Bajanova and Comcare

[2007] AATA 1555

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1555

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A 2006/134

GENERAL ADMINISTRATIVE DIVISION		)
Re		OLYA BAJANOVA

Applicant

And   COMCARE

Respondent

DECISION

Tribunal J.W. Constance, Senior Member

Date13 July 2007

PlaceCanberra

Decision

1.     The decision of Comcare made on 21 March 2006 which affirmed a decision denying liability to compensate Ms Bajanova for a musculo-ligamentous injury affecting her hands, arms, shoulder and neck is set aside.

2. In substitution for the decision set aside it is decided that pursuant to section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Ms Bajanova is entitled to be paid compensation in respect of an injury, being an aggravation of a cervico-brachial pain syndrome, such injury having been suffered in July 2005.

3.     Each party has liberty to apply within 14 days of this decision in relation to costs. Should such an application not be made Comcare shall pay the costs of these proceedings incurred by Ms Bajanova.

..................................................

J.W. Constance. Senior Member

DRAFT DECISION  O/N 59128
ADMINISTRATIVE APPEALS TRIBUNAL  [3.06pm]
By Mr J.W. CONSTANCE, Senior Member
Matter No A2006/134
BAJANOVA and COMCARE
CANBERRA, 13 JULY 2007

MR CONSTANCE:   I've decided to give an oral decision in the matter of Bajanova v Comcare.  The applicant has been notified but it was short notice, so I understand that it may not be convenient for anyone to be here.  Thank you for your attendance.  It may take some time to deliver this decision orally, so if for any reason you need to go, please feel free to leave.  This decision is being recorded so we'll have a transcript of it and the Tribunal will make available a copy of the transcript of the decision.  And, of course, we'll issue the formal decision in writing, of course.  The reasons will be transcribed.

Now, in this matter Ms Bajanova submitted a claim for compensation under the Safety Rehabilitation and Compensation Act (1988).  The claim was dated 31 August 2005 for musculo ligamentous injury involving her hands, arms, shoulders and neck, claimed to have resulted from her employment with the Australian Federal Police.  The applicant attributed her injury to unsuitable keyboard and mouse, possible cold air draft over work station, possibly amount of keying required.  It should be noted that Ms Bajanova had a previously accepted workers compensation claim for bilateral tendonitis, which she sustained on 27 August 1998 while employed at the Australian National Audit Office.

By a decision of 21 March 2006, which is reviewable by this Tribunal, Comcare decided that it was not liable to compensate Ms Bajanova in respect of the injury claimed.  For the reasons which follow I have decided that this decision should be set aside and a decision substituted to the effect that Comcare is liable to compensate Ms Bajanova in respect of that injury.

Turning now to the facts of the matter.  I'm satisfied of the following facts on the balance of probabilities, and unless otherwise stated I make the findings of fact on the basis of the evidence of Ms Bajanova, and I should note that I have - I found her to be an honest witness who endeavoured to give her evidence to the best of her recollection.  It is necessary to set out the facts in some detail, as I will deal with later in these reasons.  I have placed considerable weight on the history of this matter, and in particular the history of Ms Bajanova's condition.

Ms Bajanova left school in 1992 and obtained a Bachelor of Science and Bachelor of Commerce degrees, and graduated at the end of 1997.  I take into account the fact that Ms Bajanova had commenced a career for which she had put in considerable efforts to obtain the qualifications, and which leads me to the conclusion that she would be the sort of person who would be anxious to continue her career unless there was good reason not to be able to do so.

After graduation she was employed as an auditor at the Australian National Audit Office.  Her position was that of graduate auditor.  She developed pain in her hands, neck and shoulders after about six weeks in this position, which involved her using a keyboard of a laptop computer.  The pain in her fingers and hands spread to her wrists and forearms, and after a couple of weeks to her neck and shoulders.

