Cakir and Comcare

[2007] AATA 2015

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2015

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2007/0915

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LISA-MAREE CAKIR

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date5 December 2007

PlaceCanberra

Decision The decision under review is set aside and in place thereof the Tribunal decides that Ms Cakir suffered an injury on 19 July 2006, and is entitled to compensation for which Comcare is liable.

..........signed....................................

Mr S. Webb, Member

CATCHWORDS

COMPENSATION - right shoulder and upper limb injury claimed - administrative computer related duties - computer keyboard and ergonomic changes - history of neck pain and depression - muscular strain - aggravation of previously existing condition - subsequent neurogenic pain secondary to physical injury - decision set aside

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 67

Comcare v Sahu-Kahn [2007] FCA 15; (2007) 156 FCR 536

REASONS FOR DECISION

5 December 2007 Mr S. Webb, Member         

1.      Lisa-Maree Cakir (nee McLaughin) is employed by the Department of Employment and Workplace Relations as a Web Publishing Officer.  She complained of right upper limb, shoulder and neck symptoms in the course of her duties, and was certified unfit for work for a period.  She claimed injury related compensation.[1]  Her claim was rejected by Comcare by primary determination[2] and on reconsideration.[3]  Those decisions relating to Ms Cakir’s claim are the subject of these proceedings.[4]

[1] T7.

[2] T19.

[3] T21.

[4] T2.

2.      Thus the issue for determination is whether Ms Cakir suffered an injury in relation to which she is entitled to compensation.

3.      The relevant facts are as follows.  Ms Cakir was at all relevant times an employee of the Department.  She is married with one child.  She took maternity leave from February 2005 and returned to work on 25 May 2006.  Ms Cakir has a history of neck pain, pain in her back and shoulders, and headaches. She has sporadically obtained massage, chiropractic and physiotherapy treatments for these symptoms over several years.  She also has a history of clinically significant depression for which she obtained medical and psychological treatment in April 2006.[5]  In a pre-employment Confidential Medical and Personal Statement dated 10 December 2003, Ms Cakir declared, among other matters, previous medical problems and treatments in relation to “sore back and neck” and “depression”.[6] 

[5] Exhibit R6.

[6] Exhibit R2.

4.      In 1993 Ms Cakir was involved in an accident while roller blading and suffered a whiplash injury.  In or about 2000, she was involved in a motor vehicle accident.  While she was not badly injured in this accident, by her own account she experienced pain in her upper body the following day, especially on the right side.  She attended the Canberra Hospital and was referred for an X-ray and a further radiological test (possibly an MRI scan).  The reports of those radiological procedures are not in evidence.  However, Ms Cakir’s evidence is that the scans did not indicate injury and the pain subsided. 

5.      Ms Cakir experienced headaches and pain in her right ear, and back in February 2006, and was referred for physiotherapy treatment.[7]  The clinical notes of ACT Health Physiotherapy reveal that she presented on 29 March 2006 complaining of headaches, a constant ache in her neck (especially on the right side), and reported that her shoulders and back were sore.[8]  The physiotherapist’s clinical notes dated 20 April 2006 reveal that despite some improvement after successive treatments in March and April, Ms Cakir complained of recent increased neck pain.  On examination the physiotherapist noted localised pain at the “C2-3-4” levels on the right side.[9]  The notes further reveal that on 15 June 2006, the physiotherapist recorded that Ms Cakir reported “↑ Neck + T/S pain” after returning to work and noted “↓↓ C2-3-4 Localised pain. Palp upper traps ↑ tender”.[10]  Treatment was provided and Ms Cakir was to “Monitor posture at work, walk 2 minutes every 30 minutes of work”.[11]

[7] T7 folios 40-41, Exhibit R3.

[8] Exhibits R4 and R5.

[9] Exhibit R4.

[10] Exhibit R4.

[11] Exhibit R4.

