the Australian Postal Corporation, the respondent, in late 1989.
On 25 May 2012 he completed an incident report stating he was suffering from repetitive strain injury to the right forearm/wrist and left thumb. The left thumb pain had commenced just before Christmas 2011 and the right forearm and wrist pain in early May 2012. The right forearm pain increased progressively over a period of two weeks resulting in Mr Baltruweit ceasing work on 28 May 2012.
Mr Baltruweit’s symptoms gradually improved with rest, followed by a graduated return to alternate duties and reduced hours. By October 2013 he had resumed full time duties. Mr Baltruweit lodged a claim for compensation for incapacity for work on 28 May 2012. A claims manager from the respondent’s injury management department rejected the claim on 16 August 2012. Mr Baltruweit sought a reconsideration of that decision and a delegate of the respondent affirmed the original decision on 25 October 2012. Mr Baltruweit lodged an application for review by the Administrative Appeals Tribunal on 10 December 2012.
Mr Baltruweit was represented by Mr Mark Carey of counsel, instructed by Maurice Blackburn solicitors. The respondent was represented by Mr Michael Snell of counsel, instructed by Sparke Helmore solicitors. The Tribunal was provided with the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents) and the parties tendered the following additional documents:
For Mr Baltruweit:
·statement of the applicant dated 28 August 2013 – Exhibit A1;
·medical report of Mr Michael Khan, orthopaedic surgeon dated 3 July 2013 – Exhibit A2;
·report of Mr Raphael Hau, orthopaedic surgeon dated 27 June 2012 – Exhibit A3 and
For the respondent:
·T-Documents – Exhibit R1;
·medical report of Dr Peter Stevenson, physician dated 10 April 2013 – Exhibit R2;
·records of Dr Sam Engel provided on summons – Exhibit R3;
·clinical notes of Dr Alexander Stockman provided on summons – Exhibit R4; and
·report of Dr Kevin Fraser dated 3 October 2013 – Exhibit R5.
Mr Baltruweit, Mr Khan, Dr Stevenson and Dr Fraser gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
Mr Baltruweit commenced working for the respondent on 16 November 1989 as a postal delivery officer. He is six foot, five inches (195.6 cm) in height and until October 2013 conducted his postal delivery rounds on a small motorcycle. His shift started at 6:00 a.m. and he completed his work at 1:30 p.m. On Mondays he started at 5:30 a.m. Overtime was available according to the season, being more readily available during the Christmas period. When other postal delivery officers were absent due to illness or holidays, the remaining postal officers divided their rounds among them, these are referred to as divides. The first three hours of any shift was spent sorting mail and what is termed throwing off. Other work Mr Baltruweit occasionally undertook included re‑directing mail. Having commenced work at 6:00a.m., Mr Baltruweit was ready to start his actual delivery rounds by 9:30 or 10:00 a.m.
Mr Baltruweit has a long history of gout having two to three attacks of acute gout a year for the past 11 to 12 years. These attacks affect his knees and ankles, predominately on the right side. He believes he may have had one or two attacks in his fingers but is not certain of this. He takes Pro-gout prophylactically to control his uric acid levels and when he has a gout attack he also takes Colchicine and Prednisilone. Prednisolone for two to three days is usually sufficient to bring an acute attack under control. As he had found, taking Pro-gout continuously through an acute attack prolonged the acute attack. He stopped taking the 100 mg per day of Pro‑gout during an acute attack and instead takes Prednisilone 100 mg twice a day.
In December 2011 Mr Baltruweit developed pain in the base of his left thumb. At that time, he was sorting letters in a manner that required him to turn the letters through 180 degrees to check the address and he did this using his left hand turning the letter with his left thumb. The pain in his thumb eased over the Christmas holidays and also over weekends.
In May 2012 he first noted pain in his right forearm and hand. He believed the pain started in his right thumb and radiated up the volar surface of the forearm on the radial border. Over 10 to 14 days, this pain became increasingly severe although it fluctuated according to his duties. On arrival at work in the morning, the pain was of low intensity but became increasingly severe as the day progressed. On 24 May 2012 he developed severe swelling of the dorsal and volar aspect of his hand and wrist. He consulted the facility nominated doctor (FND), Dr Frank Vincent on Monday 28 May. At the time of this visit, he also complained of pain in his right toes which was attributed to his new boots, issued by the respondent.
