Buchanan and Comcare
[2008] AATA 382
•12 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 382
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 2005/64
GENERAL ADMINISTRATIVE DIVISION ) Re
GREGORY COLIN BUCHANAN Applicant
And
COMCARE
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date12 May 2008
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes the decision that Mr Buchanan sustained an injury, namely medial and lateral epicondylitis, for which the respondent is liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988, for the period 21 October 2002 to 5 June 2003, when the injury resolved. The matter is remitted to the respondent to assess compensation payable under s 16 and s 19 of the Act.
The parties have leave to file submissions in relation to costs within 14 days. In the event that no submissions are filed in that period, then the respondent is ordered to pay the applicant’s costs in accordance with s 67(8) of the Administrative Appeals Tribunal Act 1975.
.
...................[sgd]..........................
SENIOR MEMBER
CATCHWORDS
COMPENSATION – injury – whether applicant’s injury arose out of or in the course of employment – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4,14
REASONS FOR DECISION
12 May 2008 M J Carstairs, Senior Member 1. Gregory Buchanan has claimed compensation for right lateral epicondylitis, a condition in which the outer part of the elbow becomes painful and tender. Mr Buchanan attributed the onset of the condition to the circumstances of his work at the Australian Taxation Office (“the ATO”). The respondent has denied the claim on the grounds that Mr Buchanan has failed to establish any connection of the condition with his work at the ATO.
ISSUES
2. The issue for me to decide is whether Mr Buchanan’s condition is an ”injury” which arose out of or in the course of his employment. This is the necessary connection in order for compensation to be payable to him.
BACKGROUND
3. Mr Buchanan commenced working at the ATO in 2000. Prior to that he worked in various kinds of employment commencing as a technician with the PMG, followed by many years in employment with the NSW Railways. Mr Buchanan then commenced in his own business as the owner/operator of a country bus service, and later was a mechanic/bus driver for Kirklands Bus Lines. This was followed by work for Lismore Council and Queensland Housing Commission.
4. Having started at the ATO, it seems that by about 2002 Mr Buchanan was perceived by his employer as having problems with the work he was required to do. He clearly he was not as fast or as efficient as others in completing work. This may have been due, in part, to a number of general health problems (unrelated to his work), including a recurrence of symptoms of chronic fatigue syndrome (CFS), that led to general lethargy and myalgic pain. Medical reports at the time reveal he was having difficulty concentrating and was anxious about his work.
5. In any event, his employers decided at some stage in 2001 to start monitoring his performance. This would have been with a view to terminating his employment if he could not work faster or more efficiently. Mr Buchanan’s work involved computer based data entry relating to tax debts and information from Business Activity Statements. There were clear performance targets that the ATO expected of its employees. I note that towards the end of 2002 Mr Buchanan was placed on a 2-month formal review and was warned that he was facing possible action under the Public Service Act 1999, which makes provision for termination of employment in circumstances of “non-performance, or unsatisfactory performance, of duties”[1].
[1] Public Service Act 1999 (Cth), s 29(3)(c).
6. Mr Buchanan’s employment with the ATO was terminated on 10 January 2003. Mr Buchanan, however, did not lodge his claim for compensation until September 2003 and at that time identified lateral epicondylitis of the right arm, said to have commenced in July 2002. He spent some time at home recovering from the symptoms of CFS. He later obtained employment, firstly delivering leaflets, and later driving buses part-time.
MR BUCHANAN’S WORKLOAD AT THE ATO
7. Considerable evidence was led at the hearing concerning Mr Buchanan’s workload at the ATO, the speed with which he completed tasks, and what component of his day involved computer data entry. I see no need to set this evidence out in any detail. Suffice to say that the evidence satisfied me that Mr Buchanan was not engaged in keystroke activity for substantial periods of the day and he was considerably slower than others at the work. I have already referred to Mr Buchanan’s performance review, which as I understand it would not have been undertaken if he was able to sustain workload targets expected of others in similar positions at the ATO. Ms P Culpitt gave evidence that Mr Buchanan completed work at a much slower pace than others[2]. I accept that Mr Buchanan worked slowly and had to correct his own errors, which would have meant that he repeated work that others might have completed the first time. I also accept that Mr Buchanan found himself having to do more work, at a faster pace than previously, during the performance reviews[3]. However I do not accept that Mr Buchanan was working, as he described it “in a fast and furious fashion,”[4] although it may have seemed like that to him.
