COOPER and COMCARE
[2010] AATA 625
•20 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 625
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2008/3460,
GENERAL ADMINISTRATIVE DIVISION ) 2009/2968,
2009/2969Re SOLOMON BRUCE COOPER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms A F Cunningham (Senior Member)
Dr R J Walters RFD (Part-Time Member)Date20 August 2010
PlaceHobart
Decision The orders of the Tribunal are as follows:
1. THAT the decision under review dated 30 May 2008 rejecting the claim for neck and thoracic sprain be affirmed.
2. THAT the decision under review dated 28 May 2009 rejecting the claim for carpal tunnel syndrome be affirmed.
3. THAT the decision under review dated 28 May 2009 rejecting the claim for cervical radiculopathy be set aside and substituted with a decision :
(i) THAT the respondent is liable to pay compensation for an aggravation of the condition of cervical radiculopathy from 12 January 2006.
(ii) THAT the matter be remitted to the respondent for reconsideration in accordance with this decision.
(iii) THAT there is liberty to apply within 14 days in relation to the costs of the proceedings.
(iv) THAT in the absence of any such application, the respondent is to pay the applicant's costs of and incidental to the proceedings of appeal number 2009/2968.
[Sgd Ms A F Cunningham]
Senior Member
CATCHWORDS
WORKERS COMPENSATION - cervical radiculopathy and carpal tunnel syndrome - underlying degenerative condition of the cervical spine - original claim for cervical and thoracic spinal dysfunction - second claim for cervical radiculopathy, not a new and distinct condition - cervical radiculopathy aggravated by applicant's computer related work duties - respondent liable to pay compensation - decision under review set aside - carpal tunnel syndrome not contributed to in a material degree by ATO employment - carpal tunnel syndrome did not result in incapacity for work - decision with respect to carpal tunnel syndrome affirmed.
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 14(1)
Abrahams v Comcare (2006) 93 ALD 147
Comcare v Canute [2005] FCAFC 262
Comcare v Sahu-Kahn [2007] FCA 15
Commonwealth v Beattie (1981) 31 ALR 369
Tippett v Australian Postal Corporation [1998] FCA 335
Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533
Australian Postal Corporation v Bessey [2001] FCA 266
Bessey v Australian Postal Corporation [2003] AATA 127
McKinnon v Australian Postal Corporation [2001] AATA 297
Caldipp Pty Ltd v Delov [2002] FCAFC 352
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626
The Darling Island Stevedoring and Lighterage Co Limited v Hankinson [1967] HCA 10; (1967) 117 CLR 19
Commonwealth Banking Corporation v Percival (1988) FCA 240
Caldipp Pty Limited t/as Slaven Motors v Delov [2002] FCAFC 352
REASONS FOR DECISION
20 August 2010 Ms A F Cunningham (Senior Member)
Dr R J Walters RFD (Part-Time Member)1. The applicant, Solomon Cooper seeks a review of three determinations made by Comcare with respect to conditions that he attributes to computer related work duties with the Australian Taxation Office (ATO).
2008/3460
2. Mr Cooper first claimed compensation for cervical and thoracic spinal dysfunction on 17 February 2004. On 17 March 2004 Comcare accepted liability for neck sprain and thoracic sprain with a deemed date of injury 17 February 2004. In a decision dated 22 February 2008, Comcare determined that on and from 19 February 2008 there was no entitlement to compensation in respect of medical expenses and incapacity. Following a reconsideration on 30 May 2008, Comcare varied the determination finding that the compensable condition of 2 January 2004 had resolved as at 12 January 2006. Mr Cooper was invited to submit a new claim for compensation for the injury for which he first sought medical treatment on 12 February 2006.
2009/2968
3. Mr Cooper submitted a claim for cervical radiculopathy on 23 June 2008. Comcare rejected the claim for a condition described as "unspecified disc disorder, cervical" and that the decision was affirmed on review on 28 May 2009.
4. In its reviewable decision of 30 May 2008 Comcare found that Mr Cooper's original injury had resolved and had been "superseded by a new condition which is characterised by significant aggravation of the employee's underlying condition". Mr Cooper maintains that his original condition had never resolved. His second claim for compensation identified his condition as cervical radiculopathy following a medical diagnosis. This condition arises from an underlying degenerative condition of the cervical spine.
2009/2969
5. Mr Cooper's other claim was for "tingling in fingers" which was subsequently diagnosed as carpal tunnel syndrome. Comcare rejected the claim on 30 September 2008 and affirmed its decision on 28 May 2009 on the basis of medical opinion that carpal tunnel syndrome is constitutional and genetic and not work caused.
CONTENTIONS
6. There is no dispute that Mr Cooper suffers from an underlying degenerative condition of the cervical spine which has not been caused or contributed to by his employment with the ATO. It is also accepted that Mr Cooper is incapacitated for work. The applicant maintains that his work duties with the ATO and in particular his computer related activities, made his previously asymptomatic degenerative condition symptomatic and constituted an aggravation of an ailment within the meaning of section 4 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
7. The respondent disputes that there has been any aggravation of Mr Cooper's condition from his work place activities in that there has been no permanent worsening of the condition or its symptoms that can be attributable to his employment with the ATO.
8. With respect to the claim for carpal tunnel syndrome, the respondent maintains that firstly, it is not related to work place activities and secondly, that the condition has in any event resolved and there has been no claim for medical expenses or incapacity resulting from the condition.
ISSUES
9. Mr Hobbs, for the respondent submitted that the issue for the Tribunal to determine relates to the second claim for cervical radiculopathy which constitutes a new and distinct condition from the muscle strain previously accepted by Comcare. The respondent accepts that the cervical radiculopathy arises from Mr Cooper's underlying degenerative condition but contends that it is not work-related.
10. On behalf of the applicant, Ms Burrows-Cheng submitted that the muscle strain condition, originally accepted by Comcare has not resolved and is work-related.
11. At the time of the original claim, Mr Cooper's condition had not been medically diagnosed as cervical radiculopathy. The claim form described the injury as cervical and thoracic spinal dysfunction referrable to the back, arm, neck, shoulder (right side of body all). It is the applicant's contention that this is the same condition that was the subject of the first claim submitted in February 2004, subsequently diagnosed as cervical radiculopathy.
12. There are a number of issues that accordingly arise for determination:
(i) Was the applicant's claim for cervical and thoracic spinal dysfunction work-related, and if so has the condition resolved?
(ii) Was the applicant's second claim for cervical radiculopathy a new and distinct condition, or the same condition that was the subject of the first claim?
(iii) Was the condition aggravated by the applicant's work duties within the meaning of section 4 of the SRC Act in that it was contributed to in a material degree by the applicant's employment?
(iv) Was the applicant's carpal tunnel syndrome contributed to in a material degree by his employment with the ATO?
(v) If so, did the carpal tunnel syndrome result in incapacity for work?
LEGISLATION
13. The application is for compensation payable pursuant to the provisions of section 14(1) of the SRC Act which reads as follows:
"(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment".