6.      Ms Cakir returned to work on 25 May 2006.  Her work involved the use of computers.  Necessarily, that work involved the use of a keyboard and a mouse.  Ms Cakir had touch typing skills that she had learned and used on a standard keyboard.  Her technique was to use wrist rests while typing.  An ergonomic assessment of Ms Cakir’s workstation was undertaken on 6 June 2006 by Renee Hatty, an injury management consultant.[12]  Ms Hatty made a number of recommendations, including a flat keyboard (referred to as an ‘Sboard’) “to allow a floating wrist posture while keying”.[13]  Ms Hatty also reported a number of self management recommendations, including “Gradually implement a floating type posture…”, “Minimise scrolling and double clicking with the mouse…” and “The keyboard should be moved to the location required depending on the type of work being performed.”[14] It appears likely that Ms Cakir was provided with a new Sboard keyboard on or about 10 July 2006.[15]  It is not controversial that the keyboard layout on the Sboard is substantially different than the layout on a standard keyboard:  on the Sboard there is no number pad and a number of other keys that are often used in shortcuts (such as Page Up, Page Down, Home, End, Insert, Delete and arrow keys) are in different locations.  I accept that Ms Cakir used a combination of mouse and keyboard actions in her work and that she had difficulty touch typing on the Sboard.  By her own account, which was not seriously challenged and I accept, she raised concerns about the Sboard with her supervisor, Jeremy Dwyer, and with a Departmental occupational health and safety officer, Ron Hogan.[16]  Neither Mr Dwyer nor Mr Hogan was called to give evidence.  However, on Ms Cakir’s evidence, on or about 11 July 2006, Mr Hogan advised her to use the Sboard for a few weeks and if it didn’t work out, to discuss her concerns with the workstation assessor.[17]

[12] T6.

[13] T6 folio 23.

[14] T6 folios 23 and 24.

[15] T7 folio 42 refers.

[16] T7 folios 42-43 refers.

[17] T7 folio 43.

7.      Ms Cakir commenced using the Sboard in accordance with Ms Hatty’s recommendations and Mr Hogan’s advice.  On 18 July 2006, she experienced symptoms in her right upper limb and right shoulder.  Similar symptoms recurred on 19 July 2006 and she left work early.  On that day she consulted Dr Stephen Choong, who diagnosed “Muscular and tendon strain neck and R shoulder” that he attributed to keyboard work and certified her unfit for work until 24 July 2006.[18]  Dr Choong prescribed Naprosyn.  On 24 July 2006, Dr Choong diagnosed “Muscular and tendon strain of neck & R shoulder and R forearm” and certified Ms Cakir unfit for work until 31 July 2006.[19]  Ms Cakir remained unfit for work on Dr Choong’s certificates until she was certified fit to return to work on modified duties with limitations from 4 September 2006.[20]  On 30 October 2006, Dr Choong certified that Ms Cakir was fit to resume her normal hours and duties.[21]

[18] T4 folio 9.

[19] T4 folio 10.

[20] T4 folios 13-15.

[21] T4 folio 16.

8.      It appears that Dr Choong referred Ms Cakir to Mr A. Rumore, physiotherapist, for physiotherapy treatment soon after the first consultation on 19 July 2006, although there is only scant evidence of this.  Dr Choong was not available to give oral evidence and Mr Rumore was not called.  Doing the best with the available evidence, it appears likely that Ms Cakir attended on Mr Rumore but was not assisted by the treatment she obtained.  Her evidence is that Mr Rumore thought she had a pinched nerve in her neck and gave her treatment and exercises that exacerbated her symptoms, and she did not return.  Subsequently Dr Choong referred Ms Cakir to Mr Jac Cousin, physiotherapist, for treatment.  She attended Mr Cousin’s practice for treatment on eight occasions in the period from 16 August 2006 to 19 October 2006.[22]  Mr Cousin reported that on 16 August 2006, Ms Cakir complained of “a constant aching, burning pain of her right upper trapezius, right shoulder, right arm, right forearm and the posterior aspect of her right hand”[23] and, in his opinion, Ms Cakir “had suffered a right shoulder strain and cervical nerve root irritation as a result of her increased workload in a poor ergonomic set up in mid July 2006”.[24]

[22] Exhibits A3 and T15 refer.

[23] T15 folio 61; Exhibit A3, clinical note 16 August 2006 refers.

[24] T15 folio 62.

9.      On 4 September 2006, Ms Cakir returned to work on restricted duties.  Soon thereafter Julie Thornton, an occupational therapist, conducted a brief review of Ms Cakir’s workstation arrangements.  On or about 7 September 2006, Ms Cakir complained that she experienced pain when she commenced using her keyboard.  A further review of Ms Cakir’s workstation arrangements was conducted.  Ms Thornton reported that Ms Cakir “keyed with her wrists stabilised on the edge of her desk and in static extension.  This appeared to be causing Ms Cakir’s pain in the extensor muscle belly of her right forearm”.[25]  Ms Cakir was provided with gel wrist rests.  On 12 October 2006, Ms Thornton reported that Ms Cakir was using the wrist rests “with good effect” and that she was “performing her duties without difficulties”.[26] Thereafter Ms Cakir’s condition resolved and she gave evidence that she has not experienced any further difficulties.

[25] T12 folio 55.