It reached a level when she had to take time off work.  She obtained treatment.  She consulted Dr Lau, and then Dr Eaton at the Canberra Injury Management Centre.  The treatment prescribed by Dr Eaton involved rehabilitation for chronic pain.  It involved physiotherapy, exercises, group sessions and counselling.  She undertook a supervised graduated return to work, which was successful, although it took approximately one year.

She restricted the amount of typing which she undertook but was eventually able to return to full duties.  She found it was beneficial to use a particular type of keyboard known as a Logitech Wave Keyboard, and she - once having been rehabilitated suffered very minor symptoms from time to time until she commenced work at the Australian Federal Police.

Prior to commencing work at the Australian Federal Police while she was still at the Australian National Audit Office she was able to manage her condition.  She had infrequent occasions which she described as about once every six months where for one to three days she would suffer some pain in her hands and/or arms.  At times it was just her forearms.  She managed this condition by reducing the use of the keyboard and/or the calculator.  It usually involved her not being required to take time off work.

She found the condition was worse if using a client keyboard, that is, one other than the wave keyboard, or if her work involved extra typing.  And I note that the wave keyboard is a particular keyboard that has a different set out, physical layout of the keys.  Her normal work involved - this is at the Australian National Audit Office - involved talking to clients, emails, and possibly half the time using the keyboard.  This work continued after her rehabilitation from the end of 2000 to July 2005.

In 2005 she applied for a position at the Australian Federal Police, and was successful.  She commenced on 11 July 2005.  In the first week she was using - working on an Excel spreadsheet and it involved a lot of keyboard work.  It was different to what she was used to and more keyboard work than at the Audit Office.  She did not commence to work her - use her own keyboard, that is, the wave keyboard, but she had an appointment with the welfare officer on the Wednesday of the second week.  This appointment was initially in the first week but had to be changed.

She in that time used the standard keyboard and her work involved a lot of cutting and pasting work, which involved the use of the mouse.  She's right-handed but used both hands for the mouse.  The occupational health and safety appointment, as I said, was postponed until the Wednesday of the second week.  She says that in the first days of her work at the AFP she began to feel tightness in her fingers and hands but she does not recall having suffered pain in those first days.  However, she did notice that the room was very cold and that she was sitting under the draft from an air-conditioner.

She spoke to the occupational health and safety officer on 20 July 2005 and was then told that she - that the officer did not believe that Ms Bajanova would be able to use the wave keyboard, the reason for this being that it was a wireless variety and for security reasons was not acceptable.  Ms Bajanova checked that advice and was told in fact that she could not use the cordless keyboard.  She also discussed with the occupational health and safety officer the temperature of the area in which she was sitting and was told to contact the air-conditioning people, which she did, but apparently nothing could be done.

Ms Bajanova was concerned about not being able to use the keyboard with which she was familiar and brought in another one from home but found that that was not very good.  She continued working at the same task and by the beginning of the third week was beginning to experience pain in her hands, fingers and wrists, which spread up her arms to her neck.  And it should be noted that they were very similar symptoms to those she had experienced previously at the Australian National Audit Office.

She was given permission to try to buy a suitable keyboard, which she did investigate.  In fact, she did purchase through her - with the payment by her employer of a new keyboard but she found that that was not as good as the one that she had previously used.  Initially her symptoms were moderate but then began to get worse until the stage when she found that she could not continue to work at the keyboard.  By 1 August 2005 she was in a lot of pain and consulted her general practitioner, Dr Curtotti, and he recommended that she had time off work.

There are a number of certificates from Dr Curtotti in evidence as exhibit A1, and in the first of those certificates of 4 August 2005, Dr Curtotti indicated that he examined Ms Bajanova on 1 August 2005 in relation to the injury stated as occurring in late July/early August 2005, and he found that she was suffering from, as I quote, "Musculo ligamentous injury, bilateral upper trapezio/neck, paravertal muscles, forearms/hands lateral epicondylitis bilateral".  The doctor indicated that on the information available to him this was caused by keyboard and mouse data entry work.

