Cavanagh and Comcare (Compensation)

Cavanagh and Comcare (Compensation) [2021] AATA 499 (16 March 2021)
Division:GENERAL DIVISION
File Number(s): 2018/2771
Re:Kristi Nicole Cavanagh
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr I Alexander, Senior Member
Date:16 March 2021
Place:Sydney

The decision under review is affirmed.
..............................[SGD]..........................................
Dr I Alexander, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – whether the Applicant’s employment contributed to, to a significant degree, the aggravation of the Applicant’s pre-existing bilateral carpal tunnel syndrome – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7, 14
CASES
Canute v Comcare (2006) 226 CLR 535
Military Rehabilitation and Compensation Commission v May [2016] 257 CLR 468
Re Whitlock and Comcare [2020] AATA 1353
SECONDARY MATERIALS
AMA Guides to the Evaluation of Disease and Injury Causation, 2nd Ed, 2014
REASONS FOR DECISION
Dr I Alexander, Senior Member
16 March 2021
BACKGROUND

Ms Cavanagh commenced employment with the Fair Work Ombudsman (FWO) in April 2006. In 2017 she was employed on a full-time basis at the APS4 level as a Customer Solutions Service Officer.
On 15 February 2017 Ms Cavanagh lodged a workers’ compensation claim for a condition described as “pinched nerve in left side of neck, wrist pain from typing both wrists, right shoulder occasional pain when lifting arm”.
On 6 April 2017 pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), Comcare accepted liability for “an aggravation of soft tissue injuries to bilateral wrists, forearms, neck and bilateral shoulders”.
On 18 April 2017 Dr Labib, Ms Cavanagh’s General Practitioner (GP), noted “wrist flared up … pins and needles and pain volar aspect of rt wrist….” and provided a referral letter to Dr Shaffi for the purpose of a nerve conduction study.
On 5 May 2017, Dr Shaffi, Consultant Neurologist, provided a neurophysiology report which confirmed a diagnosis of “bilateral carpal tunnel syndrome”.
On 17 May 2017 Dr Yee, Hand & Wrist Surgeon, confirmed the diagnosis of bilateral carpal tunnel syndrome. He recommended initial treatment with “cortisone injections” which were performed on 31 May 2017 (right side) and 14 June 2017 (left side).
On 22 June 2017 Ms Cavanagh returned to graduated full time work and to full duties in January 2018.
On 15 June 2017 a delegate determined that from 4 May 2017 Comcare had no present liability for medical expenses or incapacity payment under section 16 or 19 respectively in regard to the previously accepted claim for an “aggravation of soft tissue injuries to bilateral wrists, forearms, neck and bilateral shoulders”.
On 20 October 2017 Ms Cavanagh lodged a new claim for “Bilateral carpal tunnel syndrome” caused by “computer based work and undertaking exercise physiology treatment approved and paid for by comcare in previous claim”.
On 31 January 2018 a Comcare delegate declined liability under section 14 of the SRC Act for carpal tunnel syndrome (bilateral).
In a reviewable decision, dated 21 March 2018, a Comcare Review Officer affirmed the earlier decision to deny liability for bilateral carpal tunnel syndrome under section 14 of the SRC Act.
In these proceedings Ms Cavanagh, who was represented by Counsel, seeks review of the reviewable decision.
In view of the temporary changes regarding the suspension of face-to-face Tribunal hearings during the COVID-19 pandemic, all the parties attended the hearing by video conference.
RELEVANT STATUTORY PROVISIONS
Section 14 of the SRC Act provides that Comcare is liable to pay compensation in respect of an ‘injury suffered by an employee if the injury results in death, incapacity for work, or impairment’.
‘Injury’ is defined in subsection 5A(1) of the SRC Act to mean:
(a)       a disease suffered by an employee; or
(b)       an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. [emphasis added]
Subsection 5A(2) of the SRC Act provides:
For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)       a reasonable appraisal of the employee’s performance;
(b)       a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)       a reasonable suspension action in respect of the employee’s employment;
(d)       a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)       anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)        anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
‘Disease’ is defined in section 5B of the SRC Act:
(1)       In this Act:
disease means:
(a)         an ailment suffered by an employee; or
(b)         an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)       In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)         the duration of the employment;
(b)         the nature of, and particular tasks involved in, the employment;
(c)         any predisposition of the employee to the ailment or aggravation;
(d)         any activities of the employee not related to the employment;
(e)         any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)       In this Act:
significant degree means a degree that is substantially more than material.
‘Ailment’ is defined in subsection 4(1) of the SRC Act:
“ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
ISSUES
There is no dispute that Ms Cavanagh’s bilateral carpal tunnel syndrome is an ailment for the purposes of subsection 4(1) of the SRC Act.
At the hearing it was agreed that Ms Cavanagh’s bilateral carpal tunnel syndrome was a pre-existing condition and was and, therefore, not caused by her employment.
Ms Cavanagh contends, however, that her employment significantly contributed to an aggravation of her pre-existing bilateral carpal tunnel syndrome. She contends that her “physiotherapy and exercise physiology treatment”, which had been approved by Comcare for an earlier compensation claim, contributed to a significant increase in her symptoms.
Therefore, the definitive issue in this matter is whether Ms Cavanagh‘s claimed increase in symptoms was an aggravation of her pre-existing ailment, that is, bilateral carpal tunnel syndrome and, therefore, a disease within the meaning of section 5B of the SRC Act.
DOCUMETARY EVIDENCE
Ms Cavanagh’ written statement
In an undated statement Ms Cavanagh stated, inter alia, as follows:
I believe I am entitled to workers compensation for aggravation of bilateral carpal tunnel syndrome ……due to the bilateral wrist injury which occurred in the workplace on 6 February 2017 and significant aggravation caused by the physiotherapy and exercise physiology treatment received between 20 February 2017 and 21 April 2017…
