Crisp and Comcare (Compensation)
[2020] AATA 1122
•1 May 2020
Crisp and Comcare (Compensation) [2020] AATA 1122 (1 May 2020)
Division:GENERAL DIVISION
File Number(s): 2019/0066
Re:Robert Crisp
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member W Frost
Date:1 May 2020
Place:Canberra
The Tribunal affirms the decision under review in accordance with subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
............................................................
Member W Frost
Catchwords
WORKERS’ COMPENSATION – whether the applicant suffered an ailment or an aggravation of an ailment as defined by section 4 of the Safety, Rehabilitation and Compensation Act 1988 – whether the ailment or aggravation of an ailment was significantly contributed to by the applicant’s employment – de Quervain’s tenosynovitis – where the applicant’s condition has not been diagnosed – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 34J, 43
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14
Cases
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
REASONS FOR DECISION
Member W Frost
1 May 2020
INTRODUCTION
The Applicant, Robert Crisp, applied to the Administrative Appeals Tribunal for review of a decision by the Respondent, Comcare, affirming its decision to deny liability for de Quervain’s tenosynovitis in both of his wrists under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
Mr Crisp claimed that his condition occurred as a result of data entry work he undertook for his employer, the Department of Agriculture and Water Resources (Department).
Comcare declined liability under the SRC Act because it found that the medical evidence did not satisfy Mr Crisp’s claim that his condition was contributed to, to a significant degree, by his employment with the Department.
A hearing of Mr Crisp’s application was conducted by telephone over two days on 23 and 24 March 2020, in circumstances where, as part of its response to the COVID-19 pandemic, the Tribunal determined that all in-person hearings at registries of the Tribunal across Australia were to cease and other arrangements explored. The Tribunal contacted the parties and sought their views on whether the hearing could be conducted by telephone or the application determined on the papers, that is, without requiring a hearing, in accordance with section 34J of the Administrative Appeals Tribunal Act 1975 (AAT Act). Mr Crisp consented to the application being determined on the papers by the Tribunal. However, Comcare requested the hearing be held by telephone for oral evidence to be adduced from their expert witnesses. In the circumstances, and considering the objectives of the Tribunal set out in section 2A of the AAT Act, the Tribunal determined that it was reasonable for the hearing to proceed by telephone. The Tribunal is satisfied that the parties, but especially Mr Crisp in circumstances where he was self-represented, were given a reasonable opportunity to give evidence and present their arguments at the hearing, noting sections 33A and 39 of the AAT Act.
The Tribunal has considered all the documents in the bundle filed in this proceeding on 7 February 2019, pursuant to section 37 of the AAT Act,[1] plus the parties’ respective Statement of Facts, Issues and Contentions. The following additional documents filed in the proceeding were also considered by the Tribunal:
[1] Exhibit 1.
(a)Summary of Treatment from Ms Vanessa Stirzaker, Physiotherapist, dated 27 September 2019;[2]
(b)Statement of Mr Crisp dated May 2019 regarding his drumming activities;[3]
(c)Statement of Mr Crisp filed on 2 May 2019 regarding the work processes completed under employment;[4]
(d)Compensation Rehabilitation Assessment Report from Rehab Management dated 8 October 2018;[5]
(e)Report of Dr Brett Oppermann, Consultant Occupational Physician, dated 20 December 2018;[6]
(f)Assorted invoices and receipts filed by Mr Crisp on 22 July 2019;[7]
(g)Record of Mr Crisp’s Employment Leave with the Department;[8]
(h)Report of Dr Tony Kostos, Consultant Rheumatologist, dated 22 May 2019;[9] and
(i)Summons tender bundle filed on 23 March 2020.[10]
[2] Exhibit 2.
[3] Exhibit 3.
[4] Exhibit 4.
[5] Exhibit 5.
[6] Exhibit 6.
[7] Exhibit 7.
[8] Exhibit 8.
[9] Exhibit 9.
[10] Exhibit 10.
ISSUE
The issue for the Tribunal to decide is whether Mr Crisp suffers from an ‘ailment’ or an ‘aggravation’ of an ailment as those terms are defined in section 4 of the SRC Act and, if so, whether they were contributed to, to a significant degree, by his employment so as to entitle him to compensation under the SRC Act.
BACKGROUND
In 2000, Mr Crisp fractured the scaphoid bone of his left wrist requiring surgery, which permanently inserted a Herbert screw.[11]
[11] Exhibit 9.
In or around 2002, Mr Crisp ‘experienced symptoms to his right wrist when he was working in retail’ and made ‘a full recovery’.[12]
[12] Exhibit 5, page 4.
In January 2015, Mr Crisp commenced non-ongoing, full-time employment with the Department.[13]
[13] Exhibit 1, T9, pages 16-19.
In December 2015, Mr Crisp obtained an ongoing, full-time position as a Technical Officer in the Import Services Team at the Department.[14] This work involved telephoning or emailing clients and customers and inputting data with templates on a computer.[15]
[14] ibid.
[15] ibid., T12, page 89.
In or around August 2017, Mr Crisp fractured the ‘right small finger’ while playing basketball.[16]
[16] Exhibit 10.
On 30 April 2018, Mr Crisp began part-time employment at the Department, being twenty-two and a half hours per week over three days, which remain his hours of work.[17]
[17] Exhibit 1, T9, page 16.
In May 2018, Mr Crisp successfully applied for employment outside of his work with the Department, which was six hours on the weekend as a cellar door attendant at a winery, although this work did not occur each weekend.[18]
[18] ibid.; Mr Crisp’s Statement of Facts, Issues and Contentions dated 20 February 2020.
In June 2018, Mr Crisp was working in a temporary Project Support Officer role at the Department.[19] Mr Crisp was required to copy data from a network drive to a records management system. This involved using his right hand for mouse work, his left hand for keyboard work (copying and pasting information) and both hands for general typing.[20]
[19] Exhibit 5.
[20] Exhibit 1, T12, page 89; Exhibit 5.
On or around 5 June 2018, Mr Crisp noticed symptoms in his left wrist after three days of data entry for this project and informed his then supervisor.[21] There was some uncertainty on the evidence before the Tribunal about the exact date Mr Crisp first noticed symptoms in his left wrist, but this is not determinative of his application. In relation to the date of onset of his symptoms, Mr Crisp’s Statement of Facts, Issues and Contentions dated 20 February 2020, stated that he ‘believes that the initial injury to the left wrist was sustained on 6 June 2018 as per the initial contact with the rehab team’. However, Mr Crisp provided a different date in his Statement regarding work processes filed on 2 May 2019,[22] where he stated that ‘I completed a large number of entries in the lead up to my initial injury in my left wrist on 13/06/2018’. Additionally, in Mr Crisp’s Workers’ Compensation Claim dated 2 August 2018, he listed 12 June 2018, not 5, 6 or 13 June 2018, as the date that he first noticed his symptoms or injury[23]. In his evidence to the Tribunal at hearing, Mr Crisp agreed that on 5 June 2018 he informed his Director at the Department that he was experiencing some discomfort in his left wrist when performing his task.
[21] ibid., T9.E, page 41; T9.O, page 71.
[22] Exhibit 3.
[23] Exhibit 1, T3, pages 4-9.
Despite the uncertainty about the specific date Mr Crisp first experienced symptoms, the evidence details that, on 6 June 2018, Mr Crisp emailed the Department’s National Rehabilitation Team, reporting ‘experiencing RSI as a result of performing some highly repetitive work at my workstation’.[24] Mr Crisp was advised to, amongst other things, lodge an incident report, arrange another assessment and attend his general practitioner for advice regarding treatment and ‘whether the injury has been caused or is being exacerbated by work’.[25]
[24] ibid., T9, page 17.
