Barthel and Australian National University (Compensation) - [2019] AATA 769

Barthel and Australian National University (Compensation) [2019] AATA 769 (30 April 2019)
Division:GENERAL DIVISION
File Number(s): 2016/2584
Re:Nadine Barthel
APPLICANT

AndAustralian National University
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:30 April 2019
Place:Canberra

The decision under review is set aside. As of 11 February 2016 to the date of this decision, subject to claim, Ms Barthel is entitled to compensation under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of her accepted injury.
........................................................................
Mr S. Webb, Member
COMPENSATION – accepted injury – carpal tunnel syndrome – file review - decision to deny present liability in respect of incapacity for work and medical treatment expenses without determining specific claim – weight to be given to neutral evaluation report – implied issues of credit - doctor shopping not made out – consideration of effects of ‘injury’ - carpal tunnel syndrome resolved with surgery – persistence of symptoms during post-surgical recovery – extent of liability – ‘disease’ and ‘injury (other than a disease)’ not exclusive – expert evidence – effects of ‘injury’ continuing – denial of present liability not consistent with evidence – liability persists - no unmet claim for compensation for incapacity for work or medical treatment expenses – entitlement to be assessed on the merits of claims made – decision set aside
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 7, 14, 16, 19, 37
Cases
Abrahams v Comcare [2006] FCA 1829
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Prain v Comcare [2017] FCAFC 143
Sellick v Australian Postal Corporation [2009] FCAFC 146
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
REASONS FOR DECISION
Mr S. Webb, Member
April 2019

Nadine Barthel developed carpal tunnel syndrome performing repetitive duties involving pipettes when employed as a research technician by the Australian National University (the University). She claimed and was paid compensation by Comcare, including for surgical treatment. Subsequently, Comcare decided that it had no present liability to pay compensation for incapacity for work and medical treatment expenses as Ms Barthel no longer suffered the effects of injury. This decision was affirmed on reconsideration. Ms Barthel applied for review by the Tribunal. She maintains that she experiences continuing symptoms and liability in respect of her injury has not come to an end.
The respondent in the proceedings is presently the University, having assumed direct responsibility from Comcare.
RELEVANT FACTS
The relevant facts arising from the materials follow.
On 30 June 2014, Dr Harcourt, a general practitioner, diagnosed bilateral carpal tunnel syndrome, noting numbness in the thumb, index and middle fingers and a positive phalens test on the left.[1]
[1] T7.
On 1 July 2014, Ms Barthel completed an Incident Report recording that she suffered carpal tunnel syndrome on 30 April 2014 as a result of repetitive pipetting in the course of employment.[2]
[2] T8.
On 24 July 2014, Ms Barthel lodged a claim for compensation in respect of bilateral carpal tunnel syndrome.[3]
[3] T12.
On 2 October 2014, Dr Andrews (a neurologist) conducted nerve conduction tests and, on 3 October 2014, reported carpal tunnel syndrome, mild on the left and moderate on the right.[4]
[4] T24.
On 10 October 2014, Comcare accepted liability for Ms Barthel’s carpal tunnel syndrome as an employment-related injury under s 14 of the SRC Act, with a deemed date of injury of 30 June 2014.[5]
[5] T2.
In November 2014, Ms Barthel returned to Germany, where she consulted Dr Junger (a general practitioner) about her bilateral carpal tunnel syndrome. Dr Junger referred her to Dr Mitzscherling (an orthopaedic and hand surgeon).
On 8 December 2014, Ms Barthel’s employment contract with the University came to an end.
Dr Mitzscherling carried out carpal tunnel syndrome release surgery on the left median nerve in January 2015 and on her right median nerve on 4 March 2015. On 16 March 2015, Dr Mitzscherling reported that the healing process was “uncomplicated”.[6]
[6] T164.
Ms Barthel was referred for physiotherapy.
She says she continued to experience symptoms in her wrists and reduced function in her hands, especially with weight bearing, hand writing and similar activities.
On 21 January 2016, Ms Barthel again consulted Dr Mitzscherling, who subsequently reported that –
Her complaint was unspecific pain in her left hand. This was diagnosed as a persistent pain after she has had Surgery in my clinic due to carpal tunnel syndrome in March 2015.
She was referred for neurological evaluation. After this appointment she did not present herself in my clinic again.[7]
[7] Report of Dr Mitzscherling, 8 September 2016.
On 10 February 2016, Dr Lutze (a neurosurgeon) examined Ms Barthel and noted bilateral wrist pain but not sensory deficit in her hands or fingers. He issued a medical certificate and arranged further nerve conduction testing.