[2] Exhibit R5.
[3] Exhibit A8.
[4] Exhibit A8.
8. Mr Buchanan, however, invariably presented a history to doctors that suggested that at the ATO he was engaged in considerable keyboard work for the majority of the working day. That plainly was not true. I accept the evidence of Ms C Crawford[5] and Ms M Bromley[6] that Mr Buchanan was not engaged in continuous keying, and any keying was interrupted by substantial breaks. However, I also accept Mr Buchanan’s evidence that there was more keying for him to do because he had to correct his errors. Ms Crawford estimated that Mr Buchanan was engaged for approximately 2.5 hours per week using the keyboard and mouse and there was nothing in Mr Buchanan’s evidence that led me to doubt that this was a reasonable estimate of his time using the mouse and keyboard.
[5] Folio 20-21, T4.
[6] Exhibit R6.
MEDICAL REPORTS
9. Mr Buchanan is left handed, however the problems for which he made this compensation claim arose in his right arm. When he was undergoing the performance review, the data he was entering required that he use the numeric keyboard, which he used with his right hand. Mr Buchanan said that he noticed in about June 2002 that his right arm was getting sore and his fingers “felt strange”. He said that when he had raised with his doctor what might be the possible cause, he was told that it was probably related to his CFS.
10. About 21 October 2002, Mr Buchanan’s general practitioner, Dr K Wong, noted that Mr Buchanan had a problem with the right elbow, and again observed in clinical notes dated 9 November 2002 that the right epicondyle was tender laterally[7]. These symptoms continued to December 2002, and the clinical notes reveal that Mr Buchanan was experiencing symptoms when he did not wear a “tennis elbow strap”. Mr Buchanan said in his oral evidence that he had been using an elastic bandage on his elbow at work. In that regard, he said that he had been referred to physiotherapist, Ms K Kerr, by Dr S Catchpole, general practitioner at the Workers’ Medical Centre.
[7] Exhibit R8.
11. In her report dated 25 November 2002[8] Dr Catchpole had diagnosed Mr Buchanan as having an epicondylitis of the right arm that had been present for about four months and was aggravated by mouse work in his job at the ATO. Mr Buchanan said that the union advocate who was assisting him at the time of his performance monitoring had provided Dr Catchpole’s report to the ATO, with a view to reducing the length of time that Mr Buchanan was required be under performance review.
[8] T6.
12. It seems that it was the physiotherapist Ms Kerr who provided Mr Buchanan with the tennis elbow strap. In addition, Mr Buchanan had weekly physiotherapy between October and December 2003. Mr Buchanan said he has not had physiotherapy since 2006. Before then, he said, he was seeing Ms S Lister, physiotherapist at Body Mechanics. Her report dated 20 January 2003[9] indicated that testing the muscles at the elbow joint produced normal results.
[9] Exhibit R10.
13. Mr Buchanan agreed under cross-examination that he had not told anyone at the ATO in 2002 that his rate of work was affected by pain in his arm. He acknowledged that Ms Lister concluded in January 2003 that the elbow appeared normal; however, Mr Buchanan observed that at that time he was taking anti-inflammatory medication.
14. I note that Dr R Prentice, Director of Immunology[10] subsequently wrote in a report to Dr Catchpole in June 2003, that in June 2003 Mr Buchanan no longer had the elbow and hand pain that he had when he was using the computer mouse. Dr Prentice observed that a number of Mr Buchanan’s symptoms were the result of his stressful time at work and would improve once he was removed from that environment for a prolonged time.
[10] Exhibit R9.
15. After Mr Buchanan put in his claim for compensation he was sent to see Dr D Todman, neurologist, in June 2004, for a written report[11]. Dr Todman accepted the general practitioner‘s opinion that Mr Buchanan suffered from right epicondylitis, or as Dr Todman described it, epicondylitis involving the medial and lateral epicondyles, with a secondary ulnar neuritis in the right elbow. It was evident from Dr Todman’s 2004 report that he thought the condition was still present; indeed, he regarded Mr Buchanan as having a 10% permanent impairment as a result. Dr Todman said that most people would be expected to recover from epicondylitis, but it can persist in a significant minority of cases.
[11] T15.