Dr Vincent referred Mr Baltruweit to the orthopaedic surgeon, Mr Hau. Mr Hau examined Mr Baltruweit on 27 June 2012 and found diffuse swelling of his right wrist, hand and fingers on the dorsum of the hand and the volar aspect. The range of movement of the right wrist was moderately reduced. Plain x-rays of both thumbs showed osteoarthritis and an x-ray of his right wrist showed mild osteoarthritis. Mr Hau diagnosed bilateral flexor and extensor tenosynovitis affecting all of the fingers on the right and the left thumb. Mr Hau referred Mr Baltruweit to a rheumatologist, there being no indication for any surgical intervention.
Mr Baltruweit saw a rheumatologist, Dr Engel, on 3 July 2012 by which time Mr Baltruweit had been treated with courses of anti-inflammatory medication, Colchicine and Prednisolone without improvement.
Mr Baltruweit found the only effective treatment was rest. He was off work for almost five months, resuming work in October 2012 for four hours per day, throwing off mail and using predominantly his left hand. This increased to five hours but resulted in a recurrence of pain necessitating further time off work. A graduated return to work programme was instituted in February 2013 and as of October 2013, Mr Baltruweit resumed full time work and has coped well. The action which he found most painful occurred while operating the motorcycle, which he no longer rides. The action which according to some doctors caused his symptoms was that of flexion, extension and ulnar deviation of the right wrist while operating the controls on his motorcycle.
Mr Baltruweit now drives his vehicle to a new housing estate of 300 houses where he delivers the mail on foot. He does experience a little swelling of the dorsal surface of his right hand during the sorting and throwing off process prior to his rounds. However, if he rests for five minutes in every 30 minutes of work, the pain subsides completely.
Mr Baltruweit strongly believes that there was a relationship between his symptoms and the amount of work he was undertaking. In May 2012, although the volume of letters handled by the respondent was diminishing, it became common for divides to be undertaken.
EVIDENCE BEFORE THE TRIBUNAL
Mr Andreas Baltruweit
Mr Baltruweit’s evidence has been summarised under BACKGROUND TO THE APPLICATION.
Mr Michael Khan
Mr Khan is an orthopaedic surgeon who saw Mr Baltruweit at the request of his solicitors and provided a report dated 3 July 2013 (Exhibit A2). Mr Khan saw Mr Baltruweit 12 months after the onset of Mr Baltruweit’s right hand and wrist symptoms and signs. When seen by Mr Khan, Mr Baltruweit was working on modified duties at reduced hours and the swelling he then experienced was minimal.
On physical examination, Mr Khan found that Mr Baltruweit had a full range of movement in his right fingers but his grip was diminished in strength. There was minor swelling and thickening in some of his finger joints predominately in his fourth finger. The range of movement in the right wrist was slightly reduced.
Mr Khan noted the findings of the MRI of the right wrist and attributed the erosive changes in the carpal bones, radius and ulnar to past attacks of gout. He considered the repetitive nature of Mr Baltruweit’s work in throwing off and using his right hand and forearm in controlling the motorcycle while using his left hand to sort and place mail in householders’ letterboxes, to have contributed to the marked tenosynovitis, which is swelling around the tendons (as opposed to the synovitis, which is inflammation of the lining of the various joints). While Mr Khan favoured a pre-existing diagnosis of gout, he did not exclude the diagnosis of seronegative inflammatory arthritis.
In his evidence before the Tribunal, Mr Khan expanded on his written opinion. Mr Khan opined that continuing microtrauma in an abnormal joint has led to synovitis and tenosynovitis in Mr Baltruweit’s right hand and wrist. In response to a question from the Tribunal, Mr Khan indicated that the maximal changes present in the MRI were those of tendonitis and tenosynovitis rather than the changes in the joints. Mr Khan relied on the report and his own interpretation of the MRI scan. Mr Khan did stress the fact that the only joints that had been involved in the acute process of May 2012 were those that were involved in or essential to the conduct Mr Baltruweit’s work duties.
Dr Peter Stevenson
Dr Stevenson saw Mr Baltruweit in March 2013, at the request of the respondent. Dr Stevenson, in his report of 10 April 2013 (Exhibit R2), detailed Mr Baltruweit’s work duties in terms of throwing off and delivering mail. The history obtained by Dr Stevenson was as previously stated. On physical examination, Dr Stevenson did not detect any abnormality in any joints. Dr Stevenson addressed all the earlier reports and investigations, which were available to him, and concluded that Mr Baltruweit had presented in May 2012 with acute inflammatory arthritis of his right wrist and possible lower grade disease in his left thumb. This had been slow to respond to treatment.