On 11 February 2016, Comcare determined that Ms Barthel had no present entitlement to compensation for medical treatment expenses under s 16 of the SRC Act and incapacity for work under s 19.[8]
[8] T187.
Ms Barthel requested reconsideration of this decision.
On 9 March 2016, Comcare affirmed its determination in a reconsideration decision.[9]
[9] T198.
On 15 March 2016, Dr Horaczek (a neurologist) conducted nerve conduction studies and reported –
“Die neurographischen Befunde sprechen fur ein diskretes Carpaltunnelsyndrom rechts und ein leichtes Carpaltunnelsyndrom links”.
That day, Dr Lutze issued a medical certificate in which he referred to clinical examination findings of bilateral wrist pain.
Ms Barthel asserts that she continued to experienced bilateral symptoms in her wrists, affecting her hands.
On 9 September 2016, Dr Horaczek issued a medical certificate in which he reported –
“[Ms Barthel] complained of bilateral wrist pain but not sensory deficit in her hands or fingers I arranged a nerve conduction study which confirmed only minimal medial nerve conduction delay suggestive of slight residual carpal tunnel syndromes in both hands. I did not think that a neurosurgical procedure is indicated and suggested a consultation with a hand surgeon to rule out other pathology in the wrist area.”
On 24 October 2016, Associate Professor Boyce (a neurologist), reported to Comcare that, as Ms Barthel’s transverse carpal ligaments had been surgically transected, his diagnosis of Ms Barthel’s subsequent symptoms is “a non-specific pain syndrome in the hands” which “is unlikely to be carpal tunnel syndrome”.[10] He recommended review by a hand surgeon and was of the opinion that Ms Barthel “has a different condition from that in respect of which Comcare originally accepted liability”[11] that is unrelated to her previous employment.[12] Associate Professor Boyce reported that “I have strongly suggested review by a forensic neuropsychologist looking for evidence of symptom magnification and/or need for a referral for psychiatric assessment”.[13]
[10] Exhibit 3, Report of Associate Professor Boyce dated 24 October 2016, page 5.
[11] Ibid.
[12] Ibid, page 6.
[13] Ibid, page 9.
On 12 April 2017, Dr Horaczek conducted further nerve conduction studies that were reported to show –
“Discrete carpal tunnel syndrome right
Slight carpal tunnel syndrome left” [14]
[14] Translation of Dr Horaczek’s 12 April 2017 report by Dr Haag.
On 19 April 2017, Dr Dogan (an orthopaedic surgeon) examined Ms Barthel and issued a medical certificate which has been translated by Dr Leibig and provided to the Tribunal. Dr Dogan set out Ms Barthel’s post-surgical progress and noted that –
“To date, the patient is still experiencing pain and has only limited use of her hands in everyday life and work. The tingling sensation is less pronounced and only occurs at rare occasions and at night.
Physical examination on April 19, 2017: Phalen’s test negative, free movement of both wrists, external pressure on carpal tunnel region is painful.”
On 24 April 2017, Ms Barthel consulted Dr Thomas (an orthopaedic surgeon). Dr Thomas reported a diagnosis of bilateral carpal tunnel syndrome and said –
“Therapy: Consultation, PE, regular status after bilateral surgery for carpal tunnel syndrome. Local pain after this type of surgery is quite frequent at 6-month post-op and may last for several years.”
On 1 March 2019, Dr McGlynn (a hand and plastic surgeon) provided a report to Comcare. In respect of diagnosis, Dr McGlynn reported –
“On the evidence before me it is not possible to make a definite diagnosis of her [Ms Barthel’s] wrist/forearm complaints as at 11 February2016. There is no diagnostic test result that leads to a specific diagnosis. Dr Lutze who examined her on 10 February 2016 did not reach a diagnosis and recommended assessment by a hand surgeon looking for other pathology in the wrist area. This hand surgery assessment does not appear to have occurred.
It is possible to say her symptoms are not consistent with recurrence or persistence of carpal tunnel syndrome and the nerve conduction study of 2016 supports this finding.
…
In my opinion it is more likely than not the bilateral carpal tunnel syndrome she was diagnosed with in April 2014 has ceased…
…
I have seen the nerve conduction study … [from 2016] and the conduction speeds and amplitudes indicate very mild right and minimal left side nerve slowing. This is a not uncommon finding following median nerve decompression for carpal tunnel syndrome. The pressure on the nerve is released, but conduction speeds and amplitudes can remain slightly below normal.
Of significance is the consultation history provided by Dr Lutze that on the day of consultation, Ms Barthel complained of bilateral wrist pain but not of sensory deficit in her hands or fingers. The minimal abnormal findings of the German nerve conduction study done in March 2016 are not related to her symptoms…” [15]
[15] Exhibit 4, Report of Dr McGlynn dated 1 March 2019, pages 5-6.
