Chand and Telstra Corporation Limited (Compensation)

[2015] AATA 980

Chand and Telstra Corporation Limited (Compensation) [2015] AATA 980 (17 December 2015)

Division	GENERAL DIVISION
File Number	2014/1818
Re	Mool Chand
APPLICANT
And	Telstra Corporation Limited
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	17 December 2015
Place	Brisbane

The Tribunal affirms the decision under review.

.................................[Sgd].......................................

Deputy President Dr P McDermott RFD

CATCHWORDS

COMPENSATION – claim for upper limb conditions – “left wrist flexor carpel ulnaris tendonitis and soft tissue strain to right forearm” – previous acceptance of liability – whether present entitlement to compensation – medical evidence suggests claimed conditions not related to employment – condition constitutional not work-related – decision under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 16, 19

CASES

Re Michael and Secretary, Department of Employment, Science and Training [2006] AATA 227; (2006) 90 ALD 457

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; [2002] HCA 11

Comcare v Murphy [1996] FCA 1232

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

17 December 2015

INTRODUCTION

1. The applicant has made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). He has made an application for the review of a decision made by the respondent on 18 March 2014 which affirmed a determination made on 24 January 2014 to deny liability for a claim of his upper limb conditions.

   CLAIM OF WORKPLACE INJURY

2. The claim form of the applicant, dated 17 September 2013, contains a claim for “Left wrist flexor carpel ulnaris tendonitis and soft tissue stain to right forearm”. The applicant has nominated that it was on 3 June 2005 as when he was first injured or first noticed that he was ill. The claim form gives a reference to a previous claim made by the applicant. In these reasons I will refer to the evidence which is relevant to the conditions that have been nominated on the claim form.

   BACKGROUND

3. On 28 September 2006, the respondent accepted liability under the Act for the injuries suffered by the applicant on 3 June 2005. The accepted conditions were the left wrist flexor carpal ulnaris tendonitis and soft tissue strain to the right forearm.

4. On 23 January 2007, the respondent made a determination that, as at 17 January 2007, the applicant was not incapacitated for work by reason of his accepted conditions and that there was no present liability to pay compensation under s 19 of the Act. The determination of 23 January 2007 was affirmed by a reviewable decision of 31 December 2007.

5. On 8 August 2008, by a reconsideration decision of own motion, the respondent revoked the decision of 23 January 2007. It was determined that the applicant was not able to undertake a return to work plan in December 2006. It was determined that the applicant was incapacitated for work from 18 December 2007 and was entitled to compensation under s 19 of the Act. It was also determined that, from 26 May 2008, the accepted condition had resolved and that there was no present entitlement to compensation under the Act.

6. It was not until 24 August 2009 that the applicant sought review of the reviewable decision of 8 August 2008. On 5 October 2009, this Tribunal refused to grant an extension of time for that application to be heard.

7. On 10 February 2010, the applicant advised the respondent that he still had incapacity from the upper limb condition. On 26 March 2010, the respondent determined that it was not liable to pay compensation. On 18 May 2010, the respondent in a reviewable decision varied the decision and decided that, while liability for the “left wrist flexor carpal ulnaris tendonitis and soft tissue strain to right forearm” had previously been accepted under s 14 of the Act, there was no present entitlement to compensation under ss 16 or 19 of the Act.

8. On 22 July 2011, the reviewable decision of 18 May 2010 was affirmed by a decision of this Tribunal which was constituted by a specialist medical member.  The applicant did not seek review of that decision in the Federal Court of Australia.

   CONSIDERATION

9. The respondent contends that the jurisdiction of this Tribunal is limited to considering whether after 23 July 2011 the applicant is entitled to compensation under the Act. The respondent also contends that the applicant’s entitlements have now been determined by the reviewable decision of 8 August 2008 and the decision of the Tribunal of 22 July 2011. Having regard to the decision in Re Michael and Secretary, Department of Employment, Science and Training,[1] I do not accept that there are such limitations on the jurisdiction of this Tribunal.

   [1] [2006] AATA 227; (2006) 90 ALD 457.

10. In Michael and Secretary, Department of Employment, Science and Training Downes J, then the President of this Tribunal, enunciated the important principle that it will only be appropriate for a decision of the Tribunal to be reconsidered pursuant to the Bhardwaj[2] principle when a decision was obviously wrong and when the cause of the error is some administrative or similar mistake. It was also emphasised that, in all but the rarest of cases, Tribunal decisions must be treated as final and subject only to reconsideration for error of law on appeal. The applicant has not pointed to any error in the decision of the Tribunal of 22 July 2011.

    [2]           Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; [2002] HCA 11.