Dr Stevenson favoured a diagnosis of primary inflammatory arthritis of a seronegative, (that is of non-rheumatoid) variety, but could not exclude an underlying condition of gout; although he thought this would be a very atypical presentation. Dr Stevenson rejected the suggestion that this was work-related. He accepted that work would have caused an exacerbation of Mr Baltruweit’s symptomatology but not an alteration in the underlying pathological changes in the affected joints. He tended to agree entirely with Dr Engel. Dr Stevenson recommended that Mr Baltruweit increase his dosage of allopurinol (Pro‑gout) to control his level of uric acid and reduce the incidence of gout attacks.
Mr Baltruweit explained to Dr Stevenson and to the Tribunal that he tried to increase his allopurinol dose but found it intolerable as it provoked more frequent gout attacks and extended the duration of such attacks. According to Doctors Stevenson and Fraser, this side-effect is a known adverse effect of allopurinol in a small percentage of patients.
In his evidence before the Tribunal, Dr Stevenson addressed the MRI findings of Mr Baltruweit’s right wrist in more detail. He stated that the MRI revealed marked inflammation of the extensor and flexor tendons. He also noted the erosions of the carpal bones, which in his opinion were more indicative of a rheumatoid arthritis-like process, rather than gout. In his opinion erosions occurred in less than one per cent of patients with gout. He favoured a diagnosis of seronegative rheumatoid arthritis. Dr Stevenson accepted that the type of work Mr Baltruweit performed would aggravate the symptoms of a pre‑existing inflammatory type of arthritis.
Dr Kevin Fraser
Dr Fraser is a rheumatologist who provided a report and opinion dated 3 October 2013 (Exhibit R5) on Mr Baltruweit at the request of the respondent. In his report, Dr Fraser favoured a diagnosis of pre-existing gout affecting Mr Baltruweit’s hands although he could not exclude the possibility of rheumatoid arthritis. There were also changes of osteoarthritis, predominantly involving the finger joints. Dr Fraser recommended increased doses of allopurinol to prevent recurrence of these bouts of arthritis which was unrelated in any way to Mr Baltruweit’s work.
Dr Fraser saw Mr Baltruweit on 2 October 2013, by which time Mr Baltruweit was asymptomatic. On physical examination, Mr Baltruweit’s wrists were found to be normal. However, there was some stiffness of the right first metacarpophalangeal joint (thumb) and the presence of Heberden’s nodes, indicative of osteoarthritis, in the interphalangeal joints in both hands.
In his evidence before the Tribunal, Dr Fraser confirmed his earlier opinion that the underlying condition in Mr Baltruweit’s wrist and fingers was gout; although he could not be 100 per cent certain. Clinically and radiologically, Dr Fraser considered the changes in Mr Baltruweit’s left thumb to be those of osteoarthritis consistent with his age. At times during the giving of his evidence Dr Fraser seem to favour seronegative arthritis over gout but this was not clear in his answers. When asked about the history Mr Baltruweit gave, of increased pain only occurring with activity, Dr Fraser said this would be due to an increase in the inflammatory process which included serous fluid secretion and inflammatory cell presence and activity.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Mr Baltruweit’s FND, Dr Vincent, has supplied numerous certificates of capacity between 28 May and 10 October 2012, providing a diagnosis of tendonitis, synovitis and capsulitis involving the right wrist and left thumb. In a written report dated 9 July 2012, Dr Vincent confirmed his diagnosis of tendonitis/tenosynovitis due to a repetitive strain injury caused by riding a motorcycle, sorting and delivering mail. He stated there was no pre-existing underlying condition and that the treatment was rest, anti-inflammatory medication, physiotherapy, the use of splints, light duties of non‑repetitive work and referral to an orthopaedic specialist. It was anticipated that the condition would persist for weeks to months. Initially, Mr Baltruweit had complained of pain in his toe but this was subsequently shown to be due to callus formation.
Dr Vincent imposed work restrictions such as light duties, non-repetitive actions with scheduled rest periods, and that Mr Baltruweit was not to use the extensor muscles of his wrist.
Dr Vincent requested several investigations. Ultrasounds of both wrists conducted on 28 May 2012 showed tendinopathy involving the thumb and some synovitis in the left wrist. A plain x-ray of the right hand on 29 October 2012 revealed mild degenerative changes in the interphalangeal joints of the fingers with normal bone density. There was no evidence of erosive arthropathy and no tissue calcification.
