Carboni and Comcare
[2005] AATA 409
•6 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 409
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1085
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | ANA CARBONI | ||
Applicant
| And | COMCARE |
Respondent
DECISION
| Tribunal | R Hunt, Senior Member Dr J Campbell, Member |
Date6 May 2005
PlaceSydney
| Decision | The Tribunal sets aside the decision under review and in substitution decides that the Applicant was suffering from Carpel Tunnel Syndrome, which arose out of her employment and that the Respondent is liable to pay compensation to the Applicant pursuant to s14 of the Safety, Rehabilitation and Compensation Act 1988, from 18 July 2002, to date and continuing. |
......................[sgd].......................
Ms R Hunt
Presiding Member
CATCHWORDS
WORKERS COMPENSATION - Injury arising out of or in the course of employment – Carpel tunnel syndrome - Effect of pregnancies – Late diagnosis cause of lateness of claim for compensation
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14 and 53
CASES
Seltsam Pty. Ltd. v. McGuiness; James Hardie & Co. Pty Limited v. McGuiness (2000) 49 NSWLR 262
Comcare v Luck (1999) 29 AAR 403
Lombardi and Comcare [2005] AATA 167 (24 February 2005)
REASONS FOR DECISION
6 May 2005 Ms Robin Hunt, Senior Member
Dr J Campbell, Member
| summary |
The applicant, Mrs Ana Carboni, claimed that she suffered from Carpal Tunnel Syndrome, or CTS, which was brought about by the demands of her workplace. Mrs Carboni lodged an application on 2 July 2003 for review by the Tribunal of a determination of a review officer, dated 24 May 2003, which affirmed Comcare’s denial of liability to pay compensation to Mrs Carboni. Mrs Carboni had not worked since shortly before the delivery of her third child in 1999 until late 2003. The Tribunal has decided that Mrs Carboni does suffer from CTS, that this condition is work related and that this resulted in an incapacity for work. The reasons for the Tribunal’s decision are set out below.
background
Mrs Carboni lodged her claim for compensation on 15 November 2002. She was aged 40 at the date of making her claim, having been born on 10 May 1962, in Chile. She emigrated to Australia In March 1989. The Commonwealth Employment Service (the CES), which was a precursor to Centrelink, initially employed Mrs Carboni in Australia around September 1989. Mrs Carboni claimed her duties at the CES involved significant amounts of typing, mainly with data entry. Mrs Carboni later changed employer, accepting a position with Centrelink.
In the meantime, Mr and Mrs Carboni started a family. They have three children. Mrs Carboni also conceived prior to the birth of her first child but this pregnancy did not go to term. She first conceived before 1994 and this pregnancy went for 19 weeks. She then conceived again and Gavin was born on 1 June 1994. Chantelle was born on 20 March 1998. Natalie was born on born 24 August 1999. After Gavin’s birth in 1994, Mrs Carboni had about 6 months off work. She returned to working full time, plus working 3-4 hours of overtime per week. Mrs Carboni explained that she was required to apply for work at Centrelink in 1997 as the CES was being abolished. She was successful and commenced work at Centrelink on or about 1 May 1997. She continued to work for Centrelink until shortly before the birth of her second child, Chantelle, on 20 March 1998.About 6 months after the birth of Chantelle, Mrs Carboni returned to work. Mrs Carboni worked continuously from about December 1994 to March 1998 full time, plus some overtime. Her claim is that she is suffering CTS as a result of her employment. Mrs Carboni claimed she had been unable to work since the delivery of her third child in late 1999 until late 2003.
issues
In order to succeed in her claim, Mrs Carboni must establish:
(a)she has bilateral Carpal Tunnel Syndrome;
(b)that the Carpal Tunnel Syndrome is work related; and
(c)that this resulted in an incapacity for work.
Mrs Carboni says she is suffering from CTS as a result of her employment and, therefore, the Respondent is liable to pay compensation pursuant to section 14 of the Safety, Rehabilitation & Compensation Act 1988 (the Act). The Respondent denies liability and argues that she is not suffering an injury arising out of or in the course of her employment.
The Respondent further submits that Mrs Carboni did not comply with section 53 of the Act, by making appropriate notification of her claim within the required time and as a result, the compensation provisions of the Act do not apply.
Legislation
Section 4 of the Act deals with interpretation and includes the definitions of "injury" and “disease” as follows:
"injury" means:
“(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."
“Disease” is defined as:
“(a) Any ailment suffered by an employee; or
(b) the aggravation of such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment.”