……I believe it was the combination of the workplace injury in February 2017 and the subsequent t physiotherapy and exercise physiology treatment that contributed to the aggravation of carpal tunnel symptoms in April and May of 2017. Had I not suffered the bilateral wrist injury in February of 2017 and the then received incorrect physiotherapy and exercise physiology treatment then I would not have experienced an aggravation of carpal tunnel syndrome in April and May 2017. This is supported by the medical evidence from all doctors except for reports from Dr Ryan, including the first independent medical assessment with Dr Lowy.
The initial bilateral wrist injury in February 2017 was caused by incorrect workstation ergonomics at work …….the flare up of the carpal tunnel symptoms occurred after my return to Australia on 20 March 2017[1] and escalating until the final exercise physiology appointment on 21 April 2017.
On 20 February 2017 I was given exercises to complete twice a day by treating physiotherapist …the only period where I did not complete the exercises was whilst away on an overseas holiday… I now know these were incorrect exercises to be given to someone with bilateral wrist injury ……..
On 19 April 2017, I went back to see my physiotherapist and advised my GP had told me not to proceed with exercise physiology until the results were back from the nerve conduction study. The physio told me that physio was no longer required as I was getting double crush due to sitting in a slumped position and needed to proceed with exercise physiology. I was then pushed to rebook ……The only reason I agreed to go ahead with exercise physiology treatment was because I felt I had no choice ….. I then attended the exercised physiology appointment ….on 21 April 2017.[2]…….I woke up in the early hours of Saturday morning in extreme pain in both my wrists …..the pain did not significantly improve until I received a cortisone injection in the right wrist on 31 May 2017 and the left wrist on 14 June 2017…….
I returned to work fulltime on 22 June 2017and have worked full time ever since without any further flare up of symptoms. I initially returned to work on a graduated return to work until the end of 2017 and have been back at full duties since January 2018.
[1] Ms Cavanagh travelled to Sri Lanka from 8 March 2017 to 20 March 2017 on annual leave.
[2] At the hearing Ms Cavanagh stated that the session lasted for about 1 hour.
Ms Cavanagh also stated that “Dr Labib, Dr Ganora, Dr Lowy and Dr Yee and most recently Dr Perko have all confirmed the cause of the carpal tunnel symptoms to be related to the initial workplace injury in February 2017”.
Oral evidence
In her evidence in chief Ms Cavanagh described various exercises she performed during her physiotherapy treatments which she now claims contributed to the increase in her wrist symptoms. In particular, she described one exercise during her single exercise physiology session where she experienced pain in her wrists which got much worse after the session.
When asked whether she had pain in her wrists prior to the exercise physiology session Ms Cavanagh said “No, I had been much better, I was due to see my GP the following week to return to work……Minimal symptoms, on and off. It came and went”.
In cross examination Ms Cavanagh confirmed that she returned to work full time on 22 June 2017 and has “worked full time ever since without any further flare up of symptoms”.
Ms Cavanagh agreed that as early as February 2017 she would wake up “with pain and numbness in her hands,” had difficulty with squeezing actions such as “squeezing the shampoo bottles” and needed assistance with household activities such as ironing, cooking and cleaning. She agreed that her symptoms and functional difficulties continued until she had the “cortisone” injections.
Dr Ganora – Occupational Physician
In a letter to Dr Labib, dated 22 February 2017, Dr Ganora stated inter alia the following:
Thank you for requesting review of Kristi Cavanagh whom I saw today because of a recurrence of upper limb symptoms in association with her work …..She was previously seen in 2013. She told me that her right upper limb pains had gradually resolved by 2014 and she has remained otherwise well. Her workstation had been deliberately optimised by ergonomic specifications and that she was working happily until December 2016, when she found the computer system was replaced over the weekend. Shortly thereafter she began to experience new pain in the left upper limb mostly but also return of pain around the right shoulder, elbow and wrist. On the left it was mainly pain at the left wrist but also radiation of pain along the whole arm similar to what she previously experienced on the right in the past. She started physiotherapy and she has been off work for the past two weeks. She is taking Celebrex again. Pain is now easing.
Examination reveals pain reproduction at the left wrist with a positive Finkelstein test[3] and pain at the end of wrist dorsiflexion and volar flexion. There is tenderness at the ulnar collateral ligament but no redness or swelling. The left elbow is normal as is the left shoulder. On the right, there is bicipital groove tenderness at the shoulder and lateral epicondylar tenderness at the elbow…
Kristi has a recurrence of cervicobrachial pain probably provoked by alterations in her workstation…….She is at risk of recurrence by virtue of the past chronicity and sensitisation of the past……there is no need for further investigation. Physiotherapy should continue …..
[3] Finkelstein’s test is the classic provocative test for diagnosis of De Quervain’s tenosynovitis [inflammation of extensor pollicis brevis (EPB) and abductor pollicis longus (APL) tendons].
Dr Labib – General Practitioner
In letter to Comcare dated 10 March 2017 Dr Labib stated, inter alia, as follows:
Medical history given on 6.2.16[4], patient complained pain both shoulder, neck, arms, wrists and hands, pins and needleless ulna border left hand gradual over 2 months and headaches. Patient stated that prior to her symptoms her work station which was ergonomically perfect for her over the last few years, has been changed on weekend to two new screens set differently and low keyboard. The long hours typing and attending to those two screens in new set up, triggered her symptoms……..
Miss Cavanagh sustained soft tissue injury neck with pain and headaches, shoulder, arms, forearms, wrist and hands (cervico- brachial pain) triggered by the alteration of her work station……
[4] I presume Dr Labib meant 6 February 2017.
In a Workcover Certificate, dated 18 April 2017, Dr Labib noted the diagnosis of the “work related injury/disease” as “relapsing soft tissue injury volar aspect RT wrist, neck and shoulders are settling”.
