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
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, 32nd 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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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This matter concerned an application for review by Mr Bith against Telstra Corporation Limited regarding a workers' compensation claim for arm, shoulder, and neck pain. Mr Bith claimed his condition first manifested in 2010, but he did not lodge his claim until December 2021, stating he first sought medical treatment in February 2016. Telstra denied liability, asserting that Mr Bith had not provided appropriate notice of his injury and that his employment was not a significant contributing factor to his condition. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether Mr Bith had provided notice of his injury as soon as practicable, and if so, whether he had suffered an injury (either a disease or other physical injury) that arose out of, or in the course of, his employment, or was significantly contributed to by his employment.
The Tribunal's reasoning focused on two primary grounds for denying compensation. Firstly, it found that Mr Bith had failed to provide written notice of his injury "as soon as practicable" after becoming aware of it, as mandated by section 53(1)(a) of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). The Tribunal noted the significant delay of approximately six years between Mr Bith first noticing symptoms and lodging his claim, and the lack of corroborating evidence from his employer regarding any earlier notification. Secondly, even if the notice requirement had been met, the Tribunal determined that Mr Bith had not suffered an injury within the meaning of section 14 of the SRC Act. This was because the medical evidence did not establish that his diagnosed conditions, namely carpal tunnel syndrome and right brachialgia, were contributed to to a significant degree by his employment with Telstra.
The Tribunal accepted that Mr Bith was suffering from underlying pathology causing him pain, as evidenced by various medical reports and investigations detailing cervical spondylosis, right carpal tunnel syndrome, and right brachialgia. However, it found no medical or factual information to confirm a causal link between his employment and these conditions. The Tribunal noted that despite Mr Bith no longer being employed by Telstra for five years prior to the review, his symptoms had persisted and, at times, deteriorated, suggesting a multifactorial origin for his pain. Consequently, the Tribunal affirmed Telstra's decision to deny compensation.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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 TRIBUNALWitness Statements Telstra Workers Compensation Statement of Reason, dated 28 April 2022, for denial of Mr Bith’s claim:BackgroundOn 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.ConsiderationAre 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 InjuryAn 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.
Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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.