Section 14 of the Act deals with compensation for injuries and, in part, states:
“14 (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. “
Section 53 provides, in part:
“53 (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 …”
evidence
Mrs Carboni and her husband, Mr Carboni, both gave oral evidence to the Tribunal. Mr Carboni corroborated much of what Mrs Carboni told the Tribunal about her symptoms and how it impacted on the family. Mrs Carboni recollected that she commenced work with the CES in September 1989, after migrating to Australia earlier that year. She described her duties as involving significant amounts of typing, mainly with data entry. She provided a chronology of events in her written submissions and verified this in oral evidence.
Mrs Carboni said that she gave birth to three children after arriving in Australia. After Gavin’s birth, on 15 July 1994, Mrs Carboni took six months leave and then returned to work. She claimed to have worked full time plus 3 to 4 hours overtime per week. In 1997, Mrs Carboni applied to Centrelink as the CES was being abolished. Both she and Centrelink say that she has worked with Centrelink since 1 May 1997. Mrs Carboni continued with Centrelink until shortly before the birth of her second child on 20 March 1998. She again had six months off after the birth.
Mrs Carboni gave evidence that, during her time at the CES, she developed a burning sensation in her hands and had pins and needles in her hands, fingers, forearms and upper forearms. She said that when she moved to the Centrelink her hands were still sore with pins and needles. She experienced this most of the time when she was typing. The pain was bad when she was sleeping. She said that she told her General Practitioner, Dr Selvarajah, about the pain.
Mrs Carboni claimed that she first felt pain in her wrists in 1996. She did not experience symptoms before or during the first pregnancy that did not go to term or during the second pregnancy in 1994. However, she said that the pain was constant when she returned to work after her third pregnancy and maternity leave in 1998. She said that the symptoms were worse with pregnancy and that, when she returned to work, the pain was constant. She experienced pins and needles most of the time when typing and pain when sleeping.
Mrs Carboni’s third child was born on 24 August 1999. During this pregnancy, Mrs Carboni had a fall in April 1999 and saw Dr Nguyen for lower back, neck and abdominal pain. Dr Selvarajah later referred her for a total bone scan which showed widespread inflammatory polyarthropathy. Also before the Tribunal was a “Whole Body Bone Scan” dated 23 February 1996.
Mrs Carboni told the Tribunal she performed mainly administrative duties at work, with extensive use of a computer keyboard. She had worked constantly since 1989 apart from breaks for maternity leave. She worked from about December 1994 to March 1998 full time, plus some overtime. She became aware she was pregnant with a third child in or about November 1998. She continued working until 3 August 1999 and had her third child on 24 August 1999. After ceasing work on 3 August, Mrs Carboni had not returned to work until 27 July 2003. She told the Tribunal that she recommenced on restricted hours and restricted duties on account of her Carpal Tunnel problems.
Mrs Carboni told the Tribunal about having fallen on or about 22 April 1999 and seeing Dr Nguyen for lower back, neck and abdominal pain. She verified that she was pregnant at the time with her third child, Natalie. She had been concerned about her own pain and about any consequences of the fall for her baby. Shortly following the birth, Dr Selvarajah referred Mrs Carboni for a Whole Body Bone Study with Flow, resulting in the report of 14 September 1999.
the medical evidence
Both parties referred extensively to written medical reports including those of Dr Jaworski of 9 May 1997, Dr Selvarajah’s reports of 14 September 1999 and 29 June 2001, Dr Riordan’s of 1 October 1999 and 20 July 2001 as well as Dr Puri’s reports dated 20 May 2000 and 26 June 2001. Also before the Tribunal was a Nerve Conduction Study report dated 20 January 2000. Dr Serisier provided a report on 20 January 2000, Dr Quinlan made written reports dated 8 June 2001 and 17 September 2003, Dr McGill on 8 October 2003, Dr Pascall on 5 February 2004, and Dr Searle on 4 March 2004 and 15 April 2004. Several of the doctors gave oral evidence as detailed below.
Medical records before the Tribunal show that Mrs Carboni also had a bone scan on 14 September 1999, which showed evidence of widespread Inflammatory Polyarthropathy. Following this bone scan, Dr Selvarajah referred Mrs Carboni to Dr Riordan. She saw Dr Riordan for the first time on 1 October 1999. Dr Riordan ordered a Nerve Conduction Study and this was performed on 20 January 2000. This showed moderate right Carpal Tunnel Syndrome and mild left Carpal Tunnel Syndrome. Dr Puri then saw Mrs Carboni on 26 May 2000 on referral. He recommended surgical decompression.
Before the Tribunal were the medical opinions of Drs Searle and Quinlan that Mrs Carboni’s conditions of work were a factor contributing to her condition. On the other hand, a number of doctors who supplied reports or called by the Respondent did not agree that Mrs Carboni’s condition was brought about or aggravated by her workplace conditions.