14. The first claim is subject to the definition of "injury" before it was amended in 2007 which read as follows:
"Injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical ... injury arising out of, or in the course of, the ... employment; or
(c) an aggravation of a physical ...injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the ... employment), being an aggravation that arose out of, or in the course of, that employment ..."
15. Other relevant definitions are as follows:
"Aggravation includes acceleration or recurrence.
Ailment means any physical ... disorder, defect or morbid condition (whether of sudden onset or gradual development)
Disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the ... employment by the Commonwealth ...".
16. The applicant's claim for carpal tunnel syndrome (2009/2969) was made on 22 February 2008. The amended definition of "injury" is as follows:
"5A Definition of injury
(1) In this Act:
injury means:
(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".
17. The provisions of section 5B Definition of Disease included in the 2007 amendments are relevant with respect to Mr Cooper's claim for carpal tunnel syndrome:
"5B Definition of disease
(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".
BACKGROUND
18. Mr Cooper commenced his employment with the ATO in March 2000. Mr Cooper's initial positions involved almost continuous computer work. He has occupied his current position since the end of 2001. Mr Cooper initially dealt with objections to tax assessments and undertook some project work. He then commenced classifying work which involved opening and reading letters and then directing them to the appropriate department. Initially the classifying work occupied approximately two hours of each working day but was computer intensive work. For the rest of the day Mr Cooper was occupied preparing private rulings and with administrative work. His classifying work increased from two to three and then up to four hours during busier periods. On one occasion he undertook classifying work for the entire day.
19. Mr Cooper's initial symptoms first appeared in January 2004 when he experienced pins and needles in his right hand. He completed an Incident Report and obtained a medical certificate from his general practitioner, Dr Michael Salter. Following advice from Dr Salter he took leave from work for several weeks and was subsequently paid workers' compensation for that period. Mr Cooper's initial claim for workers' compensation was completed on 17 February 2004. On 4 March 2004 Dr Salter diagnosed Mr Cooper's condition as cervical and thoracic spinal postural strain and noted that a CT cervical spine showed degenerative changes in the mid to lower cervical spine which were pre-existing. Comcare accepted liability for neck strain and thoracic strain.
20. With rest and some physiotherapy Mr Cooper's condition slowly improved and he was largely able to self manage his symptoms. It was Mr Cooper's evidence that in mid 2005 his classification duty hours increased from two to three hours and then four hours for a period of time. When he was required to undertake classifying duties for a whole day he emailed a supervisor suggesting that a risk assessment be undertaken. Mr Cooper was the then Occupational Health and Safety Deputy Officer.
21. Mr Cooper said that after a few weeks holiday towards the end of 2005 his symptoms improved and he was not suffering any shoulder pain when he returned to work in January 2006. However he said that within a few hours of returning to work performing classifying duties, his symptoms returned and he suffered significant pain in his right shoulder.
22. Following a consultation with Dr Salter who advised that he take time off work, he submitted a medical certificate for three to four weeks leave. He had physiotherapy with Paula Munden who taped his shoulder and manipulated his trigger points. He was also given postural exercises to perform and the treatment relieved his symptoms to some extent.
23. Following his period of 3/4 weeks leave, Dr Salter provided Mr Cooper with a medical certificate certifying him fit for work for half a day but stating that he was not to undertake any computer work.
24. Dr Salter referred Mr Cooper to Andrew Hunn, Neurosurgeon in March 2006. Mr Hunn arranged for Mr Cooper to have a CT scan followed by an MRI scan and reviewed him on 14 August 2006. He subsequently referred him for nerve conduction studies which suggested a right C5 radiculopathy. A further MRI scan in March 2007 produced evidence consistent with C5 radiculopathy, a narrowing of the intervertebral foramen producing chronic irritation of the right C5 nerve root.
25. Mr Hunn discussed various treatment options and admission to Calvary Hospital was arranged for 4 September 2007 for a disc arthroplasty and nerve root decompression. The operation was deferred pending further assessment of Mr Cooper's compensation claim. Mr Hunn recommended that Mr Cooper increase his hours at work to four hours per day and thereafter to the extent that he could tolerate. Mr Cooper reported that there was limited work available which did not require the use of a computer and mouse activity and whenever he used the mouse his symptoms intensified.
26. Comcare referred Mr Cooper to Mr Gordon Stuart, consultant neurosurgeon, for medical assessment in November 2006. Mr Stuart reported that Mr Cooper suffered neck pain, headaches and right brachial neuralgia due to cervical spondylosis which had been aggravated by work activity. He considered however, that the aggravation was temporary and had now resolved. He suggested a temporal relationship between the onset of Mr Cooper's symptoms and the use of the computer keyboard. In his view, Mr Cooper's incapacity would have occurred regardless of his work with the ATO.
27. Mr Cooper described his current symptoms as chronic in that he feels a dull persistent pain, a dull, heavy feeling in his right arm and a lack of sensation. Pain in his neck and shoulder varies according to his activities. Mr Cooper appeared to be uncomfortable at various times whilst giving evidence and varied his sitting position periodically. He obtained some relief during the luncheon break when he was able to walk around but said that after thirty minutes in the witness box his symptoms had returned.
28. It was Mr Cooper's evidence that he is able to modify his activities away from the work environment to minimise his pain and discomfort whereas at work, despite the ergonomic materials, the constant sitting and static loading associated with computer work rekindles his symptoms. The ergonomic office equipment was provided to assist Mr Cooper's postural related symptoms.
29. In late 2007 Mr Cooper experienced tingling in the fingers of his left hand whilst using a computer mouse. Initially the tingling settled when he stopped using the mouse but after a period of time, the tingling sensation constantly increased with mouse use. A diagnosis of carpal tunnel syndrome was made following a nerve conduction test and Mr Cooper submitted a claim to Comcare in February 2008. It was Dr Salter's opinion that the likely cause of the syndrome was accumulated trauma from overuse of the left hand/wrist from computer work. Comcare rejected the claim after accepting Dr Peter Stevenson's report that the syndrome is constitutional and genetic rather than work-related.
30. Mr Cooper wore a wrist brace for a period of time but had no other treatment. The condition has now settled and Mr Cooper advised that he did not suffer any incapacity over and above that related to his cervical condition.
MEDICAL EVIDENCE
31. A number of medical practitioners gave evidence at the hearing. Mr Cooper's general practitioner, Dr Michael Salter and neurosurgeon Andrew Hunn gave evidence on behalf of the applicant. Associate Professor Gordon Stuart, consultant neurosurgeon, Dr Tim Hwang, consultant occupational physician and Dr Peter Stevenson, consultant physician gave evidence on behalf of the respondent. Some details of their evidence have been referred to above. Copies of Dr Salter's Progress Notes dating from 1978 were tendered in evidence.
Dr Salter
32. The Progress Notes indicate that Mr Cooper first consulted Dr Salter on Friday 2 January 2004 with respect to symptoms which he associated with his work activities. Dr Salter reported:
"Right C7 syndrome with numbness of right hand. Normal DTR's".
A Certificate 3 was sent to Mr Cooper's employer.
33. The Notes further report on 17 February 2004:
"Right periscapular pain & numbness right hand developed in late December 2003. Had periscapular pains throughout the year but they didn't last very long.