In a letter to Dr Shaffi, dated 18 April 2017, Dr Labib noted “Kristi with pins and needles RT hand and wrist volar aspect after soft tissue injury at work. Also, some less symptoms LT wrist. I appreciate your evaluation regarding nerve conduction study to assess for carpal tunnel syndrome bot hands and wrists [sic]…….”
Extracts from Dr Labib’s Practice Records include:
·6.2.17 – has two new screens and one very flat keyboard for 2 months typing all day felt pain within 2 dausd [sic] of new computers coming in worse till christmas had 12 days off it helped then back to work got worse pain both voler aspect wrists but rt more could not drive do washing or breakfast ….pins and needles ……headaches neck and shoulder pain
·16.2.17 – pain wrist on any movements to her fingers …had pins and needles this am settled now ….? C7 ridiculer symptoms[sic]
· 23.2.17 – pain is better good progress with physio pain lt volar aspect wrist both eases during day …..pain on resisted movements middle fingers and wrist power intact
·3.3.17 – had flare up tuesday night ….10 days planned holiday
·21.3.17 – back from holiday minimal pins and needles after long flight home
·31.3 17 – pins and needles at time lt hand less rt adding pressure on tr wrist felt a bit of pain volar aspect on lt pins and needles with movements
·18.4.17 – wrist flared up rt volar aspect last Thursday after 4 days work ….pins and needles volar aspect right wrist and to middle finger ….also lt wrist and hand pins and needles lt wrist less than right on exam feels pins and needles tips of left hand using wrist splint given by physio referral for ncs
·28.4.17 – after exercise physiology …..felt exercise aggravated her hands …still has pain and pins and needles wake up at night with pain hands will have nerve conduction next friday feel pain middle and index finger and thumb and hands even washing her feel tingling and numb feel hands are shaky with cup of tea in hand
·7.7.17 – been to work for 2 weeks, minimal pins and needles in left hand ….rt is pretty good mobility power is good
·20.10.17 – minimal tingling index finger …coping ok at work
·12.1.17 – carpal tunnel symptoms settling well coping with work well will upgrade duties
I note at this point that between June 2017 and February 2018, following her treatment for bilateral carpal tunnel syndrome, there is no mention in Dr Labib’s records with reference to the various musculoskeletal symptoms Ms Cavanagh had reported in early 2017.
PHYSIOTHERAPY
In a letter to Dr Labib dated 16 February 2017 Mr S Roenne (SR), physiotherapist, stated, inter alia, as follows:
Thank you for referring Miss Cavanagh for treatment of her work related injuries. She presented with pain radiating down her left arm, pins and needles in the left hand and bilateral wrist pains[5].
[5] These symptoms are consistent with bilateral carpal tunnel syndrome.
I diagnosed her with C7 -T1 radiculopathy. Examination findings initially were:
·Reduced C7 – T1 myotome strength on left
·Reduced cervical and thoracic range of motion.
Treatment has been aimed at abolishing the neural deficit. After two treatments the pins and needles had resolved… Unfortunately, on Monday this week she found that things had flared up, we think it was due to sitting for an extended period. The pins and needles returned and she has also feeling numbness in the left foot …..I think we can continue with physiotherapy.
(emphasis added)
Extracts from physiotherapy assessment notes:
·7 February 2017 (SR) – ..Diagnosis C7 NR Got new computers at work …..developed P+ N[6] last few days from it ….Diagnosis C7 NR
[6] Pins and needles.
·8 February 2017 (SR) - ….. Diagnosis C7 NR …woke up with P+N this morning
·10 February 2017 (C. Webster) – Diagnosis C7 NR ……curious about wrist symptoms
·14 February 2017 (W.Troy) - Diagnosis C7 NR ….Neck: feeling vey painful last night, painful in forehead …..pain in left foot pins and needles 4/10 since yesterday
·15 February 2017 (SR) - Diagnosis C7 NR…….Ax wrists, pt keeps complaining about them and they are on WC cert
·17 February 2017 (SR) - Diagnosis C7 NR…….Ax wrists, pt keeps complaining about them and they are on WC cert
·20 February 2017 (SR) - Diagnosis C7 NR……. Is finding that hands are weak pushing up off bed/ chair for example …. Ax wrists, pt keeps complaining about them and they are on WC cert
·22 February 2017 (SR) - Diagnosis C7 NR…….Ax wrists, pt keeps complaining about them and they are on WC cert
·24 February 2017 (M. Quispe) -Diagnosis C7 NR, L CTS[7]…..neck is still sore, so are her wrists, particularly in the morning when wakes up, with paraesthesia in her fingers left .> right [sic]…..Tinel’s sign : Positive on the left[8] …..
[7] Left carpal tunnel syndrome.
[8] A clinical test used to diagnose CTS.
·1 March 2017 (W.Troy) -Diagnosis C7 NR, L CTS …..feel tingling into 5^th digit in L hand and tenderness in wrist when sitting prolonged
·2 March 2017 (SR) - Diagnosis C7 NR, L CTS…typing for few hours before hand gets sore, getting P+N in left hand LF end of day
·3 March 2017 (SR) - Diagnosis C7 NR, L CTS….saw insurer specialist today, he told her to cease work, to cease physio and GP advice . Kristy quite upset and tearful, said she thought advice was wrong and unsure what to do.
·6 March 2017 (SR) - Diagnosis C7 NR, L CTS…..woke with sore hand today
·20 March 2017 (SR) - Diagnosis C7 NR, L CTS…..Got back from Sri Lanka holiday today, is feeling good ….pt to chase approval from insurance so we can sort out approval for EP ….should be able to start EP in 2 weeks.
·22 March 2017 (SR) - Diagnosis C7 NR, L CTS…..P+N in hand today
·24 March 2017 (SR) - Diagnosis C7 NR, L CTS…..Wakes up with numbness in hand most days …..get nerve conduction ?? Gets pins and needles when pushes down through arm
·2 8 March 2017 (SR) - Diagnosis C7 NR, L CTS…..Bought wrist brace and earing at night, has stopped hands P+N
·4 April 2017 (SR) - Diagnosis C7 NR, LCTS…….Started to get “carpal tunnel” ( pt used the term to describe) symptoms on right as well as left
·19 April 2017 (SR) - Diagnosis C7 NR, L CTS….Worked last week and found by of end of that hands were starting to hurt,……discussed why physio no longer required ….told not to book physio again
·21 April 2017 (N. Mudaliar ) – Primary Diagnosis: C7 NR, L CTS…AGG: Both wrists R>L – household chores, carrying grocery bags, washing ,typing
·26 April 2017 (N. Mudaliar )—Spoke to Kristi on phone regarding cancelling of appointment. Said in a lot of pain after last session, trouble sleeping
·10 April 2017 (N. Mudaliar - Spoke to Dr Labib -results showed bilateral carpal tunnel …wants to focus on acute symptoms with night splits and gentle stretching

