Bayley and Comcare (Compensation)

[2016] AATA 39

Bayley and Comcare (Compensation) [2016] AATA 39 (29 January 2016)

Division	GENERAL DIVISION
File Number(s)	2015/1310
Re	Anastasia Bayley
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President Gary Humphries
Date	29 January 2016
Place	Canberra

The decision under review is affirmed.

..........................[sgd]..............................................

Deputy President Gary Humphries

Catchwords

COMPENSATION – Commonwealth employees – claim for trigger thumb – whether injury or disease – Applicant had accepted carpal tunnel syndrome – whether contributed to, to a significant degree, by employment – decision under review affirmed.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 5A and 5B

Cases

Beezley v Repatriation Commission [2015] FCAFC at [68]
Cichello and Comcare [2010] AATA 509
Kennedy Cleaning Services Pty Ltd v Petkoska(2000) 200 CLR 286
Winsall and Comcare [2003] AATA 51

Zdziarski and Telstra Corporation Ltd [2014] AATA 108

REASONS FOR DECISION

Deputy President Gary Humphries

29 January 2016

1. Mrs Anastasia Bayley, the applicant in this proceeding, has been a customer service officer within Centrelink and its predecessors for 24 years. In 2014, however, she began to experience pain in her hands, which she attributed to the increasing incidence of computer-based data entry as paper-based claims applications were gradually superseded by paperless online applications. She estimated that probably 80 percent of a regular day is keyboard/mouse based.

2. She is 55 years old.

3. Mrs Bayley was diagnosed with carpal tunnel syndrome, and she submitted a workers compensation claim for this condition on 24 April 2014, a claim subsequently accepted by Comcare. On 20 May 2014, Dr Phillip Frawley performed carpal tunnel decompression surgery on Mrs Bayley’s right-hand. Following the surgery, her hand was immobilised for about two weeks. However, soon after the removal of the bandaging Mrs Bayley noticed discomfort in her right hand. Her right thumb clicked for the first time on her way home from the surgery after having the bandages removed. On 4 July 2014 she consulted her GP, Dr Ranjan Gupta, who recorded pain base of right thumb, which started after surgery. Dr Gupta referred her on 19 September 2014 to Dr James Masson, a hand and wrist surgeon, who gave her right hand an injection. She later required another injection.

4. On 24 November 2014, Mrs Bayley made a workers compensation claim for trigger thumb. On 6 February 2015, Comcare denied liability for this condition, a position it maintained on 13 March 2015 after Mrs Bayley asked it to reconsider. This is the decision which the Tribunal is now called upon to review.

5. On 9 April 2015 Comcare ceased to accept liability for Mrs Bayley’s carpal tunnel syndrome condition.

   The Legislation

6. Mrs Bayley’s claim is made under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), which provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. For the purposes of such a claim, it is necessary to determine whether the condition complained of is an injury (other than a disease) or a disease. The distinction between these concepts is set out in ss 5A and 5B of the Act. Section 5A states:

   (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. …

   Section 5B defines a disease in the following terms:

   (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 medical evidence

7. Mrs Bayley reported pain in her right thumb to Dr Gupta on 4 July 2014, following the operation on her right hand conducted by Dr Frawley on 20 May 2014. She attended Dr Gupta again on 19 September 2014, resulting in him making this record in his clinical notes:

   R trigger thumb, after surgery for CTS in May. Occupation involved constant use of mouse. Has ben doing for 10 years, more intensily [sic] for the last four years. wants to be referred to Dr Masson, him being local Trigger thumb included in the w/c certificate.

   Dr Gupta wrote a medical certificate in respect of bilateral CTS and R trigger thumb. He certified, however, that she was fit for pre-injury duties. At the same time he referred her to Dr Masson for an opinion and management of right trigger thumb, which is work-related.

8. On 9 December 2014, Mrs Bayley underwent an ergonomic assessment by Injury Treatment Pty Limited on behalf of her employer. The assessment included this account of her thumb condition:

   Ms Bailey reported that from July, movement of her right thumb became increasingly painful. Symptoms include ‘catching’ and ‘locking’, meaning that when she flexes her right thumb joints, her thumb can become stuck in position.