[25] ibid.
On 15 June 2018, Mr Crisp attended a consultation with his General Practitioner, Dr Dinesh Mehra, regarding the experiencing of ‘left wrist joint pain’ for ‘2 weeks’. Dr Mehra reported in his consultation notes that Mr Crisp’s pain ‘started at work where patient uses computer keyboard and mouse’ and ‘gets worse after one hour of work’. It was also recorded that Mr Crisp ‘has been swapping mouse position to relieve pain’.[26]
[26] Exhibit 10.
On 18 June 2018, Mr Crisp developed symptoms in his right wrist while using it to complete work.[27]
[27] Exhibit 4.
On 25 June 2018, following a consultation with Dr Mehra, Mr Crisp received a Medical Certificate, in which it was stated that he ‘has been suffering from left wrist pain for the last 3 weeks’; the diagnosis was ‘most probably Tenosynovitis (Investigations Pending)’; and that ‘it is likely that tenosynovitis has been caused by RSI (repetitive strain injury) at work as patient’s work involves mainly working on keyboard and wrist movements’.[28] The treatment plan was said to be ‘analgesia, physiotherapy and specialist opinion in future if pain does not improve’. Dr Mehra’s consultation notes also record these observations regarding Mr Crisp’s condition and that the purpose of his attendance was ‘left wrist pain’; it does not record any issue with Mr Crisp’s right wrist.[29]
[28] Exhibit 1, T4, page 10.
[29] Exhibit 10.
On 29 June 2018, Mr Crisp had an ultrasound and x-ray of his left wrist. The radiologist’s report stated that the ultrasound showed ‘appearances’ of de Quervain’s tenosynovitis, but no other abnormality and the x-ray showed a ‘fracture with internal screw’, and appearances are ‘unchanged since 05/04/2016 and no other more recent bony or joint abnormality is demonstrated’.[30]
[30] Exhibit 1, T4, page 11.
On 1 August 2018, following a consultation with Dr Anefu Unobe, General Practitioner, Mr Crisp received a Medical Certificate certifying him unfit for work from 15 August 2018 to 29 August 2018 due to ‘bilateral wrist pain’, which was recorded as being ‘left more than right’. [31] The condition was stated to have first been sustained on 15 June 2018.
[31] ibid., T6, page 12; Exhibit 10.
On 2 August 2018, Mr Crisp submitted a Workers’ Compensation Claim with Comcare for ‘tenosynovitis’ in his left and right wrists as a result of ‘repetitive computer data entry type work’.[32] In that claim, Mr Crisp stated that he first sought medical treatment on 15 June 2018 from Dr Dinesh Mehra, General Practitioner.
[32] ibid., T3, page 5.
On 8 August 2018, Mr Crisp’s supervisor at the Department provided a statement in relation to his condition, which relevantly noted that in June 2018 Mr Crisp ‘began having issues with his wrist shortly after returning from extended leave’.[33]
[33] ibid., T9.H, page 48.
On 15 August 2018, Mr Crisp attended a consultation with Dr Unobe, who recorded the following relevant matters:[34]
Able to move hand and work on computers with little difficulty
However feels achey at night
Left wrist pain has reduced compared to the right
[34] Exhibit 10.
On 29 August 2018, Mr Crisp attended a further consultation with Dr Unobe, who noted that Mr Crisp has ‘some good and bad days’, the pain ‘could be up to 2/10’ and it was ‘worse when he uses the computer for couple of minutes or does some domestic activities’.[35] Mr Crisp also had an ultrasound of both wrists, which noted:[36]
No ultrasound evidence of de Quervain’s tenosynovitis has been identified in either wrist. No other abnormality has been identified in either wrist on ultrasound.
[35] ibid.
[36] ibid.
On 17 September 2018, Dr Unobe provided a report, which relevantly noted:[37]
An initial diagnosis of De Quervain’s tenosynovitis was made due to findings on initial Ultrasound. However subsequent ultrasound returned normal indicating the possibility of repetitive strain injury or improvement in his condition
[37] Exhibit 1, T10, page 81.
On 22 September 2018, Mr Crisp fell off a ladder ‘approximately 3 metres onto concrete’, sustaining injuries to his right fingers and left foot.[38]
[38] Exhibit 5.
On 15 October 2018, Comcare made a determination declining Mr Crisp’s Workers’ Compensation Claim under section 14 of the SRC Act. While Comcare recognised that Mr Crisp suffered from an ailment described as ‘bilateral De Quervains tenosynovitis’, it was not satisfied that this condition was contributed to, to a significant degree, by his employment as required under section 5B of the SRC Act to be found to be a ‘disease’.[39]
[39] Exhibit 1, T13, pages 98-104.
On 26 October 2018, Mr Crisp underwent an MRI of both wrists. The radiologist’s report relevantly concluded the following in relation to his left and right wrists, respectively:[40]
[40] ibid., T15, page 106; Exhibit 10.
1.Herbert screw fixation of the scaphoid fracture.
2.Possible impingement of the Herbert screw on the articular surface of distal radius with a cystic change and chondral thinning and notching.
3.Wrist and distal radioulnar joint effusion with mild synovitis
4.Mild ECU [extensor carpi ulnaris] tenosynovitis and tendinosis.
…
1.Minimal effusions of the distal radioulnar joint and wrist joint effusion without synovitis.
2.No evidence of intra-articular derangement.
3.Mild ECU tenosynovitis.
On 30 November 2018, following a request for reconsideration by Mr Crisp, Comcare affirmed its initial determination declining liability to pay compensation for Mr Crisp’s condition under the SRC Act.[41] This decision, which is reviewable by the Tribunal, confirmed that it was ‘not in contention’ that Mr Crisp sustained an ailment pursuant to section 4 of the SRC Act, however the medical evidence ‘does not satisfy on the balance of probabilities that your claimed conditions of dequervains tenosynovitis (bilateral), was significantly contributed to by your employment with the Department’.[42]
[41] Exhibit 1, T16, pages 107-110.
[42] ibid., page 109.
On 7 January 2019, Mr Crisp applied to the Tribunal for review of Comcare’s decision dated 30 November 2018.
LEGISLATION
Subsection 14(1) of the SRC Act provides:
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.
Section 4 of the SRC Act defines ‘impairment’ to mean:
the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
‘Injury’ is defined in subsection 5A(1) of the SRC Act relevantly to mean:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment...
‘Disease’ is defined in subsection 5B(1) of the SRC Act as:
(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.
Subsection 5B(3) of the SRC Act states that ‘significant degree’ means ‘a degree that is substantially more than material’.
Section 4 of the SRC Act defines ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. It also states that ‘aggravation’ includes ‘acceleration or recurrence’.
EVIDENCE
Mr Crisp
Mr Crisp filed the following statement in the proceeding regarding the work he was undertaking when his condition occurred:[43]
The task I was completing in the lead up to first experiencing the symptoms in my left wrist was as follows. I was in the process of copying numerous records from one of the departmental network drives into the departmental record keeping system, HP Records Manager. It was important that the records had the appropriate metadata attributed to it in order for it to be effectively searchable within the system.
I setup on one computer screen the spreadsheet that had the descriptions that I was copying, and the network drive folder that the records were in. On the other screen I had the record management system open and ready to create new records.
I mouse dragged a record from the network drive into the records management system to create a new record. This would initiate a pop up box to complete the metadata attributes. In this box I would copy by clicking twice on the cell in the excel sheet and pressing Ctrl + C on the keyboard and paste into the attributes box by mouse clicking on it and pressing Ctrl + V on the keyboard, the description from the excel sheet. Then I would hit the TAB button twice and type in the letters “TAP” in a specific field. Select an option from a drop down box(?)