ISSUES
The issues for determination are, as of 11 February 2016 –
(a)did Ms Barthel experience the effects of the ‘injury’ for which Comcare accepted liability; and
(b)is the University liable to pay compensation in respect of that ‘injury’:
(i)for medical treatment expenses under s 16 of the SRC Act; and
(ii)for incapacity for work under s 19 (and related sections) of the SRC Act?
Effects of ‘injury’
Ms Barthel asserts that the effects of her bilateral carpal tunnel injury did not cease on or before 11 February 2016, and these are presently persisting in the form of symptoms of pain in the palmar aspect of her wrists, more on the left than the right, and in occasional incidences of tingling in her fingers which occur, albeit rarely and without provocation, at night. In her submission, while the bilateral carpal tunnel decompression surgery performed by Dr Mezcherling succeeded in reducing her wrist and hand symptoms, the pain in her wrists persisted after surgery, initially as local pain at the sites of surgical incision, then with physiotherapy applied to those sites, and especially with palpation of scar tissues, and also as pressure-like pain inside her wrists that was the same as before the surgery, although milder. She was not able to say when she experienced tingling sensations in her fingers after surgery, but thought it may have been after some months had elapsed.
Ms Barthel argues that her post-surgical wrist symptoms are directly related to the bilateral carpal tunnel syndrome, or the surgical treatment of it, for which Comcare accepted liability. In support, she points to evidence of Dr McGlynn that recovery from carpal tunnel syndrome following surgical release may take years or, in some cases may not be achieved at all. She relies on his opinion that her report of symptoms and the objective evidence of post-surgical nerve conduction studies are consistent with and signify gradual recovery from bilateral carpal tunnel syndrome. This, she argues, is consistent with the reports of Dr Dogan, Dr Thomas, Dr Horaczek and Dr Lutze.
The University asserts that Ms Barthel’s bilateral carpal tunnel syndrome ended following effective surgical treatment and successful post-surgery recovery. Any subsequent wrist pain and tingling finger symptoms are not carpal tunnel syndrome, so the argument goes, and whatever they might be, or be caused by, has not been thoroughly investigated and diagnosed. The University argues that possible causes include Ms Barthel’s post-surgical employments in Germany, which were not properly considered or controlled with a rehabilitation framework. The University also argues that a causal connection between the symptoms Ms Barthel complained of, on the one hand, and her previous employment by the University (which ended in December 2014) is not made out: no such causal connexion with employment is established on the available materials. Furthermore, the University relies on a neutral evaluation report in which issues going to Ms Barthel’s credit and the reliability of reports she obtained are discussed.
In order to determine if the effects of Ms Barthel’s accepted ‘injury’ ceased as of 11 February 2016, it is first necessary to clearly expose the precise nature of the injury and the changes effected by surgical intervention. This involves legal and medical questions.
The legal questions relate to the meaning of ‘ailment’ and ‘injury’ under s 4 and s 5A of the SRC Act –
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.
For the purposes of s 5A(1)(a), ‘disease’ is given meaning by s 5B –
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.
The University argued that the accepted ‘injury’ was a ‘disease’ – it was an ‘ailment’ to which Ms Barthel’s previous employment contributed to a significant degree. For this reason, so the argument goes, as Ms Barthel’s bilateral carpal tunnel syndrome, or any post-surgical symptoms in her wrists and hands, is within the meaning of an ailment, the issue is to be dealt with as a ‘disease’ and Ms Barthel’s case stands or falls on that point – if the ‘disease’ provision is not met, and the employment contribution is less than ‘to a significant degree’, it is not necessary to proceed to consider whether there is ‘an injury (other than a disease)’.
I do not accept this submission is correct: it stands contrary to recent authorities on this point by which the Tribunal is bound. In Military Rehabilitation and Compensation Commission v May[16] the plurality of the High Court were very clear on this point –
49. It is against that background that the Act requires the tribunal of fact to give consideration to "the precise evidence, on a fact by fact basis, ... accepted at trial"[63] and then to ask certain questions in order to determine whether an employee is suffering a "disease" or an "injury (other than a disease)".
50. First, does the evidence amount, relevantly, to something that can be described as an "ailment"[64], being a physical or mental ailment, disorder, defect or morbid condition? Second, if so, was that state contributed to in a material degree by the employee's employment by the Commonwealth?
51. If the answer to both those questions is "Yes", there is a "disease" within par (a) of the definition of "injury". Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is "No".