Numbness in the hand cleared up after he had 2 weeks off when his father died. Periscapular pain continues now he is back at work".
34. There are further entries with respect to these symptoms throughout March, April, May, July and August 2004. On 31 May 2004 Dr Salter recorded:
"Dr Reid & physio agree that his problems are largely postural with well developed pectoral muscles & weak back & periscapular muscles.
A three month physio program to reverse this".
35. In his report of 25 August 2006 Dr Salter stated:
"As in 2004 he reported that his symptoms were associated with the time he spent sitting at his computer monitor in his work. In fact these symptoms never really cleared completely but they subsided to a tolerable level & he never complained".
36. The next entries regarding work-related symptoms were in January 2006 when Dr Salter's report stated that Mr Cooper presented with right neck and shoulder discomfort and dysaesthesia in the right arm and cervical headaches became evident later in the course of his illness. Weakness in the arms was first reported in August 2006. Dr Salter referred Mr Cooper for a CT scan of the cervical spine and MRI scans were performed in February 2006 and again in September 2006 due to the progression of right arm weakness.
37. In his report to Comcare dated 25 August 2006 Dr Salter reported:
"The diagnosis commenced as cervical and thoracic spinal postural strain. It is now apparent that he has an underlying degenerative condition of the cervical spine causing pressure primarily on the C5 nerve root and exacerbated by his body habitus and posture at his work station".
38. He reported the treatment plan as analgesic medication, physiotherapy, restricted time at work and prescribed duties to avoid exacerbating his symptoms. Mr Hunn was to review him within the next six to eight weeks with a view to deciding surgical management options. He reported the restrictions preventing Mr Cooper from returning to work as continuing symptoms of headaches, heaviness, numbness and weakness of the right arm which symptoms were worse in his normal work environment. Dr Salter considered that his shoulder symptoms were primarily referred from his cervical spine and noted:
"His posture and body habitus at his work station contribute to a "dragging" effect on his brachial plexus, which increases the injury to the effected nerve root(s)".
He reported his underlying and pre-existing condition as the degenerative changes to the cervical spine.
39. The Progress Notes have ongoing entries with respect to neck and right arm symptoms and the treatment and medication prescribed. On 27 March 2007 Dr Salter reported a progressive worsening of weakness in Mr Cooper's right arm and that he considered that surgical management would be necessary at some stage. Dr Salter reported demonstrable clinical signs of muscle wasting, loss of power and absent supinator and biceps deep tendon reflexes in the right arm in his report of 18 September 2007. Further, that there was objective evidence of right C5 nerve damage on the nerve conduction studies. He stated that Mr Hunn has no doubt that Mr Cooper has C5 nerve root damage.
40. Dr Salter diagnosed Mr Cooper's condition as degenerative cervical disc disease with pressure on the right C5 nerve root. He noted that the MRI scan of 2007 indicated a disc protrusion on the right side of Mr Cooper's 4th and 5th disc. The cause of which is primarily the degenerative condition of the neck exacerbated by Mr Cooper's posture at work. In his report of 16 November 2007 Dr Salter states:
"There is no doubt that the nature of his work at the ATO aggravates his condition".
Dr Salter agreed with Mr Hunn's recommendation of cervical disc replacement and foraminectomy and considered that Mr Cooper could not increase his hours of work in his current state without the recommended surgical treatment.
41. Whilst Dr Salter maintained that Mr Cooper's work activities at the ATO caused him to be symptomatic by irritating the nerve roots, under cross-examination he agreed that other mechanical movement or postural activity, for example, constant sitting, painting, outside of the work place could result in similar symptoms. He agreed that absent the degenerative cervical condition, such symptoms would not be expected for a person undertaking normal keyboard activity.
42. Dr Salter was cross-examined with respect to some early entries in his progress notes. On 28 September 1993 he had recorded "occipital and cervical or cervical headaches for several weeks". He agreed that with the benefit of hindsight and now knowing of Mr Cooper's degenerative condition, that these symptoms are perhaps indicative of its development. On 12 January 1996 there is an entry ,"cervical headaches - months". Dr Salter added that it is possible that the symptoms are also indicative of the degenerative condition. There was a further entry on 4 November 1997 to "right and left occipital headaches" which Dr Salter agreed may also be suggestive of the underlying degenerative condition. Dr Salter stated however, that there could be other explanations, for example, a soft tissue problem, inflammation of muscles or ligaments although he had not recorded this in his notes. He had "tested his neck" and found no problem. It is of note that these entries all pre-dated Mr Cooper's work with the ATO which commenced in early 2000.
43. On 2 May 2001 Dr Salter had reported "left occipital shoulder pain cervical spine ...". On 13 August 2001: "I woke with an occipital headache this morning". Diagnosed as cervical headache. Dr Salter agreed these symptoms were "possibly" related to the development of Mr Cooper's underlying degenerative condition.
Mr Hunn
44. Mr Hunn was also cross-examined with respect to these entries and their possible relationship to Mr Cooper's degenerative condition. Mr Hunn suggested that it would be "drawing a bit of a long bow" to link the entry of 28 September 1993 for occipital and cervical headaches to Mr Cooper's degenerative condition. He was prepared to accept that this entry, together with the entry on 12 January 1996 for the cervical headaches - months, "may be" a manifestation of the underlying degenerative process but would not say there was a "probable" connection.
45. With reference to the entry on 2 May 2001 Mr Hunn accepted that it pointed to an issue with the neck but there was no information as to any particular level in the neck. Mr Hunn agreed that the entry on 13 August 2001 to occipital headaches was suggestive of a more probable connection with the underlying degenerative condition. It was Mr Hunn's evidence that it is reasonable to conclude that these entries are suggestive of an underlying wear and tear process which had been going on for some time.
46. Mr Hunn agreed that Mr Cooper's work activities had not caused any structural change to his underlying degenerative condition. Absent any trauma, of which there was no evidence in Mr Cooper's case, Mr Hunn described his condition as an incremental process resulting from thirty plus years of changes which include activities occurring both outside and within the work place. He considered the main difference between the activities was that outside of the workplace, a person has the opportunity to modify and avoid certain activities to minimise their symptoms whereas within the workplace, there is an expectation that certain activities are to be performed.
47. As Dr Salter had noted, current medical technology does not define long term effects of damage to the nerve roots and nor, as Mr Hunn noted, can it define the level of aggravation to the structural content of underlying degenerative process. Mr Hunn said that he relied on the symptoms as reported by his patients and the histories provided. Mr Hunn said that ninety percent of his information was derived from the history as reported by the patient and the rest from examination and imaging findings.
48. Mr Hunn defined Mr Cooper's claimed condition of cervical radiculopathy as an abnormal function of a cervical nerve root, in this case, the C5 cervical nerve root. The cause is recurrent inflammation due to irritation inside a tight nerve canal. The inflammation causes pain which is felt around the shoulder and the arm. The other possible cause of disc protrusion did not apply in Mr Cooper's case. The narrowing of the nerve canal was caused by the underlying degenerative cervical condition. It was Mr Hunn's opinion that the activities at work and his posture whilst using the computer have rendered the radiculopathy symptomatic by inflaming the narrow nerve canal.
