Bichara and NDC Limited
[2005] AATA 11
•7 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 11
ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION N2003/1886; N2003/1889
Re: Evelyn Fahmy BICHARA
Applicant
And: NDC LIMITED
Respondent
DECISION
Tribunal: P.J. Lindsay, Senior Member
Date: 7 January 2005
Place: Sydney
Decision:The decision under review dated 13 October 2003 is set aside and in substitution the tribunal determines that Ms Bichara is entitled to compensation under s.14 of the Safety, Rehabilitation and Compensation Act 1988 for the compensable injury, being an aggravation of constitutional carpal tunnel syndrome of the right wrist. The reviewable decision dated 3 October 2003 that found no entitlement to compensation for permanent impairment is affirmed. The respondent is to pay the applicant’s costs in accordance with the tribunal’s General Practice Direction.
. . . . . . . . . . . . . . . . . . . . . . . .
P. J. Lindsay, Senior Member
© Commonwealth of Australia (2005)
CATCHWORDS
COMPENSATION – tenosynovitis of right wrist suffered 20 years ago – recovery from tenosynovitis - carpal tunnel syndrome of right wrist develops –– finding of ailment and material contribution by employment –respondent liable for compensation in respect of aggravation of carpal tunnel syndrome but no compensable permanent impairment
Safety, Rehabilitation and Compensation Act 1988 ss.4, 14, 24, 27
Treloar v Australian Telecommunications Commission (1990) 12 AAR 535
REASONS FOR DECISION
P.J. Lindsay, Senior Member
1. Evelyn Bichara (the applicant) has applied for review of the following decisions made by NDC Limited (the respondent):
·a reviewable decision made on 13 October 2003 that Ms Bichara is not entitled to compensation for carpal tunnel syndrome and stress that were claimed to have been suffered due to the nature and conditions of her employment by NDC or related companies (2003/1886).
·a reviewable decision made on 3 October 2003 that Ms Bichara is not entitled to compensation for permanent impairment of her right wrist and hand (N2003/1889).
2. At the hearing Mr O’Rourke of counsel appeared for Ms Bichara and Mr Kelly of counsel appeared for the respondent. The tribunal heard evidence given by the applicant and Dr F Harvey, orthopaedic surgeon, called by the respondent. The tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T documents) and the exhibits tendered during the hearing.
background
3. Ms Bichara was born on 9 May 1950 and began her employment with Telecom on 27 August 1979. By 1984 she was working in the Network Design and Construction division as a wiring technician. Her duties involved stripping out insulation from cables.
4. On or about 18 July 1984 Ms Bichara lodged an accident report with her employer that detailed her complaints of pain in the shoulders and right wrist due to the handling of moving ladders in the workplace on or around 12 July 1984. The applicant visited her local medical practitioner, Dr R Vijeyarasa, on a number of occasions around this time and was provided with medical certificates that referred to tenosynovitis to the right wrist and hand. As a consequence of her symptoms, she had a number of months off work during that time. On 25 July 1984 she lodged a Claim for Compensation with the employer. The nature of the injury was described as “tenosynovitis right wrist and hand”. Ms Bichara was off work for some five and a half months and returned to the same duties but with 10 minute breaks every hour for some months and thereafter the same work without breaks.
5. In 1995 to 1996 she added computer work to her other duties as a wiring technician and in 1998 to 1999 she was promoted to supervisor but her duties continued as before.
6. Ms Bichara’s work with the respondent was terminated on 29 July 2002. Between 1984 and the date of termination, she suffered periods of partial and total incapacity for work.
7. On 20 December 2001 Ms Bichara commenced a period of stress leave. From late in 2001 to early in 2002 Ms Bichara began to experience stronger symptoms in her wrists. After initially seeking treatment from her local medical practitioner, Dr P Chan, she was referred to Dr M Nabarro, hand and microsurgeon, for assessment. On 25 February 2002 she was examined by Dr P Cook, a medical adviser at Health Services Australia, who assessed that she was unfit for work because of the symptoms of her carpal tunnel syndrome in her right hand. Dr Cook thought that it was unlikely that there were any suitable duties she could do at work while the symptoms she suffered in her dominant hand persisted.
