Confidential and Comcare
[2010] AATA 798
•18 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 798
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2397
GENERAL ADMINISTRATIVE DIVISION ) Re Confidential Applicant
And
Comcare
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date18 October 2010
PlaceSydney
Decision The decision under review is affirmed.
...................[sgd]...........................
Ms N Bell, Senior Member
CATCHWORDS - Workers Compensation – permanent impairment – disease – ailment – regional pain syndrome – tenosynovitis and synovitis – psychological influences – contributed to by employment to significant degree
Safety, Rehabilitation and Compensation Act 1988
Commonwealth Banking Corporation v Raymond William Percival (1988) 20 FCR 176
REASONS FOR DECISION
Ms N Bell, Senior Member 1. The Applicant commenced employment with Centrelink in 2001 performing clerical duties. In July 2008, the Applicant lodged a claim for tendonitis of the left wrist and bursitis of the left elbow that she claimed resulted from prolonged, repetitive typing and computer based work required in the performance of her employment.
2. The Applicant now contends that she has suffered tenosynovitis and synovitis (as it was characterised by Comcare) in her left wrist attributable to her employment and contends that this tenosnovitis and synovitis was a precursor her current suffering of chronic regional pain syndrome.
3. Comcare contends that the diagnosis of chronic regional pain syndrome is not a disease or injury as defined in the Safety, Rehabilitation and Compensation Act 1988 and is not attributable to the Applicant’s employment.
4. Therefore, the issues for the Tribunal to consider are:
(a)does the Applicant suffer from a disease as defined in the Act?
(b)if so, was the Applicant’s regional pain syndrome contributed to by her employment to a significant degree?
does the applicant suffer from a disease as defined in the act?
5. The Applicant describes her current symptoms to include pain in her upper arm, elbow, shoulder, neck, forearm and hand as well as some numbness and tingling. She also stated that she has had a stabbing pain in the front of her ribs, the intensity of which varies depending on her activity. She said that as a result of the symptoms she is unable to perform housework and must drive one handed. She said that she cannot use her arm or it will aggravate the symptoms. The Applicant gave evidence that she first experienced pain in her left arm from about July 2006. Despite some improvement after taking leave and a reduction in her duties in accordance with an occupational therapists report, her pain became “unmanageable” by 7 July 2008, on which date she was certified unfit to work.
6.
In October 2008, the Applicant returned to work on a gradual return to work beginning with two days per week. However, the Applicant said that on these days she had difficulties as a result of the amount of keying she was required to do. The Applicant said that by early 2009 her symptoms again became “unmanageable” and she experienced pain in her left upper limb. The Applicant said that in
March or April 2009 she was given a position that was non-keying or involved very little keying. The Applicant took a leave of absence with Centrelink from
25 June 2009 and has since returned on reduced duties of 15 hours per week.
7.
Concurrent evidence was given at the hearing by rheumatologists Professor Sambrook and Dr McGill. Both Professor Sambrook and Dr McGill were in agreement as to a diagnosis of regional pain syndrome. Dr McGill stated that there is no physical explanation for the Applicant’s symptoms. Instead, Dr McGill stated, the syndrome had “developed primarily because of psychological influences”.
Professor Sambrook reasoned that the Applicant’s symptoms had neuropathic features suggesting some nerve irritability as a result of a previous condition, in this case tendonitis.
8.
I note that the suggestion of tendonitis appeared in the medical certificate of the Applicant’s general practitioner, Dr Tomkin, who wrote on 20 August 2008 that the Applicant suffered from “tendonitis of the left wrist and elbow”. There was some discussion in concurrent evidence between Professor Sambrook and Dr McGill about the correctness of this diagnosis, with Professor Sambrook finding no features of tendonitis or bursitis when he examined the Applicant some years later and
Dr McGill noting that the initial symptoms the Applicant described did not fit a diagnosis of tendonitis. Professor Sambrook noted that a general practitionerr works under certain time pressures, but would have seen the Applicant when her complaint was fresh. Dr McGill considered that “tendonitis of the elbow” is so non specific as to be of little use as a diagnosis. Both agreed that the general practitioner had provided little information as to the clinical signs behind her diagnosis. Dr McGill considered it an unreliable diagnosis. Professor Sambrook took a more sympathetic view of the time pressures on general practitioners.