Dr Quinlan, a Specialist in Rehabilitation at Port Kembla Hospital, first saw Mrs Carboni on 11 September 2000. Mrs Carboni continues to see Dr Quinlan and remains under his care. Her hours were three hours per day, two days per week, as certified by Dr Quinlan. On 10 August 2003, her hours were increased to 5 ½ hours per day for two days per week (i.e. 11 hours per week). On 28 July 2004, her hours were reduced to 4 hours per day for 2 days per week because she suffered from CTS. Again, these reductions were certified by Dr Quinlan.
Dr Quinlan gave oral evidence verifying the opinion he had set out in his written reports. He said that it was widely recognised that persons who suffered chronic pain needed rest breaks and had again, four or five weeks ago, recommended a reduction in Mrs Carboni’s work hours. He told the Tribunal that he had visited Mrs Carboni’s workplace and had seen where she was stationed, although she had not actually been at her workstation at the time. When he saw Mrs Carboni in 2000, he diagnosed her with fibromyalgia, chronic pain and depression. After she saw a psychologist, a few months later, he noted a remarkable improvement in mood and in pain. Dr Quinlan considered that Mrs Carboni no loner suffered from fibromyalgia but continued to have chronic pain. Dr Quinlan also said that he had not tried to convince Mrs Carboni to undergo surgery. One reason for this had been that she was suffering from depression and surgery might not have been effective. Mrs Carboni’s case involved pain management rather than surgery, which was not always successful. He thought Mrs Carboni’s pain might resolve without surgery although this was unlikely and it was currently under control. Reasons for pain included depression and disinclination to exercise. He saw no point in a further nerve conduction study as he had noted no muscle wasting. Dr Quinlan repeated his view that Mrs Carboni’s CTS was not related to her pregnancies. Dr Quinlan added that he had found Mrs Carboni very genuine although it was difficult to comment, because of her depression, on whether she exaggerated her symptoms. He could not say when her CTS started as he had not seen Mrs Carboni when she first reported symptoms.
Dr McGill provided a written report on 8 October 2003 and gave oral evidence to the Tribunal as well. Dr Magill considered that Mrs Carboni had few symptoms of CTS and that the majority of her symptoms were attributable to fibromyalgia. He particularly considered that Mrs Carboni’s pain in the shoulders was not indicative of CTS. He referred to the Anderson Study attached to his report as a source of reliable information that occupational hand activity as such was not a sufficient cause of CTS. An association with keyboard use was not confirmed by the study. Dr McGill also made reference to other studies in deciding that Mrs Carboni’s condition was not work related CTS.
Dr Searle provided two reports although he only saw Mrs Carboni once. He gave oral evidence and commented on Dr McGill’s written report. Dr Searle saw Mrs Carboni on 25 February 2004. Dr Searle disagreed with Dr McGill’s opinion that pain going up to the shoulders was unrelated to CTS. He had seen lots of patients with this symptom. He considered various symptoms of which Mrs Carboni had complained to him were common in CTS. These included numbness, tingling and sleep disturbance. Dr Searle was scathing of the Anderson Study attached to Dr McGill’s report as evidence that found occupational hand activity as such was not a sufficient cause of CTS. Dr Searle said that the cross-section for the study was too small and that it was a useless article, a “publish or perish” report. Reading the various articles referred to by Drs McGill and Quinlan in reaching their conclusions about Mrs Carboni’s condition had not altered his opinion.
Dr Searle told the Tribunal that, once inflamed, the carpel tunnel was very easily aggravated. However, it could get better if the activity responsible stopped. He gave an example of a clarinettist whom he had seen recover completely without surgical intervention after ceasing to play for a period. He said that household activities such as scrubbing could also produce or aggravate the syndrome. He did not consider fibromyalgia was a diagnosis but a term sometimes used to describe pain. It did not explain the cause. Dr Searle thought that Mrs Carboni did not have severe CTS but had a moderate syndrome in both wrists. When asked about Mrs Carboni’s reluctance to have surgery, Dr Searle said that, as she had been suffering pain for a long time, she might not get a perfect result. Dr Searle gave colourful evidence about how and when surgery relieved the condition. Mrs Carboni had chosen to reject surgery as she was not convinced it would ease her pain. The Respondent was critical of her refusal to subject herself to surgery as some medical opinion was that she should take this step. However, not all the medical opinion supported this view and surgery may not have produced the desired result in Mrs Carboni’s case according to Dr Searle as well as Dr Quinlan.