This work was as part of a project that was scheduled for completion on 30 June 2018. There was a large volume of this work that needed to be completed so there was a lot of time pressure on me to do this work.
As seen in the table below, I completed a large number of entries in the lead up to the initial injury in my left wrist on 13/06/2018. It was on 18/06/2018 that I tried completing this task with my right hand only when I developed symptoms in it also.
Table 1: Counts by date of the entries created by me using the process described above (Some records would have been created as part of the teams records migrating to HP Records Manager)
Data taken from Department of Agriculture records management system
[43] Exhibit 3.
Number of Records Created
Date registered
6
14/05/2018
29
18/05/2018
31
25/05/2018
71
31/05/2018
184
01/06/2018
173
04/06/2018
186
05/06/2018
239
12/06/2018
179
13/06/2018
38
18/06/2018
3
25/06/2018
1
26/06/2018
Total
1140
In his Statement of Facts, Issues and Contentions, Mr Crisp said further in relation to this work and his condition that:
The dates associated with these records might not align 100% with when the applicant did the work. The applicant specifically remembers having completed the vast majority of what is listed there before the injury to the left wrist. And then the remaining 38 on 18 June 2018 is what caused the injury to the right wrist.
…
Whilst the potential of bilateral de Quervain’s tenosynovitis may have resolved, the applicant still experiences bilateral symptoms of this and extended chronic muscular symptoms extending up the forearms to just beyond the elbow.
…
These ongoing symptoms are experienced regularly to varying degrees by the applicant to this day. These symptoms are not temporary.
Failure of the medical profession to diagnose the applicant does not absolve Comcare from its statutory obligation to compensate the applicant for injuries sustained whilst performing work duties.
Mr Crisp also filed an additional statement in the proceeding regarding his drumming activities, which relevantly noted that: he had been drumming for twenty years when the claimed condition occurred at the Department; between September 2017 and June 2018 he was drumming for thirty minutes per week; and from June 2018 this was two hours in total.[44] Mr Crisp further stated that:
I disagree fundamentally with the IME [Independent Medical Expert] report finding that my drumming history is the primary cause of my bilateral wrist injury. I would describe my style of playing as light and reasonably fast. The style of music I play is generally heavy, but I don’t play heavy as stated in the IME report.
[44] Exhibit 3.
At the hearing, Mr Crisp was provided with an opportunity to give further evidence in support of his application by way of examination or evidence-in-chief, noting that his opening submissions to the Tribunal are set out below under the heading ‘Contentions’. Mr Crisp confirmed that he did not wish to provide any further evidence to the Tribunal.
Cross-examination
Counsel for Comcare commenced cross-examination of Mr Crisp by asking whether he continues to have problems in or about his hands. Mr Crisp said this was correct.
Mr Crisp was then asked to describe this pain and the location of his problems. Mr Crisp said, ‘the majority of the pain’ he experiences was ‘not so much in the hand’; they were ‘pretty good’. The pain was said to be ‘up my forearm up into my elbow and just below my elbow in terms of muscular pain’. This resulted in ‘a lot of tight muscles in that area’, which is exacerbated with prolonged use, being approximately twenty to thirty minutes, of ‘fine motor skills’ or holding objects in a particular manner. In this regard, using a mouse and keyboard was said to exacerbate these symptoms, although Mr Crisp had developed ways in which to self-manage those symptoms through massage and topical ointments.
Mr Crisp further described the symptoms as being present in his wrist after and during periods of manual labour. That is, when lifting or moving objects around such as furniture or groceries and stacking wood. This manual labour causes pain throughout the wrist, which was described as a ‘dull aching type pain’, which occurred ‘after an hour or two and sometimes I will have even finished what I was doing and a bit later on I’ll feel the symptoms in the wrist’. Mr Crisp said his pain was felt towards the middle and outside of his forearm and up into, and around, the elbow joint.
Mr Crisp was asked whether there was any part of his arm from his elbow to his wrist where he did not experience any pain at any time. Mr Crisp said ‘No, I wouldn’t say that. I’d say there’s pain in the whole thing to varying degrees at varying times’.
Counsel for Comcare asked Mr Crisp whether fine motor skills brought on pain after a period, to which he agreed. In addition, it was put to Mr Crisp that when he undertook a weight-bearing activity, he noticed the pain more readily. Mr Crisp said ‘they’re different more so…the heavier duty stuff, the pain in the wrists seems to be a bit more delayed in onset. I’d suggest the fine motor movements probably come on more quickly, and that’s the muscle tightness in my forearms’.
Mr Crisp said he got relief from these symptoms through self-massage of the muscles around the arm and the application of a topical ointment containing magnesium, although this latter treatment only provided short-term relief and was used as a last resort. On being questioned about the location of the application of that ointment, Mr Crisp said, ‘I focus on the elbow, because that’s where the pain is worst, typically’, together with the outside bone of the forearm, being the ulna. In this regard, Mr Crisp said he is ‘really frustrated’ by the pain, but he ignores it and was said to ‘continue on as best I can’.
Mr Crisp said the pain is ‘different at different times’, but ‘typically most painful in and around the elbow joint’. At other times, the pain can be felt in the muscles around his ulna.
Mr Crisp said when he first experienced pain, that is, in 2018, it was ‘more focused in the wrist joints and it was more of a constant pain in the wrist and it was highly exacerbated by keyboarding and mousing’. Over time, ‘it seems to have changed a bit’ from the wrist to a greater area of his limb, to include his forearm and elbow.
Mr Crisp said he now experiences a ‘dull ache’ in his wrist region which is ‘exacerbated by fine motor skills’. Mr Crisp said the pain in and around his elbow was now ‘more the issue for me’ and accepted that the wrist pain was now a lesser issue. Mr Crisp ranked these areas in order of pain, with his elbow being the most prominent, followed by his forearm and then his wrist, ‘to varying degrees’. Mr Crisp said he had been experiencing elbow pain for at least one year.
Counsel for Comcare summarised Mr Crisp’s evidence as to the sequence of his symptoms, as follows, to which Mr Crisp agreed: he first noticed problems in his left wrist; at some time thereafter, he noticed problems in his right wrist. Later, Mr Crisp noticed problems in his forearms and then his elbows.
Mr Crisp confirmed that his work at the Department was computer-based and involved the use of a keyboard and computer mouse. Most of Mr Crisp’s day was spent at the computer. He is right hand dominant and uses the mouse with his right hand and, when required, used both hands on the keyboard. Mr Crisp estimated his work at the Department involved a ‘large portion’ of computer work, with up to sixty or seventy per cent of his work being computer-based. In more recent years, Mr Crisp’s work involved greater electronic, computer-based tasks.
Mr Crisp was also asked about his drumming over a twenty-year period and his objection, because he had not previously experienced a problem, to the suggestion that this may be the cause of his condition. Relatedly, Mr Crisp conceded that he had also not previously experienced a problem with his computer work.
Mr Crisp was asked about his sporting activities in recent years, including basketball, and when these stopped. In July 2016, Mr Crisp dislocated his right shoulder while playing basketball. Mr Crisp confirmed that he continued playing basketball ‘briefly’ after this injury but could not recall when he stopped. In this regard, Mr Crisp was taken to an entry in the clinical notes from the National Health Co-op medical practice dated 16 February 2017 that refers to him recommencing basketball around that time. Mr Crisp suggested that this may have been around the time he broke a finger and did not return to playing the game. Mr Crisp said he has not played any team-based sport since this time. In this regard, the Tribunal notes that the clinical records state that Mr Crisp fractured his ‘right small finger’ in or around August 2017.[45]
[45] Exhibit 10.
