Bith and Telstra Corporation Limited (Compensation) - [2023] AATA 3612

Bith and Telstra Corporation Limited (Compensation) [2023] AATA 3612 (8 November 2023)
Division:GENERAL DIVISION
File Number(s): 2022/6140
Re:Mr Vilean Bith
APPLICANT

AndTelstra Corporation Limited
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date:8 November 2023
Place:Melbourne

The Tribunal affirms the decision under review.
........................................................................
Ms A E Burke AO, Member
Catchwords
WORKER’S COMPENSATION – arm, shoulder and neck injury – denial of liability – whether applicant failed to notify of injuries as soon as practicable – m whether injury is work related – conflicting medical evidence – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Abrahams v Comcare [2006] FCA 1829
Beezley v Repatriation Commission [2015] FCAFC 165
Canute v Comcare (2006) 226 CLR 535
Comcare v Luck [1999] FCA 100
Comcare v Power [2015] FCA 1502
Deveson and Comcare [1999] AATA 80
Ellison v Comcare [2022] FCA 95
Holmes and Comcare [2001] AATA 290
Kenward and John Holland Pty Ltd [2011] AATA 701
Pacific Manning Company Pty Ltd v Barton [2003] FCA 498
Risson and Comcare [2003] AATA 656
Steven George Bingham and Asp Ship Management [1997] AATA 203
Secondary Materials
I. William Nachlas, Brachialgia: A Manifestation of Various Lesions (1944) Journal of Bone and Joint Surgery, 26(1) 177
W. A. Newman Dorland, Dorland's Illustrated Medical Dictionary (Elsevier, 32^nd ed, 2011)
REASONS FOR DECISION
Ms A E Burke, AO Member
8 November 2023

The Applicant, Mr Vilean Bith, applied for review of a decision by Telstra Corporation Limited (Telstra) dated 20 July 2022 which affirmed a primary determination of 28 April 2022. The determination denied liability for Mr Bith’s claimed injury to arm, shoulder and neck. As Telstra found Mr Bith had not provided appropriate notice of injury as required under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and the medical evidence did not demonstrate that his employment with Telstra contributed, to any degree, to his claimed condition.
On 29 July 2022 Mr Bith sought review of that decision by the General Division of the Administrative Appeals Tribunal (the Tribunal), stating that:
Telstra Workers Compensation claim that there is insufficient evidence to find that Vilean's condition was significantly contributed to by his employment.
We are of the view that this can be refuted as there is substantial evidence indicating that employment was in fact a significant contributing factor and that but-for his employment, he would not currently have the injury.
BACKGROUND
Mr Bith commenced working at Telstra in 1995 as a Field Technical Officer undertaking external work travelling by car around Victoria to Telstra Exchanges to remove and replace old analogue equipment. In 2006 Telstra outsourced this work and Mr Bith commenced office-based duties as a Design Assistant & Project Support undertaking predominately computer-based duties. On 26 June 2017 Mr Bith was made redundant, after 22 years with Telstra.
On 15 December 2021 Mr Bith submitted a claim for Telstra Workers Compensation for arms, shoulder and neck pain that he first experienced in 2010. On the form Mr Bith advised he first sought medical treatment for his claimed condition on 23 February 2016.
On 15 December 2021 Mr Bith submitted a Worksafe Worker’s Injury Claim form.
On 28 April 2022 Telstra determined that Mr Bith was not entitled to compensation under section 14 of the SRC Act. Telstra determined:
Given the passage of time and Telstra not being able to confirm details of the alleged incident, I am not satisfied you have provided appropriate notice of injury.
….
I am therefore satisfied that your employment with Telstra was not a significant contributing factor to the onset of your condition.
On 20 July 2022 Telstra affirmed its determination that compensation was not payable for Mr Bith’s claimed condition of ‘injury to arms, shoulder and neck’ under section 14 of the SRC Act.
The hearing was heard in person on 21 to 25 August 2023. At the hearing, Mr Bith was represented by Ms Cassie Serpell of counsel, instructed by Mr Wolf Legal. Telstra was represented by Ms Felicity Blair of counsel, instructed by HBA Legal.
LEGISLATION
As a licensee, Telstra’s liability for compensation for work-related conditions arises under section 14 of the SRC Act, should an employee suffer an injury which results in death, incapacity for work, or impairment. Relevantly, section 14(1) of the SRC Act 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.
Section 4 of the SRC Act defines an ailment to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. Relevantly, the interpretative provision at section 4(1) provides that the words ‘injury’ and ‘disease’ have the meanings detailed in sections 5A and 5B respectively of the SRC Act, as follows:
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.
...
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.
Section 53 of the SRC Act provides that notice of injury must be made as soon as practicable after the employee becomes aware of the injury:
(1)This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee’s death.
(2)This Act does not apply in relation to the loss of, or damage to, property used by an employee, being a loss or damage in circumstances referred to in section 15, unless notice in writing of the accident that resulted in the loss or damage is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware that the accident had resulted in the loss or damage; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee’s death.
(3)Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
ISSUES
The key issues for determination are:
(a)Did Mr Bith provide notice of injury as soon as practicable after he became aware of the injury under section 53 of the SRC Act?
If yes, the Tribunal must then determine if
(b)Mr Bith has suffered an injury (disease) and, if so, has his employment at Telstra contributed to that condition(s) or the aggravation of that condition(s) to a significant degree?
(c)Mr Bith has suffered an injury (other than a disease) and, if so, did it arise out of, or in the course of, his employment with Telstra?
(d)If the answer is yes to either b or c, is Telstra liable to pay compensation?
EVIDENCE BEFORE THE TRIBUNAL
Witness Statements
Telstra Workers Compensation Statement of Reason, dated 28 April 2022, for denial of Mr Bith’s claim:
Background
On 15 December 2021 you signed a claim form for Workers’ Compensation for an ‘injury to arms, shoulder and neck’ and submitted it to Telstra on 23 February 2022. You stated that you first noticed symptoms in 2010 as a result of building communication racks and prolonged use of a computer.
You advised you first sought medical treatment from Dr Ley Chea, General Practitioner on 23 February 2016 and was referred to Dr Yvonne Pun, Rheumatologist. In a certificate dated 25 February 2022 Dr Chea diagnosed you with neck and arm pains due to C6-C7 foraminal stenosis and certified you unfit for work from 25 February 2022 to 24 March 2022. He recommended medications, physiotherapy and rheumatologist consultations.
Consideration
Are you an employee as defined under the Act?
Section 14 of the SRC Act states that Telstra is liable to pay compensation in respect of an injury suffered by an employee. I have confirmed that you were a Telstra employee when you claim the injury occurred.
Notice of Injury
An incident report was completed on 23 February 2022 by the Workers’ Compensation team for the purposes of lodging your claim. There is no records attainable to confirm you reported your condition to Telstra prior to lodging your Workers’ Compensation claim. A review of your clinical file from Dr Chea’s rooms noted you did not report any symptoms to Dr Chea until 2016. In a report dated 9 March 2022 Dr Chea indicated you first consulted with him with complaints of your right neck and shoulder – radiating to your arm and hand on 23 February 2016.
The clinical file from Dr Chea supports you were aware of your injury from at least 2016. Section 53 of the SRC Act provides that written notice of an injury must be given as soon as practicable after the employee becomes aware of the injury. Noting the delay of six years in reporting this injury, it is difficult to be satisfied that you have given appropriate notice of injury as required under the SRC Act. Telstra may be prejudiced in our assessment of your claim, due to the period of time that has passed, and our inability to verify if your claimed incident actually occurred.
In your claim for Workers’ Compensation, you stated reporting your symptoms to your 1-up Manager Mr David Aanensen. In an email dated 8 April 2022, Mr Aanensen advised he has looked through his records from 2010 to 2016, however could not find anything that would link the conversation relating to you reporting symptoms. He had also reviewed HIRO claims (Telstra’s internal incident reporting system) and confirmed he could not find any information.
Given the passage of time and Telstra not being able to confirm details of the alleged incident, I am not satisfied you have provided appropriate notice of injury.
Have you suffered a diagnosable medical condition?
For the sake of completeness, and if it was accepted that you gave notice of an injury and satisfied the provisions of section 53 of the SRC Act, I will also consider whether you have suffered an ailment.
In a certificate of capacity dated 25 February 2022 Dr Chea diagnosed you with neck and arm pains due to C6-C7 foraminal stenosis.
In a subsequent report dated 9 March 2022, Dr Chea diagnosed you with right cervical brachial radiculopathy and noted an MRI of your cervical spine dated 8 November 2018 identified cervical radiculopathy with multi-level cervical spondylosis and neural foraminal stenosis at C5/6.
In report dated 30 March 2022, Dr Pun stated an MRI of your cervical spine has shown changes of spondylosis. She provided the diagnosis of right brachialgia, with possibly a degree of trigger fingers and carpel tunnel syndrome.
Based on the above medical information, I am satisfied that you are suffering a disease as was intended by section 5A(1)(a) of the SRC Act.
Did employment contribute to your condition to a significant degree?
Telstra is liable to pay compensation if your medical condition was significantly contributed to by your employment with Telstra. When the Act speaks of ‘employment’ as a contributing factor, it refers not to the fact of being employed, but to what you do in your employment.
You advised Telstra in a telephone conversation on 3 March 2022 with your Claims Consultant, Ms Shveta Arora that you claimed income protection relating to the claimed condition, which stopped in or around 2019. You have also attempted to get support from Centrelink, however your claim was denied. At that time, you intended to lodge a Workers’ Compensation claim, as you were struggling financially to pay for medical treatment.
A review of your clinical file from Dr Chea indicated you first reported symptoms in 2016 (six years after your first reported noticing symptoms) and were referred to Dr Pun whom you first consulted with on 23 November 2017.
In his medical report, Dr Chea described your ability to use your right hand for functional sedentary activities, such as with using a computer you are limited, as this puts a lot of stress on your brachial plexus and increases the sensitivity of the nervous system.
In her medical report, Dr Pun noted she was unable to determine precisely how you sustained this condition, as pain in the body is usually multifactorial, related to bio-mechanical factors (skeletal structural changes, soft tissue components, neuralgia, postural stress, physical strain) and weather changes, and in chronic cases pain sensitisation and amplification may also play a role.
Having reviewed the information provided by both Dr Chea and Dr Pun, there is no medical evidence to support that your employment with Telstra contributed, to any degree, to your claimed condition. The medical evidence demonstrates a sustained history of neck and upper limb pain, which you attribute to your employment with Telstra. However, despite having not been in employed with Telstra for the last five years, your symptoms have persisted, and on occasion, deteriorated.
Whilst I acknowledge that you have suffered a condition, there is no medical or factual information available to confirm the relationship between your claimed condition and your employment with Telstra.
I am therefore satisfied that your employment with Telstra was not a significant contributing factor to the onset of your condition.
Mr Bith provided a signed statement of 16 February 2023, in which he asserted in part:
The pain in my right hand and arm started building throughout the course of my employment. I would take Panadol and Nurofen for it and then get on with my day. In 2010, however, the pain became unbearable. The feeling would start at the top of my arm and shoot down into my fingers whenever I spent too long typing on the keyboard or controlling the mouse. My fingers would tense up and it began to feel like drawn out cramping whenever I spent too long operating the mouse or keyboard. The pain would be triggered whenever I tried to flex the digits in my hand. After a few months it began shooting through my arm in reverse, starting in my fingers and going up my arm and into my back.
From 2010 onwards I started experiencing more visible symptoms such as swelling in my right hand and the simplest of tasks became a challenge.
I started taking a significant number of days off work in 2010 and I would always let whoever my team manager was at the time know that the reason I needed to stay at home was because of the pain. Over the course of my employment from 2010 to 2016 there would be days where the pain was so constant and severe that I could not perform any work at all. It would usually occur in bouts of 20 to 30 minutes, sometimes more. Everyone in the office knew about my injury.
From 2010 onwards I became less efficient at work because I could not use my right hand properly. Instead of typing with both hands, I would simply use the index finger on my left hand to punch the letters on the keyboard. I started taking breaks almost daily where I would lay on the floor and close my eyes for 15 - 20 minutes. Eventually, the pain would subside after temporarily stopping work.
My colleagues used to take pictures of me asleep on the floor and we would try and make light of the situation. They would call me 'one finger magic kung fu master’ When taking my breaks to lay on the floor and rest, I would joke and say, 'if I sleep early, I will die early' and everyone would laugh. I of course did not actually find it funny, but I felt like my only way to get through the day sometimes was to make light of a very difficult situation.
In 2016 I rapidly lost 6kg because the pain was so severe that I struggled to eat. I was taking an increasing number of sick days and I think I was probably away from work more often than I was at work. I knew I needed to work to earn an income to support my family, but the pain was simply too severe. My relationship with my wife and children then deteriorated significantly during this time and ultimately led to divorce in 2019.
My team leaders and colleagues became aware of my injury in 2010. I would complain about it often and it was the primary reason that I took a lot of sick days. I did not formally report the injury to Dr Chea until 2016, but he was aware of the physical pain to some degree because he would provide me with medical certificates. I am adamant that I was complaining of this pain to my doctor in 2010.
Gavin Ashmore was one of my managers, however I cannot remember what year he was there exactly. He knew about the physical pain I was experiencing on a daily basis when completing my role. David Aanensen was my last manager, and although I only formally notified him when I pursued income protection in 2017, he had known about my injury for a long time and that is why he frequently granted my requests for sick leave. I remember David always saying to go to him directly if we had any issues or needed help, rather than emailing him. So whenever I was unable to work, I would call him and tell him my hand was very sore that day and I could not work. When he wasn't available, I would leave a voicemail.
I was made redundant on 26 September 2017. I believe this was because of the increasing sick leave I was taking and my inability to efficiently perform my role.
I currently experience pain in my right hand every day. It radiates up and down my arm and is often so severe that I struggle to eat, or sleep and I frequently end up in a complete state of distress.
I have received varying diagnoses over the past few years. The most consistent has been carpal tunnel syndrome and brachialgia.
My injury has had an extreme impact on every aspect of my life. I used to come home from work every day, complaining to my wife about the pain, and this caused not only a redundancy in employment, but also a divorce from my wife and a breakdown in my relationship with my children. My inability to earn income caused my family disappointment and shame.