49. The surgery that Mr Hunn has recommended is directed towards correcting the wear and tear change by providing a more capacious nerve canal.
50. Mr Hobbs suggested to Mr Hunn that he could not definitively state that work had caused a permanent increase in the level of Mr Cooper's symptomology. Mr Hunn said in reply that the symptoms are those as reported by a patient and are generated by the pathology which is a physical change. In other words "the symptoms are the perceived expression of that physical change". Mr Hunn commented that symptoms vary with the level of activity. If one permanently avoided particular activities that "stir up" symptoms, they would reduce down to a minimum and may even disappear. On the other hand, if one permanently undertakes certain activities that stir them up, then they will be permanently symptomatic. Mr Hunn agreed that certain activities undertaken outside of the work place could produce the same symptoms but noted that a person has the potential to restrict such activities.
51. Mr Hunn referred to a situation of ongoing inflammation and pain, where even after the avoidance of certain activities, the inflammation may only settle to twenty percent of its previous level rather than zero percent and the threshold for the return of symptoms is increased. This arises from a background of semi-permanent inflammation and changes to the disc nerve root so that it never returns to its previous level. This can be the case he said, where there is delay in undertaking operative treatment.
52. Mr Hunn considered that over the last couple of years, Mr Cooper has remained with a similar chronic core level of symptoms which have been ongoing with little change.
53. Both Mr Hunn and Dr Salter agreed that a condition with the same level of cervical disc degeneration as Mr Cooper could remain asymptomatic for a period of time.
54. Under re-examination by Ms Burrows-Cheng with respect to Dr Salter's earlier Progress Notes entries, Mr Hunn accepted that in a general sense they point to wear and tear changes, but were not referrable to any particular level in the neck of which there are multiple levels.
Dr Stuart
55. Dr Stuart assessed Mr Cooper on 13 December 2006 and opined that his symptoms were referrable to his underlying degenerative condition. Dr Stuart accepted that Mr Cooper's condition had been aggravated by his employment with the ATO but considered that the aggravation was temporary and had resolved. In his opinion there was no evidence on physical examination why he could not return on a progressive basis to full time duties. He considered that "his capacity would be equal regardless of his employment with the ATO".
56. With respect to the earlier entries in Dr Salter's Progress Notes Dr Stuart considered all but the cervical headaches reported on 12 January 1996, to be related to Mr Cooper's degenerative disease. In 1996 Mr Cooper had suffered trigeminal neuralgia which was entirely unrelated to the degenerative condition. On cross-examination Dr Stuart agreed that the reference to back pain was not specific to the cervical region but it was his opinion that in all probability, the symptoms were related to the underlying degenerative disease.
57. Dr Stuart did not consider that there was any aggravation to the underlying degenerative disease but considered that the work activities would have an effect on Mr Cooper's symptoms. The symptoms being headaches, shoulder pain and pain down the arm and sensory disturbance.
58. Dr Stuart accepted that certain activities for example, computer work, can aggravate ridiculopathy by causing pressure on the nerve root which produces pain. Dr Stuart further said that "a normal indication for surgical decompression of nerves is progression of symptoms", but he had concerns that after six years from the onset of symptoms the prospects of relief are very remote. Dr Stuart said there was no evidence of any inflammatory process but did not disagree with Mr Hunn's evidence that the sheath of the nerve root can become inflamed.
Dr Hwang
59. It was Dr Hwang's evidence that excessive workload or static loading on the shoulder can temporarily increase symptoms without causing any structural damage or long lasting effects. It was his opinion however, after visiting the workplace and assessing the workplace ergonomics and the nature of work, that any such loads would be minimal and Mr Cooper's symptoms should be manageable at work. Dr Hwang visited the worksite on 1 October 2007 and agreed that the workplace ergonomics and workflow conditions may not necessarily have been the same as when Mr Cooper first developed symptoms.
60. In his report Dr Hwang said that the cervicogeniac headaches reported in the Progress Notes in 1990, 1996 and 2001 and right-sided upper limb symptoms of 1997, 2001 and 2004 represented symptoms that could be consistent with cervical degenerative changes. Under cross-examination by Ms Burrows-Cheng he agreed that some of the entries relating to cervical headaches and back pain could be related to causes other than the degenerative condition.
61. Dr Hwang had viewed some of the same literature as that analysed by Dr Stevenson and said that the present medical evidence suggests that carpal tunnel syndrome is generally non-occupational in nature. Aftter reviewing Mr Cooper's workplace ergonomics, the mixture of his tasks and work practices and taking account of his limited work hours, Dr Hwang reported on 20 October 2009 that his employment does not have the potential to significantly aggravate carpal tunnel syndrome. In a subsequent report dated 6 May 2010, Dr Hwang opined that based on Mr Cooper's history as described, he would accept that he may have had some temporary exacerbation of carpal tunnel syndrome at work in 2008. He noted that he had previously provided a general opinion with regard to causation but was however, prepared to accept that the mouse related activities at work may have slightly contributed to a temporary exacerbation of symptoms. He did not consider however, that the symptoms would persist beyond the period of time when Mr Cooper was using the mouse. He noted that the condition had resolved.
Dr Stevenson
62. Dr Stevenson described carpal tunnel syndrome as a constitutional condition essentially due to the genetically determined size of the carpal tunnel. He noted that clinical studies show very little, in fact no relationship between the condition and even heavy computer use. Dr Stevenson referenced one report from the British Orthopaedic Association which concluded that carpal tunnel syndrome is probably no more prevalent in any industry nor caused by any type of work but noted that there may be a few cases in which a certain activity of work brought on symptoms. The report concluded that the vast majority of cases are not caused by work.
63. Dr Stevenson noted that clinical studies indicate that in severe cervical disc degenerative disease, the inheritability rate is 79% and the condition is not caused or significantly aggravated by occupation. Dr Stevenson said that he had not found any evidence based publication that suggested that static loading was causative of the condition. Such work place activities would impose a load on the neck of only one G which in his view, would not be of a sufficient gravity force to cause damage. Dr Stevenson was not prepared to concede that Mr Cooper's work activities had any aggravating effect on his condition.
64. When Dr Stevenson was asked how he viewed Mr Cooper's evidence that he did suffer symptoms whilst at work, he responded that a lot of people are more symptomatic at work as opposed to being on holiday, when they are happier. He suggested that when people are undertaking boring tasks, more physical symptoms are reported. He said that the issue is not whether one is symptomatic at work but whether there is an actual pathological aggravation. Dr Stevenson did not accept that there is a causal relationship between sedentary activities such as using a computer or watching television and an aggravation of symptoms.
65. It was Dr Stevenson's evidence that radiculopathy can be caused by a significant extrusion and pressure on the nerve root, and was probably related to Mr Cooper's underlying condition.