16. The symptoms Dr Todman elicited on examination were pain in Mr Buchanan’s right forearm around the elbow; a constant ache in the forearm and hand; weakness in the right hand muscle; and reduced sensation in the fourth and fifth fingers. Dr Todman found Mr Buchanan to be tender over the right medial and lateral epicondyles, and over the head of the radius at the elbow. Nerve conduction studies indicated some slowing; a result confirmed when Dr J Cameron ran the same a year later.
17. Dr Todman took as part of the history that Mr Buchanan was required to use a keyboard and mouse at the ATO “at a rapid rate throughout the course of the whole day”. Mr Buchanan also told Dr Todman that from mid-2002 he had to do extra work above and beyond his normal duties. In other words he said that his tasks and their intensity had increased.
18. When it was put to Dr Todman that the evidence suggested otherwise and that Mr Buchanan was much slower than others in using the computer, and in fact spent quite limited time using the keyboard and mouse, Dr Todman agreed that he had simply accepted what Mr Buchanan had told him about his workload. However, he made two qualifications at this point in his evidence. Firstly, he said, with respect to the issues of workload, the real issue was Mr Buchanan being required to increase his rate of keyboard work beyond that which he had done previously. In a person susceptible to injury the fact of increase of workload was more important than the number of keystrokes. However he acknowledged that if it was not true, as Mr Buchanan claimed, that his keyboard work had increased, then he would have to question his earlier conclusions.
19. Secondly, Dr Todman observed that undertaking keyboard work activates all the muscles in the arm and this can lead to injury in susceptible people. He said that whether injury occurs or not may depend upon such factors as the position in which the arm is held.
20. Dr Cameron saw Mr Buchanan in 2005[12] and at this time Mr Buchanan had taken up employment delivering leaflets. Mr Buchanan told Dr Cameron that his problems with the ATO started towards the end of 2001 when his section was amalgamated with another and he had to perform new work. Mr Buchanan told Dr Cameron that he was operating the keyboard and mouse “all day”. He said that he was unwell and suffering symptoms of glandular fever. About June 2002 he began to experience discomfort over the right forearm extensor compartment with tingling in his right second and third digits.
[12] Exhibit R1.
21. When Dr Cameron saw Mr Buchanan nearly three years had passed since he left the ATO. He was complaining of ongoing problems in the right arm in the area of the mid-forearm extensor compartment when using a computer; there was discomfort over the lateral side of the right biceps tendon; and pain in the right shoulder had started in 2003. However, he told Dr Cameron that the tingling sensation in his fingers had ceased. Dr Cameron made the following observations as a result of objective and subjective testing: there were no sensory symptoms or weakness in his right upper limb or hand; he could not locate any focal tenderness over the right extensor origin or medial flexor origin at the right elbow; there was no specific tenderness; there was no swelling; and Mr Buchanan had normal upper limb reflexes and muscle strength in the upper limb and right-hand. Dr Cameron observed that Mr Buchanan had a full range of elbow and wrist and finger movements.
22. There were no abnormal neurological findings; however, nerve conduction studies demonstrated that Mr Buchanan had mild median disturbances at both wrists, and mild ulnar nerve disturbances at both elbows.
23. Nevertheless, Dr Cameron concluded that he could find no evidence that Mr Buchanan suffered any injury to his right upper limb due to work activities in July 2002. Dr Cameron said it was conceivable that Mr Buchanan may have experienced some mild muscular discomfort in the right forearm compartment when he was working at the ATO but this would have settled immediately after ceasing activity.
24. Dr Cameron said the type of work Mr Buchanan was doing was not of sufficient force or strain to cause epicondylitis, nor would it cause ulnar neuropathy. Dr Cameron concluded that Mr Buchanan had recovered from any muscular discomfort. As Dr Cameron said in his oral evidence: “all soft tissue discomfort resolves”. Dr Cameron was unable to elicit any signs of sensitivity over either epicondyle. Mr Buchanan identified some discomfort at the mid-extensor compartment muscle bulk but Dr Cameron said that is not where pain from lateral epicondylitis is located. Dr Cameron noted that disturbances of nerve conduction were bilateral, but that work was not the cause of any nerve disturbance in Mr Buchanan’s right arm. He stated that there were some mild median and ulnar entrapments but work would not have caused or aggravated the condition[13]. Dr Cameron said that he was simply unable to explain Mr Buchanan’s pain, although he believed his complaints of pain. Under cross-examination he agreed that Mr Buchanan’s pain might be psychiatric in origin.
[13] Exhibit R2.