9. On 22 January 2015, she was examined by Dr Han Thai. He provided a report on her condition on 22 January 2015, and a supplementary report on 21 August 2015. Dr Thai diagnosed Mrs Bayley with right-sided trigger thumb. With respect to the cause of her condition, he concluded:

   Given the sedentary nature of Ms Bayley’s work, and the fact that she has many non-work related risk factors (including female gender, aged 50-60 yrs, positive family history and history of carpal tunnel syndrome), it is likely that Ms Bayley’s right sided trigger thumb is unrelated to work.

   On this basis he found that her thumb condition was likely due to constitutional factors. He added:

   The exact cause for her underlying weakness in both thumbs is unclear. This may be related to carpal tunnel syndrome that is pre-existing.

10. In his supplementary report he noted There is insufficient evidence that trigger thumb is associated with computer base work, keyboard activities and use of the mouse, and he questioned Comcare’s acceptance of her carpal tunnel syndrome as an overuse injury, saying on the balance of reasonable medical probability, Ms Bayley’s condition of bilateral carpal tunnel syndrome is not work related.

11. In his evidence before the Tribunal, Dr Thai indicated the basis for his claim of insufficient evidence linking keyboard use and either carpal tunnel syndrome or trigger thumb. He cited the American Medical Association’s Guides to the Evaluation of Disease and Injury Causation (2^nd edition), which he said indicated that there was no evidence that typing or keying had any relationship with the development of trigger thumb. He said that people who suffered from trigger thumb tended also to suffer from carpal tunnel syndrome. Risk factors for trigger finger included being female and being over 50 years of age. He said that there was some evidence that heavy, forceful, repetitive work – say, lifting more than 20 kilograms several times each hour – could constitute a risk factor, but he discounted keyboard or mouse use as falling into this category. He told the Tribunal there is no association between light manual activities and trigger thumb.

12. Dr Masson also provided a report on Mrs Bayley’s hand. He had seen her on  30 October 2014 for the purpose of treatment of her hand, and pointed out subsequently that he had not conducted a full examination at that time for the purposes of a medico-legal report. Nonetheless, he did express an opinion in a report dated 19 February 2015 about the relationship between her work and her trigger thumb. He said he had significant reservations about the causal relationship which Mrs. Bayley claims, and commented:

    There is no evidence to show any association between clerical work, keyboard and mouse use and the development of trigger thumbs. I do not believe that these should be considered under a WorkCover claim.

    In a separate letter to Dr Gupta, of the same date, he expressed surprise that Comcare had accepted liability for a work-related carpal tunnel syndrome condition as there is no evidence in the scientific literature to support an association between keyboard use and the development or exacerbation of carpal tunnel syndrome. He added, however, that

    …there is an association between people who develop carpal tunnel syndrome and trigger thumbs and therefore, I think that her trigger thumbs are not related to her work.

13. In a report to Comcare dated 26 February 2015, Dr Gupta expressed his agreement with the opinions of Dr Thai and Dr Masson regarding the employment relationship of Mrs Bayley’s claim.

    Issues

14. On consideration of the medical evidence, it appears to the Tribunal that the following issues need to be determined:

    (a)Was Mrs Bayley’s right trigger thumb per se an injury (other than a disease) (under s 5A) or a disease (under s 5B)?

    (b)If not, was Mrs Bayley’s right trigger thumb an injury or a disease by virtue of its relationship with her carpal tunnel syndrome?

    (c)Was Mrs Bayley’s right trigger thumb the result of the operation on 20 May 2014, so as to attract the provisions of s 4(3) of the Act?

    Consideration

15. The medical evidence points clearly to the fact that Mrs Bayley suffers from trigger thumb (a form of tenosynovitis) of her right hand, and the Tribunal finds that this is the appropriate diagnosis of her claimed condition.

16. Whether Mrs Bayley’s thumb condition falls within the definition of an injury (s 5A) or of a disease (s 5B), the Act requires that it bear a relationship with her employment for it to be compensable. Subject to the other provisions of the legislation, it is an injury if this arises out of, or in the course of, her employment, or it is a disease if it was contributed to, to a significant degree, by her employment. Counsel for Comcare submitted that the condition suffered by Mrs Bayley, if it is work-related, is a disease. But its abrupt onset in mid-2014 may suggest that it amounts to a sudden or identifiable physiological change, the description used by the High Court in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 to define an injury for the purposes of the Act.

