Cavanagh and Comcare (Compensation) - [2021] AATA 499

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…

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.

Continue reading Cavanagh and Comcare (Compensation)

Details

AGLC: Cavanagh and Comcare (Compensation) [2021] AATA 499
Case: [2021] AATA 499
Decision Date: 16 March 2021

CaseChat Overview and Summary

This matter concerned an appeal by Ms Cavanagh against a decision by Comcare regarding her claim for workers' compensation. Ms Cavanagh sought compensation for an alleged aggravation of her pre-existing bilateral carpal tunnel syndrome, which she contended was significantly contributed to by her employment and subsequent rehabilitation program. The dispute centred on whether the increase in her symptoms constituted an aggravation of a disease within the meaning of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) and, if so, whether her employment played a significant role in that aggravation. The decision was made by Dr I Alexander, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine whether Ms Cavanagh had suffered a temporary aggravation of her pre-existing bilateral carpal tunnel syndrome, and crucially, whether her employment had contributed to this aggravation to a significant degree. This required the Tribunal to consider the definition of "injury" under the SRC Act, particularly in relation to the aggravation of pre-existing conditions, and to assess the causal link between Ms Cavanagh's work activities and rehabilitation, and the exacerbation of her symptoms.

The Tribunal reasoned that for an aggravation of a pre-existing condition to be compensable under the SRC Act, there must be evidence of a discernible or diagnosable physiological or psychiatric change to the employee's body or psyche, beyond mere subjective experience of symptoms. While accepting that Ms Cavanagh experienced an increase in symptoms between January and May 2017, which could be described as a physiological change and a progression of her pre-existing condition, the Tribunal was not persuaded that her employment had contributed to this change to a significant degree. Furthermore, the Tribunal found no convincing evidence that the physiotherapy or exercise physiology sessions had contributed to the physiological change. The Tribunal concluded that the increase in symptoms was a natural progression of her pre-existing bilateral carpal tunnel syndrome, complicated by delays in diagnosis and treatment.

Consequently, the Tribunal affirmed the decision under review, finding that Ms Cavanagh had not established that her employment contributed to a significant degree to the aggravation of her bilateral carpal tunnel syndrome.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 EVIDENCEMs 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.