At this point I note that I have limited the extracts to those which refer to Ms Cavanagh’s hand and wrist symptoms. The remainder of the assessment notes are somewhat repetitive with numerous acronyms, other abbreviations and unexplained technical terms which provide limited useful information.
I also note, however, there is no reference to any increase pain or other symptoms during any of the physiotherapy sessions or the single exercise physiology session on 21 April 2017.
BRS Consulting
In an Initial Needs Assessment Report dated 28 February 2017 Mr D Smith, Rehabilitation Provider stated, inter alia, the following:
Date of Assessment: 21 February 2017
Ms Cavanagh reported in early December 2016 the computers were replaced at the workplace, and she was provided with new twin computer monitors, key board, mouse a and hard drive …. Ms Cavanagh reported attempting to adjust the new computer system to the same specifications as previously, however found it difficult positioning the monitors. …..She reported neck pain by the end of the day as she felt the monitors were too low and unable to be angled inwards. Ms Cavanagh also reported the onset of bilateral wrist pain, pins and needles in her left arm, and a feeling of “lost strength’ in her hands, for example when squeezing bottles, opening jars…….during the Christmas and New Year break… she was pain free ……in late January, early February 2017 she requested a workstation assessment as her symptoms were gradually returning and she felt the desk was not set up correctly……..her local medical practitioner ……provisionally diagnosed her symptoms to be due to typing and poor sitting posture at the workstation. …..referred for physiotherapy treatment …the physiotherapist indicated she may have a pinched nerve in her neck as well as a soft tissue injury to both wrists.
Ms Cavanagh reported a slight reduction in symptoms following several sessions of physiotherapy …….in the week prior to this assessment[9] she reported a significant increase in her pain level, in particular increased left arm pain and numbness in her left hand. She reported telephoning the Emergency Hotline and was informed by the registered nurse to be reviewed by her local GP…..she was referred to Dr Alex Ganora, Occupational Physician……..She was assessed by the specialist Dr Ganora on 22 February 2017[10]. Ms Cavanagh advised the specialist diagnosed her to be suffering repetitive strain injury (RSI) in both wrists
Current Status: Ms Cavanagh reported pain in both wrists, with symptoms radiating into the back of the ring finger of both hands. She reported her wrists feel “swollen, bruised, tender”. …..intensity of the pain ranged from 2/10 at rest and 5/10 when aggravated …..In the left hand she reported pins and needles in the right and little fingers, due to nerve symptoms from her neck …..
ADL/Domestic Duties: Ms Cavanagh reported she was independent with self-care tasks such as showering and dressing, however she takes longer to perform the tasks due to her pain…..reported difficulty with squeezing actions, for example squeezing the shampoo bottle….stated that her mother undertakes the ironing …..fiance performs majority of cooking and cleaning tasks since the onset of her symptoms, however she is able to hang out the washing. She reported always supporting items she is lifting with her right hand, for example, the kettle and heavy pots. She reported a safe lifting tolerance of 5kg with both hands, and a tendency to rest items on her stomach when carrying .
[9] This is in the week prior to the first exercise physiology session.
[10] The day after the Needs Assessment.
Dr Lowy – Occupational Physician
In a report, dated 9 March 2017 Dr Lowy stated inter alia as follows:
Ms Cavanagh describes previous neck, shoulder and arm symptoms over the years……return of symptoms in November 2016 which escalated with “new” computer screens in February 2017 …..substantial neck, shoulder and bilateral upper limb symptoms which are worrisome and upsetting to Ms Cavanagh ……..Ms Cavanagh is certain her workstation with two computers is the origin of her musculoskeletal symptoms from 7 February 2017 to the present time…
Ms Cavanagh consulted Dr Alex Ganora recently; he diagnosed “bilateral RSI”[11] and prescribed medication and further physiotherapy three times per week.
Physical examination …….there is generalised tenderness to the paracervical regions bilaterally extending to the trapezius muscles ….there is also generalised tenderness over both distal forearms and wrists with paraesthetic symptoms. Reduced grip strength bilaterally due to wrist pain
In note the physiotherapy report by Shane Roenne dated 15 February 2017 who diagnosed “C7-T1 radiculopathy” (which I do not confirm at today’s examination)
DIAGNOSIS Kristi Cavanagh is experiencing neck and bilateral upper limb soft tiisue musculoskeletal symptoms, this is consistent with “occupational overuse injury” (= “RSI”)……related to the ergonomics of her work station in 2017…..
[11] See paragraph [29]. above: there is no mention of “bilateral RSI”.
Dr Shaffi – Consultant Neurologist
Nerve conduction studies performed on 5 May 2017 are reported as follows:
The left medial distal motor latency was prolonged and the median sensory responses were absent … Right median SNAPs were delayed. The neurophysiological features are consistent with bilateral carpal syndrome more marked on the left side.
Dr Yee – Hand & Wrist Surgeon
Extracts from Dr Yee’s letters are as follows:
·17 May 2017--- Thank you for referring Kristi …. she has problems with both hands which stated around 2^nd February 2017 ……Her workplace changed her keyboard to a different type, but with the extensive workload she started getting some symptoms of tingling and numbness, which she feels is worse on the right than the left. She is getting tingling and numbness in the finger tips, thumb, index and middle fingers with pain and waking her at night…….no tendonitis, arthritis or wasting. Negative digital compression test. Her nerve conduction study shows significant carpal tunnel syndrome on both sides, worse on the left than the right. We will attempt to give her a cortisone injection first. I will await approval from the insurance company before giving this injection.
· 31 May 2017 – I injected her right side today with 1% Xylocaine and Celestone and will see her in three week’s time for review. If this has made a significant improvement, I will then inject the opposite side
·14 June 2017 – I gave her a cortisone injection to the right side on 31 May 2017 and this made a significant difference to her tingling and numbness and pain. I have inject the left side today with 1% Xylocaine and Celestone