Counsel for Comcare put it to Mr Crisp, based on his statement about his drumming, that he continued to drum during this period. Mr Crisp agreed with this proposition but said he did not drum for a period after his shoulder injury in July 2016. Mr Crisp agreed with Counsel’s proposition that drumming involved being an active participant in the music being played, by keeping the beat and lifting the height and lowering the content of the music throughout a song. Mr Crisp said he now does not ‘drum much at all’, which amounts to ‘five or ten minutes’, occasionally. When questioned further about the time he spends drumming, Mr Crisp acknowledged that time was not an issue and he has a designated space at home for drumming.
Mr Crisp was referred to the clinical notes of 15 June 2018, when he was seen for left wrist pain by Dr Mehra, who reported that Mr Crisp complained of ‘left wrist joint pain X 2 weeks’. Mr Crisp was concurrently taken to his statement regarding his work processes at or around the time of the claimed injury.[46] Mr Crisp explained that the table in that statement contained the total number of ‘records’ he created on specific dates in the Department’s internal record keeping system, ‘HP Records Manager’. Mr Crisp recorded the numbers of those records between 14 May and 26 June 2018 for the purposes of his application to the Tribunal. Mr Crisp volunteered that the ‘date registered’ column in the statement may not ‘accurately reflect the exact date that I did the work and created these records because some of these dates don’t line up particularly well in terms of the date I referred my injury to the Work Health and Safety people in the Department’. In this way, Mr Crisp said there may have been a delay in the dates being registered on the system. Consequently, these dates did not correspond with the dates Mr Crisp engaged with his employer regarding his claimed workplace injury. For instance, Mr Crisp referred to an email he sent to the National Rehabilitation Team at the Department dated 6 June 2018 in relation to ‘experiencing RSI as a result of performing some highly repetitive work at my workstation’.
[46] Exhibit 4.
Mr Crisp agreed that he was put into a role at the Department requiring him to copy data from one document to another and that he was undertaking this task from around one month before his 6 June 2018 email regarding a workplace injury. Mr Crisp confirmed that the table listing the number of records he created demonstrated that, unlike a normal workday, in this role he was required to perform the same action repetitively and often more than one hundred times. For example, the six following consecutive workdays list the following: 1 June 2018 lists 184 records created; 4 June 2018 lists 173 records; 5 June 2018 lists 186 records; 12 June 2018 lists 239 records; 13 June 2018 lists 179 records and 18 June 2018 lists 38 records. This task involved ‘the same movement over and over again’, unlike his usual duties that involved ‘a wider range of movements’.
Mr Crisp said the load of the computer-based work was shared ‘relatively equally’ between both hands. In this way, Mr Crisp disagreed that the dominant movements were in his right hand, although he said his left hand was ‘more still’; his right arm was moving more, while it was his left hand ‘doing the more repetitive task’.
Mr Crisp was referred to the records he created between 1 and 13 June 2018 and the clinical records regarding his seeking treatment for the claimed injury on 15 June 2018. Mr Crisp was asked whether the increase in records listed in the table from 1 June 2018 was when he commenced the role; Mr Crisp said there was a delay of ‘approximately six or seven days, so I’d say it would be late May that we started getting into that work’. Mr Crisp confirmed that the pain he reported to his general practitioner at the 15 June 2018 appointment was localised to his left wrist; it did not, at that stage, extend to any pain in his forearm or elbow.
Mr Crisp was then taken to an entry in the clinical records on 25 June 2018 that stated he had been ‘suffering from left wrist pain for the last 3 weeks’ and diagnosed ‘most probably Tenosynovitis’ as a result of ‘working on keyboard and wrist movements’. Mr Crisp agreed that this was consistent with the history he provided his general practitioner.
Mr Crisp further agreed with the chronology put to him by Counsel for Comcare that, on 5 June 2018, he informed his Director at the Department that he was experiencing some discomfort in his left wrist when performing his task. On 12 June 2018, he again informed his employer that he was getting pain in his left wrist and it appeared to be alleviated by stopping the tasks with that hand. Ultimately, Mr Crisp told his general practitioner about the left wrist problems on 15 June 2018. It was put to Mr Crisp that, at that stage, he only had six days left in the team performing these tasks; Mr Crisp agreed. Further, Mr Crisp agreed that the decision was taken to withdraw him from these tasks altogether. He also agreed that he sought to recommence the work, but that within an hour he complained about his right wrist.
Counsel for Comcare noted that Mr Crisp did not raise any issue with his right wrist when he attended his general practitioner on 25 June 2018, but that on 1 August 2018, Mr Crisp complained of bilateral wrist pain, ‘left more than right’ at that stage.[47]
[47] Exhibit 10.
Mr Crisp said he believed his right wrist symptoms occurred sometime earlier than 18 June 2018, given the delay in the records he created being captured by the Department’s system. Counsel for Comcare asked Mr Crisp to assume that, according to an email he sent to his employer on 18 June 2018, he had said he identified another way to approach the task and that in those circumstances he had undertaken the task for an hour and then experienced symptoms in his right wrist. Mr Crisp agreed, although noting that he was unsure of the dates, but would accept it was the date given his email of 18 June 2018.
Mr Crisp was taken to his 18 June 2018 entry registering 38 ‘records created’ and asked whether his contention was that this was an accumulation of the records created over several days that were not reported until 18 June 2018. Mr Crisp however said, ‘the numbers are probably an accurate reflection of what was done on a particular day’, not multiple days. Mr Crisp confirmed he was working three days a week. In this regard, Mr Crisp said he was unlikely to have been at work between 5 and 12 June 2018, being dates on which his statement lists records as having been created. When pressed by Counsel about the unlikely week’s gap between working days, Mr Crisp stated that the records could have reflected an accumulation of the records created over several days’ work, rather than representing his days at work. Ultimately, Mr Crisp could not be definitive that the records created listed against a particular date in his statement represented work completed only on that date or an accumulation of work over a number of dates. In this way, Mr Crisp acknowledged that the total number of records created was spread out between 14 May and 26 June 2018, as set out in his statement.
Counsel for Comcare noted that in Mr Crisp’s clinical records, there is no mention of any complaint about his right wrist until 1 August 2018. Mr Crisp agreed that, at this time, he was back in his substantive role at the Department which role had not presented any physical difficulties over several years.
Mr Crisp said he first noticed symptoms in his right wrist when he created the 38 records with a date of 18 June 2018, which he said were all created on the one day, despite the admitted uncertainty about the dates all of the records listed in his statement were created. Mr Crisp said on that day he worked on the task for one hour, developed symptoms and then stopped.
Mr Crisp said his right hand then became more problematic than his left hand, including with domestic activities. Mr Crisp said ‘virtually everything I do causes some degree of exacerbation of my symptoms’. Counsel for Comcare said it was perplexing that Mr Crisp had no problems in his right hand, then after undertaking an activity for an hour he experienced symptoms in his right wrist, which become worse than his left wrist, even after removing himself from that work-based activity and which symptoms have persisted. Mr Crisp confirmed this history was correct.
Mr Crisp was taken through, and agreed with, the history of the medical evidence regarding the diagnosis of his condition. An ultrasound of his left wrist in June 2018 suggested that Mr Crisp may be suffering from de Quervain’s disease. Then, on 29 August 2018, a further ultrasound of both wrists found that there was no evidence of this disease. Subsequently, Mr Crisp had an MRI of both wrists in October 2018. Other than evidence of previous injuries and residual problems with the Herbert screw in his left wrist, there was no demonstrable evidence of problems with his left wrist. Mr Crisp said this MRI suggested some ‘mild ECU tenosynovitis’. Mr Crisp agreed that, since this time, he has experienced issues in not only his wrists, but also his forearms and elbows. Mr Crisp said he first noticed pain in his forearm and elbows when he returned to his substantive role at the Department. Finally, Mr Crisp said that, during his earlier time undertaking the project at work, he experienced symptoms in his left wrist and then, after re-evaluating the situation and undertaking the task in a different manner, he experienced symptoms in his right wrist after an hour.