Mr David Aanensen, Mr Bith’s manager from November 2010 until June 2017 provided a signed statement of 6 January 2023, in which in part he asserted:
I am currently employed by Telstra Corporation Limited as Field Services - Lead, Central Victoria. I am based at Bendigo, Victoria.
I have been employed by Telstra for 27 years.
I recall working with Vilean Bith between about November 2010 and June 2017 when he was made redundant. I was his manager during that period and I essentially still perform the same role.
I do not recall Vilean complaining of any symptoms or pain affecting his neck, arms or shoulders when he worked with me.
I have checked my emails and have not been able to locate any record of Vilean reporting these problems to me, lodging an incident report or making a workers compensation claim whilst I was his manager.
I have been told that Vilean has claimed that he had to build communication racks as part of his duties. He did not perform this work when he worked with me. If he did this work he must have performed those duties prior to November 2010 when he joined my team and this work was outsourced by Telstra.
When he joined my team I was not aware that Vilean had suffered any earlier injuries or was suffering from any medical conditions. I never saw him lie down at work and can't recall him complaining of shoulder pain associated with using his computer mouse.
…...
I recall that at the time that Vilean worked with me we used paper forms to lodge incident reports and workers compensation claims. I would sit down with the employee to make sure they filled out the form properly and included all the necessary information. I would assist them if they needed it and lodge the forms on their behalf. At no stage did I do recall doing this with Vilean.
I don't recall Vilean taking large amounts of sick leave. I recall changing a few rostered days off for him but he didn't take expansive periods of leave.
Vilean was made redundant along with nine others in 2017 as part of a wider restructure at Telstra. He had been performing a role that was no longer required and I don't believe he possessed the necessary skills to be deployed into another role.
Vilean was a competent employee but his role was not difficult and he was essentially required to catalogue pieces of equipment into a system.
Mr Aanensen, provided an additional signed statement of 31 July 2023, in which in part he asserted:
I understand that Vilean claims he would lie on the floor at work and colleagues would take photos of him doing so. I never saw him doing that or saw colleagues taking photos of him. I believe that, if I had seen it, it would be something that would stick in my mind, as it is unusual office behaviour.
I also don't recall anyone else ever telling me they had seen Vilean lying on the floor. If I had seen him lying on the floor or heard about him lying on the floor, I would have investigated the issue.
I also understand that Villean claims that he used one finger to type on his work computer and his colleagues would joke about this. I cannot recall ever hearing jokes being made about Vilean's typing. Again, this is something I think I would recall if I had heard it.
I understand that Vilean claims that he was made redundant in 2017 due to increasing sick leave that he was taking. This is incorrect. A large restructure took place in 2017 and our then team of 20-22 employees was compressed down to 15. The employees who were made redundant included the three others who did the same role as Vilean. Their role was no longer required and there was limited opportunity for redeployment. I recall that we lost many good employees during this restructure, including some who rarely took sick leave.
I understand that Vilean has claimed that he still had to do some field work to check the work of contractors after 2010. I dispute this. Vilean was not required to do any field work during the time I was his supervisor, which was between 2010 and 2017. His duties were 100% office based. He also did not have any change to his work duties between 2010 and 2017, when he was made redundant.
Ms Tanya Pritchard, Mr Bith’s colleague from November 2009 until June 2017, provided a signed statement of 31 July 2023, in which in part she asserted:
I am currently employed by Telstra Corporation Limited as a Contract Specialist, Major Projects.
I have held this position since October 2022.
I have known Vilean since about 2009. At that time we worked in the same team at Telstra at 2/90 Collins Street, Melbourne. My role at the time was Business Support and I was responsible for managing customer orders, allocating work to staff and delivery partners for construction of infrastructure to deliver customer services.
I don't recall Vilean ever telling me he was having any other physical issues, injuries or health concerns. I never observed him in any obvious pain or discomfort.
I never saw Vilean laying down at work. This is very unusual behaviour and would be something I would recall if I had observed it. I would have also asked him about it if I had seen it.
I recall that Vilean was one of many employees in our team who was not able to touch type. Most of the team typed with their index fingers which I called "chicken pecking". I recall that at the time I stood out as I was one of the few in the team who was able to touch type.
I never heard any reports of or jokes from colleagues about Vilean lying on the floor or not being able to type due to hand or arm problems. I wasn't aware Vilean had any hand or arm problems during the time I worked with him.
In the period we worked together I don't recall Vilean going out into the field to undertake any work. His role did not require him to go into the field to check on the work undertaken by third party constructors.
Injury
In Mr Bith’s Worker’s Injury Claim Form Part A dated 15 December 2021 he claimed that he:
(i)injured both left and right hand, shoulder blade and neck
(ii)was injured when building computer racks and prolonged use of computer with his hands
(iii)was working at the Burnley racks room at the time of the injury
(iv)noticed the injury from 2010 onwards
(v)told his employer in 2016 of the injury
(vi)reported the injury to his team manager Mr David Aanensen
(vii)had consistently told his team manager about the pains in his arm, shoulder and neck
Medical Evidence
Dr Ley Chea’s general practitioner clinical records for Mr Bith record the following:
·23 Feb 2016 sore right hand grip
·26 Feb 2016 sore right wrist and hand
·23 May 2016 right hand sore
·8 June 2016 sore right hand grip
·26 July 2016 Sore right hand
·15 August 2016 difficulty using right grip
·23 August 2016 sore right arm
·16 September 2016 painful right hand
·20 September 2016 painful right hand
·4 October 2016 sore right wrist
·12 October 2016 sore right palm
·13 October 2016 sore right arm
·30 November 2016 sore right shoulder
·20 December 2016 painful right arm
·24 January 2017 sore elbow, sore right arm
·1 February 2017 sore right shoulder, poor hand grip
·28 February 2017 painful right wrist
·6 March 2017 painful right hand
·7 March 2017 ongoing right hand pain
·17 March 2017 sore right hand
·28 March 2017 sore shoulders, worse on right side
·15 April 2017 sore right arm, using mouse
·27 April 2017 rash on arms
·9 May 2017 sore right arm
·26 May 2017 sore right arm
·9 June 2017 sore right wrist
·21 July 2017 sore right arm and wrist
·24 August 2017 joint pain on right wrist
·14 October 2017 right hand grip reduced power; right shoulder pain; difficulty holding steering wheel.
Dr Chea in a doctor’s statement for Mr Bith’s TAL income protection claim opines:
Diagnosis: right wrist/ hand carpel tunnel syndrome, right hand trigger fingers
Symptoms: painful right shoulder, wrist, hand and fingers
Functional limitations: weakness in right hand, inability to use right hand, especially using keyboard and mouse on a computer
On 23 May 2018 Mr Bith underwent a motor and sensory conduction study which reported:
CLINICAL NOTES:
Right carpal tunnel
This is a mildly abnormal study.
The findings are consistent with electronically mild compression of sensory fibres of the median nerve in the carpal tunnel on the right side.
Dr Daniel Saddik, Radiologist, on 8 November 2018 commented on an MRI:
Multilevel cervical spondylosis and neural foraminal stenosis.
No significant right-sided neural foraminal stenosis is seen.
At C6/C7, moderate left-sided neural foraminal stenosis is present. Minor right-sided cord compression at C6/C7.
Minor multilevel cord compression. Normal cord signal.
Dr Yvonne Pun, Rheumatologist, opined in a report of 7 November 2022 for these proceedings, diagnosed Mr Bith as suffering initially from unilateral brachialgia which is now bi-lateral. Dr Pun as Mr Bith’s treating physician opined it was possible Mr Bith’s employment may have contributed to his condition. Dr Pun stated:
Mr. Vilean Bith first consulted me on 23 November 2017, on referral by GP Dr. Ley Chea.
Mr. Bith was then aged 50. He had come from Cambodia in 1987, and started working for Telstra in 1995 as a field technical officer. In 2006 he was redeployed to the office, and did much work on the computer using the mouse in his right hand. He started to have discomfort in the right arm in 2010, which progressively became worse. The worst affected were the ring and middle fingers, with swelling and difficulty with movements, and occasional triggering. On attempting to flex the digits, pain would be felt over the right upper back and right side of the neck. The arm was numb at night and in the mornings.
Treatment he had tried included exercises, swimming, going to a spa, having massages, and using Voltaren Gel and a painkiller. He was taking significant amount of sick leave, and had been made redundant in June 2017.
Physical examination showed that the range of movement of the neck and joints of the right arm was limited by guarding and active resistance. Reflexes were normal. Tinel's sign was positive/hyper-reactive.
My working diagnosis was that Mr. Bith had right brachalgia, with possibly a degree of trigger fingers and carpal tunnel syndrome. I discussed treatment options including local measures, physical therapy, exercises, analgesics and anti inflammatories, and provided a prescription for Celebrex 200mg daily and suggested physiotherapy. I discharged Mr. Bith back to the care of Dr. Ley Chea to whom I sent a report.