25. Dr F Tomlinson, neurosurgeon, examined Mr Buchanan in 2006. Mr Buchanan told Dr Tomlinson that because of the performance review he was required to carry out data entry tasks involving right hand use of the numeric keyboard and that his right arm problem started then. Mr Buchanan told Dr Tomlinson that he still had symptoms in that arm including discomfort over the muscles of the lateral aspect of the arm below the elbow. Clinical examination revealed some tenderness over the extensor origin of the forearm extensor and some mild restriction of flexion at the elbow.
26. Dr Tomlinson diagnosed Mr Buchanan as suffering from a right epicondylitis involving the lateral and medial epicondyles[14]. In addition he identified ulnar neuritis at the right elbow secondary to epicondylitis. Dr Tomlinson said that the condition was related to Mr Buchanan's work at the ATO. Like Dr Todman, Dr Tomlinson acknowledged that he accepted Mr Buchanan’s evidence in regard to workload, believing that Mr Buchanan was using a keyboard all the time. Dr Tomlinson said he was unaware that there were complaints that Mr Buchanan was slow. He pointed out however that if Mr Buchanan was not skilled with computer work, he might have been using the wrong technique. He said it was all about how the person holds the muscles in the arm, and faulty technique can result in micro-tears of the muscles.
[14] Exhibit A6, dated 6 May 2006.
27. In that respect, Dr Tomlinson said that Mr Buchanan was the wrong person in the wrong job and was susceptible to the injury that he sustained. He did not agree with Dr Cameron and Dr P Millroy that arm pain arising from keystroke activity should resolve when the activity ceases. He said that in Mr Buchanan’s case he showed some improvement on ceasing work but remained symptomatic, experiencing problems around his right elbow consistent with epicondylitis. Dr Cameron was asked to consider this later report of Dr Tomlinson and said that if Mr Buchanan had lateral epicondylitis when Dr Tomlinson saw him, it was a new development. He reiterated that in the extensive tests that he carried out he could not elicit symptoms, and he stood by his earlier opinion that Mr Buchanan did not have lateral epicondylitis in 2005.
28. Dr J Bartlett, orthopaedic surgeon, examined Mr Buchanan in November 2006[15] and the previous medical reports provided to him included those of Dr Catchpole, Dr Cameron, Dr Todman and Dr Tomlinson. Dr Bartlett concluded that Mr Buchanan suffered a lateral epicondylitis of the right elbow. He said it was related to his work, was ongoing, and unlikely to resolve. He disagreed with Drs Todman and Cameron that Mr Buchanan suffered ulnar neuritis.
[15] Exhibit A7.
29. Mr Buchanan had told Dr Bartlett that during the performance reviews he was under pressure to perform in a speedy fashion, and this is when he began to experience pain in the lateral side of the right arm in the elbow region up to his shoulder. In cross-examination, Dr Bartlett agreed that he understood Mr Buchanan undertook repetitive work, at speed. When he was asked to consider whether his conclusions would have been different if the evidence was that Mr Buchanan was engaged in little keyboard work, he said that where epicondylitis arises from keyboard work it is because of the repetitive nature of the task. He said the evidence about Mr Buchanan’s work appeared to be at variance to what Mr Buchanan told him.
30. Dr Bartlett noted from his physical examination of Mr Buchanan that aspects of the examination produced normal results but Mr Buchanan experienced some discomfort with full extension and flexion and that the lateral epicondyle of the humerus at the elbow was tender. Dr Bartlett said that the symptoms that he elicited were on the outside aspect, rather than where Dr Millroy identified them in the pit of the elbow. Dr Bartlett said epicondylitis will normally run a spontaneous course to resolution within weeks or months but this does not invariably happen and some patients may have it for years and have recurrent flare-ups. He thought this was happening with Mr Buchanan.
31. Dr P Millroy, orthopaedic surgeon, prepared a report dated 25 January 2007 in which he made particular note that he did not consider that Mr Buchanan overstated or exaggerated symptoms. That is important in the context of the reliability of evidence. Dr Millroy, being the last of the doctors to report on Mr Buchanan, was provided with all previous medical reports. He also examined Mr Buchanan. But it has to be borne in mind that this was some 4 years after the events occurred.
32. The history that Dr Millroy took was that Mr Buchanan developed aching on the antero-lateral aspect of the right elbow but not around the lateral aspect. Dr Millroy noted that Mr Buchanan had only complained of pain in the right elbow in October 2002, despite having attended his doctor frequently in the three preceding months. Dr Millroy concluded that there might have been lateral epicondylitis at the time. But there was no such condition present, according to Dr Millroy, when Dr Millroy examined Mr Buchanan, and he said that any effects of the condition would have resolved by mid 2003.