CONSIDERATION
Cervical radiculopathy
66. Mr Cooper's first claim dated 17 February 2004 described his diagnosed condition as cervical and thoracic spinal dysfunction. Dr Salter's report of 4 March 2004 addressed to Comcare Claims Management nominated a specific diagnosis as cervical and thoracic spinal postural strain with symptoms associated with his time sitting at the computer monitor in his work. The CT scan evidenced pre-existing degenerative changes in the mid to lower cervical spine. Comcare subsequently accepted liability for neck sprain and thoracic sprain. In his report of 25 August 2006 Dr Salter stated:
"The diagnosis commenced as a cervical and thoracic spinal postural strain. It is now apparent that he has an underlying degenerative condition of the cervical spine causing pressure primarily on the C5 nerve root and exacerbated by his body habitus and posture at his workstation"
67. Comcare subsequently determined that the accepted condition had resolved and that Mr Cooper's condition as at 12 January 2006 represented a new and separate injury to the accepted compensable condition of 2 January 2004. Comcare's decision was based on a preference for the opinions of Dr Stuart and Dr Hwang who did not consider that the condition was work caused and that any aggravation was temporary and had now resolved.
68. In the reviewable decision the Claims Services Officer referred to Dr Salter's advice that the symptoms in 2004 had subsided to a tolerable level but that since January 2006 Mr Cooper's symptoms had progressed further and he had clear signs of motor deficit in his right arm. The Claims Services Officer noted the large gap in treatment and incapacity for work between 15 September 2004 and 12 January 2006.
69. It was Mr Cooper's evidence to the Tribunal at this hearing that after the first experience of symptoms in 2004, he initially learned to largely self manage his discomfort however the symptoms were ongoing. His symptoms intensified towards the latter half of 2005 after he was required to perform classification duties which had increased from two to three to four hours per day.
70. The Tribunal accepts Mr Cooper's evidence that he learned to self manage his symptoms with the assistance of medical treatment and physiotherapy during 2004 through to the latter part of 2005. The question that arises is whether the condition from which Mr Cooper was suffering and for which liability had been admitted had resolved. Further, whether his second claim for cervical radiculopathy constituted a new and distinct condition from the condition identified in the first claim form.
71. Although Comcare had accepted liability for neck and thoracic sprain, this was not the diagnosis nominated on the claim form, nor was it the diagnosis described by Dr Salter. It is Dr Salter's advice that his was essentially a working diagnosis without the benefit of a complete medical assessment. It was his opinion that the symptoms that Mr Cooper was experiencing in 2004 were related to the same condition that was the subject of his second claim, namely for cervical radiculopathy, which was subsequently diagnosed. Mr Cooper refers to the same symptoms and disability being to his neck and shoulder on the right side of his body. As the Federal Court said in Abrahams v Comcare (2006) 93 ALD 147:
"Nothing is more common than that medical diagnoses change and evolve, or are or become various. In my opinion, to hold that the applicant was irretrievably asserting that he had a right carpal tunnel syndrome as the injury to his hand is to take an over-literal view of a document that, as I have indicated, should be beneficially, broadly and practically interpreted".
72. The Tribunal accepts Dr Salter's advice that the symptoms that Mr Cooper was experiencing in 2004 described by him in his first claim form as cervical and thoracic spinal dysfunction, were the same symptoms which were the subject of the second claim for cervical radiculopathy. The question whether the condition had resolved will be considered later in the course of this decision.
73. All of the medical practitioners who gave evidence and who had assessed Mr Cooper and considered the results of diagnostic investigations, accepted a diagnosis of right C5 radiculopathy. They agreed that it was not the result of any injury but the consequence of a progressive degenerative disease.
74. The term "disease" as defined in section 4(1) of the SRC Act 1988 prior to its amendment, referred to any ailment or the aggravation of any such ailment "being an ailment or an aggravation that was contributed to in a material degree by the ... employment by the Commonwealth ...". The word "aggravation" is defined as including acceleration of recurrence. The word "acceleration" is not defined in the Act but the Macquarie Dictionary defines the term as "to cause to move or advance faster, to help to bring about more speedily than ought otherwise have been the case". The use of this word suggests that the work activity must in some way contribute to the development of the condition or symptoms and not merely be the setting within which that condition or symptoms occur. The work activity must in some way cause the condition or symptoms to be experienced at an earlier point in time than would otherwise have been the case.
75. The definition of "aggravation" also includes the word recurrence which the dictionary defines as "occurring again". The aggravation must have been contributed to in a "material degree" by the employment. The Full Court of the Federal Court in Comcare v Canute [2005] FCAFC 262 stated in obiter dictum:
"... that the relevant causal connection must be established on the balance of probabilities and not left in the area of possibility (or) conjecture are not controversial. Equally, it is plain that the present legislation was not intended to require that an employee demonstrate that their employment caused the disease or that it was the most important factor. It would also appear that the imposition of a 'but for' test remains inappropriate. Having said this, the changes brought about by the enactment of the SRC Act were intended to require that the contribution be 'more than a mere contributing factor' ... Content must be given to the word 'material' contained in the definition of 'disease' in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded".
76. In Comcare v Sahu-Kahn [2007] FCA 15 Finn J refers to the obiter dictum expressed by the Full Court in Comcare and Canute and states:
"13 I agree with what their Honours have said and, in particular, in their conclusion that the inclusion of the word "material" imposes an "evaluative threshold" below which a causal connection may be disregarded.
14 What is problematic is identifying where that threshold lies. ...
15 There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word "material" in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRCAct were engaged. This said I consider that one of the meanings of the word "materially" in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is –
"4. In a material degree; substantially, considerably." ...
16 Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation");
(iii) whether this will be so in a given case will be a matter of fact and degree".
77. It is not argued that Mr Cooper's work activities contributed to or aggravated the underlying degenerative condition. What the applicant contends is that his work activities have aggravated the symptoms of the C5 radiculopathy which is a consequence of the underlying degenerative disease.
78. Mr Hobbs submitted that simply because work activity has resulted in symptoms of pain, discomfort and other reported symptoms, does not equate to either an acceleration of the development of the medical condition or a recurrence, or a contribution to the development of the condition. He contended that the work-related symptoms are a manifestation of the underlying condition and do not constitute an aggravation of the condition in the sense contemplated by section 4(1).
79. It is accepted that pain that is brought about by work activity can constitute an aggravation of a pre-existing injury (Commonwealth v Beattie (1981) 31 ALR 369 at 378).
80. In the decision of Tippett v Australian Postal Corporation [1998] FCA 335 Finklestein J said at page 5:
"What Beattie also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which compensation is payable".
In this context the term "injury" includes "disease" as defined in the Act.
81. Also at page 5, Finklestein J stated in Tippett:
"Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of ... employment then the employee will have suffered a compensable injury ... The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of ... employment".
82. The mere intensification of pain as a result of activitiy in a temporal sense, in that the pain is only suffered at work would not however, appear to be sufficient to constitute a compensable injury. As the Full Court said in Beattie at 378 (Evatt and Sheppard JJ:
"It does not follow in every case that a worker with a pre-existing injury, who carries out work and a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such cases any incapacity for work arises only by reason of the pre-existing injury".