9. The issue of whether the Applicant suffers from a “disease” was aired with the expert witnesses exclusive of the question of significant contribution by her employment. The discussion proceeded as a discussion of the definition of the word “disease” – in both the Safety, Rehabilitation and Compensation Act 1988 and in medical parlance. Their evidence and the later submissions of Counsel considered causation separately to this question of definition. I deal with causation or contribution as a separate question below.
10. Dr McGill and Professor Sambrook both described the term “syndrome” to be an umbrella term used for a presentation of a collection of features or symptoms for which there is no apparent cause. Dr McGill said that within a syndrome there may be diseases or disorders, but that he did not consider the Applicant to be suffering from a disease. Professor Sambrook preferred to define “disease” as something medical practitioners see, identify and treat.
11. Both experts agreed that there are now some conditions that are still called “syndromes” even though their pathogenesis is now very well understood.
12. Professor Sambrook said that he had not diagnosed regional pain syndrome Type 1 or Type 2, which is also called “causalgia”, in the Applicant. He said these identified Types indicate a definite type of physical pathology, but neither of these apply to the Applicant. I note that causalgia is included in the World Heath Organisation’s International Classification of Diseases but there appears to be no mention of “regional pain syndrome”.
13. The Macquarie Dictionary (5th ed.) defines ‘syndrome’ as:
“the pattern of symptoms in a disease or the like; a number of characteristic symptoms occurring together.”
14. Section 5B(1) of the Act defines “disease” as:
(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.
15. Section 4 of the Act defines “ailment” as:
any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)
16.
The Applicant submitted that her pain is itself indicative of the presence of an injury or disease within the meaning of the Act, citing the Full Federal Court in Commonwealth Banking Corporation v Raymond William Percival (1988)
20 FCR 176 at 180:
“Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity.”
17. I do not agree that this was the thrust of their Honours’ judgment. Their Honours in Percival addressed the issue of whether the presence of pain symptomatology is enough to constitute an aggravation of a disease and not whether the symptom of pain establishes the presence of a disease.
18. Nevertheless, the definitions in the Act of “disease” and “ailment” are broad and somewhat circular. Whilst a pattern or collection of symptoms may not be identifiable as a condition or ailment of a particular known aetiology, the existence of such a pattern or collection does not necessarily exclude the possibility of the existence of a disease. At the very least, and to use words of Dr McGill, the term syndrome may have within it “things that are disorders”.
19. In addition I note that Dr McGill, although unable as a rheumatologist to take the matter very far, suggests that a psychological condition or ailment may be at the root of the Applicant’s physical symptoms. It may be that, if he is right, that psychological condition is itself a disease – or at least an ailment or disorder. This illustrates the elusive nature of these things sought to be defined with some broadness and circularity in the Act – and the potentially unduly restrictive effect of applying the Act’s definitions in the restrictive way urged by the Respondent. I consider that the broadness of the definitions in the Act should be given full effect. I accept that the Applicant’s diagnosed regional pain syndrome falls within the definition of a “disease” under the Act, subject to it being established that her disease was contributed to, to a significant degree, by her employment.
was the applicant’s regional pain syndrome contributed to by her employment to a significant degree?
20.
In her evidence, the Applicant stated that she first experienced pain in
July 2006 on the back of her left hand that began as a dull ache and spread up the top of her hand, wrist and forearm and in the “nervy part” of the elbow. The Applicant stated that after two months of experiencing symptoms, an ergonomic assessment of the Applicant’s workstation resulted in the replacement of her chair, keyboard and micro desk. She said that after this there was some gradual improvement in her symptoms. The Applicant said that she uses the mouse in her right hand and described herself as a “self-taught touch typist” using all her fingers.
21. The Applicant said that in approximately May and June 2007, when she was experiencing a high workload and working late most evenings and during the weekends, her symptoms flared up and she experienced severe pain from her left hand up to her neck and left shoulder blade. In June 2007, the Applicant took some time off.
22. The Applicant returned to work after an occupational therapist report recommended that she be placed on reduced duties. The Applicant stated that following this she began to feel a gradual improvement. However, in early 2008 the symptoms again flared.