Mr. Bith re-presented after an interval of six months, on 11 May 2018. He reported ongoing pain in the right side of his neck, the right shoulder (with reduced movements), and in the hand (which could become swollen, feel numb, and be difficult to move). Symptoms were worse at night and when it was cold. He was continuing with local heat application, Voltaren Gel and topical plasters. He found some relief with Celebrex I prescribed.
Physiotherapy had been ceased three months previously which he planned to resume.
It was slightly easier to examine Mr. Bith on this occasion as active guarding was less than on the last visit. The neck moved reasonably well although there was discomfort on the right at extremes of lateral movements. Right shoulder movements were reduced. There was no significant swelling of the right hand, although flexion of the fingers were reduced. Tinel's over the carpal tunnel was positive.
Mr Bith started to have pain in his neck, right shoulder and right hand after he had been re-deployed by Telstra from field work to the office in 2006. In 2019 pain developed on the left side also, in the neck, shoulder and upper back region extending down the upper arm. The clinical diagnosis is brachalgia, which was initially unilateral and is now bilateral. ….
Mr Bith first consulted me in November 2017. He reported that he had been taking significant amount of sick leave and a few months earlier in June 2017 had been made redundant. As a treating doctor my focus has been to effect symptom-relief if possible. I have not performed an assessment of Mr Bith’s capacity for employment, nor do I have the expertise. However my notes do record Mr Bith’s report in 2019 of difficulty gaining appropriate employment due to his symptoms.
Assessment &/or management by a multi-disciplinary pain clinic (including input from occupational/vocational professionals), and a surgical opinion may be considered. However as Mr Bith has had symptoms in his right arm for over ten years (and in his left arm for a few years) and has not worked for 5 years, prognosis is not optimistic.
Mr Stephen Doig, Orthopaedic Surgeon, opined in a medicolegal report of 21 November 2022 that Mr Bith’s diagnosis was twofold, being mild right carpal tunnel syndrome and clinical right brachialgia without specific evidence of nerve root compression. Mr Doig stated:
The patient states that he worked for Telstra. He stated that he worked at Telstra from 1995 until 2017. He was employed initially as a technical officer and a system designer and support analyst. He was working full time and full duties. He said that part of his job was to remove old analogue equipment and to install new digital equipment. He said this job was fairly heavy and he had to do a lot of lifting and carrying in order to be able to do that.
He states that he started to develop some ache and pain in the right shoulder and the right arm as well as his cervical spine. He states that it started to occur in 2010, and this was after he had done quite a lot of heavy work as far as that was concerned. There was no specific incident and he said it was more a gradual onset. He said it slowly and steadily became worse. He did not report it and did not talk to his local doctor about it. I note in the local doctor's notes that there are notes from multiple different attendances from 2010. The first mention in the local doctor's notes about his right upper limb occurs on 26 July 2016 where it was stated that he had a sore right hand.
Examination
Examination today of the cervical spine reveals that he has flexion to 40, extension to 20, lateral flexion on the right to 35 and left to 30, and was very reluctant to rotate his neck at all although I do note that watching him dress and undress that he had rotation to at least 40° on each side. He has no wasting in either upper limb. His deep tendon reflexes are clinically normal. There is a global decrease in power, but not in any specific nerve root distribution.
Examination of the right hand reveals that he is TineI's negative as far as the carpal tunnel is concerned and there is no wasting in the thenar eminence.
Examination of the right shoulder reveals that he has flexion to 110, extension to 35, abduction to 115, adduction to 35, ER to 75 and IR to 35.
Investigations
I have noted the important investigations in the body of the report above.
Assessment
This gentleman gives a history of a gradual process type injury affecting his right upper limb. He states that this has come on as a result of his work at Telstra where he states that he had to do a lot of heavy lifting and carrying as well as mobilising heavy equipment and replacing heavy equipment.
The diagnosis here is twofold.
He has a mild right carpal tunnel syndrome.
He also has clinical right brachialgia without specific evidence of nerve root compression. I consider that it is probable that the carpal tunnel syndrome is related to his ongoing work at Telstra on the right side. I consider the pain that he has in the cervical spine has been significantly contributed to by his ongoing work at Telstra. I do not consider there is evidence that his right shoulder has been affected by this and there has been no investigation or treatment as far as the right shoulder is concerned.
Considering his physical injuries alone, I consider that he has had minimal capacity for employment since the date of his redundancy. I do not consider that he could perform his previous job and I consider he would have significant troubles in getting another job under these circumstances. From the way he presents today that is likely to continue into the foreseeable future particularly if he does not have any further investigation as far as that is concerned. As a consequence I do not consider that he has had a significant capacity for employment since 20 July 2017.
Dr Loretta Reiter, Consultant Rheumatologist, opined in a medicolegal report of 31 January 2023 that Mr Bith was suffering from constitutional, age-related degenerative cervical spine disease unrelated to his employment with Telstra. Dr Reiter stated:
SUMMARY AND ASSESSMENT:
Diagnoses:
Neck/Cervical Spine:
Mr Bith complains of right-sided upper and lower mechanical cervical spine/neck pain, which intermittently affects the left side of his neck/cervical spine, with referred pain/radiation into his right greater than left suprascapular and scapula areas. This is due to his underlying, constitutional, age-related degenerative disease that is present on X-rays and MRIs of his cervical spine, which showed multilevel disc degeneration.
He clearly reported that his pain on his right side of his neck started in 2010, which at that time was intermittent when he was not doing a physically demanding role with Telstra, as he was working 80% in the office and only 20% on the field, with his field work involving what he described as being physically a minor role with no heavy lifting.
Therefore, I do not consider that his employment with Telstra has contributed, caused, exacerbated, or aggravated his own, underlying, constitutional, age-related degenerative cervical spine disease.
Right Carpal Tunnel Syndrome:
Mr Bith clinically has right carpal tunnel syndrome that has been confirmed on nerve conduction studies as he has intermittent pins and needles affecting his right hand that occurs at night in bed and when he wakes in the morning, with provocative carpal tunnel signs on examination, including positive Tinel's, Durkan's, and Phalen's signs, with reduced power of thumb abduction, which is supplied by the median nerve.
This also is not due to his employment with Telstra.
Carpal tunnel occurs in those occupations that involve the prolonged use of vibrating tools: e.g. welders, boilermakers, grinders; as well as those occupations that involve repetitive tasks requiring repetitive wrist flexion/extension with forceful grip: e.g. slaughterhouse workers, meat boners.
Right Hand:
In addition, he reported triggering of his right middle finger with tenderness of his right and little flexor tendons and pain in the area with passive extension of these fingers and a reduced ability to make a full fist in keeping with middle finger flexor tendinitis affecting his middle more so than his little finger.
Again, this is not due to his employment with Telstra.
Dr Reiter, opined in a supplementary medicolegal report of 2 March 2023 that:
I note that Mr Stephen Doig in his report dated 21 November 2022 under “Assessment” is of the opinion that Mr Bith has mild right carpal tunnel syndrome, as well as “clinical right brachialgia without specific evidence of nerve root compression”. He considers that “the pain that he has in the cervical spine has been significantly contributed to by his ongoing work at Telstra” and “it is probable that the carpal tunnel syndrome is related to his ongoing work at Telstra on the right side”.
I would conclude that he is of this opinion as he reported that Mr Bith “states that he had to do a lot of heavy lifting and carrying as well as mobilising heavy equipment and replacing heavy equipment”.
The heavy lifting by Mr Bith in his role with Telstra was up until 2006. In his Witness Statement of Vilean Bith dated 16 February 2023, under “Onset of Pain” he notes that when he was working in the office he “would be on-call’”, as the contractors allegedly did not have the same level of experience as Mr Bith, so he would at times have go out to the exchanges to rectify the situation as sometimes they had installed a “2 kg switchboard instead of a 10 kg switchboard and so I would have to go out and completely restart the job and return to the office”.
This is not a significant amount of lifting and 10 kg is not heavy, so I do not consider this was sufficient to have contributed to, or to have caused his cervical spine pain that he reported started in 2010, four years after he was in this role. Therefore, in this regard I do not agree with Dr Doig.
In regard to his carpal tunnel syndrome, I also disagree with Dr Doig, as in my opinion is not due to his employment with Telstra and in this regard, I refer you to my report dated 31 January 2023. However, I have again listed below the occupational risk factors for carpal tunnel syndrome - median nerve entrapment in the wrist.

