Cathy Atkins and Comcare
[2014] AATA 473
[2014] AATA 473
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2013/1524 & 2013/5815
Re
Cathy Atkins
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 14 July 2014 Place Canberra The decisions under review are both affirmed.
.................[sgd]...................................
RM Creyke, Senior Member
Catchwords
COMPENSATION osteoarthritis in right and left thumbs - whether the applicant suffered from a compensable condition – whether the injury was aggravated by the employment- whether the applicant continued to suffer the compensable condition
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4, 5A, 5B
Cases
Casarotto v Australian Postal Commission (1989) 86 ALR 399
Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19
Martin v Australian Postal Corporation (1999) 29 AAR 420
Re Flinn and Comcare [2010] AATA 760
Salisbury v Australian Iron and Steel Ltd [1943] 44 SR (NSW)157 at 161
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Secondary Materials
Fontana et al, “Osteoarthritis of the Thumb Carpometacarpal Joint in Women and Occupational Risk Factors: A Case-Control Study”, The Journal of Hand Surgery, Vol. 32A No.4 April 2007, 459-465.
V. Jensen et al, “Occupational use of precision grip and forceful gripping, and arthrosis of figure joints: A literature review”, Occupational Medicine vol 49, 1999, 383-388.
Dr Craig Martin, “First carpo-metacarpal osteoarthritis and its association with occupation (with an emphasis on clerical workers)”, WorkSafeBC Evidence Practice Group, November 2010.
American Society for Surgery of the Hand ‘Arthritis: Osteoarthritis.
Maheu Killens ‘What is the difference between arthritis and arthrosis?’ (Physiotherapist)
Barry Fox, et al ‘Possible Causes of Arthritis and Joint Problems’ in (Possible Causes of Arthritis and Joint Problems – For Dummies).
Macquarie Concise Dictionary (5th edn, 2009).
REASONS FOR DECISION
RM Creyke, Senior Member
Ms Cathy Atkins, born 1961, has a condition of osteoarthritis, right and left thumbs. She has sought review of a refusal by Comcare to accept liability to compensate her for permanent impairment and non-economic loss for her accepted conditions (Matter 2013/1524).
Ms Atkins also sought review of a decision that she has no present entitlement to compensation for her accepted conditions (Matter 2013/5815).
The matter was heard in Canberra on 12-14 May 2014.
Background
Ms Atkins, born 1960, worked initially in retail. However, on 8 March 2006, she commenced with the Department of Human Services (agency). She was a customer service officer at the Medicare office in Rosny Park, Hobart, Tasmania. Her duties were to process claims by entering information into a database, provide advice and dispense cash. About two-thirds of the time was spent on the computer. The balance of her time involved handling cash, and on-line and telephone inquiries from clients. The cash-handling work involved significant amounts of repetitive rotational movement of the thumbs counting cash notes and coins. Ms Atkins said it was a busy office and she was constantly doing this kind of work for five days a week and on occasions on Saturday morning also.
Ms Atkins is right hand dominant. On 11 October 2010, Ms Atkins was handing a customer change in notes and coins. As she did so, she suffered pain in the lateral aspect of her right wrist. The symptoms continued that day. In the days subsequent, the symptoms became more pronounced. Ms Atkins had stiffness in the morning and severe pain by the end of the working day. She consulted her general practitioner, Dr Robina Hanafi, on 15 October 2010, who considered she might have de Quervain’s tenosynovitis, that is, an inflammation of the surroundings of two tendons that control movement of the thumb. Dr Hanafi arranged for blood tests, an ultrasound and an X-ray.
The x-ray of the right wrist, on 18 October 2010, showed ‘moderate changes of primary osteoarthritis involving the 1st carpometacarpal joint with joint space narrowing, subchondral sclerosis and cyst formation and marginal osteophytic lipping’. The results of the ultrasound of her right wrist were unremarkable. The findings were negative for de Quervain’s tenosynovitis.
A medical certificate issued by Dr Hanafi on 20 October 2010 identified her symptoms as ‘ongoing pain of the base of right thumb’. Her diagnosis was ‘moderate osteoarthritis of the thumb at the base’.