83. Also of relevance is the High Court decision in Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533, which concerned a worker who suffered an underlying condition which was liable to cause dermatitis of the hands. In the course of his judgment Toohey J said at 540:
"... the condition of the appellant's hands, with their now enhanced susceptibility to dermatitis, has intensified the disease ... This enhanced susceptibility constitutes an aggravation of the disease ...
But ... is the disease due to the nature of the appellant's employment with the respondent and is the appellant thereby incapacitated for work? The answer to each of those questions is 'yes', for the reasons given by Kelly J. His Honour said:
If --
(a) a workman has a chronic, non-incapacitating pre-existing disease;
(b) the nature of his employment causes for the first time a temporary incapacitating aggravation of the disease;
(c) the aggravation ceases when the workman stops work;
(d) the aggravation is renewed when he again starts work in the same employment; and
(e) the pre-existing disease rendered more recalcitrant by the episodes of aggravation now prevents the workman from working ... because such work will cause a similar aggravation it seems to me that the nature of the employment has aggravated the pre-existing disease to the point where it is incapacitating".
84. In Australian Postal Corporation v Bessey [2001] FCA 266, the respondent was employed to deliver mail for Australia Post using a motor bike between 1989 and 1997. In February 1997 he was placed on restricted duties due to lower back pain. In July 1997 he lodged a claim for compensation which was initially accepted "in respect of degenerative spondylosis". In December 1997 a determination was made to cease compensation which was affirmed on review. One of the issues on appeal concerned aggravation of the underlying degenerative spondylosis condition. At paragraph 4 to 12 Gyles J stated:
"4 This ground of appeal raises, once again, the issue of compensation for the effect of work upon an underlying condition - in this case, spondylosis. Australia Post submits that the real issue in the case was whether the effect on the applicant from riding the motor bike was temporary, such that the discomfort it caused ceased either once or shortly after the time Mr Bessey ceased riding motor bikes as part of his duties on 3 February 1997.
...
6 It has been well settled by a series of decisions ... (including reference to Asioty v Canberra Abattoir Pty Ltd) ... that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.
7 In the present case, there is no relevant dispute that spondylosis is an ailment, and that when riding a motor bike for mail delivery the spondylosis causes the respondent to experience symptoms (principally pain) which make such work unsuitable so incapacitating the respondent.
8 This would require compensation for the period when the symptoms were operative, but would not, without more, constitute continuing injury. To constitute continuing injury it would be necessary to go further and find that the work had adversely affected the underlying condition in some way which continued to have an effect. The mere fact that incapacity resulting from the spondylosis caused pain whilst working does not mean that the symptoms resulted from a work-related injury (including aggravation) but rather resulted from the underlying condition.
...
12 From my consideration of ... the reasons I conclude that the Tribunal acted on the view that the pain suffered by the respondent whilst riding the bike was an aggravation and, as that pain was incapacitating, there was therefore an entitlement to continuing compensation. This was an error of law..."
85. The Federal Court remitted the matter to the AAT for rehearing. In its decision following the rehearing the Tribunal concluded in Bessey v Australian Postal Corporation [2003] AATA 127 at paragraph 74-76:
"74. The tribunal was impressed by the evidence of Drs McGill, Claffey and Cummine for the following reasons. First, they were aware of the legal requirements as explained in the Bessey case ... when proffering their opinions. They expressed eloquently the requirement that there must be an aggravation that has an ongoing effect on the underlying or pre-existing condition.
75. The applicant's experts appeared to think that aggravation of symptoms was sufficient as a basis for payment of compensation. Such a temporary aggravation, as Tippett ... held, will result in compensation, but only as and when the effects are being felt ... Such flare ups are not a proper basis for a general, ongoing liability to pay compensation in accordance with s 14(1) of the Act.
76. The second reason for the tribunal's preference for the views of Drs McGill, Claffey and Cummine was the fact that they agreed that the ordinary nature and conditions of work, without any significant incident of trauma, do not constitute a cause of permanent worsening of a pre-existing spondylitic condition ..."
86. The applicant in McKinnon v Australian Postal Corporation [2001] AATA 297, was a 32 year old postal delivery officer who claimed compensation for a back condition. X-rays of the applicant's back had indicated L5-S1 degenerative disc disease and the applicant had undergone surgery to remove a disc. The respondent initially accepted liability and subsequently determined to cease liability. The issue for the Tribunal was whether there was any on-going liability to pay compensation. The applicant claimed reduced capacity for paid employment as a result of a back injury arising out of or in the course of his employment or an aggravation of a back injury.
87. Whilst the Tribunal was sceptical about the applicant's evidence regarding the level of his symptomology, it found that riding the bike caused him pain and discomfort from time to time. The Tribunal went on to consider whether the riding of the motor bike on any occasion or accumulatively brought about any permanent symptoms or future permanent susceptibility to symptoms. The Tribunal ultimately found that the applicant's symptoms of back pain came about as a consequence of his bike riding but that the aggravation was temporary having lasted minutes, hours, days, weeks but no more than one to two months. The Tribunal accepted the description of one of the medical practitioners that it was more appropriate to use the term irritation rather than aggravation. The Tribunal concluded that the evidence was that there was no permanent worsening of the applicant's back condition which had its origins in his youth and was deteriorating with time and would inevitably lead to the necessity for an operation.
88. Ms Burrows-Cheng submitted that Mr Cooper was asymptomatic prior to his work with the ATO, that the computer related activities caused him to be symptomatic and that his symptoms had not abated. She referred to the decision of Madgwick J in Caldipp Pty Ltd t/as Slaven Motors v Delov [2002] FCAFC 352 who put the following propositions relevant to the ACT Act as follows:
"(1) If a worker has a disease, goes to work with it, but ceases work because of the disease, incapacity for work on account of the disease alone is not compensable. An example is a worker with the common cold. If he/she sniffles, sneezes, coughs and so on at work and has to go home again on that account, but the work has not intensified the level of actual or potential suffering, there is no aggravation/exacerbation of the disease and the incapacity is not compensable. This is trite.
(2) If, however, the work intensifies the symptoms of the disease and as a result of the intensified symptoms the worker is incapable of working, that is a compensable aggravation/exacerbation of the disease. Again that is trite.
(3) If, after and because of one or more such intensifications of symptoms, the disease is made harder to treat or symptoms are more readily precipitated or the symptoms are worse when they occur or the physical or mental causes of the disease worsen, and inability to perform work is caused by, respectively, such difficulty of treatment, precipitation of symptoms, worsened symptoms or deterioration of pathology, then there has also been a compensable aggravation/exacerbation of the disease. It is important to recognise the significance both of the multiple ways in which a disease might be aggravated by work-related factors and of the requirement that the incapacity be caused by the disease as so aggravated.
(4) However, if there has been no work-related intensification of present suffering or of the ill effects of the disease producing present suffering, there is no compensable aggravation or exacerbation of the disease. Thus, in the example in (1) above, if the employee with the cold goes to work again the next day, with the same level of symptomatology, and the cold has not been made more difficult to treat or otherwise worsened by the previous day's attendance at work, any incapacity from those symptoms is not compensable. I take this to be the thrust of the broken leg in plaster example given by Sheppard and Evatt JJ in Beattie. In my opinion, Asioty decided no more than I have said in (3)".