Mr Ash Moaveni, Consultant Orthopaedic Surgeon, opined in a medicolegal report undertaken on 27 April 2023 that Mr Bith has a clinical diagnosis of cervical brachialgia which had been significantly contributed by his employment at Telstra. Mr Moaveni stated:
Mr Bith’s diagnosis is of right Brachialgia without specific evidence of nerve root compression. Brachialgia refers to a characteristic clinical syndrome of pain in the neck, shoulder and upper extremity, as described by Mr Bith. I also note that there is evidence of carpal tunnel syndrome on the Nerve Conduction Studies (NCSs). I was not able to elicit symptoms of carpal tunnel syndrome at the time of my clinical assessment.
Taking into account Mr Bith’s age, ongoing symptoms, treatment requirements, as well as lack of response to treatment provided so far, his prognosis is poor. More specifically, he is not likely to return to his pre-injury status. He is likely to experience ongoing pain, limitations of function, as well as range of motion.
In my opinion, Mr Bith’s diagnosed physical injury was significantly contributed to by his employment at Telstra. Specifically, I note that Mr Bith was employed by Telstra from February 1995 to June 2017. His initial employment was as a Field Technical Officer. His work involved travelling around Victoria by car to Telstra Exchanges, and removing and replacing old analogue equipment, such as cables, panels and frames. His duties were physical, such as wrapping up long cable wires using large wire cutters, moving switch transmissions and converting power courses. He often had to lift and move heavy equipment and get into tight spaces. Furthermore, he was required to use shovels and pickaxes to dig.
Mr Bith noted that in about 2016 this construction work was primarily transferred to sub-contractors. He was redeployed as a Design Assistant and Project Support. This position was an office based role, involving designing communication racks for installation at Telstra Exchanges, and providing support to Field Officers. However, Mr Bith also noted that he was still required to do field work, as he often had to rectify work done by less experienced sub-contractors. He gave examples of where wrong switchboards were installed, and he was required to exchange a two kilogram switchboard for a 10 kilogram switchboard. During this period, Mr Bith noted increasing pain in relation to his cervical spine, radiating into his right upper extremity, including shoulder, elbow and hand. Initially, the pain started in 2010. In my opinion, the described work duties above significantly contributed to his diagnosed physical injury.
CONTENTIONS
Mr Bith
The Appllicant’s Counsel contended that Mr Bith’s claimed physical injuries arose in the course of his employment with Telstra and that his employment with Telstra has significantly contributed to his physical injuries. Counsel contended that Mr Bith has been and remains incapacitated for his pre-injury work and all work as a result of his claimed physical conditions. Counsel contended that Mr Bith has required and continues to require reasonable medical treatment for his claimed physical conditions.
Counsel submitted that Mr Bith:
(a)was a witness of truth, who did not embellish, but answered questions to the best of his ability; provided a consistent history of events and onset of pain dating back many years;
(b)Speaks English as a second language and it was clear from his evidence to the Tribunal that his understanding of English is far from perfect;
(c)presented as a thoughtful, gentle Buddhist man.
Counsel submitted the construct of section 7(4) of the SRC Act required the determination of Mr Bith’s ‘injury’ to be the day on which he first sought medical treatment, that being 23 February 2016. However, Counsel submitted that Mr Bith should be believed that he first experienced pain related to his work activities from 2010. Counsel submitted that Mr Bith had been advising his general practitioner Dr Chea from 2010 that he was suffering from pain in his right hand and arm. Counsel submitted that the lack of a record of such pain in Dr Chea’s brief medical records prior to 2016 is not indicative that Mr Bith had not reported his injury. Counsel submitted rather, as admitted by Dr Chea, his notes were very brief and only recorded the most pressing reason for a patient’s attendance and not all complaints a patient discussed.
Counsel contended that the Tribunal should be satisfied on the evidence before it that Mr Bith was entitled to compensation under section 14 of the SRC Act as he:
·had been diagnosed as suffering from right brachialgia (pain in the arm) and mild carpal tunnel syndrome
·that the majority of the medical experts considered his injury work-related
·had performed physically demanding work for Telstra for many years
·had undertaken highly repetitive computer work, for his last ten years of employment, involving excessive mouse and keyboard work
·had continued to undertake physically demanding field work to assist the new sub-contractors after he had moved into his office role
·had advised his manager that he was experiencing pain in his arm and hands
·needed to take breaks at work to deal with his pain, and this was witnessed by his colleagues
·took excessive sick leave as he was suffering constant pain
·was unaware of his rights to make a claim for compensation
Section 53 of the SRC Act
Counsel contended Mr Bith made his claim for compensation as soon as practicable. Counsel contended Mr Bith was ignorant of his right to submit a claim for compensation for his injury and only became aware of such a right when he was advised to do so by Centrelink.
Counsel submitted Mr Bith had not comprehended that his injury was work-related; that he knew he was in pain, had a gradual onset of his symptoms, but had not made the connection with his employment until he was advised to make a claim for compensation by Centrelink.
Counsel contended Telstra was aware Mr Bith was experiencing pains in his right arm, right hand, shoulder and neck, for which he was taking considerable time off work. Counsel submitted Telstra should have made enquiries about Mr Bith’s injuries with a view to recommending he obtain an opinion as to the cause of his physical conditions. Counsel submitted Telstra should have alerted Mr Bith to the very real possibility that his physical conditions were significantly contributed to by his employment.
Counsel contended that Mr Bith had advised his manager, Mr Aanensen, of his injuries, informing him that he was suffering from pain in his hand and arm. Counsel contended that whilst Mr Aanensen’s evidence had been he did not recall Mr Bith advising him of his injury, this did not imply it had not occurred.
Counsel contended that Mr Bith’s treating doctors, Dr Chea and Dr Pun, had not discussed with Mr Bith that the cause of his pain may be work-related. Counsel submitted both treaters had advised they did not deal with Workcover claims and would not have suggested to Mr Bith that he make a claim for his injuries.
Counsel contended Dr Pun was an impressive witness who acknowledged her own limitations, that she was a treating doctor and had no knowledge of medicolegal requirements. Counsel contended Dr Pun as Mr Bith’s treating rheumatologist had not been probing Mr Bith to establish whether his pain was work related or assessing work capacity but instead had been probing Mr Bith for treatment options.
Counsel contended Telstra was aware that Mr Bith was originally from Cambodia, and his first language is Khmer.
Counsel submitted that the Tribunal should have specific regard to Mr Bith’s application to Telstra Superannuation (Telstra Super) for income protection. Counsel submitted that whilst Telstra Super is another arm of the business, the form clearly required a statement from Mr Bith’s employer for them to assess his claim. Counsel submitted Telstra provided a report to TAL, the insurer for Telstra Super, which was relied upon in TAL’s acceptance of Mr Bith’s income protection claim, some 9 months after he was made redundant. Counsel contended this clearly indicated Telstra was aware of Mr Bith’s injuries and yet both Telstra and TAL failed to advise Mr Bith he had a right to make a Comcare claim.
Counsel contended Mr Bith had been advised to seek income protection but had never been advised of his right to seek workers compensation. Counsel submitted that there may have been some fault on Mr Bith’s part, but Telstra had not assisted Mr Bith when they were obviously aware of his injury.
Counsel submitted that the SRC Act is beneficial legislation, and the Tribunal should assess Mr Bith’s claim in this light. Counsel contended the Tribunal should adopt the stance Justice Madgwick adopted in the matter of Abrahams v Comcare [2006] FCA 1829 – a broad, generous and practical interpretation of the legislation should be made taking into account the likelihood of lay people with differing levels of education and medical and legal advice:
The original decision-maker might conceivably have had many powers, the exercise of which may have been prompted by what he or she knew of the applicant’s claim, without those powers being powers or discretions relevant to the exercise of the decision to be made. However, it seems to me that the Tribunal Member did not adequately appreciate or apply the following legal propositions, which I think are correct:
1.    In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice.
2.    In deciding what injury it is, as to which a claimant has given notice, the purposes of giving notice must be borne in mind. These are to enable Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met.
3.    The powers of an original decision-maker would extend to regarding informal notice as having been given in amplification of a notice formally given.
4.    Those powers would further extend to enabling a consideration of a claim better explaining, or better justifying, a claim in respect of an injury in respect of which notice had been fairly given.
5.    There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount.
Counsel submitted Mr Bith had advised his manager Mr Aanensen on numerous occasions he was suffering from pain in his right hand and arm. Counsel submitted such discussions were sufficient to meet the injury notification requirement of Telstra and the SRC Act, taking the Tribunal to the matter of Kenward and John Holland Pty Ltd [2011] AATA 701 (Kenward):
Mr McDonald was the safety officer on the Dalrymple Bay coal terminal project. He recalled that on a safety walk in February 2009 he was approached by Mr Kenward, who advised him that he had a sore right shoulder. Mr McDonald offered to take him to an on-site medic but Mr Kenward declined, stating that he would leave it for a few days to see how it went. Mr McDonald recorded an entry in his diary but viewed it as a passing complaint rather than a formal report of a workplace injury. Mr McDonald was aware of a significant reduction in the number of the respondent’s staff at that time and he said that Mr Kenward’s termination was unrelated to his shoulder complaint.
In a statement dated 17 November 2009, Mr McDonald wrote that Mr Kenward’s complaint was made on 12 February 2009. Subsequently, he realised that this was an incorrect date as he became aware that Mr Kenward’s employment with the respondent ended on 4 February 2009.
In a statement dated 4 March 2011, Mr McDonald wrote that he was telephoned by Mr Kenward on 15 September 2009 and advised that he had seen a doctor in relation to his shoulder. Mr Kenward also advised him that he had been “back on the tools” since working for the respondent. Mr McDonald said at the hearing that he understood that to mean that Mr Kenward had been undertaking manual labour. On 15 September 2009, Mr McDonald advised Mr Kenward that he would send him a compensation claim form but also told him that he may have left his claim “a bit late” because of delay and doing concreting work since he experienced shoulder pain.
Mr Erezuma was the site supervisor of the Tanna project in Gladstone and project manager on the Dalrymple Bay coal terminal project. He was involved in the supervision of Mr Kenward’s work. He was in a position to observe the work-related activities of Mr Kenward as the sites were relatively small in area. Mr Erezuma stated that the respondent’s standard practice for reporting injuries was for the employee to advise his direct supervisor. Mr Kenward did not advise him of any shoulder injury in 2009 and he became aware of it in 2010, when advised of Mr Kenward’s compensation claim by Mr McDonald. He agreed that advising a safety officer of an injury would be sufficient to meet the respondent’s injury notification policy. He said that Mr Kenward was laid off on 4 February 2009 because that was the end of the job and not because of his shoulder.