Medical evidence
Vanessa Stirzaker - Physiotherapist
Mr Crisp filed in the proceeding a letter dated 27 September 2019 from Ms Stirzaker, Physiotherapist, constituting a ‘summary of treatment’ which set out an attendance list for Mr Crisp as follows: ‘initial consultation left wrist’ on 6 July 2018; ‘initial report of right wrist discomfort’ on 18 July 2018 and ‘clinical diagnosis of De Quervain’s on right wrist’ on 30 July 2018.[48] Ms Stirzaker’s letter noted that the clinical diagnosis was ‘De Quervain’s Tenosynovitis bilateral wrists’.
[48] Exhibit 2.
Ms Stirzaker was not called to give evidence to the Tribunal.
Dr Brett Oppermann – Consultant Occupational Physician
At the request of the Department, Mr Crisp was assessed by Dr Brett Oppermann on 6 December 2018. This assessment was after Comcare’s reviewable decision declining liability on 30 November 2018 and before Mr Crisp applied to the Tribunal on 7 January 2019 for review of that decision. Dr Oppermann was not called to give evidence at the hearing, but his report dated 20 December 2018 was filed by Mr Crisp,[49] and relevantly stated that:
[49] Exhibit 6.
SUMMARY AND ASSESSMENT:
In answer to your questions:
Generic Questions
1. What is your diagnosis of Mr Crisp's medical condition/s? Please include the following information in your response:
a. history of onset of the condition(s) as provided to you by the employee;
and
b. how did you arrive at the diagnosis? (What clinical features support the diagnosis?)…
I am unable to arrive at any diagnosis which adequately explains Mr Crisp’s claimed ongoing bilateral wrist complaint, noting his ongoing symptom report and the findings on physical examination of him at the time of my assessment of him having been rather non-specific and the reported findings on prior radiological imaging also having been rather non-informative in relation to his reported complaint of predominantly radial-sided wrist symptoms bilaterally, presently worse in the right wrist.
Further to the above, the overall impression formed at the time of my assessment of
Mr Crisp was that there was likely to be to be a significant degree of functional overlay in his claimed ongoing symptom report.2. Is the condition an aggravation, exacerbation, or acceleration or recurrence of a pre-existing or underlying condition? If so is the nature of the aggravation:
a. A worsening of the objective clinical features?
b. A worsening of their experience of symptoms?
c. A continued experience of their symptoms which would have been present in any event?As per my response to Question 1 above, I am unable to arrive at any diagnosis which adequately explains Mr Crisp’s claimed ongoing bilateral wrist complaint.
I note that Mr Crisp did give a history of left scaphoid fracture suffered in 2000 or thereabouts in a fall from a skateboard, such having been treated with open reduction and internal fixation using a Herbert screw. I note MRI imaging of the left wrist performed 26 October 2018 having been reported as demonstrating possible impingement of the Herbert screw relating to the prior scaphoid fracture.
Whilst I would accept the above as adequately explaining his reported ongoing left wrist complaint, at least in part, the above does not adequately explain his report of his symptoms presently being worse in the right wrist.
3. If your diagnosis is different from the diagnosis put forward by the treating physician/s, please discuss the facts or reasons that have lead you to a different conclusion.
As per my response to Question 1 above, I am unable to arrive at any diagnosis which adequately explains Mr Crisp’s claimed ongoing bilateral wrist complaint.
From review of the provided file material I note reference to prior diagnoses of repetitive strain injury (‘RSI’), tenosynovitis, and also de Quervain’s tenosynovitis, none of which however being consistent with Mr Crisp’s ongoing symptom report and the findings on physical examination of him at the time of his assessment with me.
Dr Sandra McBurnie – Consultant Occupational Physician
At the request of Comcare, Mr Crisp was assessed by Dr McBurnie, Consultant Occupational Physician, on 25 September 2018. Dr McBurnie’s subsequent report dated 11 October 2018, relevantly states that:[50]
[50] Exhibit 1, T12, pages 88-97.
SUMMARY AND ASSESSMENT:
…
Medical Condition
2. In your opinion, what is the specific diagnosis of the condition from which the employee currently suffers?
Based on the examination today Mr Crisp has the following conditions:
Clinical bilateral de Quervain’s tenosynovitis.
a.Please provide a description of the condition and the diagnostic criteria used in reaching this diagnosis; and
The diagnostic criteria for making a clinical diagnosis of de Quervain’s tenosynovitis was the location of the pain over the radial aspect of the wrist and the 1st MCP joint and a positive Finkelstein’s test in both hands.
b.Did the employee suffer from a condition at the time of the claimed date of injury that has now resolved?
There is no indication that he suffered a condition at the time of the injury that has now resolved.
3. In your opinion, when did the employee first suffer from clinically identifiable symptoms of the claimed condition? Please provide details in respect of clinical signs, symptoms and a chronology of development which supports your opinion.
From the description provided left de Quervain’s tenosynovitis was likely to be clinically identifiable around the onset of symptoms reported on 5 June 2018. The symptoms in the right developed shortly after that and are likely to have been identifiable at time of onset.
…
5. In your opinion, is the employees’ [sic] current medical condition an aggravation, acceleration or recurrence of a pre-existing or underlying condition? If so, please note the nature of the aggravation:
a)A worsening of the diagnostic indicators?
b)A worsening of her (sic) experience of the symptoms?
c)A continued experience of symptoms which would have been present in any event?
d)A pathological and/or physiological change in the pre-existing condition occurred evidenced by radiological examination findings.
At this point in time there is no indication that he has an aggravation, acceleration, or recurrence of a pre-existing or underlying condition.
…
Employment Relationship
6. In your opinion, what are the causal and significant contributing factors to the development of the claimed condition (or aggravation) both employment and non-employment related?
There do appear to be employment-related and non-employment related factors.
The employment-related factor appears to be the change in work that resulted in more sustained use of computer over a couple of days in June as described in the body of the report.
The non-employment related factor is his long history of drumming.
Both of these factors are considered causal.The most significant factor is regarded as the drumming. This involves both hands. This requires a degree of force and movement that is more likely to cause symptoms of de Quervain’s tenosynovitis than the duties described in the week leading up to the symptoms.
Work duties described are not considered to be significant factors.
7. Do these factor(s) still contribute to the employees’ [sic] current condition? If so, please provide specific details in respect of the contribution the factors are having on the condition. And if not, when did the effects of the contributing factor(s) cease?
The symptoms have persisted since onset. While he has symptoms using the computer the work [sic] this is because of the underlying issues related to non-employment factors and does not indicate that work tasks are the primary cause.
Examination-in-chief
Dr McBurnie was called by Comcare to give evidence to the Tribunal at the hearing.
Dr McBurnie said she had available at her assessment of Mr Crisp an ultrasound of his left wrist, which suggested that he may be suffering from de Quervain’s tenosynovitis.
Counsel for Comcare provided Dr McBurnie with information arising from the evidence at the hearing, which disclosed that: in August 2018, Mr Crisp provided information to his general practitioner about his hands hurting when working on the computer and with domestic activities; the pain he experiences is over his wrist, forearms and elbows, which ‘came on’ after his initial wrist problem; and he had problems in his right hand after undertaking work duties for an hour, which persists in his wrists, forearms and elbows.