52. If there is not a "disease" within par (a) of the definition of "injury", the tribunal of fact next inquires whether there is an "injury (other than a disease)" within par (b). The third question is – does the evidence demonstrate the existence of a physical or mental "injury" (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state [65]. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an "injury (other than a disease)". The language of judgments should not "be applied literally to facts without further consideration of what is conveyed by the reasoning" in the cases from which it is derived, or without regard to the text and scheme of the Act[66].
53. If there be an "injury" in the primary sense of the word, the next question is – did that injury arise out of, or in the course of, the employee's employment by the Commonwealth? If that question is answered "Yes", there is an "injury (other than a disease)" within par (b) of the definition of "injury" in s 4(1) of the Act. In some circumstances, if the answer is "No", it may be necessary to ask whether the case is one involving aggravation of an injury. That question does not arise in this appeal.
54. It may be that there are circumstances in which the identification of a physiological change, a disturbance of the normal physiological state or a psychiatric disorder may satisfy the definition of "ailment" (and therefore result in a positive answer to the first question) but the second question is answered "No". But if that is the position on the evidence, there will not be any relevant overlap between a "disease" and an "injury (other than a disease)" in the definition of "injury" in s 4(1) of the Act. It reflects the fact that there are marked differences between arising "out of" or "in the course of" (in par (b)) and "contributed to in a material degree" (for par (a)) in the definition of "injury". And it simply means that the employee was unable to satisfy the different level of employment connection required under par (a) of the definition of "injury" under the Act.
55. This construction of the definition of "injury" in s 4(1) of the Act does not "rob"[67] the "disease" limb of utility. The "disease" limb of the definition remains an additional basis of liability [68].
56. The proper construction of the Act reflects the importance of the distinction drawn by the Act between "disease" and "injury (other than a disease)" in the definition of "injury" in s 4(1) of the Act and recognises that each creates a different basis for liability under the statutory scheme.
[16] [2016] HCA 19.

The issue was revisited by a Full Court of the Federal Court in Prain v Comcare,[17] in which the Court said at [72] “… if the Tribunal did in fact treat “disease” and “injury (other than disease)” as mutually exclusive categories, it would have been in error”.
[17] Prain v Comcare [2017] FCAFC 143.
Furthermore, the University argued that the condition for which Comcare accepted liability binds the Tribunal. I do not agree, although, for reasons that will appear, little turns on this presently. The description applied to the injury claimed may change; the important point is what was claimed as an injury.[18] This should be given a broad interpretation.[19] The description or diagnosis of an ailment or physical injury at the time of claim and first determination may change with changing circumstances, should a different or more detailed understanding of the precise incidents or details of the injury come to light. It is a well-established tenet of compensation law that an injury is not disaggregated from and is inclusive of all its symptoms. An ‘injury’ for the purposes of s 5A includes all of its symptoms. This would extend to include symptoms present before, during and after treatment should they persist. The test to be applied is whether the symptoms are properly considered to be part of the injury. It is only in this frame that the causal nexus with employment arises.
[18] Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 at [57]; Sellick v Australian Postal Corporation [2009] FCAFC 146 at [3] and [23].
[19] Abrahams v Comcare [2006] FCA 1829 at [18].
The University raised concerns about Ms Barthel’s credit, relying on the opinions expressed by Associate Professor Boyce and Dr Alexander, who prepared a neutral evaluation report.
Associate Professor Boyce suggested that Ms Barthel’s complaints of symptoms should be investigated by a neuropsychologist, the implication being they were not neurological in origin. Engaging in speculation about possible diagnoses of Ms Barthel’s symptoms is not appropriate. The weight of medical evidence establishes that the symptoms complained of have a ready explanation, namely persistence of symptoms during post-surgery recovery that may last for some time. Furthermore, Associate Professor Boyce did not examine Ms Barthel and the probative value of his opinion and the weight it should be given must be evaluated in that frame.
The neutral evaluation report prepared by Dr Alexander, a member of the Tribunal, was taken into evidence. Dr Alexander’s opinion is not binding on the Tribunal. He did not have the benefit of hearing oral evidence. In those circumstances, with great respect, I would give the neutral evaluation report little weight. Furthermore, Dr Alexander was concerned by the number of doctors Ms Barthel consulted in Germany, which he suggested may be ‘doctor shopping’. Ms Barthel gave two explanations. Firstly, she said that she was asked to provide additional medical evidence by Comcare (then managing her case), and secondly she explained that she wanted to obtain a second opinion from a hand surgeon. Both explanations are plausible and, to my mind, reasonable in the circumstances. For this reason, I do not accept the proposition pressed by the University that Ms Barthel engaged in doctor shopping in order to obtain favourable medical evidence. While Dr Alexander reported no clear diagnosis of Ms Barthel’s post-surgical hand and wrist symptoms, he did not expressly report on the likelihood of symptoms persisting during recovery from bilateral carpal tunnel syndrome surgery.
