Dainty and Comcare (Compensation)

[2015] AATA 844

Dainty and Comcare (Compensation) [2015] AATA 844 (2 November 2015)

Division	GENERAL DIVISION
File Number	2014/2094
Re	Susan Dainty
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Dr Damien Cremean
Date	2 November 2015
Place	Melbourne

The Tribunal affirms the decision under review

.........................[sgd].................................

Dr Damien Cremean

COMPENSATION — Carpal tunnel syndrome and ganglion — whether conditions related to employment — decision under review affirmed

Legislation

Safety Rehabilitation and Compensation Act 1988 (Cth), sections 5A, 5B and 14

REASONS FOR DECISION

Dr Damien Cremean

30 October 2015

1. The reviewable decision in this matter is dated 25 February 2014.

2. In that decision, a review officer from Comcare determined that the Applicant was not entitled to compensation under section 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of carpal tunnel syndrome (bilateral) and ganglion (left).

3. This decision followed a request by the Applicant for reconsideration of a determination by Comcare to the same effect dated 22 October 2013.  The Comcare delegate had found that the Applicant’s employment had not significantly contributed to her claimed conditions.

4. Section 14 of the 1988 Act provides that subject to Part II of the Act Comcare is liable to pay compensation in accordance with [the] Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.  The Applicant said she regarded the delegate’s decision as very contradictory.  She expressed indignation and referred to her prolonged physical pain due to the reckless disregard for the truth presented to Comcare. 

5. For this purpose an injury is defined in section 5A (1) of the Act as:

   (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.

   A “disease” is defined in section 5B(1) of the 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.

   Section 5B(2) of the Act states:

   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.

   Finally, according to  section 5B(3) of the Act :

   “significant degree” means a degree that is substantially more than material.

6. The Respondent contends that the issues before the Tribunal are these: 

   1What is the appropriate diagnosis of the Applicant’s claimed condition or conditions?

   2Do the conditions meet the definition of an injury for the purposes of section 5A in that they constitute ailments for the purposes of the first limb of the definition of a disease in section 5B of the SRC Act?

   3Whether the Applicant’s condition, conditions, or an aggravation of the same, have been contributed to, to a significant degree, by her employment with the Department of Human Services, for the purposes of the second limb of the definition of diseases in section 5B?

   4If so, whether Comcare is liable to pay compensation to the Applicant under section 14 of the SRC Act?

   5What is the appropriate date of injury of the claimed condition, conditions or an aggravation of the same?

7. Broadly, I agree with the Respondent that these are the issues before the Tribunal which is to make a decision on the papers only.  On some occasions I would observe having a case heard on the papers is not necessarily a helpful course for parties.

8. With regard to the first of the issues, the Respondent accepts, and I also accept, that the Applicant suffers from carpal tunnel syndrome (bilateral) and ganglion (left).  That of course is not to say that the Applicant may not suffer other conditions but those are the conditions which are in issue in this matter.

9. There is a wealth of information in the documents on file relating to the Applicant’s conditions and how she claims they are related to and / or arise out of her employment.  I have read all these documents and have considered their contents carefully. In particular I note the Applicant’s submission dated 22 May 2015.

10. The Applicant is aged 50 and began working as a customer service advisor in the Moorabbin Call Centre of the Department of Human Services (Centrelink) at APS 3 level in 2007.  The Applicant says she has suffered her claimed conditions as a result of typing and data processing and entry work in the course of her employment. She says in her claim form dated 20 August 2013 that when she was injured she was working at the call centre investigating Debts for the Debt Project, making Determination. She says that the trigger for the chain of events that led to her injury was investigating Customer Record & Information. She was asked: What actually injured you, or made you ill? She replied: Computer.

11. In her application the Applicant says that her understanding of the law regarding a workplace injury is that an Employer is responsible for the wellbeing and recovery of an injury that has occurred in the workplace.  She said she is asking the Tribunal to recognise the evidentiary link and deep connection of my workplace injury to my current employer Department of Human Services/Centrelink of 7 years by virtue of fact.