33. Dr Millroy was firmly of the view that the condition was not caused by keyboard activities. But, he ultimately acknowledged that there might be some association in instances of hectic keyboarding. He said that typically, lateral epicondylitis is caused by actions involving wrist extension; medial epicondylitis is the result of flexion actions.
34. As to Mr Buchanan’s symptoms and signs at the time of examination, Dr Millroy found there was no tenderness at the right lateral epicondyle or the common extensor origin, but that Mr Buchanan had described some tenderness over the upper extensor muscles. That is, Mr Buchanan was tender at a point in the elbow not expected with lateral epicondylitis. Dr Millroy observed this was revealed on examination, rather than by Mr Buchanan complaining of tenderness there. Dr Millroy said that he did not believe there was any serious cause for this tenderness and he was satisfied it was quite unrelated to lateral epicondylitis. Mr Buchanan’s elbow movements were full and most signs in the arm and elbow were normal. Equally, x-ray signs were normal.
CONSIDERATION OF THE ISSUES
35. The main head of liability lies in s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) which provides that:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in s 4(1) of the Act as:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or…
36. It was submitted by Mr A Anforth, counsel for Mr Buchanan, that his claim related to an “injury” rather than a “disease”, being injury that arose out of his employment. I accept that submission as correct. All that Mr Buchanan needed to show, according to Mr Anforth, was that keyboarding work at the ATO made some material contribution to the injury[16]. Continuing this submission, Mr Anforth said that if it was found as a fact that the applicant’s painful right arm did arise from keyboarding (and may have been in combination with his depression and chronic fatigue syndrome), then it does not matter that this amount of keyboarding might not have led to injury in other persons. That is, arguments about the small number of keystrokes that he actually might have carried out were irrelevant.
[16] Applicant’s Outline of Submissions dated 2 November 2007.
37. Ms E Ford, counsel for Comcare, submitted that it was curious that Mr Buchanan had waited 12 months (although I note it was more in the order of 8 months) after leaving the ATO before putting in his claim for compensation. Ms Ford submitted further that it would be unlikely that Mr Buchanan would omit to tell Ms Culpitt or Ms Bromley about his right arm problem if he in fact had such a problem as he now claims, especially in the context of his work performance being reviewed.
38. It seems to me to be quite clear having regard to all the medical evidence, that had Mr Buchanan lodged his claim in a timely way, there would be no reason to refuse his claim. The evidence at the time that Mr Buchanan said he had a problem with his arm was as follows:
§ he had told his general practitioner Dr Wong that he had a problem and Dr Wong labelled it lateral epicondylitis;
§ separately, Dr Catchpole at the Workers’ Health Centre diagnosed lateral epicondylitis and in her report she clearly refers to his use of the keyboard and mouse;
§ Mr Buchanan was referred for treatment to physiotherapist, Ms Kerr who he saw weekly; and provided him with a tennis elbow brace. I accept he wore this at work despite it not being observed by others. The efficacy of the use of the elbow brace is referred to in Dr Wong’s clinical notes in 2002.
39. Whatever may be the explanation for Mr Buchanan not telling his immediate supervisors about his arm problem, it is the contemporaneous medical evidence that is decisive, in my view. This medical evidence comfortably satisfies me that Mr Buchanan suffered from lateral epicondylitis arising during the second half of 2002, and I am satisfied that this condition was related to his work at the ATO.
40. In that regard, I accept Mr Buchanan’s evidence that he increased his workload during the time he was undergoing performance reviews. I do not think that the question of “injury” within the meaning of the Act can simply be answered by saying that Mr Buchanan’s output was much less than others were expected to complete and I accept the submission of Mr Anforth that any connection with work cannot be measured simply by keystrokes. The actual mechanics of the injury process may be open to divergent views, but I regard as reasonable the explanations provided by Dr Tomlinson and Dr Todman, that the injury may be sustained by holding the arm in the wrong way for the task, or by simply being a person who is more susceptible to that kind of injury.