11. The reviewable decision was made on 18 March 2014. The applicant submits that any medical report that is obtained after the date of this determination should not be admitted into evidence. Dr Stephen Coleman, orthopaedic surgeon, wrote his report on 17 July 2014. I do not accept this submission because the Federal Court of Australia has previously held that this Tribunal should consider relevant medical evidence obtained after the date of the application for review.[3] Accordingly, I will consider the report of Dr Coleman who is a specialist of some seniority and has expertise in hand and upper limb surgery. Dr Coleman has examined the applicant and was able to give evidence before the Tribunal.

    [3]           Comcare v Murphy [1996] FCA 1232.

12. Dr Coleman, in giving evidence, confirmed the diagnosis in his report that the applicant has degenerative problems with his triangular fibrocartilage. As well, there are signs of a torn triangular fibrocartilage. Dr Coleman has given his opinion that the condition of the triangular fibrocartilage was not caused by the use of a keyboard at the workplace and that wear and tear of the triangular fibrocartilage is common with persons of the age of the applicant. While Dr Coleman has stated that the condition may have been temporarily aggravated when the applicant used a keyboard, any temporary aggravation has long ceased as the applicant last worked with the respondent in 2006/2007. I consider that the report of Dr Coleman is a fair assessment of the condition of the applicant. I accept the conclusion of Dr Coleman that the claimed conditions of the applicant are not related to the employment of the applicant by the respondent.

13. The applicant asserts that he has a tendonitis condition. Certainly there are some earlier reports that have been tendered by the applicant that suggest the applicant has a tendonitis condition. This is the case of Dr Byrne in his report of 27 June 2007 and Dr Peter Steadman dated 22 September 2006 whose reports were tendered by the applicant after the hearing. However, the evidence of these specialists was not accepted by the Tribunal on 22 July 2011. The applicant also relies upon the report of Dr Wallace dated 7 January 2010. However, I do not regard his report as providing a definite diagnosis of tendonitis; this is because he remarked that the applicant “probably has a tendonitis of the left flexor carpi ulnaris tendon”.

14. One medical report that was tendered by the applicant after the hearing does suggest that in 2006 there may be irritation of the triangular fibrocartilage. This is one of the possibilities that was adverted to by Dr Houston, orthopaedic surgeon, in his report of 22 August 2006. This report is early confirmation that the triangular fibrocartilage may be the site of the problems experienced by the applicant.

15. Dr Coleman has mentioned that the applicant currently does not have any clinical signs of ulna wrist flexor tendonitis. The only recent medical report that suggests the applicant has such a condition is an MRI report dated 2 May 2015. However, that report refers to “Left Wrist – FCU tenosynovitis?”. The use of the question mark suggests a presumptive diagnosis. In any event, I prefer to accept the opinion of a specialist who is in practice in a hand and upper limb clinic. I also mention that Dr Cameron has, in the last hearing before this Tribunal, expressed the opinion that if a tenosynovitis condition was related to workplace activities, it would improve significantly if that workplace activity ceased.

16. Dr Cutbush, orthopaedic surgeon, has examined the applicant on a number of occasions and his reports of 16 December 2010, 30 May 2011 and 19 December 2013 are relied upon by the respondent. The report of Dr Cutbush, dated 30 May 2011, indicates that the applicant does not meet the criteria for chronic regional pain syndrome type 1 or type 2.  Dr Cutbush in his later report, dated 19 December 2013, stated that inflammatory arthritis in the left wrist needed to be considered as a cause for the applicant’s MRI scan findings. This view is certainly plausible as he has explained that the MRI scan suggests there is synovitis which is constitutional and not work-related.

17. One of the medical reports that was tendered by the applicant after the hearing, and admitted into evidence at an adjourned hearing,[4] is a report dated 24 August 2015 of J Singh, psychologist. That report contains the opinion that the “physical injury” of the applicant appears to be “the major significant maintaining factor to Mr Chand’s psychological conditions”. However, the conclusion appears to be based on the self-report of the applicant who considers that his mental health symptoms have arisen following his protracted claim and no reasons are provided to support that conclusion.  In the circumstances, I do not give weight to that report. The report does not identify the “physical injury” that is referred to because it is stated that “the exact injury remains in question (due to different specialist diagnoses) and is currently under investigation”. The claim of the applicant does not in any event refer to any psychological conditions of the applicant.

    [4]           Exhibit G.

    DECISION

18. I affirm the decision under review.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

..................................[Sgd]......................................

Associate

Dated 17 December 2015

Date of hearing	25 June 2015
Date final submissions received	15 December 2015
Applicant	In person
Counsel for the Respondent	Mr C Clark
Solicitors for the Respondent	Ms S Dole, Sparke Helmore Lawyers