·12 July 2017 – She had improvement with the cortisone injection but she is still getting some tingling and numbness in the fingers.
·23 August 2017 – Her symptoms in terms of carpal tunnel syndrome are manageable; she is working in typing and gets it occasionally. I think she should now come out of splint at night time ……I am prepared to do cortisone injections per carpal tunnel, if these fail she would be looking at having a surgical release
·2 March 2020 – With regards to the correlation between her carpal tunnel syndrome and her job as an administrative officer it is my opinion that the work she does is a major aggravating factor for carpal tunnel syndrome.
·14 April 2020 – currently she has no symptoms of carpal tunnel syndrome and no tingling and numbness. She is currently back at work performing her normal duties and the only difference is that she is currently using a keyboard without her wrist support. She believes that her wrist support was aggravating her symptoms of carpal tunnel syndrome and this seems a definite possibility, in the fact that she is now using it and her symptoms have resolved
Dr Perko – Orthopaedic Surgeon
In July 2020 Ms Cavanagh was referred to Dr Perko for “an opinion and continuing treatment” of her “bilateral wrist condition”.
In a letter to Dr Labib, dated 15 July 2020, after having taken a history and performed a physical examination, Dr Perko stated that “I would consider that her symptoms have resolved and I would not consider that Ms Cavanagh requires any specific treatment other than recommendations for a general fitness programme.”
Dr Perko added that “the history would suggest the onset of symptoms following work station changes related to a combination of postural and neurogenic causes”. He then suggested that “It is likely her carpal tunnel symptoms were an underlying contributor to her pain syndrome and became worse and substantially aggravated with activities she describes placing weight on her hands as part of a conditioning programme.”
In a subsequent letter, dated 11 November 2020, Dr Perko postulated that because Ms Cavanagh’s initial symptoms occurred “after installation of new computer monitors and altered work positioning” it is likely that “a proximal nerve compression such as thoracic outlet compression or radicular irritation would render the nerve more susceptible to compression elsewhere” and, therefore, that the “second injury” during the exercise physiology incident “placing weight on the hand aggravated a carpal tunnel syndrome”. He then added that in normal circumstances “it is unlikely this activity alone would result in such an aggravation”.
Dr Ryan – Occupational Physician
In a report dated 5 June 2017[12] Dr Ryan stated, inter alia, as follows (with emphasis added):
[12] Date of assessment was 19 May 2017.
Ms Cavanagh stated that in September 2016 she had change of role and a change of her ergonomic environment ….by November 2016/early December 2016 she started to develop symptoms of pain with her hands and wrists …..by Christmas 2016 she started to develop very significant pain in her hands and wrists – albeit intermittently - however she kept working……she took a Christmas break and the symptoms subsided …..on returning to work in January 2017 she was well for a few weeks; until late January. She started to develop headache, neck pain and shoulder pain. She placed a claim for worker’s compensation….her claim was accepted. She had a few weeks off in February 2017 and her headache, neck pain and shoulder pain symptom partially resolved. She had physiotherapy twice weekly for a period of eight weeks and she stated her, headaches and shoulder pain completely settled, but her hand pain had started to become very troublesome at this point.
She stated she has been disabled with pain and paraesthesia of her hands. Ms Cavanagh believes that her work has triggered her symptomatic presentation ….she was recommended to have exercise physiology. She had one session and stated that it was irritable to her pain …..She has consulted a hand surgeon ….who advised that she had bilateral carpal tunnel syndrome and recommended carpal tunnel release of the left and right…they have reached an agreed position of trialling one steroid on the right
Current Status: Ms Cavanagh is off work. She states her hands are very painful although have improved slightly since being away from work. She describes pins and needles over her index, middle and half of her ring finger – the right worse than the left
Physical examination: ..when she held her hands in her lap she described significant pain in the right, worse than left, and described a paraesthesia of pins and needles-like sensation over the fingers 2,3 and the anatomically lateral aspect of finger 4 on both hands. Phalen’s and Tinel’s tests were strongly positive.
Summary and Assessment: Ms Cavanagh ….was referred for a medical examination with respect to an accepted claim for aggravation of soft tissue injuries of bilateral wrists, forearms, neck an bilateral shoulders. I note that Ms Cavanagh indicated that the majority of these symptoms have resolved and it is now her greatest concern of her carpal tunnel syndrome bilaterally …
On reviewing references regarding risk factors for carpal tunnel syndrome, I refer to the American Medical Association Guides to the Evaluation of Disease and Injury Causation, 2nd Edition
·There is insufficient evidence for keyboard activities – particularly there is no association for keyboard work generally, no trend for risk to increase with more time spent keyboarding, no evidence for increased typing an no effect from keyboard design.
·There is insufficient conflicting evidence for highly repetitive work alone. There is strong evidence for highly repetitive work with other factors such as force and vibration. There is low risk evidence for awkward postures
·A meta-analysis found no support for carpal tunnel syndrome risk with computer keyboard or mouse. Most other studies demonstrated no association
·There is strong evidence for age, body mass index, biopsychosocial factors, gender, particularly stronger evidence for higher risk in females, comorbidity of other systemic diseases, diabetes and genetic factors…
I therefore cannot state with any evidence base that Ms Cavanagh’s carpal tunnel syndrome is related to her work. There is no reason as to why she developed this in a sedentary and administrative keyboarding environment
In answer to a question on probable contribution of non-employment related factors, Dr Ryan stated as follows:
Ms Cavanagh’s employment has not caused her carpal tunnel syndrome. It is possible that the repetitive lifting of the heavy dual screens brought on the symptoms of the carpal tunnel syndrome, however the neurophysiology report from 5 May 2017 would indicate that absent median sensory responses of the left median nerve and a prolonged motor latency is not an injury in and of itself, but a longstanding and worsening condition which at one point was going to be rendered symptomatic …….
In a supplementary report dated 31 January 2018 Dr Ryan confirmed the opinions she expressed in her original report and stated, inter alia, as follows:
She started to develop symptomatology of the hands in January 2017 and she ultimately had a few weeks off in February when her symptoms did not settle at all despite the fact she was away from work.
I further indicated that the neurological physiological reports from May 2017 indicating absent median sensory responses on the left median nerve and a prolonged motor latency was not an injury, in and of itself, but the representation of longstanding and worsening condition which at one point – in total keeping with the nature of the disease progression –was going to render itself symptomatic.
In response to a question as to the “causation of carpal tunnel syndrome in relationship to a prescribed exercise physiology treatment Ms Cavanagh obtained during April 2017 Dr Ryan stated inter alia as follows;
There are no work related factors for Ms Cavanagh’s presentation of bilateral carpal tunnel syndrome. This is a disease in and of itself . ……Ms Cavanagh had one session of prescribed exercise physiology during April 2017. Her disease symptoms were already well-established at this point. This treatment regime in and of itself does not have a significant nor major and most significant contributing factor by way of causal connection between the exercise physiology session and carpal tunnel disease progression……..It is inconceivable in my opinion that a one off exercise physiology treatment session (which was used with a rehabilitation focus) has been identified as possibly being causal to the development of Ms Cavanagh’s bilateral carpal tunnel syndrome. Ms Cavanagh’s bilateral carpal tunnel syndrome is a longstanding and worsening condition which at one point was going to be rendered symptomatic. ……. Her condition is unrelated to work and unrelated to her attendance at a rehabilitative exercise physiology program in April. In fact, she indicated to me at the time of the initial assessment she started to become symptomatic in January and by the time she took some time away from work in February 2017 her symptomatology did not improve. It would therefore indicate that Ms Cavanagh’s disease rendered itself symptomatic in the very early months of 2017 in keeping with the evidence based knowledge of the disease progression in and of itself.
In a supplementary report dated 16 January 2020 Dr Ryan noted that it had been almost three years since her initial assessment of Ms Cavanaagh and after revisiting her initial report and an “extensive bundle” of additional documents she stated that “none of these have caused me to change my opinion regarding work factors contributing to Ms Cavanah’s bilateral carpal tunnel syndrome”.
Oral Evidence
In cross examination Dr Ryan confirmed that in her current clinical practice she treats patients with carpal tunnel syndrome. She explained that carpal tunnel syndrome presents “mostly in the hands and fingers” and confirmed that it is not a wrist joint condition but a neuropathic condition related to pressure on the median nerve.
Dr Ryan stated that treatment with physiotherapy is an appropriate initial treatment for carpal tunnel syndrome and she would be guided by the treating physiotherapist as to their “recommendations around moving from passive therapy to more active therapy”. She confirmed her opinion that, a one-off session with an exercise physiologist, “isn’t likely to cause any physiological changes”.
Despite intense questioning by Counsel, Dr Ryan did not agree that the physiotherapy exercises or the exercise physiology session significantly contributed to Ms Cavanagh’s carpal tunnel syndrome symptoms.
In response to a question from the Tribunal Dr Ryan stated that:
depending on the type of exercise physiology exercises being undertaken, and I’m hearing that it may well have been through putting partial pressure of body weight down through a wrist, there might be a temporary increase in inflammation of any joint that is stressed under that way and I would expect that to be - if there was, indeed, that occurrence an exacerbation for a period of time, which would then settle with the withdrawal of the problem - with the withdrawal of the exercises. I wouldn’t expect that it would be a one-off session that would then have enduring prolonged and aggravating circumstances would settle, as most things do on a temporary measure.
When asked to consider various physiotherapy exercises described by Ms Cavanagh, Dr Ryan stated that she did not believe that pressure on the hand with extension of the wrist would contribute to an increase in neuropathic symptoms in carpal tunnel syndrome because “we mostly see it when it’s forced flexion of the wrist under prolonged circumstances”.
In response to a question from the Tribunal with respect to the time of onset of symptoms in carpal tunnel syndrome and evidence of neuropathic change in nerve conduction studies Dr Ryan referred to her report of 31 January 2018[13] and stated as follows:
…… in my clinical practice it’s many, many months before - and if we did nerve conduction studies on people with asymptomatic problems, or no problems of their hands and wrists, we may see in the early stages of the developing disease changes of the conduction. So, it’s before the patient presents with the findings in their hands. So, I didn’t attribute Ms Cavanagh’s representation to me as an acute injury. I felt it was a natural disease progression that had been identified clinically and supported through the nerve conduction studies but, clearly, the absence on one hand would indicate it has been a long time that that nerve had been in trouble
[13] Supra at paragraph [48].
CONSIDERATION
In late 2016, following a change in her workstation equipment, Ms Cavanagh began to experience various non-specific musculoskeletal symptoms which included symptoms involving both her “wrists”.
Ms Cavanagh submitted a claim for compensation and Comcare accepted liability for “soft tissue injuries”, which was poorly defined. Comcare approved treatment with physiotherapy which resulted in early resolution of most of the symptoms, except for symptoms in her wrists and hands which persisted, and increased over time with noted functional impairment.