In addition, Dr Pascall provided a report and gave oral evidence. Dr Pascall disagreed with aspects of Dr Searle’s opinion but conceded that he was more experienced in assessing CTS than she was. This was because she was called upon to make assessments in the workplace of various conditions. Dr Pascall accepted that Mrs Carboni had CTS but was not convinced that Mrs Carboni suffered CTS as a result of her workplace. She believed that Mrs Carboni’s generalised pain was interfering with her work. Dr Pascall based her opinion on a number of studies and her experience in assessing people in the workplace. She had attended Mrs Carboni’s workplace after the fall in 1999. Dr Pascall thought Mrs Carboni had been very vague about when her symptoms started but thought indications were that symptoms arose with the third pregnancy, which had resulted in the birth of Mrs Carboni’s second child. Pregnancy was a known factor in causing CTS. Dr Pascall also referred to studies that found keyboard work did not lead to CTS.
consideration of the evidence
The Tribunal has further considered and analysed the medical evidence before it below. The first question is whether Mrs Carboni actually suffers from carpel tunnel syndrome.
Does the Applicant have Bilateral Carpal Tunnel Syndrome?
The Tribunal is not in doubt Mrs Carboni has CTS, it is a matter of its severity and its cause. Overall, the Tribunal finds the evidence before it is that Mrs Carboni suffers from bilateral CTS. Among other sources, this is confirmed by the Nerve Conduction Study performed by Dr. Serisier dated 20 January 2000. The study concludes:
“The abnormalities in the nerve conduction study suggest bilateral Carpal Tunnel Syndrome, moderate on the right and mild on the left.”
Dr. Riordan in his report of 7 March 2000 confirms bilateral CTS. Dr Puri also confirms that Mrs Carboni has bilateral CTS in his report dated 26 May 2000. Dr Puri states that the bilateral CTS will be helped by surgical decompression. Dr Quinlan confirms bilateral CTS in his report to Dr. Selvarajah dated 8 June 2001. Dr Quinlan further confirms it in his report dated 17 September 2003. Dr. Searle gave evidence and reported in writing that Mrs Carboni has bilateral CTS. Dr McGill, approached by the Respondent, also agrees in his report dated 8 October 2003 that Mrs Carboni has bilateral CTS.
Dr Pascall is somewhat equivocal about Mrs Carboni’s bilateral CTS, however, she states on page 14 of her report that she was “originally asked only to look at her November 2003 injuries and therefore, did not go into detail with a full examination for Carpal Tunnel Syndrome”. Dr Pascall agreed that this was her situation when giving oral evidence.
Is the Carpal Tunnel Syndrome Work Related?
There is substantial evidence that the bilateral CTS is work related. Dr Searle provided two reports and gave oral evidence. Dr Searle gave evidence that he has extensive clinical and surgical experience in CTS. He impressed the Tribunal as being extremely well informed about this condition. Dr. Searle in his report dated 4 March 2004 says:
“The general nature and conditions and obligations of this lady’s employment caused the development of bilateral Carpal Tunnel Syndrome in 1996, and continuing the same sort of work has gradually aggravated these problems. As commonly happens, the pain has spread proximally as the symptoms worsened and have included the elbows and shoulders and now her neck with a type of muscular ligamentous strain. The right shoulder problem was aggravated by her fall in November 2003, but at present her right shoulder is no worse than her left.”
In his report dated 15 April 2004, Dr. Searle says:
“First a general comment. It is extremely common in orthopaedic practice to have a patient who performs strong or rapid or repetitive movements of the fingers and wrists, or all three and develops Carpal Tunnel symptoms. The patient stops work and the symptoms disappear, recommences work and the symptoms recur. Again stops work and the symptoms disappear. It is true that Carpal Tunnel Syndromes can also be caused by pregnancy, obesity, thyroid disease etc. and the various causes may overlap, but they also occur in the absence of systemic disease.”
In his oral evidence, Dr Searle told the Tribunal he has treated CTS patients at the rate of 50 per annum, during his time of clinical practice, which stretches back to 1954. He has performed surgery on 25% of those patients. This contrasts with Dr McGill, who said he sees a patient with CTS once every 2 weeks and Dr Pascall, who said that during her time at Unilever she would see 3 patients a week and a patient with CTS once every 6 months. She had seen less than 5 CTS patients with a history of keyboarding in 20 years. Further, Dr Pascall gave evidence that, in her present employment, she does not provide any treatment. She sees workers, as requested by Comcare or private employers, to give advice on workplace issues but provides no treatment.
Dr Searle’s oral evidence can be summarised as follows:-
·Mrs Carboni’s chief complaint was numbness and tingling.
·His clinical experience confirmed that in CTS patients, pain did radiate up the arm to the shoulder. Dr McGill gave evidence to the contrary.
·His clinical experience confirmed that disturbed sleep is a common symptom of CTS. This was confirmed by Dr Pascall. Dr McGill maintained disturbed sleep was not a feature of CTS.
·His clinical experience confirmed that keyboarding causes and aggravates CTS. A crucial matter he relied on was that, in his experience, patients who did a lot of keyboarding experienced symptoms which abated when they ceased. He gave an example of a clarinet player who took a whole year off from using her affected hand and had a complete recovery.