On her return to work, Ms Atkins was assigned different duties to avoid handling money. A workplace assessment was undertaken. At that stage Ms Atkins said her left hand was also beginning to be sore. She said the pain was worse at the end of the working day and she said ‘her condition appears to be progressing rapidly’ and she was ‘having trouble with her hands in relation to swelling and pain’. An upright mouse, an ergonomic pen and modified cash drawer were to be ordered. Other steps were taken to give her more administrative, and less cash-handling, duties.
As the symptoms continued in her right hand, Ms Atkins tried to resort to her left hand whenever possible. By the end of November/early December 2010, she had developed similar symptoms at the base of the left thumb. She had difficulty coping with housework and the activities of daily living. Ms Atkins’s evidence is that she has trouble writing, typing, doing domestic activities involving the thumbs such as managing zips, buttons, shoe laces, and other domestic activities such as peeling vegetables, cooking, holding items with small handles, handling knife and fork, washing her hair, and threading needles. She also has difficulty gripping the steering wheel which means she cannot always drive. She no longer plays golf and only occasionally rides a bicycle. She became depressed since she had been used to maintaining a high level of order domestically.
On 26 October 2010 Ms Atkins lodged a workers’ compensation claim for ‘moderate osteo arthritis of the thumb at the base’. On 14 February 2011, Comcare accepted liability for ‘osteoarthrosis – localised-hand (right)’. On 8 March 2011, she lodged a worker’s compensation claim for the secondary condition of ‘left base of thumb pain’ sustained on 26 October 2010.
In January 2011, Ms Atkins was fitted with a splint by a hand physiotherapist and this helped. She continues to use the splint. On 4 February 2011, an x-ray of Ms Atkins’s right and left hands revealed mild arthritic changes at the first carpometacarpal joint. Ms Atkins had an assessment and advice about work and home duties from an occupational therapist. In addition, Ms Atkins sought the assistance of a chiropractor, had acupuncture and was prescribed medication, but to little effect. Ms Atkins said it became increasingly painful to do her job.
Ms Atkins next saw Dr Mahaela Lefter, hand surgeon, who recommended an arthroplasty of the right carpometacarpal joint, planned for 25 March 2011 for the right thumb and six weeks later for the left thumb, subject to approval by Comcare. That approval was forthcoming on 18 March 2011. However, the surgery did not take place. Ms Atkins ceased work on 28 March 2011. Ms Atkins and her husband had moved to Canberra in March 2012 when her husband was transferred for his work.
On 9 May 2011, Comcare accepted liability for the secondary condition of ‘osteoarthrosis – localised – hand (left)’ sustained on 26 October 2010. On 2 August 2011 Ms Atkins was certified fit for work, 3 alternate days a week, for 3 hours a day. The agency had identified duties for which no keying in was required. Although Ms Atkins returned to work on modified duties, and attended a rehabilitation program her pain continued and increased. On 16 August, Ms Atkins reported increased hand pain and from 22 August 2011 she was again certified totally unfit for work. She has not worked since 22 August 2011.
On 27 May 2011, Ms Atkins consulted a rheumatologist, Dr Hilton Francis. He recommended medication but it produced no significant improvement. Dr Francis then recommended an injection of corticosteroid in the right thumb. This took place on 22 June 2011. The injection did alleviate symptoms but only until the effects of the cortisone wore off.
On 20 June 2011, Ms Atkins’s rehabilitation provider reported that Ms Atkins was complaining of increased pain in the left and right base of her thumbs and the interphalangeal joint of the thumbs. In addition, she was suffering pain in the carpometacarpal, proximal and distal interphalangeal joints of the left and right index, and distal interphalangeal joints of the left and right mid fingers. She could not tolerate anti-inflammatories and was relying solely on analgesics to relieve the pain.
Ms Atkins was referred to another hand surgeon, Dr Simon Thompson, in July 2011 who suggested surgery was inappropriate because of her youth and the lifespan of the procedures.
Imaging reports
Ms Atkins has undergone the following imaging and other reports:
·Ultrasound of right hand and wrist, and x-ray right wrist, reported dated 18 October 2010;
·X-ray right hand, x-ray left hand, dated 4 February 2011;
·Ultrasound and radiology, dated 14 November 2011.