89. In Caldipp Pty Limited t/as Slaven Motors v Delov (Supra), Higgins J said that the evidence in that case suggested that although the effects of the applicant's condition subsided with rest, they returned with increasing virulence until the applicant was unable to perform his usual duties. He said it would therefore be concluded that "the liability to pain at a disabling level has continued and appears permanent (or at least of indefinite duration)". His Honour referred to the reference by Kitto J to the term "exacerbation" at page 634 in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626, where he stated:
"Accordingly if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound."
Higgins J went on to state that a new exacerbation, unconnected to the first would occur if salt was again applied to the wound.
90. His Honour referred to a passage of Barwick CJ in The Darling Island Stevedoring and Lighterage Co Limited v Hankinson [1967] HCA 10; (1967) 117 CLR 19, where he said at page 27:
"... incapacity does not cease because it is demonstrable that, without the injury, the worker would have arrived from another cause at the same state of incapacity. It seems to me nothing to the point that that other cause would have been the pre-existing disease in its own unaided progression. Where the incapacity which results from the acceleration is permanent, in my opinion, the award is not terminable because that incapacity would in any case have been the end result of the pre-existing disease."
91. Higgins J noted a distinction:
"... between the natural or usual consequence of an injury or disease and the exacerbation or aggravation of those consequences by work-related activity. Then there is the aspect of the continuing connection between incapacity for work and the work-related exacerbation or aggravation of those symptoms". (Paragraph 65)
92. At page 540 Toohey J said in the Asioty (supra) decision:
"While it is apparent that an aggravation of the appellant's underlying dermatitis may take the form of immediate incapacitating symptoms, the existence of some more permanent aggravation is not precluded because those symptoms abate on each occasion that the appellant ceases work. The proper conclusion is that the condition of the appellant's hands, with their now enhanced susceptibility to dermatitis, has intensified the disease from which the appellant suffers. This enhanced susceptibility constitutes an aggravation of the disease and, in the circumstances, falls within the language of the Ordinance."
93. As previously stated it is not contended that Mr Cooper's work activities caused or contributed to the underlying degenerative disease. Nor do the medical practitioners suggest that the work-related activities have caused any permanent worsening of the disease or accelerated the condition. What is contended on behalf of the applicant is that the work-related activities have materially contributed to an aggravation of the disease by causing an intensification of the symptoms. There can be an aggravation of an injury without any alteration to the underlying physical anatomy. Compensation can be payable for an intensification in the symptoms of an injury of which pain is the most common experience. (See Tippett v Australian Postal Corporation (supra) and Commonwealth Banking Corporation v Percival (1988) FCA 240).
94. What the above authorities confirm however, is that the intensification of the symptoms must not be merely temporal and only persist whilst the work activity is being undertaken or continue for merely a period of days or weeks or even up to a couple of months. The aggravation must persist for the longer term and have an element of permanence or chronicity.
95. Both Dr Salter and Mr Hunn stated in their medical reports that the applicant's work activities at the ATO aggravated his condition. Mr Hunn stated in his report of 26 November 2007:
"It is therefore my contention that Mr Cooper's condition is an aggravation, that is caused by his work with the ATO, that it is continuing, and that it can be potentially improved or completely resolved by a procedure directed towards his cervical spine with particular emphasis on decompressing the right C4/5 intervertebral foramen and hence the right C5 nerve root".
96. In his evidence before the Tribunal Mr Hunn agreed that the work activities had not altered the aetiology of the underlying condition but had caused an intensification in his symptoms which is ongoing. Mr Hunn said in evidence that the work activities had led to a chronic irritation of the nerve root and although this settles a little with reduction in activities, it flairs again when those activities are repursued. He did not accept that the aggravation had ceased and maintained that it is ongoing. He accepted Mr Cooper's advice that despite the reduction in his work hours, his work activities continue to aggravate his condition. It was his evidence that even when the symptoms settle, they only settle to around twenty percent of the previous level rather than zero percent and that the threshold for a return of the symptoms is raised. Mr Hunn described this as a semi-permanent inflammation involving the disc nerve root where changes can occur as a result of a persistent recurrent inflammation or compression which may never be able to be fully retrieved. Whilst he could only state this as a possibility rather than a probability in Mr Cooper's case, Mr Cooper's report of symptoms and the increased threshold referred to by Mr Hunn is suggestive that this is the case. As Mr Hunn noted, despite the modification and restriction of Mr Cooper's work activities and although he has returned to a lower level of symptoms, they are persisting and have the potential to flare up quite readily.
97. It was Dr Salter's evidence that Mr Cooper's posture and body habitus at his work station caused an irritation of the nerve and that "there may be some increase in injurious effect on the nerve in the long term". (Transcript page 24 of 18/6/10). Whilst Dr Salter agreed that such a conclusion cannot be supported by current medical technology, it is supported by Mr Cooper's evidence as to the intensification of his symptoms in the course of his work place activities.
98. The fact that the symptoms have not settled to the level that they had prior to being aggravated suggests a level of chronicity and potential permanence. Whilst the medical practitioners agreed that Mr Cooper's condition could also have been aggravated by activities outside of the work place, there is no evidence that this in fact occurred. Mr Cooper was cross-examined at length regarding his activities outside of the work place. There was no evidence that there was any specific form of activity prior to his commencing work with the ATO that led to a development of symptoms from his degenerative disease. It was Mr Cooper's evidence that following the development of his symptoms since commencing work with the ATO, he has endeavoured to control his symptoms outside of the work place by managing the activities that he undertakes.
99. Reference was made to Dr Salter's progress notes and the possibility that there were evidential signs of his degenerative disease prior to commencing his work at the ATO. Mr Hunn agreed that the entry on 13 August 2001 to a cervical headache could "probably" be referrable to the degenerative condition, but that the earlier entries "may" only be referrable. It is of note that this entry post dated Mr Cooper's commencement of duties with the ATO and could have been referrable to his increased level of computer activities.
100. Dr Stuart had stated that he considered all of the entries apart from the cervical headaches reported on 12 January 1996 to be related to Mr Cooper's degenerative disease but agreed during cross-examination that the reference to back pain was not specific to the cervical region. Dr Hwang agreed during cross-examination that some of the entries relating to cervical headaches and back pain could be related to causes other than the degenerative condition. Dr Stevenson did not see any connection between Mr Cooper's reported symptoms and the static loading nature of his work.
101. The Tribunal prefers the evidence of Mr Cooper's treating medical practitioners. During the course of his evidence Mr Hunn considered each of the entries in some detail as outlined above. The entries are episodic and as Dr Salter opined, could be related to other causes. The Tribunal does not accept that they deflect from a finding that the computer activities undertaken by Mr Cooper caused an aggravation of his symptoms.