Ms Bajanova then took a week off.  She said the pain was less but did not completely disappear.  She returned to work on 8 August 2005 and did not resume typing.  Her manager made it very clear that she did not want her to type at that stage.  Ms Bajanova says that the pain did not go away, and in fact simply sitting at her desk made the pain worse.  She returned to her general practitioner and was given further time off work.  She then undertook a graduated return to work.  She said this did not go well and the symptoms got worse, even without typing.  She took further time off.

At a later time she commenced three hours per day return to work on Monday, Wednesday and Friday.  She could not maintain full-time work.  She then saw Dr Le Leu and he referred her to Dr Eaton.  She says that she felt quite devastated at this time.  She was in severe pain and did not appear to be getting any better.  Ms Bajanova had previously seen Dr Eaton when she was at the Audit Office and he prescribed the plan to which I have previously referred.

At the beginning of September 2005 Ms Bajanova commenced a graduated return to work.  She did experience some pain in her arms but it was less than she had previously suffered.  It was about seven months before she was able to return to full-time duties, and in that time saw Dr Eaton frequently.  In March of 2006 she commenced using a new keyboard which had been recommended by Dysaran Rehabilitation Services who were managing her return to work.

She returned to full-time normal duties in June or July of 2006.  From that time onwards she still experienced quite regular flare-ups of the condition every three to four weeks and these would last for four to five days.  She said that she managed her condition by taking medication and being more careful and limiting her use of the keyboard.  She says that this situation is continued but at present she suffers flare-ups of this nature less frequently, now once every couple of months, and lasts for three or four days.  She usually does not require time off work.  And this has been the case even in the last 12 months, despite the fact that in the last 12 months she has had to undertake more keyboarding.

Prior to her commencing with the Australian Federal Police while still at the Audit Office, Ms Bajanova had undertaken a course to obtain qualifications as an actuary.  This was in 2001.  She was concerned that she may need to have special arrangements for her examinations by reason of her condition at the time and consulted Dr Curtotti in relation to that.  He issued certificates on two occasions in relation to a possible need for special consideration and these certificates are in evidence, as are 9 and are 10.  She did not complete this course as she decided it was not what she wanted.

In 2003 she spoke again to Dr Curtotti concerning her exams in relation to her accountant qualifications, which she did complete.  I withdraw my reference to those certificates in relation to Dr Curtotti, as those certificates, R9 and R10, relate to her undertaking the exams to obtain her accountant's qualifications but did relate to the possible need for special consideration as a result of her condition.

In cross-examination Ms Bajanova was asked as to her employment prior to the Audit Office.  It appears that she undertook some part-time summer work in 1996/97 while she was still at school, working with a computer firm and which involved keyboard work.  She denied having any symptoms similar to those of which she now has suffered in that work.  She also, whilst a university student, undertook work for approximately one month at the Australian Defence Force Academy, and that was 15 to 20 hours per week, being keyboard work, again without any symptoms.  At university she used a computer at times for her assignments and also when she was at university undertook some part-time work as a piano teacher.  Again she denies any symptoms such as she now suffers at that time.

I'm satisfied on the basis of her evidence that her first symptoms in relation to pain in her hands, arms, shoulder and neck were suffered at the time she was working at the Australian National Audit Office.  I'm also satisfied that between 2000 and 2005, after treatment by Dr Eaton, she suffered infrequent flare-ups of this condition and she was able to manage those flare-ups by adjusting her work by restricting the amount of typing, and that if she did that the symptoms would abate.

I am also satisfied on the basis of her evidence that she commenced her new job at the Australian Federal Police, she was keen to impress her new employer and to do the best that she could and that at that time there was no other source of particular concern to her or likely cause of the pain of which she has complained.

Turning now to the medical evidence.  Dr Curtotti was called and his reports of 2 October 2003, exhibit R9, and 4 April 2005, exhibit R10, are in evidence, as are the various certificates that he issued in relation to Ms Bajanova's taking time off work, to which I have already referred, being exhibit A1.  Dr Curtotti has been Ms Bajanova's general practitioner since early 2001 and continues in that role.  He gave evidence of having taken a history from Ms Bajanova which is consistent with the evidence which she has given.