[26] T17 folio 66.

10.     Subsequently, on 20 October 2006, she was examined by Dr David Ruttenberg, an occupational physician, in relation to her compensation claim.  The Doctor diagnosed a non-specific pain disorder affecting Ms Cakir’s right upper limb[27]  that was unrelated to employment.  In his opinion, the disorder was not due to a previous condition, nor was it an aggravation or a recurrence of a previous condition.[28]  On 24 July 2007, Dr Ruttenberg reported “I am unable to clarify why Mrs Cakir should have developed a sudden strain while in a working environment at the time of the symptom onset” and stated “There is of course, no history of acute forces that makes a diagnosis of an acute strain in this working environment at all tenable.”[29]  It appears that Dr Ruttenberg was of the opinion that “There was increased workload, but there were no other changes, ergonomic or otherwise in the work environment preceding symptom onset”.[30]  The Doctor concluded that Ms Cakir’s symptoms were “more in keeping with a regional pain disorder” and observed that “While pain disorders themselves can arise secondary to physical injuries… I am unable to confirm that she [Ms Cakir] ever suffered a physical injury”.[31] 

[27] T18 folio 74.

[28] T18 folio 75.

[29] Exhibit R1, p2.

[30] Exhibit R1, p4.

[31] Exhibit R1, p4.

11.     On 23 May 2007, Ms Cakir was examined by Dr Garth Eaton, an occupational physician.  Dr Eaton diagnosed “Occupational overuse/musculo-ligamentous strain neck, right shoulder and right upper limb (resolved)” and “Possible associated cervical nerve root irritation and neurogenic pain right upper limb”, to which in his opinion, Ms Cakir’s employment significantly contributed.[32]  The Doctor noted mild degenerative changes at the C5/6 level on a cervical spine X-ray taken on 31 August 2006[33], but considered these changes to be of “minimal significance”.[34]

[32] Exhibit A2, pp 3 and 4.

[33] Exhibit R8.

[34] Exhibit A2, pp 3 and 4.

12.     Comcare says that Ms Cakir did not suffer a physical injury in the course of her employment, nor did she suffer an injury in the form of a disease to which her employment made a significant material contribution.  In Comcare’s submission, Ms Cakir has a history of neck, right shoulder and back problems that she sought to conceal, or at least to distinguish from her present claimed injury.  Thus Comcare asserts that Ms Cakir’s evidence, and the history she gave to doctors who treated her, is not reliable, and therefore, the diagnosis and attribution of Ms Cakir’s claimed symptoms reported by those doctors cannot be relied upon.  Furthermore, Comcare asserts that the medical evidence is not consistent with a work-related injury: the claimed mechanism of injury is not medically consistent with the symptoms Ms Cakir claimed, and it cannot be explained on the basis of the duties Ms Cakir was performing at the time.  Comcare says that Ms Cakir’s workstation was ergonomically assessed by a suitably qualified person and ergonomically approved equipment was provided, and it is simply implausible to claim that an injury resulted from these changes.  Comcare says that Ms Cakir’s workload was not excessive, accepting that in the week prior to her claimed injury there had been some increase in the workload of the section in which she worked, but this had reduced by the time of her claimed injury.  Comcare notes that Ms Cakir’s claimed injury was not contiguous with the increase in workload, and that by her own account, her symptoms, in the form of neurogenic pain, became worse after she left work and was certified unfit by Dr Choong.  This, Comcare asserts, is not consistent with the injury claimed.  In Comcare’s submission, the decision to reject Ms Cakir’s claim was correct and should be affirmed.

13.     As will appear I do not agree.

14.     Ms Cakir’s claim is to be determined under the Safety, Rehabilitation and Compensation Act 1988 (the ‘Act’). Under the Act, Comcare is liable to pay compensation in respect of an ‘injury’ that results in incapacity for work or impairment (s.14). ‘Injury’ is defined to mean a disease (being an ailment that is materially contributed to by the employment) or a physical or mental injury (other than a disease) arising out or of in the course of the relevant employment (s.4). For Ms Cakir’s claim to succeed, I must be reasonably satisfied, on the balance of probabilities, that her claim is made out on the evidence before me. Mere possibility is not sufficient.