Dr Vincent referred Mr Baltruweit to Mr Hau. Mr Hau diagnosed bilateral flexor and extensor tenosynovitis affecting all of his fingers on the right side and his thumb on the left. X-rays were described as showing osteoarthritis of the thumbs bilaterally and mild osteoarthritis of the right wrist. Mr Hau referred Mr Baltruweit to Dr Engel.
Dr Engel first saw Mr Baltruweit on 3 July 2012, approximately two months after the onset of his symptoms. He noted that the pain and swelling experienced by Mr Baltruweit in the right hand and wrist had not responded to anti-inflammatory medication, Colchicine or Prednisolone. At that time, Mr Baltruweit still had considerable swelling over the dorsal and ventral aspects of his right wrist with tenderness over the metacarpophalangeal joints and severe pain and swelling over the right fourth proximal interphalangeal joint. Dr Engel noted that the x-rays showed degenerative changes. He also noted the ultrasound of the right wrist showed extensor tendonitis of the thumb, thickening of the flexor carpi radialis tendon while the left wrist showed tenosynovitis of the extensor tendons.
As Dr Engel was uncertain on clinical grounds of the aetiology of these inflammatory changes, various tests were requested. The tests performed in terms of haematology and serology were normal but Mr Baltruweit’s serum uric acid level was elevated to 0.55. The ESR (erythrocyte sedimentation rate) was mildly elevated but his C-reactive protein (CRP) was within normal range and antibody tests for autoimmune disease and rheumatoid arthritis were negative.
An MRI scan of only the right wrist was performed on 10 July 2012 (Cabrini Medical Imaging dated 11 July). The MRI showed significant synovitis in the right fourth finger and wrist joints, erosions in the carpal bones but not the ulnar styloid process, and tenosynovitis of moderate degree in all of the extensor tendons of the second to fifth fingers with milder synovitis present in the flexor tendons within and distal to the carpal tunnel. The synovitis (inflammation in the joint cavities) was described as florid in the fourth finger and marked in the wrist joint. Based on the results of these investigations, Dr Engel made a differential diagnosis of polyarticular gout or seronegative rheumatoid arthritis. He stated that:
... Both conditions are not caused by work activities but can certainly be exacerbated by repetitive flexion and extension activities to an already inflamed joint and tendon. ...
On 24 July 2012 Dr Engel initiated treatment with Prednisolone, 25 mg for a fortnight reducing to 12.5 mg, thereafter. He also suggested that Mr Baltruweit increase his allopurinol dose to 200 mg daily and to increase it further if the uric acid level did not fall to satisfactory levels.
Dr Engel provided a report to the respondent, dated 6 August 2012. He summarised the investigations already referred to above and provided the opinion that he believed there was an underlying inflammatory arthritis due to gout but a seronegative rheumatoid arthritis could not be excluded. He stated:
... I do not feel that either condition is caused by work activities however in the setting of an inflammatory arthritis I feel that repetitive flexion and extension activities of the hand and wrist will exacerbate the inflammation. ...
At the time of the report, and given that Mr Baltruweit had been taking Prednisilone for one month, Dr Engel was unable to give a definite prognosis. However, he felt that the symptoms would settle within two months but the underlying condition of gout or seronegative rheumatoid arthritis would persist much longer. Dr Engel advised that Mr Baltruweit could return to part-time duties when the inflammation in his wrist and hand resolved.
As Mr Baltruweit’s condition did not improve appreciably with the treatment prescribed by Dr Engel, he did not have any further consultations with Dr Engel. Thereafter, Dr Vincent arranged for Mr Baltruweit to be seen by Dr Stockman. Mr Baltruweit attended Dr Stockman in October and November 2012. Dr Stockman made a diagnosis of seronegative inflammatory arthritis or atypical gout. He favoured the diagnosis of gout. He also recommended an increase in allopurinol and the use of Prednisolone for any flare ups in the symptoms. Given the lack of response to Prednisolone, Dr Stockman concluded that Mr Baltruweit’s symptoms were settling spontaneously, which led him to the view that the symptoms in the right hand were not entirely due to gout.
Mr Baltruweit was assessed by an occupational physician, Dr C Castle, in October 2012. Dr Castle provided the diagnosis of:
... synovitis of his fourth finger, his wrist joint, the intercarpal joints, tenosynovitis of flesor [sic] and extensor tendons, carpal erosions, and osteoarthritis of the left thumb metacarpophalangeal joint.
He believed the gout to be an incidental finding and not the cause of the symptoms. Dr Castle referred to Mr Baltruweit’s postal service work and the use of his hands but makes no comment as to the cause of his arthritis and tenosynovitis nor its relationship to Mr Baltruweit’s employment.