·He regarded the studies of Nordstrom, Nathan and Anderson which had been referred to as authorities by Drs Pascall and McGill, as of no value for the reasons set out in his reports. The studies were inconsistent with his clinical experience. He gave evidence that the Anderson Study was statistically invalid because of the size of the sample.
·Dr Searle said that nothing in the studies or the evidence of Dr McGill caused him to change his opinion.
Dr Quinlan was of the view that Mrs Carboni had CTS. Dr Quinlan’s report was tendered by the Respondent and his evidence is perhaps enhanced by not having been obtained for the purpose of improving Mrs Carboni’s position. Dr Quinlan also thought Mrs Carboni’s CTS was work related. Dr Quinlan, in his report dated 17 September 2003, says:
“Mrs Carboni has worked with the Commonwealth Employment Service/Centrelink since 1989. Keyboarding was a major part of her work during many of these years. There are many reports of a strong link between computer keyboarding and mouse use and Carpal Tunnel Syndrome. I have noted Dr. Puri’s assessment. There is no doubt that it is Carpal Tunnel Syndrome preventing Mrs Carboni working full time at present. Having reviewed Mrs Carboni during her return to work programme, computer use does lead to an increase in symptoms and does need to be limited.
I did not see Mrs Carboni when her symptoms began in 1998 – however her history is consistent with a work related condition.”
Dr Puri, in his report dated 26 May 2000, says:
“She reports that she has severe paraesthesia in both hands which is accompanied by numbness and this causes pain which tends to spread from the hands to the whole of the arms up to the shoulder regions and this is aggravated by her work which involves working on the computer a great deal. She had a delivery about seven months ago but reports that her paraesthesia has been present for the last two years.”
The report of Dr Pascall dated 5 February 2004 illustrates that various work activities performed by Mrs Carboni may aggravate her condition if she suffers from CTS. She says (at p. 12-13):
“Although not raised at the time, if Mrs Carboni has Carpal Tunnel Syndrome, she should not be resting her wrists against objects such as the slope attached to the keyboard, but maintain her wrist in the neutral position of straight when keying, and in her lap when not keying or using the mouse, rather than resting it on a hard surface. Resting the wrist on a hard surface could compress the Carpal Tunnel and therefore, the nerve within the Carpal Tunnel even further.
She would also, if she has bilateral Carpal Tunnel Syndrome, benefit from a different style mouse that avoids dorsel flexing or extending her wrist. A mouse such as the “Gold Touch Mouse” turns the hand into a more “neutral” or “at rest” position than the standard mouse and would be preferable for Mrs Carboni. Mrs Carboni should not go to the “joy stick” style mouse that is also used with Carpal Tunnel problems because of the tendons of her thumbs.”
Dr Pascall says further (at page 16):-
“With regard to her work at the keyboard/mouse, she would need to take a five minute break to undertake other tasks after 30 minutes of work. She should, in addition, do no more than 90 minutes of computer work per day in the first month, and then gradually increase the time at the computer 30 minutes per day with each increase in hours worked.
Whilst she has a five minute break from the computer, she can utilise the time to undertaken some stretching exercises of her fingers and her wrists, her shoulders and neck ....
It would also be beneficial if she broke up the total amount of computer work with other tasks, so that she spends up to one hour a day at the computer, and then a further 90 minutes at something else followed by 30 minutes at the computer.
Mrs Carboni should not undertake forceful movements with her hands, particularly if it were repetitive. There is no obvious work task that requires her to exert force with her hands in a repetitive manner, but this should be kept in mind in choosing work tasks for her to undertake.”
Further, Dr Pascall says (at p.17):-
“Therefore it is inadvisable that Mrs Carboni pursue work that involves word processing because of Carpal Tunnel Syndrome affecting her capacity to undertake the task of touch typing.”
The Tribunal accepts from the above comments and opinion that particular work activities will aggravate Mrs Carboni’s CTS. Again, this evidence has been tendered by the Respondent. Overall, the evidence is that Mrs Carboni’s syndrome is work related.
Was Mrs Carboni’s Carpal Tunnel Syndrome caused by pregnancy?
There is an issue as to whether Mrs Carboni’s bilateral CTS has been caused by pregnancy. Dr Quinlan’s opinion stated in his report dated 17 September 2003 that:
“The history of Carpal Tunnel Syndrome goes back at least until early 1998 – a letter from Dr. Puri to Dr. Selvarajah (General Practitioner) on 26 May 2000 notes that clinically and via reported nerve conduction studies (Dr. Serisia, Neurologist 20 January 2000) that Mrs Carboni had Carpal Tunnel Syndrome at that time and that decompression surgery would help this. This review was seven months post pregnancy and symptoms were continuing this indicates that Mrs Carboni’s Carpal Tunnel symptoms were not related to pregnancy. (emphasis added).”