·Nerve conduction study report, dated 13 March 2012;
·MRI arthrogram right wrist/right hand report dated 14 May 2012;
·NM bone scan regional with SPECT/CT dated 14 May 2012;
·Nerve conduction study, dated 10 May 2012
·MRI left wrist, dated 21 May 2012.
·Ultrasound of right elbow with injection, dated 16 May 2013.
Comcare provided a selection of articles containing literature studies of the scientific examination of the causes of osteoarthritis of the thumbs. In summary, the articles concluded:
·V Jensen et al ‘Occupational use of precision grip and forceful gripping, and arthrosis of finger joints: A literature review’ (1999) 49 Occupational Medicine 383: ‘The literature is inadequate to conclude that a causal relation between occupational exposures and arthrosis of finger joints exists’ but ‘Cross-sectional studies support associations between forceful whole hand gripping and arthrosis of the MCP-joints [carpometacarpal joints] and between repetitive precision grip and arthrosis of the DIP-joints [distal interphalangeal joints]’ (at 387)
·Luc Fontana et al ‘Osteoarthritis of the Thumb Carpometacarpal Joint in Women and Occupational Risk Factors: A Case-Control Study’ (2007) 32A The Journal of Hand Surgery 459: ‘Although our data support the view that occupational factors are presumed to play a role in the occurrence of CMC OA [carpometacarpal osteoarthritis], this condition is probably of complex multifactorial origin, with mechanical stress only one among many factors that interact in determining CMC OA. … Nevertheless, ergonomic solutions to CMC OA problems are necessary to decrease thumb motions or strenuous effort in general encountered at work, especially for women’. (at 464)
The authors found that the following occupational factors were significantly associated with an increased risk of 1st CMC OA; ‘tailors, dressmakers, hatters, secretaries, sewers, embroiderers and related workers, domestic helpers and cleaners’ and occupations involving ‘repetitive thumb use’ (at 462).
· Dr Craig W Martin, Senior Medical Advisor, WorkSafeBC Evidence-Based Practice Group ‘First carpo-metacarpal osteoarthritis and its association with occupation (with an emphasis on clerical workers)’ (2010), 13 (a literature review):
Summary/Conclusion
o At present, there is no evidence on the causal association between certain occupations or activities and the development of 1st CMC OA.
o At present, it is not possible to identify any specific occupation or activities that may predispose an individual to develop 1st CMC OA.
o At present, there is anecdotal evidence on the potential aggravation of pre-existing 1st CMC OA by occupations or activities. (at 13)
The WorkSafeBC Evidence-Based Practice Group commented on the Fontana study and concluded ‘In summary, this study did not provide any evidence on the association of being a clerk with the development or aggravation of 1st CMC OA’ (at 7). That conclusion must exclude ‘secretaries’ from clerical work since the Fontana Study did find an association between CMC OA and work of a secretarial nature, presumably including significant levels of keyboard work.
The applicant also provided three short articles:
·American Society for Surgery of the Hand ‘Arthritis: Osteoarthritis’;
·Maheu Killens ‘What is the difference between arthritis and arthrosis?’ (Physiotherapist);
·Barry Fox, et al ‘Possible Causes of Arthritis and Joint Problems’ in (Possible Causes of Arthritis and Joint Problems – For Dummies)
Legislation
The legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Relevant provisions are sections 4(1), 5A, 5B, 16, 19, 24, 27 and 29 and these are discussed under Consideration below. The Comcare Guide to the Assessment of the Degree of Permanent Impairment (edn 2.1) (the Guide) is also pertinent.
Consideration
Initially Ms Atkins’s applications related to a number of conditions, but at the hearing, her claim were limited to an aggravation of osteoarthritis of the first carpometacarpal joints of both thumbs.
There was substantial agreement by the medical experts on Ms Atkins’s history. The principal disagreements related to the results of the imaging studies, whether Ms Atkins was suffering from certain of the claimed conditions, and whether the condition of her thumbs was work-related.
Matter 2013/5815
The issues in this matter are:
·Did Ms Atkins suffer from a compensable condition, namely, osteoarthritis of thumbs?