In May 2017 a diagnosis of bilateral carpal tunnel syndrome was confirmed with nerve conduction studies. Subsequent treatment with “cortisone” proved to be successful and Ms Cavanagh was able to return to full time work in June 2017 on graduated duties and by January 2018 she was asymptomatic and able to work full time with normal duties.
The AMA Guide[14] describes carpal tunnel syndrome, inter alia, as follows:
Carpal tunnel syndrome (CTS) is a constellation of symptoms and signs resulting from mononeuropathy of the median nerve in the carpal tunnel. Symptoms typically include numbness, paresthesias, dysesthesias, and/or pain in the radial palm and palmar aspect of the thumb, index, middle, and perhaps ring fingers. The sensory complaints sometimes also extend proximally in the limb and often occur or worsen at night…….
[14] AMA Guide at page 278.
At the hearing Ms Cavanagh conceded that her bilateral carpal tunnel syndrome was not caused by her employment.
However, she now contends that between February 2017 and June 2017 she suffered a temporary aggravation of her bilateral carpal tunnel syndrome that was contributed to, to a significant degree by her work and the rehabilitation programme implemented because of her compensable “soft tissue injuries” suffered at work prior to February 2017. In particular, she claims that a single exercise physiology session on 24 April 2017 significantly contributed to a further aggravation of her bilateral carpal syndrome.
The contention appears to be based on a hypothesis which arises from her claim that her symptoms “settle while she is off work” and increase on “returning to work and on returning to the physiotherapy program”.
The difficulty for Ms Cavanagh is that the documentary evidence and her own evidence at the hearing does not support her contention.
The documentary evidence as noted in Dr Labib’s practice records is that Ms Cavanagh had symptoms consistent with carpal tunnel syndrome prior to February 2017 and that her symptoms were present both at work and away from work. It also is recorded that she had pain and other symptoms during the night and morning. At the hearing she confirmed that she would “wake up with pain and numbness in her hands” which had been happening since February 2017.
In the Needs Assessment dated 21 February 2017 it is reported that Ms Cavanagh had symptoms and functional impairment consistent with a diagnosis of bilateral carpal tunnel syndrome prior to February 2017 and that she needed assistance with domestic duties
At the hearing Ms Cavanagh confirmed that she needed assistance for domestic duties in February 2017 and that this had continued until she had her treatment with the “cortisone” injections.
In support of her contention, Ms Cavanagh relies on the opinions expressed by Drs Labib, Ganora, Lowy, Yee and Perko and submits that the opinion of Dr Ryan should be given less weight.
The difficulty for Ms Cavanagh is that the medical evidence on which she relies, in my view, can best be described as incomplete and unconvincing.
I note that on 24 February 2017 the physiotherapist treating Ms Cavanagh recorded symptoms and signs clearly consistent with bilateral carpal tunnel syndrome.
Neither Dr Ganora or Dr Lowy considered carpal tunnel syndrome as a possible diagnosis, which on consideration of Ms Cavanagh’s clinical presentation, at that time, is somewhat puzzling. In my view the opinions expressed in their letters are of little value for present purposes.
Dr Labib did not refer Ms Cavanagh for the definitive nerve conduction studies until 18 April 2017 despite her earlier symptoms and signs which were consistent with bilateral carpal tunnel syndrome. I assume this reflects some inexperience, as a GP, in dealing with carpal tunnel syndrome and a reliance on the specialist opinions of Drs Ganora and Lowy. His opinion as to any contribution of her employment to an aggravation of Ms Cavanagh‘s condition must be given less weight.
In his letter of 2 March 2020 Dr Yee expressed the opinion that “the work she does is a major aggravating factor for carpal tunnel syndrome”. Dr Yee provides no reasons to support his opinion and, therefore, is of little value for the Tribunal.
On 15 July 2020, about three years after Ms Cavanagh had been successfully treated for bilateral carpal tunnel syndrome, Dr Perko confirmed that her symptoms had resolved and expressed an opinion that her carpal tunnel syndrome was “substantially aggravated with activities she describes as placing weight on her hands as part of a conditioning programme.” Dr Perko provided no reasons to support his opinion.
In a very brief letter, dated 11 November 2020, Dr Perko attempted to provide an explanation for his earlier expressed opinion which I found to be unconvincing and not supported by any other evidence.
Dr Ryan examined Ms Cavanagh in on 19 May 2017, prior to her treatment with “cortisone” injections. Subsequently she provided a written report which provides a comprehensive medical assessment of Ms Cavanagh’s bilateral carpal tunnel syndrome.
After considering Ms Cavanagh’s clinical presentation, the circumstance of her work and the relevant scientific literature in respect of risk factors for carpal tunnel syndrome Dr Ryan concluded that “there is no evidence base that Ms Cavanagh’s carpal tunnel syndrome is related to her work”.