Dr Searle in his report dated 4 March 2003 states:
“As she already had bilateral Carpal Tunnel Syndrome before she became pregnant, these were aggravated by each pregnancy, but one would expect the symptoms to return to their previous level within a couple of months of delivery.”
Dr McGill in cross-examination had Dr Quinlan’s opinion above put to him and then gave the following evidence:
“Question: Do you agree with that?
Answer: I think that it is very likely that her pregnancy provided a temporary aggravation of Carpal Tunnel. Well, it is likely to provide a temporary aggravation of Carpal Tunnel Syndrome. By seven months after pregnancy, I think the effects of pregnancy would have ceased.
Question: So if she has still got Carpal Tunnel symptoms at that stage, they are attributable to something else other than the pregnancy?
Answer: That is right. If she has Carpal Tunnel symptoms at that stage I would contribute it to her constitutional facts, that is being a lady and…..”
On balance, in view of these medical opinions, the Tribunal has concluded that, as the symptoms first presented in 1996, after Mrs Carboni’s first and second pregnancies, and predated Mrs Carboni’s third pregnancy in 1998, pregnancy was not the cause of her CTS.
Why the Tribunal prefers the evidence of Drs Searle & Quinlan
Dr Quinlan has been Mrs Carboni’s treating specialist for many years. He has examined her on many occasions and provided treatment for her complex problems since September 2000. He impressed the Tribunal with his expertise and recollection of Mrs Carboni’s case even though he gave his evidence in the absence of notes via telephone. Dr Searle was the most experienced of all of the doctors in relation to CTS. His evidence was that he has consulted many patients over many years and has extensive clinical and surgical experience. His opinions were not swayed in the slightest during cross-examination.
Dr McGill has less experience than Dr Searle when it comes to CTS. He has no surgical experience because he is a rheumatologist. Dr Searle’s clinical experience was contrary to that of Dr McGill in some respects set out above. Dr Searle commented that pain from CTS can radiate to the shoulder and that disturbed sleep is a feature of the syndrome. Dr Pascall also gave evidence that disturbed sleep is a feature of CTS.
Dr Pascall gave evidence about her knowledge of CTS and it became clear in cross-examination that she had little clinical experience compared to Drs Searle, Quinlan and McGill. She had seen one patient every 6 months at Unilever with CTS and less than 5 in 20 years with a history of keyboarding. In her present employment she provides no treatment at all to patients. They are referred by Comcare or private employers for assessment only on workplace issues. She agreed she had limited experience with CTS. She agreed she was not an expert when it came to CTS and pregnancy, although she made reference to this question in her report (p.17) and in oral evidence. The Tribunal notes that Dr Pascall recommended on 5 February 2004 that steps be taken to ensure Mrs Carboni’s CTS was not worsened by her return to work. Further, Dr McGill and Dr Pascall saw Mrs Carboni on one occasion only. Dr Quinlan has seen her many times. Dr Searle also saw Mrs Carboni only once but has a background of vast experience in CTS. Therefore, where the opinions of Dr Quinlan and Dr Searle differ from those of Dr McGill and Dr Pascall, the Tribunal has preferred those of Dr Quinlan and Dr Searle.
Studies referred to
Dr McGill referred to three studies to support his conclusion that, “Keyboard duties have been demonstrated not to influence the prevalence of Carpal Tunnel Syndrome”. These three articles are referred to as the Nordstrom Study (1997), the Nathan Study (1988) and the Anderson Study (2003). In cross examination Dr McGill agreed that the Nordstrom Study merely found that an association between keyboard use and musculo- skeletal disorders was “not confirmed’. It did not make a negative finding as such. Further, Dr McGill agreed that there was a weakness in the Nordstrom Study in that electrophysiological nerve conduction study was not required for the study. Dr McGill agreed that this was a “clear weakness of the study”. As to the Nathan Study, Dr McGill agreed in cross-examination that the study does not exclude occupational hand activity as a risk factor for CTS. In relation to the Anderson Study, Dr McGill agreed that the study found there was an association between mouse use and onset of worsening of tingling and numbness. His further evidence was:
“Question: And so certainly the use of a mouse correlates with Carpal Tunnel Syndrome symptoms?
Answer: Yes, mouse, yes.”
As well, Dr McGill was cross examined as to the effect of a person with CTS returning to work and doing 10 hours of typing a day. He gave the following evidence:
“Question: Forgetting the studies, is it your evidence that somebody with Carpal Tunnel Syndrome who did 10 hours keyboarding a day for 5 days a week, that would have no effect at all on their Carpal Tunnel Syndrome?
Answer: Look, I can’t be certain of that.”