8. On 27 March 2002 the applicant lodged a claim for compensation for “carpal tunnel syndrome, stress leave” and described the illness as “severe pain in the wrist and numbness in the fingers” relating to the right hand and wrist. She wrote in her application that she had previously claimed for this injury in 1985 and that the events that contributed to the injury were “moving a ladder and wiring termination” (T6). The applicant made a note on her claim form that the injury had happened “more recently” on 6 February 2002. On the same date she also completed a compensation claim for permanent impairment where she described her permanent injury/impairment as “painful hand and wrist – right hand. Constant numbness. Shaking of the hand, dropping of goods, stress and depression” (T12).
9. Dr Nabarro performed carpal tunnel release surgery to Ms Bichara’s right wrist on 19 April 2002.
10. By determination dated 9 May 2002 the respondent denied any liability to pay compensation to Ms Bichara in respect of her claims regarding “anxiety and stress” and “Carpal Tunnel Syndrome” (T15).
11. By determination dated 23 May 2003 the respondent rejected the applicant’s claim for permanent impairment. The reason for the rejection of the claim was that there was not a favourable determination in place pursuant to s.14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) because the applicant’s claim for compensation for her injuries had already been denied.
12. On 3 June 2003 the applicant requested a review of each of the determinations.
13. In a reviewable decision dated 3 October 2003 the respondent affirmed the determination of 23 May 2003 that the applicant was not entitled to compensation for permanent impairment of her right wrist and hand (T28). In a reviewable decision dated 13 October 2003 the respondent affirmed the determination of 9 May 2002 that she was not entitled to compensation in respect of carpal tunnel syndrome and stress (T32). In coming to this conclusion the delegate noted that he was satisfied that the applicant did not “suffer effects of the claimed condition of carpal tunnel syndrome allegedly sustained due to the nature and conditions of employment with [the respondent]”.
14. Subsequently, on 1 December 2003, Ms Bichara made an application to the tribunal seeking review of the decisions dated 3 and 13 October 2003. The applicant’s claim for anxiety and stress was not pursued in the tribunal’s proceedings.
issues
15. The issues for determination are whether Ms Bichara:
· suffered an ‘injury’ as defined in s.4 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) to her right wrist and hand;
· is entitled to compensation in respect of an injury to her right wrist and hand;
· is entitled to compensation pursuant to ss. 24 and 27 of the Act for permanent impairment of her right upper limb resulting from a compensable injury.
Applicable legislation
16. The following definitions in s. 4 of the Act are relevant:
aggravation
includes acceleration or recurrence.
ailmentmeans any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
disease means:
(a) any ailment suffered by an employee; or
`(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment; ...
The Act makes provision for liability as follows:
Section 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. ...
...
Section 24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
...
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
evidence
17. Ms Bichara gave evidence in relation to her duties leading up to the onset of her symptoms of pain in her right hand and wrist in 1984-85, which resulted in a period off work of some five and a half months. At that time she was a Telecom technician working at the exchange at Parker Street, Haymarket. Her duties required her to strip, terminate and connect bundles of wires. She used various tools requiring use of her right hand to grip, squeeze and pull her tools with varying degrees of pressure to strip the wires and cut them with pliers. She would solder them with the solder in her left hand and the wand in her right. This work was continuous over 8 hour shifts and sometimes extending to overtime of an additional three hours following a normal shift. She also sometimes worked an 8 hour shift of Saturday overtime. She was required to carry out her work on a ladder. Being short, she explained that she had to jump up to and grip the ladder with her right hand and pull it down so she could get on it. She did this at the commencement of work and then after breaks during the day. She manoeuvred the ladder to the required positions with the assistance of rollers along the exchange while holding onto the ladder with her right hand.
18. In July 1984 she consulted Dr. Vijeyarasa, a GP, who put her off work for a period of approximately 5 ½ months. She used a wrist guard but was not prescribed medication. After 5 ½ months off work she did not notice any relief in symptoms as she was still suffering from pain. She returned to work on the same duties but with a break of 10 minutes every hour because there was no light duty work available. She said she pretended she was really fit for work at that time because she had a big loan and two children and had to support her family. The rest periods lasted a number of months and then she was back to her full job without the breaks. She still continued to suffer pain in her right hand and used her wrist guard at night but not during the day as she did not want anyone to notice.
19. In 1990 she moved to a new floor in the exchange where she carried out the same duties but she was now able to support herself on the ladder by sitting on a metal seat. In 1995 or 1996 in addition to her other duties, she started using a computer to record the jobs that she was doing. Sometimes she would spend the whole day on the computer, but generally she would spend half the day on the computer and the rest on her usual duties. She used her right hand when operating the computer.