12. Her symptoms include, she says, severe numbness and pain during the day; pain waking her during the night; sensations of pain in her palm; and shooting pain travelling through her forearm.  She attributes these conditions to her daily role consisting of high volumes of repetitive typing.

13. I am not in any doubt that the Applicant does indeed suffer from the symptoms she describes. Nor do I doubt they are distressing and incapacitating. Further, I note that although the Applicant has undergone surgery she still suffers pain and discomfort.  And I accept of course that over many years in the course of her employment she has performed significant typing and related duties.

14. The issue I must determine, however, is whether it would be the correct or preferable decision that her medical conditions have been caused by her work in the sense understood under the Act.  If they have been, I must then determine whether her work has caused or contributed to those conditions to a significant degree or not.

15. The materials before me do not allow me to answer the first of these questions in the Applicant’s favour.  I am able to accept on the basis of those materials that the Applicant’s conditions occurred whilst working for the Respondent in a temporal way — that is, that they were occasioned at some point while she has been working for the Respondent.  She appears to have first complained about them to Dr Singh on or about 17 July 2013.  But that is as far as the materials take me. And that is a different point to the question of whether her work had any causal role in bringing about her conditions.

16. The materials before me do not enable me to be satisfied that any causal link exists between her conditions and her work with the Respondent.  This element of causation is, of course, what section 14 of the Act requires.

17. Dr Balbir Singh, in a report dated 25 September 2013, says that while the Applicant’s condition is due to repetitive use of her wrists it is difficult to say whether it is employment or non-employment related.  This leaves the matter open ended.

18. There is also a report from Dr Philip Haynes dated 21 October 2013. Dr Haynes is a consultant occupational physician.  His view is that both the Applicant’s conditions are due to anatomical factors.  He writes that he does not consider that office-based work duties would cause or aggravate any ganglion condition affecting the left middle finger.   Evidence based studies have not shown any relationship between office-based duties and the onset of carpal tunnel compression syndrome…It is likely that the ganglion condition relates to a spontaneous swelling arising from the tendon sheath of the affected finger.  The carpal tunnel syndrome is likely related to [the Applicant’s] heavy/overweight build.

19. Dr Haynes confirms his earlier views in a further report dated 25 September 2014.

20. A report by Mr Adam Abbas physiotherapist dated 6 May 2015 states that the Applicant’s ganglion was most likely not caused by work but that work may have contributed to the carpal tunnel component of the condition.  I am unclear what this means exactly — a ganglion is a different condition to carpal tunnel syndrome and neither is a component of the other.  I assume he means that the Applicant’s work may have caused the carpal tunnel syndrome but not the ganglion.

21. This is the only reference to a possibility of a causal link between the Applicant’s work and one of her conditions (carpal tunnel syndrome). But it is no more than that. It does not say her work was, more probably than not, a cause of that condition or that her work contributed to her condition to a significant degree.

22. Nothing else of an independent nature in the materials says that and it is only the Applicant herself who positively asserts a connection.  And I am not satisfied that I should accept the Applicant as an expert in her own cause. 

23. The medical evidence does not satisfy me that I should make a finding of a causal link of any kind between the Applicant’s conditions and her work at Centrelink.  Only a temporal connection exists and that does not suffice under section 14 of the Act.  Mr Abbas’s expression of opinion does not change my view.

24. The finding I make is that there is no evidence of a causal link – to any degree – between the Applicant’s medical conditions and her work with the Respondent.  I rely upon the medical opinions of Dr Singh and in particular of Dr Haynes. 

25. In light of this finding, the further question of whether the Applicant’s work has contributed to her conditions to a significant degree does not arise.

26. This means that the Applicant’s conditions do not qualify as an injury under section 5A (1) of the Act or as a disease as defined under section 5B.

27. It follows from this that the terms of section 14(1) of the Act have not been satisfied.

28. Accordingly the decision under review must be affirmed.

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean

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Associate

Dated 2 November 2015