·If so, does Ms Atkins continue to suffer the effects of her accepted condition of osteoarthritis of thumbs entitling her to compensation under sections 16, 19 and 20 of the Act?
A pre-requisite to deciding the issues of whole person impairment (Matter 2013/1524) is whether Ms Atkins suffered and continues to suffer from the effects of her accepted condition. That issue involves an examination of the causes of Ms Atkins’s conditions of her thumbs, whether she continues to suffer the symptoms of those conditions, and whether those conditions were and are due to her former employment. In deciding that second question, the Tribunal must consider whether the condition of Ms Atkins’s thumbs was aggravated by her employment.
The applicant contends that the principal issue is whether Ms Atkins’s employment aggravated the conditions of her thumbs by accelerating a congenital condition from which she suffered, namely, osteoarthritis of the thumbs. The applicant did not argue that she suffered from tenosynovitis, or from carpal tunnel syndrome.
Comcare contends that Ms Atkins’s claimed left and right thumb osteoarthritis conditions do not, and did not ever, qualify as compensable injuries for the purposes of sections 5A and 5B of the Act.
Diagnosis
The literature indicates that technically there is a distinction between arthrosis and arthritis. Arthrosis is a degenerative condition where the cartilage of the joints is affected by wear and tear, often due to age; arthritis is an inflammatory condition affecting joints. That is, the two conditions are due to different causes. However, the terms are often used interchangeably. For example, Comcare described Ms Atkins’s conditions as ‘arthrosis’ when it accepted her claim.
It is also not clear whether the reports of the medical experts, have used the terms in this exact manner. Accordingly the Tribunal has not given weight to the use of one or other descriptor in the evidence. Choice of descriptor also does not impact on whether the condition is an ‘injury’ or a ‘disease’.[1] For ease of reference, the condition under consideration will be described in these reasons as osteoarthritis.
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A.
It is common to describe osteoarthritis as due to one of two causes: constitutional, when it develops gradually without any identifiable cause; or secondary, which typically is due to trauma or occupation. In the former, being right or left-handed has no effect and it is usually symmetrical; in secondary osteoarthritis, however, being right or left-handed may have an effect, and force and repetition are relevant to the onset of the condition and can have a cumulative effect over time.[2]
[2] Re Flinn and Comcare [2010] AATA 760 at [49]-[50], [80]-[81].
In Ms Atkins’s case, the predominant medical view is that her condition is constitutional in origin. That finding is supported by the fact that, although right-handed, the condition developed also in her left thumb almost simultaneously, that is, within a few weeks of the condition in her right thumb. Nonetheless, Ms Atkins is claiming that the constitutional condition was aggravated by her employment, and that the force and repetition of her keyboarding and her counting out of money, made a contribution to the onset of the condition in both her hands.
The Tribunal is satisfied, based on the substantial agreement on the part of the medical experts, and the evidence that Ms Atkins suffers from osteoarthritis of both thumbs, that the condition was constitutional or genetic. Although it was argued by Ms Atkins that the condition should be classified as an ‘injury’, not a ‘disease’, there was no indication of a distinct event or episode which resulted in the emergence of symptoms in her thumbs; nor was there any evidence that the condition was due to a germ, bacteria, or other trauma. Accordingly Ms Atkins’s osteoarthritis of both thumbs was a ‘disease’ under the Act,[3] as interpreted by the courts,[4] not an ‘injury’ simpliciter.
[3] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A – definition of ‘injury; s 5B – definition of disease.
[4] For example, Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310.
To be a ‘disease’ the condition must be either an ‘ailment’ or ‘an aggravation of such an ailment’.[5] An ‘ailment ’is defined as ‘any physical …. ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.[6] The osteoarthritis is a disorder, defect or morbid condition of gradual development, as it was a progressively disabling, clinically identified disorder or defect of her thumbs, confirmed by imaging. The condition was morbid, namely, ‘characteristic of’ or ‘relating to’,[7] a disease, namely, osteoarthritis, of her thumbs as it had been so diagnosed.
[5] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(1).
[6] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) – definition of ‘ailment’.
[7] Macquarie Concise Dictionary (5th edn, 2009) 811.