20. In 1998 or 1999 she obtained the position of supervisor although the duties she had been performing up to that point continued unchanged.
21. Ms Bichara gave evidence that the pain in her wrist continued through the various changes to her work duties and extended to numbness in all her fingers. Her sleep patterns were interrupted by the pain and numbness. She did not seek treatment and did not complain at work for fear of losing her job. For a few months before 21 December 2001 the pain was getting worse and she was fearful about talk of redundancies and losing her job. She had no one to talk to, she was exhausted from lack of sleep due to her pain, could not handle her position and was stressed from worry about losing her job at age 51 with limited prospects due to her hand.
22. From 21 December 2001 she took time off work. Medical certificates by Dr Peng S Chan for the period 14.1.02 to 31.1.02 (T4) state she was suffering from stress and for the periods 31.1.02 to 8.2.02 (T5) and 16.2.02 to 2.3.02 (T7) state she was suffering from medical illness. Dr Chan referred Ms Bichara to Dr Nabarro, whom she first saw on 9 February 2002. She also had tests. The pain and numbness in her right hand had continued as before and she still had trouble sleeping. On 19 April 2002 she had a carpal tunnel procedure carried out on her right wrist and subsequently underwent some physiotherapy which she stopped because she was unable to afford the cost of the treatment. Her employment was terminated on 29 July 2002 after she reluctantly accepted an offer of voluntary redundancy.
23. Ms Bichara has found since the operation on her right wrist that she is experiencing symptoms in her left wrist. She explained that she used her left wrist more in compensation following the operation. Her right wrist is not really 100 per cent, as she still sometimes experiences a little bit of pain.
24. In November 2003 Ms Bichara commenced employment in a Coles supermarket where she serves in the delicatessen. She experiences pain if she is required to slice meat but has no problem serving customers. She still wears her wrist guard to avoid numbness and pain in her right hand at night and takes Panadol and Maximol as required. Overall she still experiences pain in her right hand on a daily basis which is not apparent all the time, but from time to time. She said the numbness is “not much like before”. Her grip is getting better. Sometimes she finds her hand is very weak and she breaks a lot of cups and plates in her kitchen when her hand shakes and she loses control.
25. In cross examination, the applicant was asked why the sick leave records show she took little sick leave on account of her right wrist. She explained that she was concerned about losing her job. At times she took sick leave because of her wrist but told her employer it was for some other reason.
medical evidence
26. There were medical certificates by Dr Vijeyarasa covering the period 25 July 1984 to 18 January 1985 for tenosynovitis, initially for right wrist and hand, and then for both hands until she was fit for light duties from 12 November 1984 and then light and varied duties from 10 December 1984.
27. In a report dated 29 January 1985 Dr D Bruce, a Commonwealth Medical Officer, states Ms Bichara’s “RSI now fully recovered. Recommend return to normal duty with 10 minute rest break every hour. Review if symptoms recur”, On review carried out on 3 May 1985 Dr Bruce stated that the applicant was fit for normal duties without restriction and advised her to report a recurrence of symptoms (exhibit R2).
28. On 25 February 2002 Ms Bichara was examined by Dr P Cook medical advisor to Health Services Australia who provided a report of the same date (T8). Dr Cook reported that she initially required time off work due to severe anxiety problems largely related to her fear of being made redundant but that she now had carpal tunnel syndrome in her right wrist. Dr Cook noted that “she had an episode of wrist pain in 1985 that required several months off work. Since then she has had intermittent minor pain but has been able to continue working”. The doctor’s clinical findings were consistent with the diagnosis of carpal tunnel syndrome. Dr Cook assessed her unfit for work because of the symptoms of her carpal tunnel syndrome in her right hand. In Dr Cook’s opinion it was unlikely that there were any suitable duties she could do at work while the symptoms she suffered in her dominant hand persisted.
29. The applicant’s solicitors arranged for her to be examined by Dr J Beer, orthopaedic surgeon, on 9 April 2003. Dr Beer reported (T17) as follows:
I feel in the course of her duties at work this patient with the type of work she was carrying out aggravated a constitutional condition of carpal tunnel syndrome of her right wrist. She underwent carpal tunnel release surgery last year. She still has disability with the right wrist, though the severe symptoms have improved following surgery.
The doctor gave the following prognosis:
The patient has resigned from her duties last year, but I feel she is fit to carry out supervisory type duties.
However I do not feel she will be fit to resume the wire stripping and managing the ladders as she used to be able to carry out at her place of employment.