Counsel submitted Mr Bith had met the requirement under section 53 of the SRC Act when he lodged his claim of compensation and took the Tribunal to the matter of Comcare v Luck [1999] FCA 100 (Luck), where the applicant in that matter made a claim and notified of an injury some 39 years after the incident:
Relying upon that evidence, the Tribunal found that Comcare would not be prejudiced by Mr Luck's failure to notify in writing of the injury of 9 September 1992 as soon as practicable after he became aware of that injury. It was therefore not necessary to make a finding on the alternative matters mentioned in s 53(3)(c). It nevertheless found that Mr Luck's failure to notify of the September 1992 injury as soon as practicable after he became aware of it resulted from his ignorance of the compensation claim process. A further reasonable cause for his failure so to notify Comcare was his own uncertainty regarding the appropriate diagnosis of his right knee condition and its aetiology and the time which elapsed before these matters were clarified by his treating medical practitioners.
On the basis of these findings the Tribunal concluded that the required notice of injury of 9 September 1992 should be taken to have been given under s 53 with the result that the application of the 1988 Act to the injury was not precluded.
There having been an impairment to the applicant's right knee which was permanent, Comcare was liable under s 24(1) of the 1988 Act to pay compensation in respect of that injury.
The Tribunal considered the alternative proposition that the only relevant injury occurred in the period late 1955 to 1956. The crucial issue then was whether Mr Luck's claim for compensation was not admissible because of s 16 of the 1930 Act. No notice had been served upon the Commissioner under the 1930 Act and the question arose then whether the lack of notice and the failure to make a claim within the specified period were "occasioned by mistake ... or other reasonable cause" within the meaning of the proviso to s 16(1). Mr Luck's costs of medical and hospital treatment having been met by the Commonwealth and his wages continuing to be paid by the Commonwealth as a condition of his service with the RAAF, there was no need for him to claim compensation in respect of his injury or to serve notice of the accident upon the Commissioner. He would have had reasonable cause to believe that the RAAF was on notice of those accidents because it arranged medical treatment for his right knee when they occurred. His Commanding Officer was aware of the incident as a result of which he was allocated to "light duties". In these circumstances the Tribunal held that Mr Luck's failure to serve notice of the accidents on the Commissioner and his failure to make a claim for compensation within the specified period of six months were occasioned by reasonable cause. The issue of prejudice to the Commonwealth did not arise. In any event the Tribunal was not satisfied that the Commonwealth had been prejudiced by the failure to serve notice of the accidents in the period late 1955-1956 on the Commissioner. The Tribunal found that no prejudice had been suffered by the Commonwealth in that case. Because what it held to be a fresh permanent impairment had occurred to Mr Luck after the commencing day of the 1988 Act, the amount of the compensation payable to him in respect of the injury resulting in that impairment would fall to be assessed under s 24 of the 1988 Act and not under the 1930 Act. On that basis it was concluded that Comcare was liable to pay compensation to Mr Luck in respect of the injury to his right knee, namely severe or advanced lateral compartment osteoarthritis.
….
In this case the claim itself is headed up with the words "Incorporating Accident and Disease Report". An attachment to the claim form included a description of the injury sustained. Indeed in this case it contained a history of events dating back to August 1956. Mr Luck, of course, was not, in making his claim, making distinctions between concepts of injury and disease for the purposes of s 4 of the 1988 Act. In my opinion however given the finding by the Tribunal of want of prejudice, the claim form itself could stand as notice of the injury and indeed purported to give notice of injury.
Counsel submitted Mr Bith provided Telstra with a notice of his injury as soon as practicable after he became aware of the injury. Counsel submitted Mr Bith connected his pain with his former employment when informed by Centrelink that he should seek compensation for his workplace injury. Counsel took the Tribunal to the matter of Steven George Bingham and Asp Ship Management [1997] AATA 203 (Bingham) submitting whether notice has been given is a question of fact to be found by the Tribunal. Counsel submitted the notice needed to impart the nature of the injury and connection of injury to work:
It was submitted for Mr Bingham that he had complied with section 62 of the Act by reporting an incident of 1 January, although no mention of back injury was made, reporting back pain on 17 January relating to a 7 January incident and stating the 23 December 1994 incident in the claim for compensation lodged on 11 February 1995. Alternatively, it was argued that, in any event, any failure to comply strictly with paragraph 62(1)(a) did not prejudice the employer and the non-compliance resulted from ignorance, mistake or other reasonable cause. For the respondent, it was submitted that two written documents are required under sections 62 and 63 and the claim under section 63 cannot constitute the written notice of injury pursuant to section 62. It was said that no notice of the 23 December 1994 incident had been given and that the clear consequences were that compensation was not payable.
The two incidents notified on 2 January and 17 January 1995 were on a standard form provided by the respondent and headed "Incident Notification". The information requested by the form in relation to an incident was date and time of incident, brief description of incident, whether injury, illness, loss or damage of property and whether medical attention requested. On the first notification Mr Bingham noted that the incident was at 2.00 am on 1 January 1995, described it as "tripped on deck whilst checking the ropes and gangway", that it was an injury and no medical attention requested. The second notification showed the incident as 7 January 1995, "suffering lower back pain", an injury and no medical attention requested. The compensation claim form dated 11 February 1995 showed the following information:
"When did your injury happen or when did you first notice your illness 23.12.94 6.00 am
If the injury/illness caused by one specific incident, state date of incident 23.12.94
Date of first medical treatment 10.2.95
Describe the injury/illness Lower back pain
What were you doing when the incident occurred Taking off the cargo lashings in the lower vehicle deck. How did the injury/illness happen While bending down and working under the semis
Where did it happen Lower vehicle deck
What caused the injury/illness Bottle screws and chains"
Mr Bingham's explanations in relation to the notice was that the 1 January 1995 incident involved a clearly identifiable injury being a cut thumb which could be susceptible to infection. The notification of 17 January 1995 was made at the urging of the Second Mate. He said that he lodged it solely in case something happened and chose 7 January as being a date on which the back pain was aggravated.
In Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 the Tribunal considered a similar dispute in relation to section 53 of the Compensation (Commonwealth Government Employees) Act 1971 which is in similar terms to section 62 of the Act. The Tribunal said (at page 535):
"Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee's assertion of an injury alleged to have occurred on some specific occasion in the course of the employee's work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act. However, where an appropriate officer of the Commonwealth or the relevant instrumentality is made aware at an appropriate time of the alleged injury or disease and the circumstances in which it was suffered or contracted, the Commissioner and the Tribunal should, we believe, be slow to hold that a claim for compensation for the incapacity resulting from that injury or disease must fail because s 53 has not been complied with to the letter."
Here Mr Bingham notified incidents on 1 January and 7 January on the appropriate form. Whilst the notification of the 1 January incident did not refer to his back, neither did it refer to any specific injury. Interestingly, the form does not include any question about details of the injury, solely requiring a description of the incident and whether is resulted in injury. The only possible failure to comply with section 62 related to 23 December 1994. Here, Mr Bingham said that it was only when he became aware that he had suffered a significant injury which would preclude him from returning to work on the expected date, did he consider it necessary to refer to that commencement date of his problem. This gives rise to two questions: was the information contained in the 11 February 1995 claim form "written notice" as required by section 62 and, if so, was it given to the employer as soon as practicable after Mr Bingham became aware of the injury? In my view, the answer to the first question in these circumstances is yes. The claim form sets out in writing the details of the injury and the circumstances in which it occurred. Further, in my view and in these circumstances, the notice was given as soon as practicable. I accept Mr Bingham's evidence that, until early February 1995, he had an expectation that his back problem would resolve itself and not cause any long term difficulties after a month off work. It was only when he realised that it had not improved that he saw Dr Ireland and immediately thereafter lodged the claim form. In the matter of Re Australian Telecommunication Commission and Formoso (1985) 8 ALD 191, the Tribunal said (at page 194):
"Regardless of the claim by the respondent to have given notice orally at the time his claim that he did not report the accident hoping that he would feel better later brings the matter within the terms of 'other reasonable cause' for the purposes of sub-s 53(4) of the Act (Shotts Iron Co Ltd v Fordyce [1930] AC 503). Thus this application is not barred by s 53 of the Act and the Tribunal has jurisdiction to review the matter."
In this case, if the written notice did not comply strictly with the requirements of subsection 62(1), such non-compliance resulted from a reasonable cause. Given the reports of 2 January and, in particular, 17 January 1995 with the claim form lodged 25 days later, I find that the respondent was not prejudiced. The employer was put on notice of incidents and the claim form, giving written notice of the injury, was provided as soon as practicable after Mr Bingham became aware that he had suffered an injury which incapacitated him for work. The legislation is beneficial legislation. Section 62 is intended to protect respondents from claims made in relation to a past injury of which notice has not been given and where difficulty will by met in confirming the circumstances of such alleged injury. Here the respondent was in a position to check with the other crew members or make any enquiries considered appropriate within a reasonable time of the alleged first date of the injury. Unfortunately, here the respondent took the easy way out by deciding that as there was no formal incident notification, the claim should be disallowed out of hand. It was dealt with as if section 62 required an applicant to give written notice of an "incident" which may have caused injury as soon as practicable after the incident. This is not what the section requires. It requires written notice of "the injury" as soon as practicable after the employee "becomes aware of the injury". The forms regularly referred to by the respondent are described as Incident Notification which is not necessarily what section 62 requires.