Ms Atkins contended that her conditions had been aggravated by her employment. An ‘aggravation’ includes an ‘acceleration or recurrence’[8] of an ailment. There is an ‘acceleration’ of a condition, if the normal progression of the condition has been hastened.[9]
[8] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) – definition of ‘aggravation’.
[9] Casarotto v Australian Postal Commission (1989) 86 ALR 399, per Hill J at 495.
Related to employment
For Ms Atkins’s osteoarthritis to be compensable, she must also establish that her employment contributed to the acceleration of her condition to a significant degree.[10] What is a ‘to significant degree’ is defined as being to ‘a degree that is substantially more than material’.[11] As the discussion indicates, and the Tribunal accepts, the contribution must be one of substance and must be considerably more than de minimis, or a ‘mere contributing factor’.
[10] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(1).
[11] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(3).
The principal difference between the medical experts who gave evidence at the hearing related to the issue of whether the contribution of Ms Atkins’s employment was to a significant degree. Ms Atkins also conceded in evidence that her domestic duties and activities in her previous forms of employment in the retail sector in the period 1980 to 2006 had made a significant contribution to the condition of the thumbs.
On the issue of whether Ms Atkins’s employment at Medicare contributed to her conditions, the reports of the medical experts who did not give evidence at the hearing can be summarised as follows:
·Dr Robina Hanafi, general practitioner, reporting on 10 January 2011 on the right thumb, said ‘work involves a lot of repetitive rotational movement of the thumbs in counting cash notes and coins. Her presentation of moderate to severe osteoarthritis of the base of thumb is no doubt due to her nature of work’.
·24 April 2011: Dr Hanafi said of the left thumb osteoarthritis, that it is ‘related to her employment’, due to wear and tear and touch typing.
·Dr Hilton Francis, rheumatologist, in a report dated 27 May 2011, said of the ‘manual handling of coin, et cetera’, ‘I do not think it is the cause of the problem’ and noted a family history of primary generalised osteoarthritis, although he conceded that Ms Atkins’s osteoarthritis was more aggressive than the condition prevalent in her family.
·Dr Loretta Reiter, rheumatologist, in a report of 19 September 2012, also denied that Ms Atkins’s osteoarthritis was due to employment. She said ‘It is not physically/medically possible for 4 years of office work to cause significant, if any, degeneration of the first carpometacarpal joints of the thumbs’. In her view the condition was constitutional.
·Associate Professor Ryan, surgeon, reported on 1 November 2012 that, in his view, there was no evidence that the condition was caused by work, and the condition was genetic in origin.
·Dr Graeme Griffith, consultant surgeon, in his report on 1 February 2013 concluded, following an examination of the reports of the imaging studies, that Ms Atkins’s symptoms were ‘clearly related to the nature of the work she was performing’. As he said her carpometacarpal arthritis would not have been aggravated or developed as quickly but for four years doing the type of work she was undertaking.
The reports of Dr Watson, Dr Eaton and Associate Professor Barnsley, who gave evidence to the Tribunal, were as follows.
·Dr Tim Watson, Ms Atkins’s current general practitioner, in his report on 26 September 2012 noted that Ms Atkins first observed symptoms in her right thumb in about October 2010, and in her left thumb, some weeks later. The symptoms worsened by the end of her working day and he understood and accepted that the condition was due to her employment. His understanding was that there was no family history of arthritis.
·Dr Garth Eaton, occupational physician, reported on 11 July 2012. He confirmed his views in that report in his supplementary report dated 24 June 2013. In his opinion, Ms Atkins’s ‘work activities … have significantly contributed to the development of her current condition and impairment’. He maintained that view even accepting that her domestic activities also made a significant contribution, including in his concurrent evidence to the Tribunal.
·Associate Professor Barnsley, consultant rheumatologist, in a report of 24 June 2013, said the fact that symptoms developed in both hands ‘where she is right-handed would argue against overuse being an important contributor’. He considered her condition was constitutional with ‘genetic determinants’, and noted the condition could result from ‘excessive and forceful use of a particular joint such as the elbow’ but denied this could be due to Ms Atkins’s work situation.