She would be able to carry out office and clerical work as she had been doing for a time prior to her resignation.
In a supplementary report of the same date, Dr Beer assessed that as a result of her injury at work the applicant had sustained a “10% permanent loss of efficient use of the right arm to include at or below the elbow joint”.
30. At the request of the respondent, Dr Harvey, orthopaedic surgeon, examined the applicant and provided a medical report dated 23 February 2004 (exhibit R1). In the report Dr Harvey concluded that:
It appears that this patient has suffered from a carpal tunnel syndrome on the right side and there is some evidence that she does have a similar condition in the left hand.
In noting that carpal tunnel syndrome is particularly common among women in the 45 to 55 years age group the doctor went on to explain that:
The condition is constitutional in nature and there is good evidence that the condition is not related to one’s occupation. … I believe that if a patient does have a carpal tunnel syndrome and is doing repetitive type work this can make the symptoms of the carpal tunnel syndrome more evident. I don’t consider, however, that the work has any lasting, aggravating effect. In this instance it appears that the patient’s symptoms became worse after she stopped work with Telstra and so one could see no reason to relate the condition, even by aggravation, to the patient’s employment.
31. In terms of work capacity Dr Harvey expressed the opinion that he did not believe that the condition in the applicant’s right hand would prevent her from returning to her former work duties. He noted, however “on the left side there is some evidence that the patient has carpel tunnel syndrome and it is quite possible that if she had to do work which involved a lot of repetitive use of the left hand then the symptoms could become more severe.” Dr Harvey stated that he did not believe that the applicant had been left with any permanent impairment as a result of her condition. He reported that Ms Bichara had a fairly good outcome from surgical decompression in the right hand and now only has occasional symptoms. In a separate report of the same date, he concluded that he did not believe Ms Bichara had been left with any permanent impairment as a result of her employment.
32. Dr Nabarro provided the applicant’s solicitors with a report dated 27 February 2004 (exhibit A1). Dr Nabarro reported:
She presented with a six year history of intermittent paraesthesiae in the right hand affecting all the digits. These had progressively increased especially over the past few weeks. She was woken every night by paraesthesiae and had numbness and tingling during the day while sitting watching television or writing. ...
She had full digital range of motion with no evidence of flexor tenosynovitis. Median nerve compression test, Tinel’s and Phalen’s signs were positive on right….Nerve conduction studies of the right upper limb demonstrate moderate dysfunction of right median nerve at the level of the wrist.
On 19 April 2002, the patient underwent a right open carpel tunnel release.
Dr Nabarro further reported that post-surgery, the applicant complained of some pain over the hypothenar eminence in the right hand with occasional nocturnal paraesthesiae involving the ring and small fingers, however at last review on 27 October 2003 this appeared to be gradually improving. His prognosis for Ms Bichara was good although he felt she “ … may experience difficulties performing her pre-injury duties due to the repetitive nature of her job. .She should be able to be employed in an occupation which does not involve repetitive movements of her right hand and wrist”.
33. On 29 March 2004 Dr Harvey provided a further report (exhibit R1) that dealt with Ms Bichara’s condition going back to 1984. Dr Harvey expressed the view that he could not make any connection between Ms Bichara’s present condition of carpal tunnel syndrome and her suffering from “tenosynovitis” approximately twenty years ago. He added:
… the diagnosis of tenosynovitis in this context is often a fairly non-specific one and is often a term used to explain pain suffered by patients doing repetitive work when there is little in the way of objective evidence of any tenosynovitis.
findings and consideration
34. Dr Harvey was the only doctor to give evidence at the hearing. In Dr Harvey’s opinion Ms Bichara did not experience acute tenosynovitis in 1984 and 1985. Rather she suffered from, what he termed, an imprecise condition of chronic arm pain following work. Acute tenosynovitis is a condition which usually settles down rapidly with rest and is not consistent with her history of pain despite 5 ½ months off work. Chronic arm pain has been occurring for many years and it has gone under various titles but is probably due to muscular fatigue. It was a possibility that some of her symptoms in 1984 and 1985 were consistent with a diagnosis of carpal tunnel syndrome. He also stated that if you are doing a lot of repetitive work and you have a propensity to carpal tunnel syndrome, your symptoms become worse. If you are doing a lot of repetitive work and there was some increase in the fluid around the tendons at that time, that could cause some aggravation but he thought that once you stop doing that work then that situation is going to resolve over a fairly short period, a matter of weeks not months. Dr Harvey did not believe that the degree of aggravation of the condition in response to the heaviness of work was a big factor and he did not think it would persist for very long. He could not see how the repetitive work can have any long lasting effect on the carpal tunnel syndrome and it did not depend on the degree of irritation. He did not think that once work stopped, be it light or heavy work, that the effects of that work can persist for an indefinite period.