I've already referred to his diagnosis which he set out on the first of the certificates he issued.  He said that Ms Bajanova has an underlying pre-disposition since 1998 to suffer the complaint of which she has given evidence, and that in late 2005 there was an exacerbation caused by her work.  When questioned, he said that at the time Ms Bajanova commenced to suffer the symptoms after employment at the Australian Federal Police, in his opinion she had been in the job long enough to cause an aggravation of her condition.

Dr Eaton also gave evidence, and his report of 30 October 2005, exhibit A4, is in evidence.  Dr Eaton is a specialist in occupational medicine with a particular interest in pain management.  He treated Ms Bajanova on referral by Dr Curtotti at the Canberra Injury Management Centre in August 2005, and as I have noted, she had been previously treated by Dr Le Leu and on occasions seen by Dr Eaton at the centre in 2000 in relation to the condition which she suffered at the Audit Office.

Dr Eaton gave evidence that his diagnosis of her condition was a cervicobrachial pain syndrome in the neck and shoulders, spreading down into the limbs.  He said this was a common pain condition and is quiet common in people using a computer keyboard.  When asked his opinion as to its connection to her work, Dr Eaton expressed the opinion that the use of computers, stress and anxiety can all contribute to that condition.  He said that the condition Ms Bajanova suffered in 2001 was similar to the problems she was experiencing at the AFP and that she did very well at that time with the program, which enabled her to return to work at the Audit Office.

When asked as to the relationship of the two episodes, he said that in his opinion she had developed a problem with the sensitisation of nociception and that she had a remaining potential to experience ongoing problems from time to time.  He said that the threshold at which she would suffer such symptoms was now lower than previously.  Dr Eaton was asked in cross-examination as to the correlation between the onset of symptoms and Ms Bajanova being advised that she could not use the particular keyboard with which she was familiar and which she had found beneficial.  Dr Eaton was of the opinion that one of the factors that is known to play a part in the development of pain of this nature is feelings of anxiety.

Dr Le Leu was also called to give evidence, and his reports of 19 September 2005, A6, and 21 October 2005, A7, were taken into evidence.  Dr Le Lau is an occupational physician and he assessed Ms Bajanova at the request of the Australian Federal Police in September 2005.  In his opinion Ms Bajanova had developed neuropathic pain and at the time of the assessment was not fit for work.  That's exhibit A6.

His diagnosis is of a regional pain syndrome triggered by use of a laptop keyboard.  In his opinion the use of the standard keyboard and mouse arrangement in 2005 had led to a recurrence of her symptoms.  He did not agree that Ms Bajanova having been told that she could not use her own keyboard was a cause of her symptoms.  He said that after a recurrence in August 2005 Ms Bajanova undertook a graduated return to work.  In relation to the fact that Ms Bajanova complained of symptoms when at her desk but not actually using a keyboard, he indicated that anxiety could account for such symptoms and that muscular tension could increase as a result of anxiety, and this could lead to a recurrence of symptoms.

Dr Stevenson also gave evidence, and his report of 3 November 2005, exhibit R7, is in evidence.  Dr Stevenson is a consultant physician and assessed Ms Bajanova in October 2005 at the request of Comcare's solicitors.  In his opinion there was no evidence at that assessment of neurological or musculoskeletal pathology.  Dr Stevenson specifically stated that he did not disbelieve Ms Bajanova when she complained of pain.  He found her a credible witness but he could not identify any physical injury.  His diagnosis, of which he gave in evidence, was that Ms Bajanova suffers from non-specific pain.  He said that factors giving rise to this condition may be psychological and at times could be postural.  He was of the opinion that Ms Bajanova was genuinely trying to continue her work and that she suffered from non-specific pain not associated with any identifiable pathology.