RELEVANT LEGISLATION
The Safety, Rehabilitation and Compensation Act 1988
The respondent is an approved Commonwealth authority for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
The SRC Act provides a definition of an injury and disease. Section 5A states:
5A Definition of injury
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
...
and a disease is defined in section 5B of the SRC Act as follows:
5B Definition of disease
(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
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.
It is not in dispute that Mr Baltruweit’s injury arose in the course of his employment.
Section 14 of the SRC Act provides:
Part II—Compensation
Division 1—Injuries, property loss or damage, medical expenses
14 Compensation 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.
Section 4 of the SRC Act provides definitions of the terms aggravation and ailment as:
aggravation includes acceleration or recurrence.
ailment is also defined and means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). ...
SUBMISSIONS
Applicant
In relation to Mr Baltruweit’s left thumb symptoms and signs, Mr Carey submitted that this was due to osteoarthritis of the first metacarpophalangeal joint resulting from an overuse injury of more than 20 years; that is Mr Baltruweit having to perform the repetitive action of flicking or sorting mail with his left thumb before placing it in citizens’ post boxes. Mr Baltruweit relied on the opinion of Mr Khan in this respect.
In relation to Mr Baltruweit’s right wrist, hand and forearm pain, Mr Carey accepted that there was an underlying inflammatory process existing in the wrist joint and some of the finger joints, the exact nature of which was unknown. In the evidence before the Tribunal, Dr Fraser favoured the diagnosis of gout, Dr Engel fluctuated between a diagnosis of gout and seronegative arthritis resembling rheumatoid arthritis and Dr Stevenson favoured a diagnosis of seronegative arthritis. Mr Khan favoured a diagnosis of sero-negative arthritis on the basis that Mr Baltruweit had never experienced gout in his right wrist. Mr Khan considered the changes due to microtrauma resulting in inflammation with synovitis. Mr Carey pointed out that the medical experts agreed that if in fact Mr Baltruweit’s right wrist pathology was that of gout, it was certainly atypical in its presentation as it did not resemble the normal course of gout nor was it responsive to a gout treatment regime.
Mr Carey contended that the pattern accompanying Mr Baltruweit’s symptomatology demonstrated the relationship to work in that his pain in the wrist and fingers in the right upper limb subsided overnight during the working week, improved during the weekends but recurred within 30 minutes of commencing his work duties. The pain would then ease with a 60 minute break from throwing off and recur during his mail delivery to up to 1000 sites. Mr Carey submitted that the actual action involved in operating the motorcycle Mr Baltruweit used to deliver the mail, and the forceful grip required to operate the throttle etcetera involved flexion, extension and rotation movements, which in early May 2012 led to severe pain and gross swelling of the hand and the wrist. All the medical experts agreed that these activities had exacerbated an already inflamed joint.
In addition, Dr Fraser had been of the opinion that Mr Baltruweit’s symptoms and signs would be likely to recur if he went back to his pre‑injury duties. Mr Carey referred to the principle arising from the Full Court of the Federal Court’s decision in Canberra Abbattoir Pty Ltdv Fadel Asioty [1988] FCA 132 (Asioty), wherein the court determined that if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee’s employment then the employee would have suffered a compensable injury. This aspect of the decision had not been disturbed on appeal to the High Court (Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533).
Mr Carey relied on the decision of Finkelstein J in Tippett v Australian Postal Corporation VG 86 1997; (1998) 27 AAR 40. In Tippett, Finkelstein J did consider the decision of the Full Federal Court in Commonwealth v Beattie (1981) 35 ALR 369 noting at 378 per Evatt and Sheppard JJ:
"It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. ...
This statement was illustrated by the example of a worker who had his fractured leg encased in plaster but would be unable to put it on ground without suffering pain and other disability.
In Tippett His Honour found that it was an important ... distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. ....
Mr Carey submitted that not only had Mr Baltruweit’s pain increased when he resumed work on a daily basis but also his clinical signs – in the form of marked swelling of the right hand and wrist.
Mr Baltruweit sought acceptance of liability by the respondent in accordance with s 14 of the SRC Act; and payment of his costs and disbursements pursuant to s 67 of the SRC Act.
Respondent
Mr Snell submitted that Mr Baltruweit had an underlying inflammatory arthropathy which had been present for some time but became acutely symptomatic in early May 2012. As such, he experienced pain on the use of the joint; and based on the evidence of Dr Stevenson, Mr Baltruweit would have experienced this pain despite the level of activity. Mr Snell contended that none of the expert medical witnesses had equated the severity of the symptoms with the extent of the pathological process. Thus, there was no evidence that an increase in pain indicated a change in the underlying pathology. Mr Snell distinguished the Federal Court decision in Tippett on the basis that it involved New South Wales Workers’ Compensation law.