35. Dr Harvey’s views, tested as they were under cross examination, remain opposed to those of Dr Beer’s that the work the applicant was carrying out aggravated a constitutional condition of carpal tunnel syndrome of her right wrist. Mr O’Rourke made much of Dr Harvey’s limited specific knowledge of Ms Bichara’s work activities but I am not convinced that Dr Harvey had an unrealistic or incorrect view of what was required in Ms Bichara’s work at the time he formed his opinion. His history, however, of her experience of symptoms prior to her ceasing work is not as comprehensive or consistent with that contained in Dr Beer’s and Dr Nabarro’s reports or consistent with Ms Bichara’s evidence. I should add that I found Ms Bichara gave her evidence honestly and to the best of her recollection of events and symptoms spanning a considerable period. I reject the respondent’s submission that her evidence is unreliable. I therefore prefer the view of Dr Beer and I accept the history obtained by her treating doctor, Dr Nabarro, that she presented in early 2002 with a 6 year history of intermittent paraesthesiae in the right hand affecting all the digits.
36. I find that Ms Bichara’s problems with her right and left wrists suffered in 1984-85 resolved at that time. As Dr Bruce reported, she had fully recovered. On balance, I find that the types of work Ms Bichara was carrying out in the six year period prior to her ceasing her work duties in December 2001 - keyboard entry and the cable stripping, terminating and soldering - made symptomatic and aggravated a constitutional condition of carpal tunnel syndrome of her right wrist, a condition covered by the definition of ‘ailment’ in s.4. I accept that when she began suffering symptoms of pain and numbness approximately six years prior to ceasing to work, she did not complain of her condition or seek medical attention because she was prepared to put up with the pain so that she could keep her job. Since her husband’s serious injuries sustained in an accident in 1996, the family depended on her job. She eventually sought medical assistance. Her condition had continued to worsen in the few months before she stopped working and it was really bad between the time she stopped working and was referred to Dr Nabarro.
37. In the opinion of Dr Beer and Dr Nabarro, due to her right wrist disability, she should avoid the repetitive work of the kind that she performed for the respondent. I am mindful of the Full Court’s dictum, albeit in relation to the predecessor but equivalent compensation legislation, from Treloar v Australian Telecommunications Commission (1990) 12 AAR 535:
… the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.(at 542)
On balance, I am satisfied on the basis of the opinion of Dr Beer expressed in his report, that the nature and conditions of the applicant’s work made a material contribution to her condition which she told the tribunal, still persists. There was also a complaint of pain in the fingers reported to her treating specialist on review in October 2003 although no further surgery was planned at that stage. She experiences symptoms in the volar aspect of her right arm a few centimetres up from the wrist and for which she consults Dr Vijeyarasa.
38. The decision under review dated 13 October 2003 should be set aside and the tribunal determines that Ms Bichara continues to suffer from an injury to her right upper limb, being an aggravation of her carpal tunnel syndrome, and is entitled to compensation under s.14 of the Act.
39. There is evidence in the report of Dr Beer that Ms Bichara has a permanent loss of efficient use of the right upper limb at or below the elbow joint. But I am not satisfied on the state of the evidence presented to the tribunal, that the impairment that Ms Bichara has undertaken all reasonable rehabilitative treatment for the impairment and even if she has done so, whether the degree of her impairment is at least ten per cent as assessed according to the Comcare Guide. It follows that she is not entitled to compensation under ss.24 and 27 of the Act and the reviewable decision dated 3 October 2003 should be affirmed. Nothing prevents her from coming back in the future in the event that she does obtain evidence establishing that there is a whole person permanent impairment of at least 10 per cent.
40. Ms Bichara has been successful in respect of the issue that occupied the majority of the hearing. The respondent is to pay the applicant’s costs in accordance with the tribunal’s General Practice Direction.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision of P.J. Lindsay, Senior Member:
Signed: .....................................................................................
AssociateHearing 30 July 2004
Decision 7 January 2005
Counsel for Applicant Mr O’RourkeCounsel for Respondent Mr Kelly
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