He did not see psychiatric or - psycho-social factors in Ms Bajanova's presentation.  He said that he could understand her tightening up and become apprehensive concerning the possibility of a recurrence of her condition.  However, Dr Stevenson did not agree with a diagnosis of any form of repetitive strain injury.  However, he did recognise that non-specific pain often occurs in the context of work, and that after long periods at a keyboard a person can get some discomfort.  He agreed that if Ms Bajanova had not been undertaking keyboard work it was, "Considerably less likely that she would have got the pain".

Also in evidence was a report of Dr Speldewinde, exhibit R2.  That is a report of 5 January 1999.  At that time Ms Bajanova presented with, "Bilateral cervico brachial RSI type pattern for which no further investigation is required".  And I note that that, of course, was at a time when Ms Bajanova was at the Audit Office, not at the AFP.  There's also in evidence a report of Associate Professor Barnsley of 23 November 2006, exhibit R8, and I quote from page 5 of that report, "In my opinion, Dr Eaton is correct in that there is evidence of a neuropathic pain problem.  This appears to have developed for the first time in 1998 and she experienced a recrudescence in 2005".

In the report Associate Professor Barnsley said that there was evidence of altered central pain processing.  He said that the cause of centrally mediated pain problems is not known and that there is considerable debate as to the relationship of that condition to work duties.  He said that in this case there is no convincing evidence either way as to the causation of the problem which Ms Bajanova suffers.  Nevertheless, he said that in his opinion on the balance of probabilities the current symptoms are not related to work problems.  However, I note that he does not explain how he reaches this conclusion in view of his statement that there's no convincing evidence either way.  However, I note that Associate Professor Barnsley does not doubt the genuineness of Ms Bajanova's complaints.

When one looks at the legislation in this matter - I don't propose to read the particular sections onto the transcript - but the issue before me is whether Comcare is liable to pay compensation pursuant to the section, section 14(1) of the Act. Injury is defined in section 4 of the Act, and it means amongst other things that disease suffered by an employee. When you then turn to the definition of "disease" it means, "An ailment or an aggravation of an ailment that was contributed to in a material degree by the employment". "Ailment" is also defined in the Act to mean, "Any physical or mental ailment, disorder, defect, or morbid condition (whether of sudden onset or gradual development)".

The parties have agreed that Ms Bajanova's condition is an ailment rather than a frank injury, and I'm of the opinion that this is an appropriate classification of her condition.  The question then arises, of course, is whether there's been - sorry, whether it was an ailment or aggravation that was contributed to in a material degree by her employment.  The counsel for Comcare has argued that I should not be satisfied that there was such a material contribution.  She referred me to the evidence as to what happened between 2003 and 2005, in particular referring to the request of Ms Bajanova of Dr Curtotti as to her ongoing symptoms in relation to her possible difficulties in sitting exams.

Counsel also referred me to Ms Bajanova's evidence, indicating that she had forgotten about her - what she described as her RSI condition when she started at the Australian Federal Police.  Counsel for Comcare forcefully submitted that it was in fact - the fact of being told that by her employer that she could not use her particular type of keyboard which caused the problems of which Ms Bajanova has complained, and that in fact she had not experienced any problems until she was given that information.

Counsel argued that in fact it was Ms Bajanova's fear of what the work might generate rather than the work itself, but Comcare did concede and I'm of the opinion, appropriately, that Ms Bajanova was genuine in what she reported.  Counsel also relied on the fact that Ms Bajanova had experienced symptoms when simply sitting at her desk without using the keyboard.  Comcare's argument was summed up as being that the cause of the condition which Ms Bajanova complains was a psychological cause, her fear, anxiety and psychological condition, and that the symptoms only began when she was told that she could not use her favourite keyboard.