Mr Snell did refer to the Federal Court decision in Australian Postal Corporation v Janice Karen Lucas (1991) FCA 612 wherein the majority decision of the Administrative Appeals Tribunal (that formed the basis of the appeal) had made what appeared to be findings of fact contrary to or despite the opinion evidence given by all the experts in the matter. In his response, Mr Carey stated that this particular decision stood for the Tribunal not providing sufficient reasoning directed to the material questions of fact.
TRIBUNAL’S DELIBERATIONS
There is clear evidence that Mr Baltruweit developed an acute arthropathy involving his right wrist joint and some finger joints over a period of 10 to 14 days in May 2012. The resulting pain and swelling culminated in a degree of disablement that prevented him from using his right hand effectively and necessitated the cessation of work. Mr Baltruweit noted his initial symptom of pain fluctuated according to his work duties and abated with rest. Over a period of some 48 hours, commencing on 24 May 2012, Mr Baltruweit’s right hand and wrist became extremely swollen. This swelling affected both the dorsum and the volar aspect of the wrist and hand.
Mr Baltruweit is an impressive witness and one the Tribunal considers to be creditable. The symptoms and signs of Mr Baltruweit’s right wrist and finger arthropathy were observed and reported by Dr Vincent and by Mr Hau, who on clinical grounds, made a diagnosis of bilateral flexor and extensor tenosynovitis affecting all of his fingers on the right hand and his left thumb.
Mr Hau is the only consultant practitioner who saw Mr Baltruweit during the subacute phase of his illness. Doctors Fraser, Stevenson and Engel and Mr Khan saw him many months after the onset of his condition, at a time when his physical signs had either completely abated or almost abated.
The medical definitions of acute, subacute and chronic inflammation or medical conditions, are based on temporal factors, with conditions lasting up to six weeks being considered acute, those from six weeks to 12 weeks considered subacute and those beyond three months considered chronic.
Mr Baltruweit stated that he experiences attacks of gout predominately in his right ankle and knee, two to three times per year and has done so for the past 11 to 12 years. He has on occasion had attacks in his left lower limb and he also thinks he might have had up to two minor bouts involving the fingers on his right hand. He is on prophylactic medication in the form of allopurinol for his gout; and his acute attacks are treated with Colchicine and corticosteroids, the latter being administered over a period of two to three days, by which time his acute bout of gout is well controlled.
Mr Baltruweit distinguished the symptoms he suffered in his right wrist and fingers and left thumb in May and the subsequent months of 2012 as being quite distinct from his attacks of gout in their at onset, the severity of symptoms, the prolongation of symptoms, the failure to respond to treatment, the severity of the swelling and the incapacity that resulted. As he put it, somewhat bluntly, his hand was so swollen he couldn’t wipe his bum. A further difference he noted was that the severity of the symptoms in his right hand and left thumb varied according to the type of activities he performed with his hands. He had found that his symptoms, in terms of pain, improved overnight and also during breaks at work. Improvement over the weekends was more marked. This pattern occurred in early May, prior to the development of marked swelling and recurred after his return to work in late 2012.
In the first two months of this illness affecting Mr Baltruweit’s right hand and left thumb Dr Vincent provided numerous certificates. His initial diagnosis was tendonitis. From late June onwards he diagnosed tendonitis, synovitis and capsulitis. Dr Vincent maintained this latter diagnosis until Mr Baltruweit returned to work on restricted duties in October 2012.
Mr Hau also diagnosed tenosynovitis affecting tendons of the right hand and left thumb. This diagnosis was made on clinical grounds and the results of plain x-rays and ultrasounds of the right wrist and left thumb. The rheumatologist, Dr Engel, first saw Mr Baltruweit two months after the onset of symptoms in his right hand. Dr Engel was uncertain of the diagnosis. Having obtained an MRI examination of Mr Baltruweit’s right wrist (but not his left wrist) Dr Engel remained uncertain. However, he favoured atypical gout over an inflammatory arthritis, such as seronegative rheumatoid arthritis. Dr Stockman, a second rheumatologist who took over Mr Baltruweit’s treatment in late August 2012, was of a similar opinion.