In a report of 26 August 2013, he noted the absence of a family history. In a further report of 20 November 2013, he attributed 30 per cent of her condition to her employment and 70 per cent to degeneration. However, in a report of 23 April 2014 he said ‘her osteoarthritis was not caused by her work’ and said it was ‘unlikely’ that her current symptoms related to her work. At the most, as he conceded at the hearing, it was a possibility. He acknowledged that repetitive activities might be expected to cause symptom aggravation but not change the underlying pathology or condition, and said, her condition had not been aggravated to a significant degree. As he pointed out, ‘it is also clear that 12 months after she had stopped working there was evidence of bone marrow oedema lesions in the affected areas indicating persistent activity of the disease’.
In summary, the earlier treating and reporting specialists (Dr Francis, Dr Reiter, and Associate Professor Ryan), on balance, did not attribute Ms Atkins’s thumb condition to her employment. The Tribunal notes that Dr Reiter’s view was based on her opinion that the four years of her employment with Medicare was insufficient to have led to the development of osteoarthritis of the thumbs. Dr Reiter did not have evidence of the concession made at the hearing that Ms Atkins’s domestic duties and her previous employment could each be said to have made a significant contribution to her conditions. Nor did Dr Reiter consider the issue of whether the conditions may simply have been aggravated by, rather than caused by, her employment. Nonetheless, the Tribunal gives weight to her opinion and to that of Dr Frances, as they are rheumatologists, over the opinion of Dr Hanafi, her treating doctor, and Dr Griffith, a consultant surgeon who did attribute her condition to her employment.
The Tribunal notes that there is also a difference of opinion as to whether there is a family history of osteoarthritis. Dr Francis noted a family history of generalised osteoarthritis but said ‘it was never symptomatic like this’, and Associate Professor Ryan said the condition was ‘genetic’ in origin, which may point to a family history. Dr Watson denied any family history, as too, did Associate Professor Barnsley. No other medical expert commented on family history, although Dr Reiter and Dr Griffith said it was ‘constitutional’.
The evidence as to family history is equivocal. The Tribunal gives weight to the views of Ms Atkins’s treating general practitioners, Dr Hanafi who did not mention a family history, and Dr Watson who stated there was no family history, due to their longer association with Ms Atkins and their attention to her family history. Accordingly, the better view is that Ms Atkins did not have a family history of osteoarthritis, or at least of an aggressive form of the condition such as afflicted Ms Atkins. She does have an inherent or constitutional tendency to the development of the condition.
Aggravation
The key issue is whether Ms Atkins’s osteoarthritis of both thumbs, however it originated, was accelerated by her employment. If the progression of a condition which would, in the ordinary course, result in incapacity, has been hastened by employment, the acceleration of the condition is capable of being a ‘disease’ and hence, an ‘injury’.[12] If the condition is to be compensable, however, it must be contributed to, to a significant degree, by employment.[13]
[12] Salisbury v Australian Iron and Steel Ltd [1943] 44 SR (NSW)157 at 161 per Jordan CJ. See also Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; Martin v Australian Postal Corporation (1999) 29 AAR 420 at [23]-[28].
[13] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B.
Dr Griffith, Dr Watson, Dr Hanafi, and Dr Eaton considered her condition was due to employment; Dr Francis, Dr Reiter, Associate Professor Ryan, and Associate Professor Barnsley denied that work significantly aggravated her condition. In particular, Associate Professor Barnsley said although touch typing and counting out money may have produced symptoms causing Ms Atkins discomfort, the activities had not changed the underlying pathology of the osteoarthritis and hence were not causal of her degenerating condition.
The Tribunal prefers the views of the rheumatologist, that is, Dr Francis, Dr Reiter, and Associate Professor Barnsley since they have the more pertinent expertise. Their views were also concurred in by Associate Professor Ryan, a surgeon, who had seen all the imaging reports. In support of this conclusion is the fact that the conditions in both thumbs developed almost simultaneously, suggesting that any impact of an activity such as counting money, which it can be assumed would be undertaken with the right hand by a right hand dominant individual, was minimal.