Dr McGill made many concessions in relation to the certainty of any conclusion that could be drawn from the three studies. When it came to making a clinical diagnosis in relation to a particular patient he “could not be certain” that there would be no effect on that patient with CTS if they returned to typing. Dr Searle regarded the Anderson Study as statistically invalid as discussed above. Dr Pascall said that Case Studies were the lowest rung on the hierarchy of scientific research. Finally, in contrast to actual case diagnosis, epidemiological studies only provide circumstantial evidence. The question for the Tribunal is whether that epidemiological evidence allows the court to draw an inference to prove or disprove causation. In Seltsam Pty. Ltd. v. McGuiness; James Hardie & Co. Pty Limited v. McGuiness (2000) 49 NSWLR 262, Spigelman CJ said as follows [at para. 98]:
“The courts must determine the existence of a causal relationship on the balance of probabilities. However, as is the case with all circumstantial evidence, an inference as to the probabilities may be drawn from a number of pieces of particular evidence, each piece which does not itself rise above the level of possibility. Epidemiological studies and expert opinions based on such studies are able to form ‘strands in the cable’ of a circumstantial case”.
And further [at para. 88-90]:-
“The test is whether on the basis of the primary facts, it is reasonable to draw the inference (see eg. Layton v Vines (1952) 85 CLR 352, 358). In my opinion, evidence of possibility, including epidemiological studies, should be regarded as circumstantial evidence which may, alone or in combination with other evidence, establish causation in a specific case. Proof on the balance of probabilities, indeed on the beyond reasonable doubt standard may be established on the basis of circumstantial evidence. As Lord Cains said in Belhaven v Stenton Peerage (1875) 1 AC 278, 279:
‘My Lord in dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light by itself it would do little to elucidate a dark corner. But on the other hand you may have a number of rays each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which clear away the darkness which you are endeavouring to dispel’.”
In the present case, the epidemiological evidence of the studies is insufficient to disprove causation when considered with all the evidence in the case. Dr Searle has rejected their usefulness and Dr McGill has made a qualified response to the findings and was not certain that a person suffering CTS would not aggravate those symptoms if they returned to work. Dr Pascall recommended adjustments for Mrs Carboni’s return to work. On the other hand, the evidence in support of a causal link between Mrs Carboni’s work and her condition includes the opinions of Dr Quinlan and Dr Searle that her duties were a causal factor. Dr Quinlan expressed some connection and Dr Pascall recommended the limitations which should be placed upon Mrs Carboni’s duties in view of her CTS.
Applicant’s Credit
The Tribunal formed the impression that Mrs Carboni was a truthful and honest witness who endeavoured to give her evidence in a straightforward manner without embellishment. The Tribunal accepted her as a witness of truth. From Mrs Carboni’s evidence, the Tribunal accepts that her symptoms began in 1996 during a period when she was working full-time, plus overtime. They persisted during a period when Centrelink was abolished and CES was commenced. This period was extremely busy and it is consistent with the medical evidence in support of the case that this is the time the symptoms began. Mrs Carboni agreed that her symptoms worsened with pregnancy. The Tribunal notes that, if Mrs Carboni were tailoring her evidence to make out a work related claim, it was not in her interests to give that evidence.
As pointed out by Mrs Carboni’s representative after the conclusion of the hearing, it was not put to Mrs Carboni in cross-examination that she was inventing her symptoms, or even that she was embellishing those symptoms. It was not suggested that she was not suffering from the disabilities of which she complained. In particular, it was not put to her that she would have no difficulty in returning to the hours of work she was performing prior to the birth of her third child. Dr Quinlan, Mrs Carboni’s treating Specialist in Rehabilitation Medicine, gave evidence that he believed Mrs Carboni was very genuine and that he hadn’t known her to exaggerate. Dr Searle gave oral evidence in answer to a question from the Tribunal that he believed Mrs Carboni was genuine and showed no signs of embellishment.
Incapacity for work
The Tribunal finds that Mrs Carboni was incapacitated for work by her CTS. Her incapacity for employment commenced on 18 July 2002. This is the date specified in the Medical Certificate for Workers’ Compensation provided by Dr Quinlan. Dr Quinlan explains why incapacity arises on that date very clearly in his report dated 17 September 2003.
“As Mrs Carboni’s other conditions have improved, Carpal Tunnel Syndrome has been left as that causing ongoing impairment and handicap”.
He gave more detail in a report dated 6 December 2002, which predates Mrs Carboni’s return to work. In that report he said:
“Mrs Carboni is not able to work at present as a result of symptoms related to bilateral Carpal Tunnel Syndrome secondary to occupation. She has sore hands with a feeling of ‘electricity’ with significant cramping after use for more than a few minutes. Despite this she has been trying to undertake some home duties etc. Mrs Carboni is not ready to consider surgery at this time”.
Further in that report he said:
“In terms of her work related problems; …..