In a supplementary report, dated 31 January 2018 Dr Ryan confirmed her original opinion and stated that “there are no work related factors for Ms Cavanagh’s presentation of bilateral carpal tunnel syndrome. This is a disease in and of itself”.
Dr Ryan also stated that the exercise physiology program was not “significant contributing factor by a way of causal connection” with “carpal tunnel progression”.
In her final report dated 16 January 2020, after having reviewed “all of the extensive bundle of materials” Dr Ryan stated that “none of these caused me to change my opinion regarding work factors contributing to Ms Cavanagh’s bilateral carpal tunnel syndrome”.
In her oral evidence at the hearing, Dr Ryan confirmed the opinions she had stated in her written reports and provided additional reasons to support her opinion that there was no significant contribution by Ms Cavanagh’s employment to her bilateral carpal tunnel syndrome.
Conclusion
The issue for the Tribunal is whether Ms Cavanagh suffered a temporary aggravation of her pre-existing bilateral carpal tunnel syndrome and, if so, whether her employment contributed to, to a significant degree, the aggravation.
In Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (May), the High Court noted the Full Court’s conclusion that “the inquiry demanded by the statutory definition of "injury" was "whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind". The High Court further noted in May, however, that this conclusion should be rejected to the extent that such a conclusion suggests that symptoms subjectively experienced by an individual, without “accompanying physiological or psychiatric change” will not engage section 14 of the SRC Act.
In Re Whitlock and Comcare [2020] AATA 1353, the Tribunal took into consideration the High Court’s judgments in May and Canute v Comcare (2006) 226 CLR 535, and applied them to the “aggravation” provisions within sections 5A and 5B of the SRC Act. The Tribunal concluded as follows at [196]-[197]:
The evidence must demonstrate that, in addition to symptoms or pain experienced by the employee, there is a discernible or diagnosable physiological or psychiatric change to the employee’s body or psyche.
Accordingly, in the circumstances of this case, in the circumstances of this case, the Tribunal must be satisfied that there is evidence that there was a physiological or psychiatric change to the Applicant’s pre-existing condition in order for there to have been an ‘aggravation’ of an ailment for the purposes of the SRC Act.
I accept that between January 2017 and May 2017 Ms Cavanagh suffered an increase in symptoms because of her untreated bilateral carpal tunnel syndrome.
In my view, the available evidence suggests that the increase in symptoms was a progression of her pre-existing bilateral carpal tunnel syndrome and therefore can be described as a “physiological change”.
I accept that there is an apparent temporal relationship between the “physiological change” and certain circumstances that can be attributed to Ms Cavanagh’s employment. However, I am not persuaded that Ms Cavanagh’s employment contributed to the “physiological change”. Also, there is no convincing evidence to support a conclusion that the physiology exercises or the exercise physiology session contributed to the “physiological change”.
I am satisfied that the available evidence supports a conclusion that the increase in symptoms suffered by Ms Cavanagh during 2017 was a natural progression of her pre-existing bilateral carpal tunnel syndrome which was complicated by the fact that there was a significant delay in the diagnosis and treatment of her condition.
I am also satisfied that the intermittent increase in symptoms suffered by Ms Cavanagh while she was at work was a consequence of her pre-existing condition and not caused by her work.
In reaching my conclusion I have preferred the evidence provided by Dr Ryan. In her written reports she provided clear reasons to support her comprehensive assessment of Ms Cavanagh’s bilateral carpal tunnel syndrome which were also tested in cross examination.
It follows that I am satisfied that that Ms Cavanagh did not suffer an aggravation of her pre-existing bilateral carpal tunnel syndrome that was contributed to, to a significant degree by her employment.
DECISION
For the reasons set out above, the Tribunal finds that Ms Cavanagh did not suffer an aggravation of her pre-existing carpal tunnel syndrome that was contributed to, to a significant degree, by her employment and, therefore, Comcare is not liable to pay compensation under section 14 of the SRC Act.
The decision under review is affirmed.

I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

.................................[SGD].......................................
Associate
Dated: 16 March 2021

Date(s) of hearing: 22 February 2021

Counsel for the Applicant: A Coombes

Solicitors for the Applicant: M Forshaw, Carroll & O'Dea Lawyers

Counsel for the Respondent: S Patterson

Solicitors for the Respondent: E Baggett, Moray & Agnew

[2021] AATA 499

16 March 2021

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Statutory Construction

Remedies

Procedural Fairness

Date(s) of hearing:	22 February 2021
Counsel for the Applicant:	A Coombes
Solicitors for the Applicant:	M Forshaw, Carroll & O'Dea Lawyers
Counsel for the Respondent:	S Patterson
Solicitors for the Respondent:	E Baggett, Moray & Agnew