15.     It is necessary first to deal with Comcare’s submissions concerning the reliability of Ms Cakir’s evidence.  It is apparent to me that Ms Cakir had some difficulty recalling events that occurred in and before 2006 with precision.  There were some inconsistencies in her evidence and in relation to her medical history as recorded in some of the medical evidence.  In Comcare’s submission, Ms Cakir set out to conceal or distinguish her history of neck, back and shoulder problems, and depression, prior to the claimed injury, and she was not full and frank when giving her evidence.  That submission is not made out.  Ms Cakir declared these matters in the pre-employment form in Exhibit R2.  She included information about her neck problems in February 2006 in her claim form for compensation.  I found Ms Cakir to be a reasonably straightforward witness who gave her evidence without apparent guile.  Nevertheless, having regard to the inconsistencies and the difficulty recalling precise details, which in my view were inadvertent lapses or genuine issues of memory, greater weight will attach to contemporaneous evidence in the documents than to Ms Cakir’s oral evidence insofar as any inconsistencies are concerned.

16.     I am reasonably satisfied and find that Ms Cakir suffered a musculo-ligamentous strain in her right arm and shoulder on 19 July 2006.  It is probable that she also suffered some degree of nerve root irritation in her cervical spine at the C5/6 level.  I am satisfied that these conditions arose as a result of Ms Cakir’s computer duties, in particular keyboard and mouse use following provision of an Sboard with which she was not familiar, and changes in the ergonomic arrangement of her workstation, in particular, adopting a floating wrist typing position using the Sboard without wrist supports. 

17.     Dr Choong examined Ms Cakir on 19 July 2006, 24 July 2006 and subsequently.  Unfortunately Dr Choong was not available to give oral evidence and his evidence has not been tested under cross-examination.  However, the documents reveal that the Doctor was unequivocally of the opinion that Ms Cakir had sustained a muscle and tendon strain of her neck, right shoulder and right forearm as a result of keying duties.[35]  His clinical notes are consistent with his diagnosis, which I accept.  It is apparent that Dr Choong was aware that Ms Cakir had issues and symptoms in her neck prior to the claimed injury, and he proceeded on the basis that these had resolved.  Whether those symptoms had completely abated by 18 July 2006 is moot.  Ms Cakir says that her previous symptoms had resolved by that time.  As it appears to me, she was symptomatic when she obtained physiotherapy treatment from ACT Health in April 2006.  She complained of increased neck and thoracic spine pain following her return to work when she subsequently obtained physiotherapy treatment on 15 June 2006.[36]  However, there is no evidence that Ms Cakir suffered any ongoing symptoms after that consultation.  Nor is there evidence that she suffered any incapacity for work or that she obtained further medical or physiotherapy treatment in the period prior to 18 July 2006.  Thus I am reasonably satisfied that if Ms Cakir’s previous symptoms of neck and back pain did continue after 15 June 2006, those symptoms were minor and they did not prevent her from performing her normal duties in employment.  Furthermore, any such symptoms are distinguished from the symptoms she experienced in her neck, right shoulder and right upper limb, including her right forearm and hand, on 18 and 19 July 2006, that caused her to leave work and seek medical treatment.  These symptoms are clearly described in Dr Choong’s medical notes from 19 July 2006.[37]  To the extent that the Doctor’s notes are not consistent with Ms Cakir’s oral evidence, the Doctor’s notes and his subsequent report are more reliable, and I accept them.

[35] see T11 and T13.

[36] Exhibit R4.

[37] Exhibit A3.

18.     On 16 August 2006, Mr Cousin described a similar history and came to a similar diagnosis as Dr Choong, with the additional diagnosis of cervical nerve root irritation.  Subsequently, on review, Dr Eaton’s retrospective diagnosis supports Mr Cousin’s opinion.  Dr Ruttenberg, however, came to a different conclusion.  The evidence of Dr Choong, Mr Cousin and Dr Eaton is to be preferred.  Dr Choong and Mr Cousin examined and treated Ms Cakir in the period immediately following the claimed injury, whereas Dr Ruttenberg examined Ms Cakir a number of months later, only a number of days before she returned to her full duties when the claimed injury has substantially resolved.  Furthermore, Dr Ruttenberg appears to have based his opinion, at least in part, on the understanding that there were no ergonomic changes in Ms Cakir’s workstation arrangements in the period prior to the claimed injury.  With respect, when the sequence of events reported by Ms Thornton[38] is considered in relation to Ms Cakir’s claim[39] and her subsequent accounts of what occurred in the days and weeks prior to the claimed injury, which I accept, it can be seen that changes did occur in the ergonomic arrangement of her workstation and in her typing technique.  Dr Ruttenberg agreed during cross examination that poor posture and ergonomic arrangements when typing may give rise to forearm symptoms and injury, but stated that that had not occurred in this case.  The clinical notes and reports of Dr Choong and Mr Cousin point to a contrary conclusion.  There is clear evidence that Ms Cakir complained, initially at least, of right forearm and hand symptoms as well as symptoms in her upper right arm, right shoulder and neck.   Thus, it appears that Dr Ruttenberg’s oral evidence on this point may support a finding of musculo-ligamentous injury rather than his reported diagnosis of neurogenic pain of indeterminate origin. 