Dr McBurnie was asked to hypothesise a diagnosis in relation to Mr Crisp’s condition related to those arm and wrist areas. Dr McBurnie confirmed that her diagnosis of Mr Crisp’s condition at the time of her assessment was de Quervain’s tenosynovitis due to the conditions then described, however presently, given the further problems he has experienced and his more widespread symptoms, Dr McBurnie said Mr Crisp’s condition ‘doesn’t fit the diagnosis of de Quervain’s’ and she would have to change her diagnosis had she seen him again with this further information.
Dr McBurnie was taken to clinical findings from an ultrasound and MRI of both Mr Crisp’s wrists undertaken in August and October 2018, respectively, and asked whether she could explain his current wrist, forearm and elbow conditions. Dr McBurnie said that, with the benefit of these studies, her clinical assessment and skills, the findings ‘rule out de Quervains tenosynovitis, so that’s off the list’ and there was ‘no obvious finding there that can explain having the same symptoms in both hands’ and his forearms.
Dr McBurnie was further asked whether it was unusual for a person to have bilateral de Quervain’s; Dr McBurnie agreed with this proposition, although she said ‘some forceful activity’ may give rise to such a condition.
Dr McBurnie was asked whether de Quervain’s tenosynovitis could occur after being exposed to one hour of a particular activity. Dr McBurnie said this level of activity ‘would not be a level of exposure sufficient to cause de Quervain’s’. In this regard, Dr McBurnie said Mr Crisp’s work activities did not ‘reach a level that I think is sufficient to cause symptoms’.
In relation to Mr Crisp’s bilateral drumming activities, Dr McBurnie said this involved ‘a lot of work’ for the upper limbs, with a lot of repetition and vibration that can cause symptoms, and bilateral de Quervain’s was a ‘common problem’ associated with drumming, including having been reported in medical studies.
Cross-examination
Under cross-examination by Mr Crisp, Dr McBurnie was referred to her report which identified his employment as being a ‘causal’ factor for his condition and asked whether he would still have sustained his injuries if he was not performing the data entry work. Dr McBurnie said this work was ‘not sufficient to cause the injury at that level’ sustained by Mr Crisp. Dr McBurnie said Mr Crisp may have noticed symptoms at work, but the work he was performing ‘was not significantly causing the underlying condition’, but when Mr Crisp was doing certain tasks, he may have noticed symptoms, but this awareness could occur at any location.
In relation to Mr Crisp’s twenty years of drumming, Dr McBurnie said her diagnosis was based on an ultrasound finding of de Quervain’s, physical examination of Mr Crisp and his symptoms. Dr McBurnie said Mr Crisp would not experience his condition due to the kind of work he was performing, but that it is a common condition for drummers. In this regard, Dr McBurnie said it was ‘more likely’ that changes in Mr Crisp’s hands were due to an activity like drumming as opposed to relatively short periods of data entry. When Mr Crisp asked Dr McBurnie whether this included data entry over a period of five to six days, Dr McBurnie said that, ‘in the scheme of workplaces and the types of work people do’, it was ‘not a lot of data entry’; some people do data entry ‘all day, everyday’. Dr McBurnie said although it may have been more than the usual data entry work for Mr Crisp, ‘in the scheme of things it’s not a lot of computer-based work’.
Finally, Mr Crisp asked Dr McBurnie whether his condition could have arisen due to his particular method of using the mouse and keyboard that put a strain on his wrists as opposed to other people who may have a more ‘varied’ technique for this computer work. Dr McBurnie said this went to constitutional causes dependent upon an individual person; it was ‘not primarily the work-related issue’.
Dr Tony Kostos – Consultant Rheumatologist
At the request of the solicitors for Comcare, Mr Crisp was assessed by Dr Kostos, Consultant Rheumatologist, on 15 May 2019. Dr Kostos’ report dated 22 May 2019 relevantly stated that:[51]
[51] Exhibit 9.
EXAMINATION:
…
His elbow showed full range of pain-free movement. He did not have any local lateral epicondyle tenderness or thickening. However, he did have a slight decrease in extensor muscle flexibility on the right.
His left wrist showed evidence of previous surgery. Both wrists showed full range of pain-free movements. He had some minor tenderness on the left anatomical snuffbox over the scaphoid. However, he does not have any swelling or tenderness over the tendons of abductor pollicis longus or extensor pollicis brevis at the wrist and where they cross the distal radial styloid process. Furthermore Finkelstein’s test for de Quervain’s tenosynovitis is clearly negative.
His hands do not show any evidence of synovitis and are consistent with normal use.
Neurologically his grip strengths are normal.
…
OPINION:
…
2. A description of the applicant's injuries and/or disabilities (if any) at the time you examine him.
Although various diagnoses have been made there is no evidence of any of these conditions today.
Specifically I refer to de Quervain’s tenosynovitis, intersection syndrome, carpal tunnel syndrome and lateral epicondylitis.
3. Your diagnosis.
It is not possible to make a diagnosis as to the cause of Mr Crisp’s pain based on the information as it is currently available.
Whilst his initial left wrist symptoms would have been quite typical of de Quervain’s tenosynovitis there is no evidence of this condition and it would be virtually unheard of to develop simultaneous de Quervain’s tenosynovitis in the other wrist without any significant activity.
I did not find any evidence of intersection syndrome and there has been an attempt to treat this condition which as expected would fail. The only issue that I would raise with regard to this purported diagnosis is that the muscle bellies of abductor pollicis longus and extensor pollicis brevis are certainly more prominent on his right wrist compared with the left and I wonder whether this may relate to his drumming.
He does not have lateral epicondylitis because he does not have any pain over the elbow or lateral epicondyle tendinous thickening.
He does not have carpal tunnel syndrome because he does not have any paraesthesia or numbness in his hands.
4. Whether you consider the applicant’s Commonwealth employment caused or contributed, to a “significant degree", to the “bilateral de Quervain's tenosynovitis” condition?
His employment has not caused or contributed to a significant degree to bilateral de Quervain’s tenosynovitis because he never had these conditions.
…
Examination-in-chief
Dr Kostos was called by Comcare to give evidence to the Tribunal at the hearing. Dr Kostos confirmed that he had been in practice as a Rheumatologist for approximately thirty-five years.
Dr Kostos confirmed that he was unable to provide a diagnosis for Mr Crisp’s condition.
Dr Kostos was provided by Counsel for Comcare with a summary of Mr Crisp’s evidence to the Tribunal under cross-examination, being that he first had problems in his left hand and then in his right hand after varying his work duties and doing them for one hour. He was then removed from those duties. At the end of June 2018, Mr Crisp ceased the duties he contends were responsible for his condition and resumed normal duties at the Department that otherwise do not cause him any problems. Dr Kostos was also informed that Mr Crisp described to the Tribunal experiencing problems over the whole of his forearm and in or around his elbows. Following the provision of this history, Dr Kostos was asked whether there had been any physiological change that would cause Mr Crisp’s symptoms. Dr Kostos said there was no evidence of physiological change in Mr Crisp’s elbows, there was some tightness complained of in his forearms, but no changes in his wrists to explain the reported symptoms.
Dr Kostos was asked to accept the symptoms described by Mr Crisp in order to be able to identify a cause or ailment. Dr Kostos said there had been various diagnoses, including de Quervain’s tenosynovitis, but he ‘did not find any evidence of any of those conditions’. The cause for Mr Crisp’s bilateral wrist pain, and now forearm pain, ‘is unknown’ and there was ‘no physiological change to explain that pain’.
Dr Kostos was referred to Mr Crisp’s bilateral wrist condition and asked whether his work duties had anything to do with the symptoms suffered by Mr Crisp. Dr Kostos said ‘no, because the symptoms have now persisted for well over a year and a half without any change’.
Mr Crisp was afforded the opportunity to cross-examine Dr Kostos but told the Tribunal that he did not have any questions for him.