However, in view of the medical evidence, which I will summarise briefly, I do not accept this argument, and in particular in the absence of any evidence from a psychologist or psychiatrist to support this view I'm of the view that I could not infer this condition on the basis of the evidence before me.  I have concluded on the balance of probabilities I am satisfied that Ms Bajanova has suffered an injury for which Comcare is liable to pay compensation under section 14 of the Act.  I'm satisfied that in 2005 whilst employed by the Australian Federal Police she suffered an aggravation of an ailment, being cervico brachial pain syndrome.  I am satisfied that this aggravation was contributed to in a material degree by her employment at the Australian Federal Police.

I make these findings on the basis of the evidence of Dr Eaton, supported by the evidence of Dr Curtotti.  The diagnosis is also supported by Associate Professor Barnsley.  And to some degree in fact by the diagnosis of Dr Stevenson who diagnosed a non-specific pain condition.  The only real difference on the medical evidence before me is as to the contribution of employment.  Dr Stevenson agrees that the condition occurred in a work context.  However, neither Dr Stevenson nor Associate Professor Barnsley offer an alternative cause, and on the evidence there is no apparent alternative cause of the symptoms of which Ms Bajanova complains.

I prefer the evidence of Dr Eaton.  As I said, it's supported by Dr Curtotti and to some extent by the other medical practitioners.  In preferring Dr Eaton's evidence I also take into account the history given by Ms Bajanova, which is supported by her general practitioner, Dr Curtotti.  There has been a recurrence of symptoms going back to her time at the Australian National Audit Office, and whilst those symptoms were considerably under control in - from 2000 to 2005 they became worse but similar symptoms in 2005 shortly after Ms Bajanova commenced at the Australian Federal Police.

And in this regard I note the decision to which counsel for the - for Ms Bajanova referred me, and that is the decision of the Australian Capital Territory Electricity Authority v Reid (1991) 29 FCR 500. And the proposition relied on in that decision was that even when a medical issue was involved a causal connection may be inferred from a sequence of events, and in this case that sequence of events assists me in preferring the evidence of Dr Eaton.

I am satisfied that those symptoms are managed by a reduction in typing, and that too indicates that it is the work involved and therefore her employment which is contributing to the condition. As I already said, I'm not satisfied that there's shown to be a psychological cause. It does not matter that there may have been no identifiable pathological change to Ms Bajanova's arms, hands, wrists, shoulders or neck in 2005. Pain brought on by work activity may constitute an aggravation of a previous injury even though no pathological change takes place. And I refer to the decision of Commonwealth of Australia v Bettie (1981) 35 ALR 369.

The decision of the Tribunal is therefore as follows:

(1)The decision of Comcare made 21 March 2006, which affirmed a decision denying liability to compensate Ms Bajanova for a musculo ligamentous injury affecting her hands, arms, shoulders and neck, is set aside;

(2)Substitution for the decision set aside, it is decided that pursuant to section 14(1) of the Safety Rehabilitation and Compensation Act (1988) Commonwealth, Comcare is liable to pay compensation to Ms Bajanova in respect of an injury, being an aggravation of a cervico brachial pain syndrome, such injury having been suffered in July and August of 2005;

(3)Each party has liberty to apply within 14 days of the date of this decision in relation to costs.  Should such an application not be made Comcare shall pay the costs of these proceedings incurred by Ms Bajanova.

I said at the outset we would issue a written determination in the terms of those three directions, and we shall also - the Tribunal will provide a copy of the transcript of these reasons.  Is there anything further anyone wants to add?

RECORDED   :   NOT TRANSCRIBED

MR CONSTANCE:   No, that's quite okay, I understood that you may not even be here and I did appreciate it was short notice to everyone, but I thought I'd take the opportunity to make the decision orally.  I think it lets the parties know rather sooner than a written decision in these circumstances.

RECORDED   :   NOT TRANSCRIBED

MR CONSTANCE:   Well, the decision I have made is the usual order I make, that is that if you make a decision in - sorry, if you make an application in 14 days, well, then that application will be dealt with.  If there's no application made within 14 days, well, then there is an order for costs comes into effect.  All right, anything further?  Thank you for your attendance.  Adjourn the Tribunal.