…… hand pain bilaterally continues with pain in her right arm sometimes radiating to the right elbow. She gets cramps in her hands after use. Her right hand also has gets weak with use. Mrs Carboni is however, using her hands to the fullest extent possible, given the symptoms. Mrs Carboni is not able to use a keyboard and will be limited in the use of her hands for work”.
The other conditions Mrs Carboni was suffering were Inflammatory Arthritis, Fibromyalgia and Chronic Pain Syndrome. Dr Quinlan has treated Mrs Carboni for each of those conditions. Dr Quinlan is in the best position to comment on Mrs Carboni’s limitations. Incapacity is also confirmed by Dr Pascall who has placed various limitations as set out above. Dr Pascall said in cross-examination that CTS had left the respondent with a permanent incapacity for typing. In particular, Dr Pascall suggested in her report:
“Therefore it is inadvisable that Mrs Carboni pursue work that involves word processing because of Carpal Tunnel Syndrome affecting her capacity to undertake the task of touch typing.”
Mrs Carboni gave evidence that since recommencing work, she has had to reduce her hours from 5 ½ hours per day to 4 hours per day for 2 days per week because of CTS. These reductions were certified by Dr Quinlan. Neither Dr McGill nor Dr Pascall gave any evidence that this reduction was not reasonable and was not related to the CTS. The reduction indicated Mrs Carboni continues to be incapacitated to some extent.
Question of late application and section 53
This is a question whether Mrs Carboni complied with s53 of the Act and provided notice in writing as soon as practicable. Mrs Carboni’s evidence is that she first had symptoms of CTS in 1996 but it was not until 20 January 2000, when Mrs Carboni had a Nerve Conduction Study done, that she was diagnosed by Dr Serisier as having CTS. This was confirmed by Dr Riordan in his report on 7 March 2000 and Dr Puri in his report dated 26 May 2000, Her condition was not emphatically linked to her work until 18 July 2002 by Dr Quinlan.
Mrs Carboni did not immediately apply for compensation when the Nerve Conduction Study indicated the presence of CTS. The questions of causation and degree of incapacity were not immediately clear. The Medical Certificate for Workers’ Compensation provided by Dr Quinlan stated that Mrs Carboni’s incapacity for employment commenced on 18 July 2002, as this was the date when her other problems had subsided and it was found that CTS was the ongoing cause of her impairment and incapacity for work. Mrs Carboni then applied for compensation on 15 November 2002.
Section 53 states that in order for the Act to apply, notice in writing of the injury must be given to the relevant authority as soon as practicable after the employee becomes aware of the injury. Mrs Carboni did not claim compensation from the date she became aware of her injury as although she was diagnosed with CTS on 1 January 2000, it was not the only medical problem that prevented her from working. Rather, Mrs Carboni claimed compensation from the18 July 2002 as this is the date on which it became apparent that the work related injury of CTS was the sole cause of her incapacity to work. There is nothing unusual in there being a delay between the onset of symptoms and having a final diagnosis years later. Dr Searle in his evidence said that:
“people put up with these things with their tolerance for as long as they can, then when it becomes intolerable they go and see a doctor.”
The Federal Court allowed a claim form to serve as written notice under s 53 in Comcare v Luck (1999) 29 AAR 403. It follows that Mrs Carboni served notice in writing of her injury at the date she lodged her claim, which was 15 November 2002.
61. The issue that arises then is whether Mrs Carboni served notice of her claim as soon as practicable. The Tribunal finds that serving notice within four months falls within a practicable period of time. By comparison, in Lombardi and Comcare [2005] AATA 167, 7 years had elapsed prior to notice of a claim being made and the Respondent was found to be prejudiced from managing the claim due to such a long period of time elapsing. Mrs Carboni’s case can be distinguished form Lombardi as only 4 months had elapsed and there is no evidence before the Tribunal of the Respondent being prejudiced from managing the case.
62. Compensation is sought from 18 July 2002, to date and continuing. The Tribunal has found that Mrs Carboni was suffering from CTS and that she should be awarded compensation from 18 July 2002, as she has complied with s53 of the Act.
| decision 63. The Tribunal sets aside the decision under review and in substitution decides that the Applicant was suffering from Carpal Tunnel Syndrome, which arose out of her employment and that the Respondent is liable to pay compensation to the Applicant, pursuant to s14 of the Safety, Rehabilitation and Compensation Act 1988, from 18 July 2002, to date and continuing. |
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
Zoe McDonald
Associate
Date/s of Hearing: 16/17 August 2004, 16/17 December 2004
Date of Decision: 6 May 2005
Counsel for the Applicant: Mr Anthony Porthouse
Solicitor for the Applicant: Mr Adrian Daly
Counsel for the Respondent: Ms Tina Jowett
Solicitor for the Respondent: Ms Marie Mittiga
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