CONTENTIONS
At the hearing, and in circumstances where Mr Crisp was self-represented, the Tribunal offered Mr Crisp the opportunity to either follow the usual course of a proceeding in that he, as the applicant, would make opening submissions in relation to his application, followed by those of the Respondent, Comcare, or to have Comcare make its opening submissions, thereby affording Mr Crisp the opportunity to hear, consider and respond to those submissions in addition to making his own, with Comcare’s position already having been enunciated to the Tribunal. Mr Crisp elected for Comcare to first proceed with its opening submissions followed by his own, hence both parties’ contentions are set out below in this order.
Comcare
Counsel for Comcare noted that there was complexity in relation to the medical evidence arising from Mr Crisp’s complaints of pain and whether an ailment has been suffered in accordance with the SRC Act. Comcare acknowledged that Mr Crisp’s complaint is a bilateral condition brought on by work at the Department in using a mouse and a keyboard. It was contended that the anatomical contribution to each of those conditions is informed by the activity. Comcare was keen to observe that the behaviour of the hand and its use of a mouse and a keyboard is different, and the nature of the condition is of some concern because different muscle groups are used. Comcare submitted that the vexed question was a diagnosis of Mr Crisp’s condition; the short period of time and bilateral nature of the condition presents difficulties in terms of a diagnosis related to employment.
Comcare referred to the initial ultrasound diagnosing Mr Crisp with de Quervain’s disease, which is with respect to the thumb or the tendons around that area. This diagnosis is disputed because the observations of Mr Crisp’s general practitioner are not in keeping with that diagnosis and, it was contended, ultrasounds have an inherent capacity to be false in their recordings. In this regard, a further ultrasound found no evidence of de Quervain’s disease. An MRI also suggested no problem relevant to Mr Crisp’s complaint. Therefore, while the Tribunal may accept Mr Crisp’s complaint, the Tribunal must go through the process of assessing the way in which the SRC Act responds to symptoms through the definition of ‘ailment’ in section 4 of the SRC Act, and then sections 5A and 5B with respect to an ‘injury’ and a ‘disease’. In this way, Counsel submitted that this application may mirror the case of Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (May). That is, that the applicant is a witness of truth, but unable to demonstrate a particular problem that could otherwise be medically explained. In this regard, the bilateral nature of the condition is difficult to locate to his employment. The only bilateral activity that Mr Crisp undertakes is drumming, over a period of twenty years. Mr Crisp must move through the structure of the SRC Act which, it was contended, cannot be done on the evidence. The experiences Mr Crisp has are otherwise inexplicable and cannot be brought before the relevant terms of the SRC Act.
Comcare relied on the evidence of Dr Kostos, who opined that Mr Crisp never suffered from bilateral de Quervain’s tenosynovitis, because of the nature of his specialist training and experience, and because he was fully briefed with all the relevant background information prior to examining Mr Crisp.
Comcare also submitted that the evidence of Ms Stirzaker, Physiotherapist, who diagnosed the Applicant with ‘de Quervain’s tenosynovitis bilateral wrists’ in a Summary of Treatment document dated 27 September 2019,[52] should be given less weight in light of the findings of Drs Kostos, Oppermann and McBurnie, who are medical specialists.
[52] Exhibit 2.
Relying on the expert medical evidence, Comcare contended that Mr Crisp does not suffer from a recognisable medical condition affecting his left or right wrists, and therefore there is no condition that has been contributed to, to a significant degree, by his employment such as to meet the legislative test in the SRC Act.
In closing submissions, Counsel for Comcare took the Tribunal through a brief history of Mr Crisp’s condition and claim, the subject of the proceeding. Comcare referred to Mr Crisp’s Workers’ Compensation Claim submitted to Comcare on 2 August 2018,[53] in which he said he first noticed the ‘symptoms/injury’ on 12 June 2018. Comcare noted that Mr Crisp’s evidence was that at this time he was using his right hand for mouse work and his left hand for keying, and sometimes keying with both hands.
[53] Exhibit 1, T3, pages 4-9
Comcare also referred to the Employer Statement provided to Comcare by the Department in which it was confirmed that on 30 April 2018 Mr Crisp changed his hours of work to twenty-two and a half hours per week, which remain his current hours of work.[54] Comcare confirmed that it took no issue with Mr Crisp’s occasional employment outside of the Department of a weekend at a winery cellar door. Comcare noted that the Employer Statement recorded that on 6 June 2018, Mr Crisp emailed the National Rehabilitation Team at the Department that ‘I am experiencing RSI as a result of performing some highly repetitive work at my workstation’ and requested further advice.
[54] Exhibit 1, T9, pages 16-19.
Comcare further referred to the Statement of Mr Crisp regarding the work processes that he claims led to the condition, and the table of the number of records created between 14 May and 26 June 2018. Counsel noted that during this time, Mr Crisp was undertaking the data entry tasks and, on 6 June 2018, informed his employer that he was experiencing problems.
Counsel for Comcare then took the Tribunal to the Supervisor Statement dated 8 August 2018,[55] which noted that after a short period of time working on the data entry task, Mr Crisp believed he had been exposed to ‘the protagonist event’. Counsel for Comcare said Mr Crisp changed his approach to the task and within an hour experienced symptoms in his right wrist. This was not to deny Mr Crisp’s subjective experience; this was not the basis of Comcare’s complaint with the application.
[55] ibid., T9.H, pages 48-52.
Following this review, Counsel for Comcare turned to the medical evidence before the Tribunal and submitted that the evidence of Dr McBurnie needed to be read in conjunction with the contemporaneous clinical notes from August 2018, which were not before her when she assessed Mr Crisp. In this regard, Comcare contended that, upon his own evidence, when Mr Crisp was removed by his employer from the activities at work said to be the cause of his condition, the issues persisted and became more widespread. It was submitted that Dr McBurnie could not explain the persistent problems experienced by Mr Crisp. Additionally, Dr Kostos said Mr Crisp’s condition was inexplicable and does not fit with any anatomical complaint sufficient to identify a protagonist for the problem.
Accordingly, it was contended, the difficulty for Mr Crisp is that none of the experts that gave evidence at the hearing or otherwise have been able to explain any anatomical complaint or reason for his symptomatology.
To this end, Counsel referred to May at [57], in which the High Court of Australia said:
The Full Court concluded that the inquiry demanded by the statutory definition of "injury" was "whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind" (emphasis added). To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected.
Counsel submitted that, as set out by the Court in May, Mr Crisp needs to have demonstrated what physiological change has occurred. In this regard, Counsel noted that the definition of an ‘ailment’ in section 4 of the SRC Act must firstly be met, before moving to sections 5A and 5B of that Act and required a physiological change.
It was contended by Comcare that the Court has mandated, that within the terms of the SRC Act, a person can only achieve a position where they may or may not be entitled to compensation going through the gateway of section 14 of the SRC Act, by demonstrating an ‘ailment’ and, in the context of a ‘disease’, that it is significantly contributed to by the employment activities. In this respect, it was submitted that Mr Crisp ‘did not get to first base’ under the Act.
It was further contended that, if Mr Crisp does get to ‘first base’, he does not reach ‘second base’ under the SRC Act, being a significant contribution from Mr Crisp’s employment to his condition. In this regard, Mr Crisp’s right arm problems ‘came on’ over such a short period of time that it would be difficult, in the absence of a direct trauma, for him to satisfy the Tribunal that the incidence of employment were sufficient to cause the problem now complained of. Counsel did not take issue with Mr Crisp’s evidence and acknowledged he was forthright in that evidence, however in the absence of Mr Crisp being able to ascertain what has physiologically changed, his case must fail and the decision under review should be affirmed by the Tribunal.