23. The Applicant then moved to the debt raising team in Brookvale. She stated that her duties in that team were very keyboard intensive and she was unable to set up her desk in accordance with her ergonomic requirements. This work consisted mainly of on-line searches whereby she would key names and addresses into a database. She stated that her symptoms then became “unmanageable” and she was certified unfit for work on 7 July 2008.
24. The Applicant said her work in the Identity Fraud Unit in 2006, which she considered to be the work that led to her difficulties, consisted of mainly online searches. This involved the entering names and addresses involving “small bursts” of keying. The Applicant said that she would hold her left hand poised above the keyboard and said that her work involved a constant repetition, with her left hand, of typing and lifting. She later abandoned that practice of holding her left hand poised on the advice of an ergonomist. She said she had breaks of 15 minutes in the morning and 15 minutes in the afternoon and a flexible lunchtime. She also said that when doing numerical spreadsheets for the DPP she would enter numbers on the keyboard with her right hand using the side numerical keypad and she would use her left hand to tab.
25.
In October 2008, the Applicant returned to work on a gradual return to work beginning with two days per week. However, she said that on these days she had difficulties as a result of the amount of keying she was required to do. The Applicant said that by early 2009 her symptoms again became “unmanageable” and she experienced pain in her left upper limb. The Applicant said that in
March or April 2009 she was given a position that was non-keying or involved very little keying. The Applicant took a leave of absence with Centrelink on
25 June 2009.
26. In addition to this claim, the Applicant gave evidence of contact with her estranged father in December 2005. She told the Tribunal that her father did not wish to know anything of the Applicant having changed his identity, created a false history for himself, was married and had a 22 year old child.
27.
In September 2007, the Applicant began a course of antidepressant medication prescribed by her GP. In March 2008, the Applicant was referred by her GP to commence a course of psychological treatment with a psychologist
whose notes are the subject of a confidentiality order. When questioned as to what she believed to be the reasons for taking the antidepressant medication and seeing the psychologist, the Applicant responded that it was probably in response to anxiety caused by issues regarding her personal life and her relationship with her father. I note that the psychologist’s notes describe very difficult and disturbing events in the Applicant’s childhood in addition to the effects on her of her more recent dealings with her natural father.
28. Professor Sambrook and Dr McGill agreed that psychological factors often play an important role in regional pain syndrome. Dr McGill, while acknowledging that he is not a psychiatrist, considered that the Applicant’s physical complaints have a psychiatric condition as their most likely cause. In this case the psychological disturbances experienced by the Applicant and the emergence of pain in her left arm are almost concurrent.
29. I note Dr McGill’s view that it is surprising that the Applicant’s pain is experienced on her left side when she is right handed and performing activities with both hands. There is no evidence to explain why this is so, particularly when, according to her evidence, she used the mouse and the numerical key pad with her right hand. Dr McGill considered the duties undertaken by the Applicant could not have given rise to the widespread symptoms she now suffers nor to the wrist and elbow symptoms she suffered at first. Dr McGill also queried why, if there is a connection between the work performed by the Applicant and her symptoms, her symptoms did not improve when she ceased work in 2009.
30. While I accept that the test of significant contribution can mean that employment activity and psychological factors could co-exist as significant contributors to the Applicant’s disease, I cannot be satisfied in this case that employment activity contributed to a significant degree. The combination of the low level of keyboard use, the absence of any symptoms on the Applicant’s right side and the failure of her symptoms to resolve when she ceased work activity relegate the contribution of employment activities to insignificance.
31. It follows that the Applicant’s employment did not contribute to her disease and Comcare is not liable in respect of either her claim under section 14 of the Act or her claim for permanent impairment.
decision
32. The decision under review is affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed: .....................[sgd]................................................
Associate: Lloyd DohertyDates of Hearing 5 & 6 May 2010
Date of Decision 18 October 2010
Counsel for the Applicant Dr Michael Smith
Solicitor for the Applicant Ms Sarah Schonwater, Slater & Gordon
Counsel for the Respondent Miss Rhonda Henderson
Solicitor for the Respondent Ms Emma O'Connor, Sparke Helmore
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