41. I note that a number of doctors commented upon Mr Buchanan as a person who was giving an honest account of his symptoms. I regard this as an important consideration because their evidence depends upon the reliability of the history of symptoms given to them. However it cannot escape comment that when Mr Buchanan gave his history to doctors he greatly overstated what component of his day was spent using a keyboard or mouse. In my view, this led some doctors to more readily accept a continuing connection of what they believed to be excessive keyboard work with symptoms that Mr Buchanan complained of in later years.
42. Looking at the medical evidence as a whole I accept Ms Ford’s submission that Mr Buchanan’s condition of epicondylitis falls more squarely within the speciality of orthopaedics. I regarded Dr Cameron’s and Dr Millroy’s reports as the most comprehensive statements and analysis of the findings based on objective and subjective testing carried out during their interviews with Mr Buchanan.
43. I was satisfied, accepting the evidence of Drs Cameron and Millroy that Mr Buchanan’s right arm problem (however described) could be expected to resolve, once he was no longer exposed to the source of the problem – in this case – keyboard and mouse work. Dr Cameron, it will be recalled saw the problem as merely muscular discomfort. Dr Millroy, in my view, gave greater weight to the opinions of the general practitioners who were in the advantageous position of seeing Mr Buchanan at the relevant time in 2002. Even though these general practitioners (and the physiotherapists) were not called to give evidence, there is no reason for me to conclude that the condition was one beyond the expertise of the general practitioner. I think that that Dr Millroy is right to give weight to those views of practitioners who had a chance to look at the arm and take a history of the problem at the time that Mr Buchanan first had it.
44. I was satisfied that a number of other practitioners who reported upon Mr Buchanan’s case much later too readily accepted that his was an injury that was related to excessive keyboard work. In giving oral evidence each of Drs Todman, Tomlinson, and Bartlett moved away from their previously firmly expressed opinions when faced with a more realistic picture of his workload than Mr Buchanan had provided to them. In particular Dr Bartlett had referred to repetitive and continuous keyboarding - which, I was satisfied, Mr Buchanan did not do - as causal in Mr Buchanan’s case,
45. Dr Millroy’s considered view, which I accept, was that epicondylitis, if present, could be expected to resolve by the middle of 2003. The evidence supports that happening. The physiotherapists who were treating the condition noted its improvement with the use of the elbow strap and presumably as a result of the physiotherapy he was receiving. Significantly in June 2003, Dr Prentice noted that Mr Buchanan no longer had the elbow and hand pain that he had when he was using the computer mouse. The evidence satisfies me that the injury as related to any cause arising from his work at the ATO had resolved by the middle of 2003, as Dr Millroy’s evidence confirms would be expected.
46. For these reasons I was satisfied that the work-related injury, which was first evident in October 2002, had resolved by June 2003. I accept the evidence of Dr Millroy and Dr Cameron that Mr Buchanan did not have epicondylitis when they examined him respectively in 2005, and 2007.
47. As to the other condition of ulnar neuritis, I was not satisfied that the necessary connection of that condition with work was established by the evidence. It is referred to in several of the reports as a condition “secondary” to the epicondylitis, but none of the reports that proffer this diagnosis suggest the way in which the condition if present, is related to epicondylitis. The evidence about nerve conduction studies show that the variation in nerve conduction was present in both upper limbs, which in my view suggests that it is unrelated to the problems which Mr Buchanan said arose in relation to the increased use of his right arm at the ATO.
DECISION
48. The Tribunal sets aside the decision under review and substitutes the decision that Mr Buchanan sustained an injury, namely medial and lateral epicondylitis, for which the respondent is liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988, for the period 21 October 2002 to 5 June 2003, when the injury resolved. The matter is remitted to the respondent to assess compensation payable under s 16 and s 19 of the Act.
49. The parties have leave to file submissions in relation to costs within 14 days. In the event that no submissions are filed in that period, then the respondent is ordered to pay the applicant’s costs in accordance with s 67(8) of the Administrative Appeals Tribunal Act 1975.
I certify that the preceding 49 paragraphs are a true copy of the reasons for the decision herein of Senior Member M J Carstairs.
Signed: ………………[sgd]…………………………………..
Joan Torbey, AssociateDates of Hearing 29, 30 and 31 October 2007 & 12 December 2007
Last Submissions Received 18 February 2008
Date of Decision 12 May 2008
Counsel for the Applicant Mr A Anforth
Solicitors for the Applicant James Watt & Co. Solicitors
Counsel for the Respondent Ms E Ford
Solicitors for the Respondent Sparke Helmore Lawyers
0
0
0