[38] T8.

[39] T7.

19.     Thus, I find that Ms Cakir suffered an injury that arose in the course of her employment to which her employment materially contributed on 19 July 2006, the date of first medical treatment and incapacity.  I do not accept Dr Ruttenberg’s opinion that Ms Cakir’s pain was the result of her depression.  That opinion stands alone and is not supported by the facts or other evidence.

20.     Comcare submitted that the employment did not make a significant material contribution to cause any acute injury.  That submission is not made out.  There are three things to say about this in the circumstances.  First, a muscle or tendon strain and cervical nerve root irritation may be considered to be frank physical injuries, in which case the ‘disease’ proviso concerning material contribution would not apply.  However, submissions were not pressed on this point of differentiation. 

21.     Secondly, dealing with the claimed injury as an ailment, the requisite material contribution must pass the threshold evaluation to which Finn J referred in Comcare v Sahu-Kahn [2007] FCA 15. In Ms Cakir’s case there is a direct and powerful connection between the performance of her duties using the Sboard following the advice she received from Ms Hatty, and the onset of symptoms in her right upper limb, right shoulder and neck. Thus, considering the history and all of the circumstances, I am satisfied that the evaluative threshold is passed, despite her previous history of neck and shoulder pain.

22. Thirdly, if one accepts that Ms Cakir’s symptoms worsened after leaving work on 19 July 2006, and there is some doubt about when such worsening occurred (there is some evidence that her condition became worse after she obtained treatment from Mr Rumore), and that she then experienced neurogenic or neuropathic pain in her right upper limb, right shoulder and neck, consistent with the opinions of Mr Cousin and Dr Ruttenberg, it is not clear whether those symptoms are the result of nerve root irritation (Mr Cousin and Dr Eaton) or sensitisation of the central nervous system (Dr Ruttenberg). I have found that Ms Cakir suffered nerve root irritation at the C5/6 level as a result of performing her duties in employment using the Sboard and changed typing arrangements. Thus, if the neurogenic pain resulted from that cause it is an injury under the Act. The same applies in the latter case of sensitisation of the central nervous system. Dr Ruttenberg’s evidence is that such sensitization may occur de novo or secondary to injury. Dr Eaton gave evidence that nerve root irritation may cause sensitisation to occur. Thus, as it appears to me, it is probable that Ms Cakir’s neurogenic pain was either secondary to the injury she suffered on 19 July 2006, or was the result of cervical nerve root irritation as a mechanism of that injury. In either case, it is consistent with an injury under the Act, as claimed.

23.     As it appears to me, consistent with Ms Cakir’s medical history, it is likely that she may have been predisposed to neck, right shoulder and back problems.  That does not displace her claim or her entitlement to compensation.  There is no evidence that the symptoms she experienced on 18 and 19 July 2006 related to a previous condition. I do not accept Comcare’s submission that her symptoms were, in some manner, the product of the neck condition Ms Cakir experienced in February 2006, for which she obtained occasional physiotherapy treatment until 15 June 2006.  It is possible that the earlier neck symptoms had not entirely resolved before 18 July 2006.  However, there is no evidence that she continued to experience right shoulder pain and stiffness or any right arm symptoms in the period prior to the claimed injury on 18 July 2006.

24.     Thus, in conclusion, the decision under review must be set aside.  Ms Cakir suffered an injury in the course of and as a result of her employment, to which the employment materially contributed.  The injury is a musculo-ligamentous strain of her right shoulder and right upper limb with cervical nerve root irritation at the C5/6 level and consequent neurogenic pain.  She is entitled to compensation in relation to this injury and thus the matter is remitted to Comcare.

25.     The parties have 14 days in which to make written submissions in relation to costs.  If no submissions are received, I will order Comcare to pay Ms Cakir’s reasonable costs in these proceedings as agreed or taxed. 

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:       .....signed..........................................................
  Jane Gribble
  Associate

Date of Hearing  14, 15 November 2007
Date of Decision  5 December 2007
Counsel for the Applicant             Wayne Sharwood
Solicitor for the Applicant             Andrew Finlay
  Pamela Coward Higgins Lawyers
Counsel for the Respondent        Lorraine Walker
Solicitor for the Respondent        Andrew Shelley
  Sparke Helmore Lawyers