Mr Baltruweit has been seen by several independent medical experts. With the exception of Dr Castle, they agreed that he has an underlying arthropathy in his right wrist, interphalangeal joints and left thumb, although none made a definitive diagnosis as to its cause. Doctors Engel, Stockman and Fraser favoured atypical gout. Dr Stevenson favoured an inflammatory arthritis. Dr Castle thought the gout was an incidental finding and considered Mr Baltruweit’s tenosynovitis to be work-related. Mr Khan favoured an underlying gouty arthropathy, which combined with continuing microtrauma from the wrist movements Mr Baltruweit performed in sorting mail, delivering mail and riding his motorcycle, had led to a non-specific tenosynovitis.
Doctors Stevenson, Fraser and Mr Khan all saw Mr Baltruweit between March and October 2013 by which time he had returned to work for several months and his signs had regressed to the extent that Dr Fraser in October 2013 said he had no evidence of any arthropathy in his right wrist or hand. The opinions they have provided are limited, to a degree, by this delay. All reporting medical practitioners noted the failure of any response to treatment for either gout or inflammatory arthritis. And it was noted that Mr Baltruweit slowly improved over a period of four months following cessation of his work duties and returned to work on restricted duties and hours in October 2012. When his hours of work were increased to five hours per day and involved sorting mail, his symptoms recurred. Following a short period of leave, he was able to resume work in February 2013. By October 2013 he was working full time, delivering mail on foot. Mr Baltruweit is currently free of wrist pain although he notes occasional mild swelling.
While the parties have not addressed the Tribunal on the subject, it is clear Mr Baltruweit has suffered an injury to his right wrist and left thumb that has arisen in the course of his employment, whether or not it has arisen out of his employment. The medical evidence before the Tribunal is that this injury is a disease or ailment causally unrelated to work if it is gout or an inflammatory arthritis of the seronegative rheumatoid variety but may have been aggravated by the nature of Mr Baltruweit’s work. The parties agree that Mr Baltruweit meets the requirements of s 5B(1)(b) of the SRC Act. The issue before the Tribunal is whether the work contributed to his injury by a significant degree.
There is no dissent amongst the medical experts that Mr Baltruweit’s duties of sorting and delivering mail would exacerbate his symptoms by virtue of the repetitive nature of these duties. By exacerbate, the doctors meant increase the severity of his symptoms without altering the underlying pathological process or histopathology in the joints and tendons. Doctors Stevenson and Fraser were of the opinion that there is no aggravation of the underlying condition; that is, no change in the histopathology or acceleration of pathological process. The SRC Act defines aggravation to include acceleration or recurrence (s 4 of the SRC Act). Mr Baltruweit suffered a recurrence of his symptoms, including tenderness and swelling, when he resumed sorting mail five hours per day in late December 2012.
Dr Castle and Mr Khan are of the opinion that the work duties, in particular the repetitive actions, are responsible for the development of the non-specific tenosynovitis, irrespective of any chronic underlying pathological process such as gout.
Dr Engel had the advantage of seeing Mr Baltruweit in the subacute phase of his arthropathy. He also saw him over a period of two months and oversaw his lack of response to treatment. While Dr Engel made a differential diagnosis of either gout or a seronegative rheumatoid arthritis, neither of which were causally related to work activities, he was of the opinion that:
... in the setting of an inflammatory arthritis I feel that repetitive flexion and extension activities of the hand and wrist will exacerbate the inflammation. It is also true that a traumatic event can precipitate acute inflammation.
Dr Fraser’s opinion was that there had not been any change in the underlying pathology affecting Mr Baltruweit’s right wrist (see para 63). However, in his oral evidence to the Tribunal, he attributed the right wrist swelling and pain experienced by Mr Baltruweit when performing his work, as being due to an increase in the inflammatory response in the joint and tendons. An acute inflammatory response as he described is a pathological change.
Mr Khan differentiated between the radiological changes within the small joints of the wrist and the degree of tenosynovitis present. He had looked at the MRI and considered the tenosynovitis to be the most florid of the changes present. In his opinion, these are a separate phenomenon to the joint changes of capsulitis and relate to the repetitive action involved in Mr Baltruweit riding his motorcycle and sorting or throwing off the mail. The swelling is indicative of increased production of fluid in the joints, joint spaces and surrounding tendons and is part of the inflammatory process.
Dr Stockman, who also favoured an underlying gouty process, did not think such an atypical presentation of gout explained Mr Baltruweit’s symptoms and signs in their entirety. He was of the opinion that there might be another cause which may very well be overuse tendonitis (Exhibit R4).