17. The Tribunal sets aside this question of whether it is an injury or disease, however, as it appears on the evidence that the condition does not carry the necessary nexus with her employment required under either s 5A or s 5B. The symptoms first appeared as she travelled from the doctor’s surgery to her home, and so they could not be said to have arisen in the course of her employment. On the question of whether the condition was one arising out of (s 5A), or was significantly contributed to (s 5B) by, her employment, the medical evidence appears to be firmly in one direction. The opinion of all three doctors was that it was unlikely there was any connection between the nature of her work and her trigger thumb condition.

18. Mrs Bayley was critical of the evidence of Doctors Thai and Masson. She pointed out that Dr Masson had not done a full medico-legal examination of her, and as such did not have a full occupational history for the purposes of assessing her condition. She pointed out that there were factual errors in the written reports of both doctors, although she omitted to put those errors to Dr Thai in cross-examination and Dr Masson was not called as a witness. She suggested that Dr Thai might be inexperienced in report writing; indeed, he admitted under cross-examination that this was the first matter of this kind he had dealt with for Comcare. She described his supplementary report of 21 August 2015 as inconclusive, careless and misleading.

19. The Tribunal notes Mrs Bayley’s reservations regarding the evidence of Drs Thai and Masson, and accepts, at least theoretically, that there may be shortcomings in that evidence with respect to the effect of the trigger thumb condition on Mrs Bayley personally. However, those doctors gave clear evidence about the statistical likelihood of a relationship between a person engaging in heavy keyboard and mouse use and the onset of trigger thumb. Such evidence could have been received by the Tribunal even if the witnesses had never met Mrs Bayley, and would be probative of the causation issue which the Tribunal needs to consider.

20. Even if the Tribunal were to set aside the medical evidence as being – for whatever reason – unreliable, it still leaves open the question of what evidence is available to link Mrs Bayley’s employment with her claimed condition. Mrs Bayley put to the Tribunal that the link could be inferred either from the existence of a compensable carpal tunnel syndrome condition or from the condition’s having arisen soon after the operation on 20 May 2014. Such an inference, however, comes close to being classified as speculation or conjecture.

21. Although it is well established that no general onus of proof lies on an applicant for review in Tribunal proceedings, the Full Court of the Federal Court has recently clarified the nature of the obligation on an applicant to articulate a case upon which a claim might proceed. In Beezley v Repatriation Commission [2015] FCAFC at [68] it said:

    If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in his or her favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest: see generally, McDonald v Director-General of Social Security [1984] FCA 59; 1 FCR 354 at 356-357 and 358 (per Woodward J), 366 (per Northrop J) and 369 (per Jenkinson J); Ward v Western Australia [1996] FCA 1452; 69 FCR 208 at 215-218; and Evans v Secretary, Dept of Families, Housing and Community Services and Indigenous Affairs [2012] FCAFC 81; 289 ALR 237 at [18] and the cases there cited.

22. In this instance the Tribunal is unpersuaded that the inference Mrs Bayley urges on it meets the requirements of the statute, even if no medical evidence to the contrary was available. In any case, there is no reason to set aside the medical evidence relating to the incidence of trigger thumb among those engaged in intensive keyboard and mouse use. Accordingly, the Tribunal answers the first question before it – was Mrs Bayley’s right trigger thumb per se an injury or a disease? – by finding that, for the purposes of the Act, it was neither.

23. At the time symptoms of her trigger thumb condition first appeared, in early June 2014, Mrs Bayley’s carpal tunnel syndrome was a condition accepted by Comcare as having been work-related. Both Dr Thai and Dr Masson agreed that there can be a causal relationship between trigger thumb and carpal tunnel syndrome. Dr Thai said that her trigger thumb may be related to her carpal tunnel condition, and Dr Masson said there is an association, in a general sense, between the two conditions. The combination of these facts gives rise to a further matter for the Tribunal to determine: was Mrs Bayley’s right trigger thumb an injury or a disease by virtue of its relationship with her carpal tunnel syndrome?