102. Following Dr Stuart's only assessment of Mr Cooper on 13 December 2006, it was his opinion that any aggravation of Mr Cooper's condition had resolved. He considered that Mr Cooper should have been able to return to full time duties. It was Dr Stuart's initial opinion that Mr Cooper's symptoms would have occurred irrespective of his work activities, however he said that subsequent events had led him to accept that the work activities had aggravated his symptoms but not affected the underlying degenerative disease. At one point during cross-examination Dr Stuart opined that work activities of static loading could not aggravate cervical radiculopathy. However in his report dated 19 December 2006 he states:
"His employment with the Australian Tax Office did not contribute to the cause but aggravated his condition".
Dr Stuart referred to a "patient's subjective reporting of symptoms" and "objective evidence" but did not disagree with Mr Hunn's process of relying 90% on the history provided in order to make a diagnosis.
103. Dr Hwang agreed that excessive work load or static loading can temporarily increase symptoms but after visiting Mr Cooper's work place considered that such loads were minimal and that his symptoms should be manageable at work. The evidence was however, that Mr Cooper had suffered an intensification of his symptoms in the form of acute excruciating pain in 2006 which predated Dr Hwang's visit to the work site. Dr Hwang saw Mr Cooper on three occasions, one of which included the work place visit. Dr Hwang appeared to largely base his conclusions on a consideration of the work place ergonomics and activities and concluded that any aggravation would only be temporary in the sense of being present only whilst Mr Cooper was performing his work duties.
104. Dr Hwang's conclusions are contrary to the symptoms as reported by Mr Cooper and the findings of Mr Hunn that his work activities have led to an intensification of symptoms and increased the threshold for the return of such symptoms. Dr Hwang had not viewed the nerve conduction test results when he reported his conclusions. Mr Hunn largely relied on Mr Cooper's reporting of symptoms because there is currently no medical imaging upon which a purely objective finding can be made.
105. The Tribunal considers that Mr Hunn's reliance on Mr Cooper's reported symptoms and the history that he provided was appropriate. The Tribunal found Mr Cooper to be a credible witness and had no reason to doubt the veracity of his evidence as to the circumstances in which he experienced his symptoms.
106. Dr Stevenson was the only medical witness who did not accept that Mr Cooper's work activities were capable of causing an aggravation of his condition.
107. For the above reasons the Tribunal prefers the evidence of Mr Cooper's treating medical practitioners who opined that the work activities as reported by Mr Cooper, led to an intensification of symptoms such that the threshold for a recurrence was increased. The evidence is consistent with the passage of Madgwick J in the Caldipp decision at paragraph 3 which referred to one or more intensifications of symptoms making the disease harder to treat or the symptoms being more readily precipitated or being worse each time they occur.
108. The Tribunal is satisfied on the balance of probabilities that the threshold referred to in the Canute and Sahu-Kahn decisions, "below which a causal connection may be disregarded" has been established by the evidence in this appeal. In accordance with the passage in the Sahu-Kahn decision referred to above, the Tribunal has evaluated all of the relevant contributing factors and is satisfied that it were those factors that substantially contributed to the aggravation of the symptoms of the cervical radiculopathy. The work activities have caused ongoing inflammation and pain which never settles completely but constitutes a state of chronicity in that with every repetition of the work activities, the pain symptoms are intensified. To adopt the words of Kelly J in the Asioty decision:
"... the pre-existing disease rendered more recalcitrant by the episodes of aggravation now prevents the workman from working".
109. The respondent accepted that Mr Cooper may have an incapacity for work. It was Mr Cooper's evidence that all of the work at the ATO involves some computer activity and despite the improved ergonomic materials, he is still only able to comfortably manage computer work for approximately three hours per day. He says he has been forced to undertake increased hours of work due to economic necessity. The Tribunal is satisfied on the balance of probabilities that Mr Cooper is incapacitated for work as a result of his injury within the meaning of section 19 of the SRC Act.
110. On the basis of these findings the Tribunal determines that Comcare's determination of 28 May 2009 should be set aside and replaced with a decision that the respondent is liable to pay compensation for an aggravation of the applicant's condition of cervical radiculopathy with date of effect, 12 January 2006.
111. The remaining issue for consideration is whether the condition referred to in the first claim had resolved by 12 January 2006 as determined by Comcare. Comcare's decision was influenced by Mr Cooper's claim of a further presentation and intensification of symptoms in January 2006. Comcare noted the significant gap in treatment from 15 September 2004 through to 12 January 2006.
112. It was Mr Cooper's evidence that he was largely able to self manage his symptoms and that with rest and physiotherapy his condition slowly improved. He maintained however, that the symptoms never completely disappeared.
113. There is no medical evidence to satisfy the Tribunal that work activities continued to aggravate his symptoms during the period. There was no evidence that Mr Cooper was incapacitated for work until the re-presentation of his symptoms towards the end of 2005/early 2006. It is the Tribunal's finding that any aggravation from work related activity was temporary and not ongoing. Accordingly the Tribunal determines to affirm the decision under review of 30 May 2008.
Carpal tunnel syndrome
114. Dr Stevenson opined that carpal tunnel syndrome is a constitutional condition and that there is little evidence that it is related to work activity. It was Dr Stevenson's opinion that a gravity force greater than 1G would be necessary to cause the condition and that Mr Cooper's work activities of static loading could not generate such a force.
115. Dr Hwang was familiar with some of the same literature referred to by Dr Stevenson but was prepared to concede that there may have been some temporary exacerbation of carpal tunnel syndrome caused by Mr Cooper's work activities in 2008. He considered however, that the symptoms would not persist beyond the period during which Mr Cooper was undertaking the computer mouse activities. Dr Salter opined that:
"... the likely cause is accumulated trauma from overuse of the left hand/wrist at the keyboard in the workplace".
116. There being no other medical evidence to satisfy the Tribunal that there was other than a temporary aggravation of carpal tunnel syndrome, the Tribunal is not satisfied on the balance of probabilities that there was a material contribution from Mr Cooper's work activities. It was Mr Cooper's own evidence that the condition has now settled and that he did not suffer any incapacity above that related to his cervical condition.
117. For these reasons the Tribunal determines to affirm the respondent's determination of 28 May 2009.
118. The orders of the Tribunal are accordingly as follows:
1. THAT the decision under review of 30 May 2008 be affirmed.
2. THAT the decision under review dated 28 May 2009 be affirmed.
3. THAT the decision under review of 28 May 2009 be set aside and substituted with a decision:
(i) THAT the respondent is liable to pay compensation for an aggravation of the condition of cervical radiculopathy from 12 January 2006.
(ii) THAT the matter be remitted to the respondent for reconsideration in accordance with this decision.
(iii) THAT there is liberty to apply within 14 days in relation to the costs of the proceedings.
(iv) THAT in the absence of any such application, the respondent is to pay the applicant's costs of and incidental to the proceedings of appeal number 2009/2968.
I certify that the 118 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member) and Dr R J Walters RFD (Member)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 17, 18, 21, 22 & 23 June 2010
Date of Decision 20 August 2010
Counsel for the Applicant Ms Allison Burrows-Cheng
Solicitor for the Applicant Murdoch Clarke
Counsel for the Respondent Mr Craig Hobbs
Solicitor for the Respondent Ms Naomi Richards, Australian Government Solicitor
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