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 (5^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] AATA 473
Decision Date

CaseChat Overview and Summary

Cathy Atkins brought a claim against Comcare, the Commonwealth’s workers’ compensation insurer, concerning an aggravation of osteoarthritis in her thumbs, which she attributed to her employment as a customer service officer at the Department of Human Services. The matter was heard in the Federal Circuit Court of Australia in Canberra from 12-14 May 2014. The central issues revolved around whether Ms Atkins's osteoarthritis was a compensable condition under the Safety, Rehabilitation and Compensation Act 1988, and if so, whether her employment aggravated the condition, entitling her to compensation. The court needed to determine the causes of Ms Atkins’s thumb conditions, whether she continued to suffer from these symptoms, and if those conditions were due to her employment.

The court examined the medical evidence and imaging studies to determine if Ms Atkins suffered from osteoarthritis in her thumbs. The principal disagreements among medical experts pertained to the results of imaging studies, the specific conditions Ms Atkins was suffering from, and whether these conditions were work-related. The court also considered whether Ms Atkins’s employment aggravated a congenital condition, potentially accelerating the osteoarthritis in her thumbs. Comcare argued that Ms Atkins's claimed thumb osteoarthritis conditions did not qualify as compensable injuries under the Act. The court needed to resolve whether Ms Atkins's employment activities significantly contributed to her thumb conditions, impacting her entitlement to compensation.

The Federal Circuit Court found that Ms Atkins did suffer from an aggravation of osteoarthritis in her thumbs due to her employment. The court accepted that her job, which involved significant repetitive rotational movements of her thumbs while handling cash, contributed to the aggravation of her pre-existing condition. The court determined that the repetitive nature of her work exacerbated her osteoarthritis, leading to compensable injuries. The evidence supported that Ms Atkins's employment activities had a substantial impact on her thumb conditions, justifying compensation under sections 16, 19, and 20 of the Act. The court concluded that Ms Atkins was entitled to compensation for the aggravation of her osteoarthritis due to her employment.

The court ordered Comcare to provide compensation to Ms Atkins for the aggravation of her osteoarthritis in her thumbs, acknowledging the impact of her employment on her condition. The court's decision was based on the substantial evidence that her work activities significantly contributed to the exacerbation of her pre-existing osteoarthritis.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2013/1524 & 2013/5815
Re	Cathy Atkins
APPLICANT
And	Comcare
RESPONDENT

Tribunal	RM Creyke, Senior Member
Date	14 July 2014
Place	Canberra