Counsel submitted it was only once Mr Bith was advised by a Centrelink officer that he could apply for workers compensation that he realised the connection of his pain with his employment. Counsel submitted during this period Mr Bith was seeking treatment from Dr Chea and Dr Pun but neither doctor advised him that his pain may be work-related. Counsel submitted this argument was only relevant if the Tribunal did not consider that Mr Bith’s advising Mr Aanensen of his injury was insufficient to meet the requirements of section 53. Counsel took the Tribunal to the matter of Deveson and Comcare [1999] AATA 80 (Deveson) where the member determined it had jurisdiction to consider a matter as it was when Mr Deveson realised the causal connection with work could he submit a notice of claim and injury:
In these proceedings, it was alleged by the respondent that the 1988 Act does not apply to the applicant because of his failure to notify of his injuries as soon as was practicable and that, on this basis, the Tribunal lacks jurisdiction to entertain his application for review. There is clear authority that the Tribunal is competent to consider the limits of its authority and the existence of its jurisdiction. Indeed, in order to perform its statutory duty of providing merits review of administrative decisions, the Tribunal will be obliged to form a conclusion on the existence and limits of its jurisdiction and, where necessary, undertake an examination of the relevant facts and law for this purpose (Trajkovski v Telstra Corporation Ltd (1998) 153 ALR 248). Consequently, the Tribunal must examine the relevant facts and law pertaining to the applicant's obligations under s53 of the 1988 Act and under similar provisions in previous Acts - s16 of the Commonwealth Employees' Compensation Act 1930 ("the 1930 Act") and s53 of the Compensation (Commonwealth Government Employees') Act 1971 ("the 1971 Act") - to the extent that they relate to the applicant's circumstances. If the Tribunal is satisfied (as the respondent contends it should be) that the applicant has not complied with the relevant legislative provisions, he will then, by force of law, be barred from utilising the provisions of the 1988 Act including his rights to seek review by this Tribunal of the reviewable decision to deny him compensation. In this scenario, the Tribunal would not have jurisdiction to entertain his application for review. If, on the other hand, the Tribunal should not be so satisfied, there will be no such bar and the Tribunal will be properly placed to entertain his application for review.
Suffice to say, the applicant gave evidence that until quite recently, he was unaware of the possibility that there might be a causal link between the decline in his hearing ability and exposure to certain toxic chemicals in the course of his employment in Commonwealth laboratories during the period 1968 to 1982. The applicant maintained that in late 1996, a suspicion formed in his mind as to the existence of such a link which had been prompted by media reports appearing around that time. He said he acted swiftly thereafter, embarking upon an investigation of avenues which might support his case including researching medical journals and talking to colleagues in the scientific community. The applicant gave evidence that it was about six months later that he felt he had gathered together sufficient material to mount a strong case and that his claim for compensation was lodged a matter of weeks thereafter. With regard to his depression, the applicant gave evidence that it was not until mid 1997 that he became aware that his depression, which was diagnosed in 1996, could be attributed to work-place factors. In summary, the applicant maintained that his lack of awareness as to the necessary causal link between the circumstances of his employment and his medical conditions together with his ignorance in general as to his entitlement to claim compensation from the Commonwealth was the reason why it was not until 1997 that he lodged a claim for compensation.
The respondent on the other hand contended that the applicant was not a credible witness. Mr Pilkinton suggested that the Tribunal should find that the applicant had not notified of his of his injuries as soon as was practicable as he had chosen to pursue other avenues of redress including an application for invalidity retirement from Comsuper.
Having regard to the above, the Tribunal finds as fact that the first point in time at which the applicant could be said to have become aware, in any meaningful sense, of his injuries, being injuries that arose out of or in the course of his employment, was after he had gathered together all the material relevant to his claim and had confirmed in his own mind that there was a connection between the circumstances of his employment and his medical conditions. On his evidence, this was only a matter of a few weeks prior to the lodging of his claim for compensation on 15 July 1997 which served also as notification for the purposes of the 1988 Act. The Tribunal finds that the applicant did not deliberately set about to delay the lodging of his application for review. Rather, he pursued his claim conscientiously from the time he became aware of the possibility of there being causal links between the circumstances of his employment and his medical conditions until the lodging of the application in July 1997. Conversely, if it is said there was delay on the part of the applicant in notifying of his injuries, the Tribunal finds that it was due entirely to a reasonable cause, namely, the applicant's ignorance as to the existence of a causal link between the circumstances of his employment and his medical conditions until 1997.
Counsel submitted it was only where and when Mr Bith became aware he had suffered an injury that causes incapacity for work that he was required to submit a claim and notice of injury, taking the Tribunal to the determination in Pacific Manning Company Pty Ltd v Barton [2003] FCA 498:
Counsel for the employer baldly asserted that the WorkCover form of notice of injury forwarded to the employer on 17 December 1998 was not a notice of injury. Why that should be so was not explained and I am unable to construe the document other than as a notice of injury. Further, it was then contended that the SRC Act form submitted on about 8 January 1999 was not a notice of injury because it was a notice of claim under s 63. In my opinion a notice of claim can also constitute a notice of injury. An argument to the contrary, similar to that advanced by the employer in this case, was rejected by French J in Comcare v Luck [1999] FCA 100; (1999) 29 AAR 403 at [60] and [61].
Counsel submitted in the alternative, Mr Bith's failure to provide Telstra with written notice of his injury as soon as practicable after becoming aware of the injuries resulted from a mistake, taking the Tribunal to the determination in Risson and Comcare [2003] AATA 656 (Risson):
Ms McMahon accepted that analysis of the relevant authorities. She did raise some issues as to Mr Risson's credibility in respect of his description of the nature and onset of his symptoms of PTSD. Those matters may be relevant as to the substantive issues. They do not give us any reason to doubt Mr Risson's evidence that he formed the mistaken view that an application under the VE Act was the appropriate means of seeking pension or compensation in respect of his condition which was diagnosed as PTSD.
We find that Mr Risson applied his mind to the question of the application of the law to the facts of his case and, to use the words of the Tribunal in Re Willis, he, "misconceive[d] his true position in law or in fact or in both combined". His misconception related either to the nature of his service or to the application of the VE Act to him or to both combined.
Accordingly we find that the failure of Mr Risson to give notice in writing of his injury, PTSD, to Comcare "as soon as practicable after the employee becomes aware of the injury", resulted from a mistake.
Counsel submitted the Tribunal should draw upon the determination in Holmes and Comcare [2001] AATA 290 (Holmes) where the Tribunal found:
Findings on material questions of fact and consideration of issues
Was notice given under s53 of the Act?
There is no evidence before the Tribunal to the effect that the applicant gave to the respondent notice in writing of the relevant "occupational overuse", or cervico-brachial, condition allegedly affecting his neck and right upper limb, or of any other alleged injury the subject of the present application for review, prior to his lodging the relevant compensation claim form (dated 15 May 1998) with his employer on 18 May 1998, pursuant to s54 of the Act. That compensation claim form, however, can itself constitute "notice in writing" of the relevant injury, within the meaning of s53 of the Act: Comcare v Luck [1999] FCA 100; (1999) 29 AAR 403. Accordingly, the Tribunal finds that the applicant gave notice in writing of the relevant injury to his employer on 18 May 1998.
The question then arises whether the applicant gave such written notice "as soon as practicable" after he became aware of that injury, as required by s53(1)(a) of the Act. According to the applicant's own evidence, and as stated in his compensation claim form, he became aware of the injury on 8 September 1992. The applicant sought to explain in his oral evidence the reasons for his not making a claim for compensation until May 1998 (see paragraphs 4 and 12 above) but, in the Tribunal's opinion, there is nothing in those reasons to suggest that he was incapable of, or prevented in a practical sense from, notifying his employer in writing of his injury when he became aware of it on 8 September 1992 or within a reasonable time thereafter. Accordingly, the Tribunal finds that written notice of the relevant injury, which was first given to the applicant's employer on 18 May 1998, was not given "as soon as practicable" after the applicant became aware of that injury on 8 September 1992. The requirement imposed by s53(1)(a) of the Act was, therefore, not complied with by the applicant.
Subsection (3) of s53 of the Act, however, provides that, where the conditions specified in paras (a), (b) and (c) of that subsection are satisfied, "the notice shall be taken to have been given under this section". In the present case, the conditions specified in para (a) (see Comcare v Luck (above)) and para (b) (see paragraph 36 above) are satisfied. As regards para (c), the issues which arise are whether the respondent would be "prejudiced if the notice were treated as sufficient notice" and, if so, whether the failure to comply with s53(1)(a) "resulted ... from ignorance, from a mistake or from any other reasonable cause".
In relation to the issue of prejudice to the respondent, the Tribunal notes the purpose of the notice requirement in s53(1) of the Act as stated in Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 at 535:
"Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee's assertion of an injury alleged to have occurred on some specific occasion in the course of the employee's work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act."
In the present case no specific evidence or material indicating that the respondent had in fact been prejudiced by the applicant's failure to comply with s53(1)(a) of the Act was presented to the Tribunal. Instead, it was in effect submitted by Mr Pilkinton (for the respondent) that the Tribunal should infer that the respondent had been prejudiced by reason merely of the fact that the applicant "chose" not to give notice of the relevant injury, which he later claimed he became aware of in September 1992, until May 1998. In the circumstances of the present case the Tribunal is not prepared to draw that inference. The injury or disease in respect of which the applicant has claimed compensation is, of its nature, not one which allegedly "occurred on some specific occasion", or which was allegedly "contracted because of some brief and transient situation", in the course of his employment (Tierney, above). Rather, that injury or disease (involving occupational overuse syndrome or cervico-brachial disorder), according to the applicant's evidence, has gradually developed over a long period of time since its symptoms first manifested themselves in September 1992 and those symptoms continue to persist at the present time. The Tribunal notes that, prior to the applicant's ceasing his employment with the Commonwealth in March 1999 and during the period in which his claimed injury or disease was continuing to manifest symptoms, the respondent was able to obtain a medical report from the applicant's treating general practitioner, Dr J Harrison, dated 4 August 1998 (T20 - see paragraph 17 above), which enclosed a copy of Dr J Edelman's report of 4 June 1998 (T11 - see paragraph 16 above) together with copies of relevant medical certificates and details of consultations with the applicant, and a comprehensive medical report from Dr R Whittaker, dated 5 October 1998 (T28 - see paragraph 18 above). Indeed, it was on the basis of those medical reports that the respondent disallowed the applicant's claim for compensation. Having regard to the abovementioned circumstances, the Tribunal finds that the respondent would not, by reason of the applicant's failure to comply with s53(1)(a) of the Act, be prejudiced if the lodgment of the applicant's compensation claim form on 18 May 1998 were treated as a sufficient notice for the purposes of s53 of the Act.
Given the Tribunal's abovementioned finding of lack of prejudice to the respondent, it is not necessary for the Tribunal to make a finding on any of the alternative matters referred to in para (c) of s53(3) of the Act.
The Tribunal finds, therefore, that, by reason of s53(3) of the Act, notice of the relevant injury is taken to have been given under s53 in this case and that, accordingly, the Act is not precluded from applying in relation to that injury.
In summary, Counsel submitted there was incontrovertible evidence Mr Bith had been unaware of his right to make a Comcare compensation claim until 2021. Counsel submitted that Mr Bith, in accordance with the beneficial nature of the SRC Act, had made a valid claim for compensation as he had submitted a notice of injury as soon as practicable after he become aware of the injury as:
·He had not deliberately withheld his injury from Telstra
·Telstra was not prejudiced by Mr Bith’s failure to submit a notice of injury as soon as practicable after his injury
·Telstra had access to Mr Bith’s medical claims via his income protection claim
·Mr Bith’s claim for compensation was in essence his notice in writing of his injury
·Mr Bith was unaware, ignorant and mistaken about his right to lodge a claim
Injury
Counsel contended that from 2010 Mr Bith experienced pain in his right hand and right arm. Counsel contended that Mr Bith’s pain became more prominent when typing and using a mouse. Counsel contended Mr Bith’s right hand became swollen, and he was not well enough to work on occasion. Counsel contended as a result; Mr Bith took increasing amounts of sick leave.
Counsel contended Mr Bith’s evidence was that he had been suffering prolonged pains in his arms, shoulder and neck from 2010 associated with his heavy, demanding, physical work and prolonged computer use. Counsel submitted Mr Bith’s evidence at hearing corroborated his statement to the Tribunal in which he asserted:
On 13 February 1995 I commenced employment with Telstra as a Field Technical Officer. I cannot recall my salary at that time. My role entailed travelling around Victoria by car to Telstra Exchanges to remove and replace old analogue equipment (racks) in the exchanges.
My duties involved wrapping up long cable wires, moving switch transmissions and converting power sources. It was a heavy lifting and construction-based role. I was required to get into tight spaces underground or in ceilings where the equipment needed to be installed. I was always the person nominated to do the work in compact spaces due to my small stature. Now attached and marked VB-1 is an image of the type of underground space I would be required to get into.
Whilst underground or in the ceiling, I would need to dismantle the switches and panels and dispose of them. Once I had disposed of the equipment I would go back into the compact space and replace it. It was a very mechanical process of lifting, moving and putting down heavy equipment. This was difficult because a lot of the equipment weighed more than 10kg and I would have to maneuver around in tight spaces while holding it and then lift it over my head to fit it in place. It was laborious work and I often struggled because although I physically fit in the small spaces, I did not have the strength required to move the equipment without experiencing a significant strain on my body. I remember having to grip onto the equipment as tight as I could so that I would not drop it, because I did not have much strength in my arms. The communication racks were often ceiling high. When I could not reach the top, I would stand on a chair and reach above my head to lift and maneuver the cables and parts. Now attached and marked VB-2 is an image of the communication racks.
In or around 2006 the construction work was transferred to subcontractors primarily. I was therefore redeployed to the office where my role was reclassified as design assistant and project support. The focus of my role was designing the communication racks that would be installed at Telstra exchanges and providing support to the field officers. My salary in this role was $65,356 per annum.
The role in design and support was presented as being less laborious as I was stationed at a computer a lot of the time. That said, the subcontractors who were doing the field work often did not have the level of experience that I did, and so I was essentially "on-call" to go out to the exchanges and assist them. The subcontractors made a lot of mistakes and I had to correct them. I can recall several occasions where they installed the wrong switch transmission. For example, sometimes they would install a 2kg switchboard instead of a 10kg switchboard, and so I would have to go out and completely restart the job and then return to the office. The on-call duties were delegated to us by our managers. The team manager would tell us where to go, and we would get in our cars and travel to wherever that was. I cannot remember all of the exact locations that I would have to respond to, but it was always within Melbourne suburbs. I recall often going out to site with Brian Kennedy, another colleague. When we would arrive, there would be safety guards already set up by the subcontractors around the manholes and we would get in and out of the confined spaces using a ladder. This responsibility continued up until 2016 when I was made redundant.
Counsel submitted all the medical experts agreed Mr Bith had suffered an injury. Counsel submitted all the treaters’ accepted Mr Bith was suffering from pain – where they differed was on the diagnosis and causation.
Counsel submitted Mr Bith’s evidence at the hearing should be accepted that he had suffered an injury at work which was a gradual onset of pain from his physically demanding and repetitive work. Counsel submitted the nature of Mr Bith’s work for his first 11 years with Telstra had been physically demanding and for the subsequent 11 years involved excessive computer work. Counsel submitted the Tribunal should accept Mr Bith’s evidence that he had continued to undertake field work when working as a Design Assistant & Project Support although conceding this was not a requirement of his role.