In relation to the early diagnosis of de Quervain’s tenosynovitis, Comcare contended that the ultrasounds undertaken in August 2018, shortly after Mr Crisp experienced issues at work, did not disclose any such condition. Additionally, the MRI’s did not disclose anything to suggest a physiological change sufficient to meet the terms of the SRC Act.
Counsel turned to consider other explanations for the cause of Mr Crisp’s condition and said the only bilateral activity in his life is his drumming. The Tribunal, it was submitted, did not need to identify drumming as the cause; this was said to be outside the SRC Act, but it may be the cause for Mr Crisp’s condition. It was contended that it did not matter that both work and drumming had not previously caused any problems; the real question is what is it that Mr Crisp is said to be suffering and, once that is answered, ‘what is its’ cause?’ Comcare finally submitted that there is no doubt that there is an inability for the particular provisions of the SRC Act to be found in favour of Mr Crisp’s claim for compensation and the Tribunal should therefore affirm Comcare’s decision declining that claim.
Mr Crisp
The Tribunal has set out above in these reasons, excerpts contained in Mr Crisp’s Statement of Facts, Issues and Contentions, which annotated, and responded to, those filed on behalf of Comcare.
By way of opening submissions at the hearing, Mr Crisp contended that he was ‘at a loss’ in relation to what he has experienced over the recent past. Mr Crisp acknowledged that, frustratingly, his symptoms appear to be undiagnosable, including in accordance with the SRC Act. This left Mr Crisp ‘between a rock and a hard place’, but he submitted that because his symptoms first arose when he was at work performing work duties, this entitled him to compensation under the SRC Act.
Mr Crisp is self-treating his condition with self-massage and topical ointments, which provide short-term relief for something that would be with him forever, hence his desire to pursue this claim as far as possible. Mr Crisp said that the ‘shortcomings of the medical profession’, in not being able to diagnose his condition, should not prevent him from receiving compensation for that condition.
By way of closing submissions at the hearing, Mr Crisp contended that it was ‘far too unlikely for my twenty years of drumming’ to culminate to a point where his injuries ‘spontaneously developed at the exact time’ that he was twice performing repetitive data entry. In this way, Mr Crisp said the injuries ‘have to be related to the work activity’ that he was undertaking when symptoms developed. As such, Comcare was said to be liable for the costs incurred in treating his injuries.
Mr Crisp noted that Dr McBurnie had said in her report that his work was a ‘causal factor’. This should be ‘at least part of the cause of my injuries’, be they de Quervain’s tenosynovitis or otherwise. The fact was, it was contended, that, at work, if he sustained an injury, Mr Crisp should be covered by workplace insurance whether there is a pre-existing injury or not.
Mr Crisp stated that he had been diagnosed with de Quervain’s tenosynovitis by three medical practitioners and therefore claimed to Comcare specifying that ailment. Mr Crisp acknowledged that while this diagnosis may no longer fit with his ongoing symptoms, they were a result of his work activity and any ongoing pain or injury could be explained as the result of compensation in movement patterns as a result of the initial injury.
Finally, Mr Crisp said that while an ultrasound could give false positives, he opined whether it could also provide a false negative.
CONSIDERATION
The Tribunal is not satisfied that Mr Crisp’s condition meets the necessary elements under the SRC Act for it to set aside the decision under review and substitute a decision in favour of Mr Crisp’s claim for compensation.
The Tribunal accepts that Mr Crisp has a condition that affects his wrists and has spread to his forearm and elbow regions of both upper limbs. That is not in dispute.
The Tribunal also accepts Mr Crisp as a witness of truth. Mr Crisp was self-represented and put forward his case at the hearing with an admirable level of forthrightness and candour.
However, Mr Crisp’s claim for compensation under the SRC Act cannot succeed. The application before the Tribunal turned on the medical evidence in relation to Mr Crisp’s condition and this evidence was comprehensively against him. In short, the evidence of three medical specialists was that Mr Crisp’s condition was unable to be diagnosed; Mr Crisp did not call any medical evidence to support his claim.
In this regard, Dr Oppermann, who was not called to give evidence at the hearing, but whose report was before the Tribunal, was ‘unable to arrive at any diagnosis which adequately explains Mr Crisp’s claimed ongoing bilateral wrist complaint’.
Furthermore, Dr McBurnie could not explain the persistent problems experienced by Mr Crisp and told the Tribunal that his condition ‘doesn’t fit the diagnosis of de Quervain’s’ tenosynovitis.
Finally, Dr Kostos said Mr Crisp’s condition was ‘inexplicable’, it does not fit with any anatomical complaint and the cause for Mr Crisp’s bilateral wrist pain, and now forearm pain, ‘is unknown’; there was ‘no physiological change to explain that pain’.
Accordingly, none of the medical experts could explain any anatomical complaint or reason for Mr Crisp’s symptomatology. As a result of the evidence, the Tribunal finds that Mr Crisp did not, and does not, suffer from de Quervain’s tenosynovitis, which was the claimed condition the subject of the application before the Tribunal.
Accepting this expert evidence, and in accordance with the High Court’s decision in May, the Tribunal finds that Mr Crisp has not demonstrated the requisite physiological change to be compensated for an ‘injury’ under section 14 of the SRC Act. More specifically, the Tribunal finds that Mr Crisp has not met the test under the SRC Act of having an ‘ailment’ that, in the context of a ‘disease’ pursuant to section 5B of that Act, was contributed to, to a significant degree, by his employment. In this regard, the Tribunal is not satisfied that the specific data entry work undertaken during the period of Mr Crisp’s employment when he experienced symptoms in his wrists was sufficient to cause the condition he is seeking compensation for from Comcare.
For completeness, the Tribunal does not make a finding in relation to the impact of Mr Crisp’s drumming on his condition but notes, as identified by the medical evidence before it, that this is an activity requiring engagement of both upper limbs that has been undertaken for twenty years by Mr Crisp and, accordingly, may be the cause of his, as yet, undiagnosed condition.
CONCLUSION
The Tribunal understands that the inability of the medical profession to diagnose Mr Crisp’s condition is frustrating and less than satisfactory for him. However, the Tribunal is bound to apply the legislative provisions of the applicable Act, here the SRC Act, in reviewing the evidence regarding a decision the subject of an application to the Tribunal. Based on the evidence, the Tribunal cannot be satisfied that Mr Crisp meets the legislative requirements set out under the SRC Act to be entitled to compensation.
Finally, in relation to the conduct of the hearing by telephone, the Tribunal notes that while potentially a recently novel occurrence for a compensation matter in the General Division of the Tribunal, hearings of the Tribunal do, of course, occur by telephone on a regular basis, particularly in other Divisions of the Tribunal. Both parties at the conclusion of the hearing agreed that it had proceeded in the best possible manner in the circumstances and Mr Crisp particularly noted that it was ‘somewhat less intimidating’ than appearing in-person at a Tribunal hearing, which the Tribunal can well understand for a self-represented applicant where the Respondent was represented by experienced Counsel. In this way, the Tribunal considers that the hearing was conducted in a manner that afforded both parties procedural fairness and ensured the objectives of the Tribunal under the AAT Act were met, despite not being conducted in-person as is the usual course for an application of this nature.
DECISION
The Tribunal affirms the decision under review in accordance with subsection 43(1)(a) of the AAT Act.
I certify that the preceding 128 (one hundred and twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
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Associate
Dated: 1 May 2020
Date(s) of hearing:
23-24 March 2020
Date final submissions received:
20 February 2020
Applicant:
Self-represented
Counsel for Respondent: Mr Matthew Gollan
Solicitors for Respondent:
Mr Scott Moloney, Moray & Agnew Lawyers
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Causation
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Statutory Construction
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Procedural Fairness
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Appeal
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Expert Evidence
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Remedies
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1
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