The MRI findings in Mr Baltruweit’s right wrist support a diagnosis of atypical gout, in that there are multiple erosions in the carpal bones and the radius and ulna. The ulna styloid process is not involved in these erosions which would suggest it is not a rheumatoid arthritis-like condition wherein the ulna styloid process is affected. The tenosynovitis present in the right hand is described by Dr Cox, who reported on the MRI, as being extensive and involving the flexor and extensor tendons.
Dr Engel was not called to give evidence before the Tribunal and both parties accepted and relied upon his written reports.
The Tribunal determines that Mr Baltruweit has an underlying pathological process involving his right wrist and finger joints, which based on the medical opinion, is most probably due to gout. This would be consistent with his ongoing history and his family history of gout. His work duties, in the form of sorting mail, throwing off and riding a small motorcycle, have resulted in a degree of microtrauma culminating in an acute attack in May 2012 that rendered his right hand and wrist almost functionally useless. While the underlying pathology has not been resolved in terms of a diagnosis, his signs and symptoms did not respond to treatment for gout or treatment for a seronegative rheumatoid arthritis but did eventually resolve with rest, only to recur to a lesser degree in early 2013 when Mr Baltruweit’s hours of repetitive work increased to five hours per day.
In Asioty, the Full Court of the Federal Court and the High Court of Australia considered a workman’s incapacity arising from the aggravation, acceleration or recurrence of a pre-existing disease under s 9(1) of the Workmen’s Compensation Ordinance 1951 (ACT). The same terms appear in the SRC Act. The Court of Petty Sessions, acting as an arbitrator, had determined that Mr Asioty had suffered a partial incapacity for work as a result of an aggravation of the pre-existing disease Amyloidosis Cutis. On appeal to the Supreme Court of the ACT, Kelly J substituted a finding of total incapacity. Following an appeal by both parties to the Federal Court, the Court ceased Mr Asioty’s compensation payments as of 18 August 1983, having determined that:
An aggravation involves the onset of additional symptoms or the intensifying of existing symptoms--- and a return of symptoms would amount to a further aggravation of the pre-existing disease in the event that the same or similar duties were undertaken.
In Asioty v Canberra Abbatoirs Pty Ltd 167 CLR 533 the High Court held per Toohey J (with whom the Court agreed) that:
There is no reason why a disease which produces susceptibility to some debilitating condition should not be regarded as aggravated when that susceptibility is heightened by a circumstance of a particular type or in particular conditions.
The High Court set aside the Full Court of the Federal Court’s decision having determined that Mr Asioty’s incapacity was complete not partial.
Mr Baltruweit’s ailment was also subject to aggravation by particular activities. It resolved with cessation of work and recurred on his return to similar activities. He has remained free of major symptoms following a change in his work activities to the extent that he no longer rides a motorcycle to deliver mail.
The Tribunal determines that Mr Baltruweit has an underlying pre-existing arthropathy which was exacerbated in terms of symptoms but also aggravated in terms of the underlying pathological process in his right wrist and fingers, as evidenced by swelling and what Dr Engel has termed an acute inflammatory process related to repetitive wrist movements. The underlying pathology in Mr Baltruweit’s left thumb has not been addressed in any great detail by any of the medical experts but the consensus opinion seems to be that this is predominately osteoarthritis, which has been exacerbated by the sorting of mail with his left hand. All symptoms arising in his left thumb and his right hand and wrist have now resolved. The underlying medical condition causing his arthropathy remains uncertain. However, the removal of the repetitive movements from his duties has led to his resumption of full time work delivering mail on foot, without any deleterious health effects or the need to change his longstanding medication regime. This response indicates a significant contribution by his previous work duties to his incapacity.
The Tribunal finds that Mr Baltruweit’s pre-existing ailment in his right wrist, finger joints and left thumb was aggravated to a significant degree by his employment.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that the respondent is liable to pay compensation to Mr Baltruweit under s 14 (1) of the Act, in respect of the following injuries: synovitis and tendonitis of the right wrist and hand, termed repetitive strain injury right forearm/wrist, and left thumb tendonitis.
The respondent shall pay Mr Baltruweit’s legal costs and disbursements to be determined pursuant to paragraph 6.10 of the Administrative Appeals Tribunal – Guide to the Workers’ Compensation Jurisdiction (version 2.0).
I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member. ....................[sgd]....................................................
Associate
Dated 20 June 2014
Dates of hearing 7 and 8 April 2014 Counsel for the Applicant Mark Carey Solicitors for the Applicant Maurice Blackburn Lawyers Counsel for the Respondent Michael Snell Solicitors for the Respondent Sparke Helmore
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