In addition, Ms Atkins was away from work between March 2011 and August 2011, some five months, but the rest did not improve her situation. The break from work, and that on returning to work in early August Ms Atkins was on a modified duties regime with minimal manual handling, did not alleviate Ms Atkins’s thumb condition. As a consequence, she only managed about three weeks in the workplace before the pain she was suffering led to her being certified as totally unfit for work. These circumstances support the finding that her osteoarthritis was a particularly aggressive form of the disease and it was not her work, but the nature of the condition itself, which impacted on the development of her condition.
The Tribunal concedes that the history indicates that certain activities in the workplace may have produced symptoms of her condition. However, given the strong indicators of a constitutional cause, Ms Atkins’s age and sex, both of which are predisposing factors, the fact that, as she conceded, her previous employment and her domestic activities made a significant contribution to the condition, coupled with the inherently aggressive nature of her osteoarthritis the Tribunal cannot be satisfied that the contribution made by the workplace was significant.
The Tribunal notes that its preference is supported by the indeterminate results in the studies supplied to the Tribunal. The Jensen literature review only found an association between ‘forceful whole hand gripping’, and osteoarthritis of the carpometacarpal joints. Ms Atkins’s activities at work, including touch typing, were not forceful. The study also indicated a possible link between ‘repetitive precision grip and arthrosis of the DIP-joints’ [DIP is distal interphalangeal, that is, the joints at the top end of the fingers]. The Tribunal notes that although there was evidence that Ms Atkins was developing osteoarthritis in her fingers, her claim relates solely to the osteoarthrosis of the base of her thumbs. As a consequence, links between repetitive precision grip and arthrosis of the DIP-joints are irrelevant to Ms Atkins’s claim.
The Jensen study did not substantiate an association between occupational factors and arthritis of the thumb; the Fontana study concluded that ‘occupational factors are presumed to play a role in the occurrence of CMC OA [carpometacarpal osteoarthritis], this condition is probably of complex multifactorial origin, with mechanical stress only one among many factors that interact in determining CMC OA; and the WorkSafeBC study found ‘At present, there is anecdotal evidence on the potential aggravation of pre-existing 1st CMC OA by occupations or activities. (at 13) The Barry Fox note referred under ‘overuse of a joint’ only to occupations such as being a ballerina, a baseball pitcher, or a tennis player. The activities involved by those in the nominated occupations would be exerting considerably more force than Ms Atkins in the activities in which she was involved in her workplace.
So, on balance, the general studies are equivocal. They refer to a ‘presumption’ only of a connection between mechanical stress and osteoarthritis of the thumbs (Fontana study); ‘anecdotal evidence’ only (the WorkSafeBC study); the absence of an association except in the case of ‘forceful whole hand gripping’ (Jensen study); and an association only in the case of a forceful and lengthy level of mechanical stress (the Fox study). The Fontana study did find an association between the occupation of secretaries and CMC. However, Ms Atkins’s typing work which she said occupied about 70 per cent of her time at work, had only been undertaken for four years, a relatively short period of time and as Professor Reiter indicated and the Tribunal accepts, typing for that limited time is insufficient to have had a significantly aggravating impact due to her workplace. The Tribunal is also aware that the studies are generalised in nature and their findings are not specific to Ms Atkins. Hence this lessens their relevance of any studies for her situation.
That leaves open a possibility. As Associate Professor Barnsley said in Ms Atkins’s case employment may possibly have contributed to the development of the condition, but that is insufficient to meet the standard under the Act. For a disease to be attributable to employment the workplace must make a significant contribution to the condition. A possibility does not meet that threshold. The evidence available to the Tribunal does not enable it to be satisfied that that test is met.
Accordingly the decision under review is affirmed. That means that Comcare has established that Ms Atkins’s left and right thumb osteoarthritis conditions do not, and did not ever, qualify as compensable injuries for the purposes of the Act.
That also means, there is no need to consider the issues raised in Matter 2013/1524, that is, whether Ms Atkins suffers a permanent impairment which is compensable under the Act and that decision too is affirmed.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member. .......................[sgd].................................................
Associate
14 July 2014
Dates of hearing 12- 14 May 2014 Counsel for the Applicant Allan Anforth Advocate for the Applicant David Lander Solicitors for the Applicant Lander & Co Counsel for the Respondent Peter Woulfe Advocate for the Respondent Gareth McCasker Solicitors for the Respondent Australian Government Solicitor
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