In sum on the issue of credit, I found Ms Barthel to be a straight-forward witness and I do not accept the attacks on her credit are made out.
Insofar as the University suggested that employment causality may be severed by surgical treatment of the accepted ‘injury’ that was paid for by Comcare, and it is not entirely clear if this is what was submitted, I would reject it as lacking authority and merit. Certainly, Comcare is not the employer and the surgical treatment is removed from the particular employment, in the sense of the work, incidents and duties it entails. But it does not follow that medical treatment of an employment-caused injury severs the causal relationship between the employment and the injury. Were that to be so, the compensation scheme the SRC Act provides would falter at the first instance of medical treatment, defeating the objects and purposes of s 16 of the SRC Act.
It is conceivable that medical treatment, itself, might cause injury or result in a new ailment and, in those circumstances, questions may correctly arise about the new injury or ailment as an ‘injury’ to which the SRC Act applies. Matters of this kind are dealt with under s 4(3) of the SRC Act –
(3) For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.
Issues of this kind do not arise in Ms Barthel’s case, however. There is no suggestion supported by probative evidence that the surgical procedure Dr Metzscherling performed resulted in a fresh injury.
Much has been said about the wrist and hand symptoms of which Ms Barthel complained after surgery. It is not appropriate to engage in speculation about possible diagnoses or causes – considerations of that kind must be guided by evidence.
On this point, the majority of the available medical evidence all goes one way. The evidence of Dr McGlynn, Dr Thomas, Dr Horaczek and Dr Lutze points to Ms Barthel’s post-surgical symptoms being consistent with symptoms of recovery from carpal tunnel syndrome, post-surgery. Whether these are described as ‘residual’, ‘persisting’ or ‘recurrent’ symptoms, or symptoms consistent with a period of recovery, the point remains the same. Dr McGlynn explained that analysis of nerve conduction studies reported in March 2015 and April 2016 is entirely consisted with and support the conclusion the Ms Barthel’s symptoms are those of a person recovering from carpal tunnel syndrome after successful decompression surgery. His evidence is that the period of recovery varies from person to person, and it can take years.
Associate Professor Boyce reports a different conclusion, with which Dr McGlynn agreed in his written report, namely that Ms Barthel’s bilateral carpal tunnel syndrome resolved with surgery. Like Dr Alexander, Associate Professor Boyce does not expressly refer to the likelihood of symptoms persisting after bilateral carpal tunnel syndrome surgery, during a recovery period.
I prefer and give greater weight to the oral evidence of Dr McGlynn, noting the consistent reports (albeit brief) of Dr Thomas, Dr Horaczek and Dr Lutze.
That being so, I am satisfied that Ms Barthel’s accepted bilateral carpal tunnel syndrome injury did not come to an end with surgery, and it is presently persisting, albeit in post-surgical recovery that may take some years.
Liability
It follows that the University’s liability to pay compensation in respect of Ms Barthel’s injury has not come to an end on 11 February 2016. The University is liable to pay Ms Barthel compensation under s 16 and s 19 of the SRC Act from that date to the date of this decision, subject to claim. Further claims made will be assessed and determined on their merits.
The University argued that Ms Barthel removed herself from Australia in or about December 2014 and, in so doing, she denied the University opportunity to engage in rehabilitation and exert some control over her return to work in suitable employment. There are two things to say about this submission. Firstly, difficulties with rehabilitation may bear upon an injured employee’s entitlements to compensation from time to time, but this is unlikely to go to threshold issues of liability. Secondly, if the University wanted to engage Ms Barthel in rehabilitation, it was open for it to do so. While it may be accepted that rehabilitation may be more difficult if the injured employee is outside Australia, it does not follow that rehabilitation obligations must be dispensed with in those circumstances. If a rehabilitation authority determines a rehabilitation program for an injured employee, the employee is obliged to comply whether they are in Australia or not – rehabilitation is not void simply because the employee leaves Australia.
Decision
The decision under review is set aside. As of 11 February 2016 to the date of this decision, subject to claim, Ms Barthel is entitled to compensation under s 16 and s 19 of the Act in respect of her accepted injury.
I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member Simon Webb.
……………………………………………………
Associate
Dated: 30 April 2019
Date of Hearing: 4 April 2019
Applicant: Self-Represented
Counsel for the Respondent: Ms Kristy Katavic
Solicitor for the Respondent: McInnes Wilson Lawyers