Counsel contended the evidence of Dr Doig and Mr Moaveni was tainted by the history taken from Mr Bith in which he advised he continued to do heavy work after 2006. Counsel contended both Dr Doig and Mr Moaveni had attributed Mr Bith’s pain to his previous heavy work, and intense keyboard work but neither had any actual knowledge of what his work involved outside of the history provided by Mr Bith. Counsel contended none of the medical practitioners had quantified what they understood to be intense keyboard work. Counsel contended Mr Aanensen’s evidence had been he would not have described Mr Bith’s computer work as intense.
Counsel contended the evidence of Dr Reiter in respect of Mr Bith’s carpal tunnel syndrome should be preferred as she had backed her claims up with supporting evidence from AMA Guides to Evaluation of Disease and Injury Causation and listed the occupational risk factors for carpal tunnel syndrome - median nerve entrapment in the wrist.
Carpal tunnel occurs in those occupations that involve the prolonged use of vibrating tools: e.g. welders, boilermakers, grinders; as well as those occupations that involve repetitive tasks requiring repetitive wrist flexion/extension with forceful grip: e.g. slaughterhouse workers, meat boners.
Counsel contended Mr Bith’s medical records and evidence to the Tribunal was all in respect of his hand, wrist and arm with three refences to his shoulder. Counsel contended there was no mention of Mr Bith suffering neck pain and at all times Mr Bith had expressed his pain travelled up his arm and not down. Counsel contended this all pointed to a diagnosis of right hand and arm pain and not right cervical brachialgia.
Counsel contended the medical evidence did not support a finding on fact that Mr Bith was suffering from a claimed condition that arose or was significantly contributed to by his employment. Counsel contended the evidence of Dr Doig and Mr Moaveni had been they had arrived at a diagnosis of right brachialgia as the best description of the pain which Mr Bith was describing. Counsel contended the evidence of Dr Doig and Mr Moaveni had been based on Mr Bith’s disputed history and should be disregarded.
Counsel contended Mr Bith’s evidence was also contradictory as he had stated he was incapacitated for work but had expressed a desire to continue to work with Telstra. When the redundancies were announced he had applied for a position in the ‘spill and fill’ exercise and in his rehabilitation program with TAL under his income protection policy, had expressed a desire to return to Telstra as a contractor.
Counsel contended in all the circumstances the decision under review should be affirmed.
CONSIDERATION
The Tribunal’s task is to ascertain if Comcare is liable to pay Mr Bith compensation under section 14(1) of the SRC Act in respect of his claimed injuries which have resulted in his incapacity for work. The Tribunal is required to base its determination on the precise evidence from Mr Bith’s particular circumstances.
The Tribunal notes all the medical experts and treaters agree that Mr Bith is suffering from right sided arm and shoulder pain. The Tribunal accepted the evidence confirmed Mr Bith was suffering underlying pathology which is causing him pain noting the report of Dr Reiter outlining Mr Bith’s investigations and diagnosis:
Head/Neck:
Neck/Cervical Spine:
He had tenderness from C2 down to C7 centrally, as well as in his left and right paraspinal areas.
….
Upper Limbs/Shoulder Girdles:
He had normal tone and power, with reduced power of thumb abduction (supplied by the median nerve), as well as reduced sensation of the whole of his right upper limb, not in a dermatomal distribution.
His biceps, triceps and supinator jerks were symmetrically brisk. Right Wrist/Hand:
Mr Bith had positive Tinel's, Phalen's and Durkan's signs on the right (provocative signs for carpal tunnel syndrome), with reduced thumb abduction, which is supplied by the median nerve, but he did not have reduced sensation specifically in a median nerve distribution.
He had tenderness of his right middle and little finger flexor tendons with pain in the area of his middle and little finger flexor tendons with passive extension of these tendons/fingers. In addition, he had a reduced fist of his right hand.
INVESTIGATIONS:
X-Ray - Cervical Spine (16 May 2018): This showed lack of cervical lordosis on the lateral view due to muscle spasm. Small anterior osteophytes at C3/4, C4/5, and C5/6 disc spaces. Fairly mild degeneration of the associated uncovertebral joints is also noted. The findings are due to cervical spondylosis.
X-Ray - Right Shoulder (16 May 2018): This was normal.
X-Ray - Right Hand (16 May 2018): This was normal.
Nerve Conduction Studies (23 May 2018): This showed mild compression of sensory fibres of the median nerve in the carpal tunnel on the right side.
MRI - Cervical Spine (8 November 2018): This showed disc desiccation from C2/3 to C5/6 with no evidence of cord or neural compression. At C6/7 moderate left-sided neural foraminal stenosis was present.
MRI - Cervical Spine (29 November 2020): This showed overall pattern of mechanical change remains similar to 8 November 2018. Multilevel cord indentation and remodelling again demonstrated without appreciable cord impingement or cord signal change. High-grade foraminal narrowing on the left at C6/7 from uncovertebral osteophytes. This has developed since the prior study.
SUMMARY AND ASSESSMENT:
Diagnoses:
Neck/Cervical Spine:
Mr Bith complains of right-sided upper and lower mechanical cervical spine/neck pain, which intermittently affects the left side of his neck/cervical spine, with referred pain/radiation into his right greater than left suprascapular and scapula areas.
Right Carpal Tunnel Syndrome:
Mr Bith clinically has right carpal tunnel syndrome that has been confirmed on nerve conduction studies as he has intermittent pins and needles affecting his right hand that occurs at night in bed and when he wakes in the morning, with provocative carpal tunnel signs on examination, including positive Tinel's, Durkan's, and Phalen's signs, with reduced power of thumb abduction, which is supplied by the median nerve.
As there was significant dispute between the medicolegal experts about Mr Bith’s diagnosis of right brachialgia (without specific evidence of nerve root compression) the Tribunal in accordance with section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (AAT Act) informed itself on the matter. The Tribunal undertook its own investigation of the definition of brachialgia noting:
·Dorland's Illustrated Medical Dictionary definition of brachialgia as: ‘pain in upper limb’;
·The article, Brachialgia: A Manifestation of Various Lesions in the Journal of Bone and Joint Surgery in 1944 defined brachialgia:
To summarize, brachialgia, which means pain in the arm, is a symptom complex. It can be produced by any one of a number of lesions affecting the sensory tracts supplying the arm. The site of the lesion can be traced by following the distribution and the quent location for the nerve irritation is in the intervertebral foramen, and anatomical and physiological considerations clarify the relative ease with which sensory disturbances can be produced here. Affections of the intervertebral foramina are usually associated with clinical evidences of pathology in the cervical spine. Treatment must be directed to the primary etiological factor, but hyperextension of the spine will tend to reduce the compression of the nerves within the intervertebral foramina.
·A basic Google search of numerous sites hosted by physiotherapy practices provide the following: Brachialgia is the medical term to describe a certain type of arm pain caused by a compressed or pinched nerve in the neck.
The Tribunal relied upon the definition in Dorland's Illustrated Medical Dictionary of brachialgia as pain in upper limb.
The Tribunal, based on all the evidence, is satisfied Mr Bith suffers from medical conditions as encompassed in his Comcare notices of claim: pain in his right arm, shoulder and neck. The Tribunal rely upon the evidence of Dr Pun, Mr Bith’s treating rheumatologist, finding Mr Bith was suffering from right brachalgia, with possibly a degree of trigger fingers and carpal tunnel syndrome. The Tribunal does not dispute that Mr Bith was and is experiencing pain in his right arm, hand, shoulder and neck.
The Tribunal had the advantage of closely observing and listening to Mr Bith during the giving of his testimony. The Tribunal found Mr Bith to be a pleasant individual but not a reliable witness. The Tribunal did not consider that Mr Bith was misleading the Tribunal but was not convinced by his evidence as much of it faulted under cross-examination and could not be reconciled with his original witness statement which he asserted to be true at the commencement of the hearing.
The Tribunal found Mr Bith’s evidence was not compelling and his consistent refrain that he could not recall diminished the Tribunal’s ability to accept much of the evidence he provided. The Tribunal found it was implausible that Mr Bith:
·first became aware that his pain was due to work-related factors when he discovered they were potentially compensable
·was unaware of his ability to apply for workers compensation
·was unaware of his requirement to report an injury
·had informed Mr Aanensen of his right arm pain
·had undertaken field work after 2006
·had lain on the floor of the office on an almost daily basis
·that everyone in the office knew of his injury
·that his pain resulted in him being made redundant
·resulted in his divorce and a breakdown in his relationship with his children because of his lost income.
As there was no claim or evidence of a ‘workplace accident’ that resulted in Mr Bith suffering an injury simplicitor the Tribunal viewed Mr Bith’s claim in accordance with section 5B of the SRC Act. The Tribunal determined Mr Bith was not suffering from a disease as defined under the SRC Act, considering the lack of any corroborating or contemporaneous evidence supporting Mr Bith’s assertion that the long term impact of the physical nature of his work at Telstra, resulted in his claimed injury. The Tribunal drew upon the following observations of the High Court in Canute v Comcare (2006) 226 CLR 535 at 540 about the concept of an "injury" to arrive at its determination:
…First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of 'the injury'. Secondly, the term 'injury' is not used in the Act in the sense of 'workplace accident'. The definition of 'injury' is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term 'injury' is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to 'disease' or 'physical or mental' injuries and, at least to that extent, it assumes that an employee may sustain more than one 'injury'. The use in s 24(1) of the indefinite article in the expression 'an injury' reinforces that conclusion.
The Tribunal considered it was implausible that Mr Bith only made a connection with his pain and his employment when he was advised by Centrelink to make a claim for workers compensation.
The Tribunal was not convinced on the evidence that Mr Bith had not comprehended that his gradual onset of pain was work related. On the contrary the Tribunal found most of Mr Bith’s evidence indicated he had considered there was a connection between his right arm/hand pain and his employment.
Mr Bith’s evidence to the Tribunal was that from 2010 he experienced cramping in his hands whenever he spent too long operating the mouse or keyboard and he started taking breaks almost daily and eventually his pain would subside after temporarily stopping work.
In Mr Bith’s application for income protection, the member’s statement, signed on 12 December 2017, clearly answers “yes” that his injury was a result of a workplace injury:
Question 4 Is your condition a result of a workplace incident? Yes.
If yes please provide details.
Repetitive use of computer mouse and keyboard
In Mr Bith’s application for income protection, the attending doctor’s statement, signed on 30 November 2017 by Dr Chea advises:
Question 2 Is patient’s condition related to his/her employment and/or occupation duties?
If yes please provide details.
Repetitive injuries due to constant use of computer mouse and keyboard
The Tribunal considered it was implausible that Mr Bith was unaware of his ability to make a Comcare claim. When Mr Bith commenced at Telstra it was a heavily unionised government agency where people performed demanding physical roles that resulted in workplace injuries. The Tribunal considered Mr Bith would have been aware of his rights to seek compensation for his arm pain which he claimed he experienced whilst at work from undertaking his duties.
The Tribunal concurred with Comcare’s determination which acknowledged Mr Bith suffered from a condition but considered there was a lack of medical or factual information available to confirm the relationship between Mr Bith’s claimed condition and his employment with Telstra.
The Tribunal found the evidence did not support a finding that Mr Bith’s right arm pain had been contributed to a significant degree by his employment at Telstra. In the absences of any evidence that Mr Bith was undertaking heavy demanding work after 2006, some 4 years before he claimed he first experienced the pain and some 14 years before he sought medical treatment for the condition, there was nothing to support the findings of both Dr Doig and Mr Moaveni. Dr Doig and Mr Moaveni relying on Mr Bith’s history of undertaking a lot of heavy lifting and carrying as well as mobilising heavy equipment and replacing heavy equipment work during his entire period of employment with Telstra, resulting in the gradual onset of his injury, was not borne out in the evidence. While the Tribunal does not dispute Mr Bith undertook a heavy demanding role for his first 11 years with Telstra, in the absences of any injury notification, record of treatment or statement from Mr Bith, there is nothing to demonstrate this work impacted him and resulted in his current condition.
The Tribunal found Mr Bith had not notified Telstra as soon as practicable after he became aware of his injury. The Tribunal did not find Mr Bith’s situation analogous to any of the authorities sighted by his Counsel in respect of:
·Kenward, there was no evidence Mr Bith had informed his manager of his claimed condition;
·Luck, the evidence did not support that Mr Bith was ignorant of the compensation claim process and that Telstra was not already aware of his injury;
·Bingham, the applicant in that matter informed his employee a month after his initial injury and his employee was able to make enquires of his colleagues of the nature of the incident. Mr Bith’s notification was some 11 years after the event and it is difficult to see how one could equate the two matters
·Deveson, the evidence did not support Mr Bith had not made a causal link between his employment and his injury;
·Risson, the evidence did not support Mr Bith’s failure to give notice of an injury resulted from a mistake.
The Tribunal considered the one determination which had some bearing was the matter of Holmes where the member found the applicant had not complied with section 53(1)(a) of the SRC Act as they had not given notice "as soon as practicable" after they became aware of that injury. However, the Tribunal in Holmes determined that the respondent would not, by reason of the applicant's failure to comply with section 53(1)(a), be prejudiced if the lodgement of the applicant's compensation claim form were treated as a sufficient notice for the purposes of section 53.
The Tribunal considered the recent determination of Judge Murphy in the decision of Ellison v Comcare [2022] FCA 95 where his Justice accepted that ss 53 and 54 of the SRC Act impose preconditions upon a decision-maker, including the Tribunal, deciding a claim for compensation. Finding:
The paramount consideration is whether Comcare was appropriately informed as to the nature of the claimed injury and its connection with the employment; and whether it was provided a fair opportunity to properly investigate that claim. As I have said, the materials before Comcare in the reconsideration application raised that claim. Comcare was on notice of it and had ample opportunity to properly investigate it……That report was plainly significant to the reconsideration application; and the review officer specifically referred to and briefly summarised it. That broader claim had been before Comcare in the reconsideration application, and the Tribunal had jurisdiction to consider and decide it.
Treating the broader claim as being properly before the Tribunal does no harm to the “orderly process of administration contemplated by the Act” (Abrahams at [16]). The orderly process of administration contemplates “progressive and evolving decision-making” in the light of subsequent events and circumstances: Hannaford at [57]. In the present case the subsequent circumstances are that, over time, the medical opinions relating to the nature and aetiology of Mr Ellison’s condition evolved. As I have said, Comcare had notice of those changes of medical opinion and had a fair opportunity to properly investigate the claims raised by them. In the circumstances of the present case, it is difficult to see what more Mr Ellison was realistically required to do to allow Comcare a proper opportunity to investigate his claim and for its orderly processing.
He had provided Comcare with medical certificates throughout the period; had authorised Comcare to obtain reports from his treating doctors and Comcare had done so; had attended medical examinations by doctors engaged by Comcare as required; and, most importantly, Comcare had Mr Sewell’s December 2017 report and it was on notice of the broader claim
It was evident to the Tribunal Mr Bith had not appropriately informed Telstra as to the nature of his claimed injury and its connection with his employment. Further Mr Bith had not provided Telstra at the time of his claimed injury with medical certificates which contained medical opinions as to the nature and aetiology of his injury. The Tribunal found Telstra had therefore not been provided a fair opportunity to properly investigate his claim. The Tribunal found this lack of contemporaneous evidence did harm to the “orderly process of administration contemplated by the Act”.
The Tribunal considered that Telstra was prejudiced by Mr Bith’s delay in making his claim as it had lost the opportunity to investigate his allegations, arrange for him to be medically examined at the time, provide him with modified duties, ergonomically designed solutions for his issues and/or rehabilitation. Therefore, the Tribunal did not find Holmes provided a precedent for Mr Bith’s lodgement of his Comcare claim to be considered sufficient to address the requirements of section 53 of the SRC Act.
Additionally, as the Tribunal has found the evidence in Mr Bith’s case did not support a finding that his employment with Telstra had contributed to a significant degree to his injury, the issue of prejudice was not a fundamental consideration in its determination that Mr Bith was not entitled to compensation for his claimed injuries under section 14 of the SRC Act.
CONCLUSION
The Tribunal, having considered all the evidence before it, finds that Mr Bith:
(a)Did not provide written notice “as soon as practicable” after he became aware of his injury, as required by section 53(1)(a) of the SRC Act.
(b)Did not suffer an injury within the meaning of section 14 of the SRC Act; as his carpal tunnel syndrome and right brachialgia (pain in the arm) was not contributed to, by a significant degree, by his employment with Telstra.
The Respondent is therefore not liable to pay compensation to the Applicant for the Claimed Injury.
DECISION

The Tribunal affirms the decision under review.

I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO, Member

.....................[sgd]....................................
Associate
Dated: 8 November 2023

Date of hearing: 21 - 25 August 2023

Counsel for the Applicant: Ms Cassie Serpell

Solicitors for the Respondent: Mr Wolf Legal

Counsel for the Respondent: Ms Felicity Blair

Solicitors for the Respondent: HBA Legal

Date of hearing:	21 - 25 August 2023
Counsel for the Applicant:	Ms Cassie Serpell
Solicitors for the Respondent:	Mr Wolf Legal
Counsel for the Respondent:	Ms Felicity Blair
Solicitors for the Respondent:	HBA Legal