24. If Mrs Bayley’s carpal tunnel syndrome meets the test of an injury or disease under the Act, and her trigger thumb is the direct product or outcome of her carpal tunnel syndrome, then logically her trigger thumb must also meet the Act’s test of an injury or disease: see Winsall and Comcare [2003] AATA 51.

25. The Tribunal considers however that she faces at least two hurdles in mounting this proposition. The first is that the connection drawn by both doctors between carpal tunnel syndrome and trigger thumb was a tenuous one; Dr Thai for example said the conditions may be related. Doubt must be entertained as to whether this evidence is enough to meet the requirements of the statute, consistent with the test in Beezley. The second, and more substantive, problem is that the medical evidence does not support the causal connection between her employment and her carpal tunnel syndrome. Both Dr Thai and Dr Masson were explicit in rejecting any association between keyboard use and the development of carpal tunnel syndrome. Dr Masson went further, suggesting that keyboard use could not be implicated in the exacerbation of pre-existing carpal tunnel syndrome.

26. Mrs Bayley led no evidence to contradict these opinions, but cited Cichello and Comcare [2010] AATA 509. In that decision the Tribunal held that intensive keyboard use by a 53-year-old female office worker contributed significantly to the aggravation of a bilateral carpal tunnel syndrome condition. Medical evidence was led before the Tribunal to support that finding. As such, the evidence before the Tribunal in that case – that intensive keyboard use could aggravate a carpal tunnel syndrome condition – appears to be in conflict with the evidence before the Tribunal here, which is that keyboard use cannot be so implicated.

27. The Tribunal is not bound by its own earlier decisions, though they may be persuasive. The Tribunal as presently constituted did not have the advantage of hearing the live testimony of the doctors in Cichello, but does have clear evidence – to apparently different effect – before it now. The difference in the opinions relating to carpal tunnel syndrome may be explained by advances in medical understanding since Cichello was decided five years ago. In addition, it should be observed that Cichello concerned a finding that keyboard work had led to the aggravation of an existing carpal tunnel syndrome condition. There is no evidence before the Tribunal suggesting that Mrs Bayley had carpal tunnel syndrome independently of her employment, which was then aggravated by that employment. Equally, there is no evidence of an existing trigger thumb condition which was aggravated by her employment.

28. Finally, the Tribunal leads to consider whether Mrs Bayley’s claim might succeed by force of s 4(3) of the Act. That subsection provides:

    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.

    Note: However, members of the Defence Force with service after the MRCA commencement date might be taken not to have suffered a physical or mental injury or ailment (see section 4AA and subsection 6A(2A)).

1. In Zdziarski and Telstra Corporation Ltd [2014] AATA 108 the Tribunal considered the meaning of as a result of in s 4(3). It discounted the test being a but for test, or that the medical treatment be the sole, dominant or proximate cause of the condition. But it must be an operative or material cause of the condition, it said. Here, Dr Thai opined that it was possible that the immobilisation of Mrs Bayley’s thumb for some two weeks after the operation on 20 May 2014 could have been a cause of her developing trigger thumb; he told the Tribunal there may be some relationship between the two events. He also said that it was possible that the way the operation was conducted might have contributed to the development of the thumb condition, but in this respect he was commenting outside …[his] area of expertise. This language does not appear to suggest that Dr Thai thought that either the immobilisation of Mrs Bayley’s thumb or the way Dr Frawley conducted the operation was an operative or material cause of the trigger thumb, and as such the test in s 4(3) is not satisfied.

2. All in all, there is a dearth of evidence before the Tribunal about the cause of Mrs Bayley’s trigger thumb. Accordingly, since it cannot be satisfied that her condition meets the test of being work-related, as set out in the Act, the Tribunal affirms the reviewable decision of 13 March 2015 which denied liability for the condition.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

..........................[sgd]..............................................

Dated 29 January 2016

Date(s) of hearing	14 January 2016
Applicant	In person
Counsel for the Respondent	Kristy Katavic
Solicitors for the Respondent	Sparke Helmore