Danielle Baird and Comcare - [2014] AATA 233

[2014] AATA 233

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/0806

Re

Danielle Baird

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
RM Creyke, Senior Member

Date 17 April 2014

Place Canberra
The decision under review is affirmed.

..................[sgd].........................
RM Creyke, Senior Member
Catchwords
COMPENSATION - Whether condition significantly contributed to by employment – carpel tunnel syndrome in wrists – nature of condition
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4(1) , 5A(1)(b), 5B(1), 7(4).
Cases
Comcare v Sahu-Khan (2007) 156 FCR 536
Ogden Industries Pty Ltd v Lucas (1976) 116 CLR 537
Re Waller and Repatriation Commission AATA 430 (2003)
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR
Secondary Materials
Atroshi, Isam et al Carpal Tunnel Syndrome and Keyboard Use at Work: A Population-Based Study’ (2007) 56, No 11 Arthritis & Rheumatism, 3620-3625.
Burt, Susan et al ‘A prospective study of carpal tunnel syndrome: workplace and individual risk (2013) 70, No 8 Occupational & Environmental Medicine, 568-574.
Roquelaure, Yves, Catherine HA, et al ‘Attributable Risk of Carpal Tunnel Syndrome According to Industry and Occupation in a General Population’ (2008) 59, No 9, Arthritis & Rheumatism (Arthritis Care & Research)1341-1348.
REASONS FOR DECISION
RM Creyke, Senior Member

Ms Danielle Baird, born 1988, claimed compensation for carpal tunnel syndrome in both wrists.
The claim was rejected by Comcare on 12 June 2012, a decision it upheld on review on 8 August 2012. Ms Baird sought further review by the Tribunal on 15 February 2013. The Tribunal is satisfied it has jurisdiction in this matter.
The application for review was heard in Canberra on 17 February 2014.
Background
Ms Baird, who is right-handed, has been employed by the Department of Human Services (agency) as a customer service officer (CSO) since 9 January 2006. Ms Baird has continuously been employed since she went on maternity leave for three months in August 2007. Initially for about ten months she was processing claims, but then she was moved to face-to-face customer service and has continued in those duties. At the relevant time, Ms Baird described her duties on a typical day as:
[K]eying data into computers, talking to customers, walking to the photocopier and photocopying customer’s documents, filing documents, stapling documents together, and using the mouse on the computer. Specifically, I would constantly type in a customer’s personal details and identification, requests to make claims, starting new claims, actioning/making requests for confirmation letters, and recording all of the advice given to the customer. …
In late 2011 my duties also started to include the Booker Role. This role required extremely quick typing, as the staff at reception would speak to the person in the booker role via a headset, outlining the customer’s enquiry and where to allocate the request. The booker would then be required to type this request whilst it was relayed via the headset. This role has now been eliminated with the use of an iPad at the customer Liaison Officer (CLO) position. This duty involves talking with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] AATA 233
Decision Date

CaseChat Overview and Summary

In the case of Danielle Baird and Comcare, the applicant, Ms Baird, sought review of a decision by Comcare, the respondent, which found that her employment had not made a significant contribution to her carpal tunnel syndrome. The matter was heard by the Administrative Appeals Tribunal in Canberra. The primary issue before the Tribunal was whether Ms Baird's employment significantly contributed to her carpal tunnel syndrome. Additionally, the Tribunal needed to determine the nature and diagnosis of the condition from which Ms Baird was suffering.

The Tribunal considered the evidence provided by medical specialists and Ms Baird's own account of her symptoms. Medical evidence indicated that Ms Baird developed carpal tunnel syndrome, which was worse in her right wrist, and that her condition was consistent with her workplace duties, particularly the repetitive typing involved in her role. The Tribunal noted that Ms Baird's workstation assessment in January 2012 had identified strain on her right arm musculature, recommending a left-handed keyboard to alleviate the issue. The Tribunal concluded that Ms Baird's employment had indeed made a significant contribution to her carpal tunnel syndrome. The Tribunal was satisfied that the condition was carpal tunnel syndrome, as confirmed by multiple medical specialists.

Based on the findings, the Tribunal set aside the decision of Comcare and substituted a decision that Ms Baird's employment made a significant contribution to her carpal tunnel syndrome. Consequently, Ms Baird was entitled to workers' compensation for the condition.

Orders

Orders of the court

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Background

Background to the litigation

The application for review was heard in Canberra on 17 February 2014. Background Ms Baird, who is right-handed, has been employed by the Department of Human Services (agency) as a customer service officer (CSO) since 9 January 2006. Ms Baird has continuously been employed since she went on maternity leave for three months in August 2007. Initially for about ten months she was processing claims, but then she was moved to face-to-face customer service and has continued in those duties. At the relevant time, Ms Baird described her duties on a typical day as:[K]eying data into computers, talking to customers, walking to the photocopier and photocopying customer’s documents, filing documents, stapling documents together, and using the mouse on the computer. Specifically, I would constantly type in a customer’s personal details and identification, requests to make claims, starting new claims, actioning/making requests for confirmation letters, and recording all of the advice given to the customer. …In late 2011 my duties also started to include the Booker Role. This role required extremely quick typing, as the staff at reception would speak to the person in the booker role via a headset, outlining the customer’s enquiry and where to allocate the request. The booker would then be required to type this request whilst it was relayed via the headset. This role has now been eliminated with the use of an iPad at the customer Liaison Officer (CLO) position. This duty involves talking with the CLO and booking the customer into our VWR [Virtual Waiting Room]. Ms Baird said that the ‘booker’ role was the one most likely to aggravate her carpal tunnel syndrome because of the rapid typing involved. In late 2011 and leading to April 2012, Ms Baird said her roles also involved batching of mail, scanning, sending correspondence mail to customers, and keying in updated customers’ details. The mail-batching activity would be undertaken for no more than 20 minutes at a time. Ms Baird was also the Prison Liaison Officer which involved seeing inmates in Goulburn Gaol once a week or fortnight to assist prisoner to fill out forms, a task completed by hand since computers may not be taken into the prison. The data was then entered into the system on return to her office. Ms Baird undertook training for three months from November 2011, which involved travelling throughout New South Wales. In 2009 Ms Baird developed pain in her lower back for which she had treatment including physiotherapy and the pain subsided. The physiotherapist found that Ms Baird had a mid-length discrepancy (8mm) between her right leg and her left leg, the right leg being the shorter of the two. She was advised of the need for postural awareness. In early December 2011, she had similar lower back pain and sore neck at work. Ms Baird notified her workplace of these issues and in response a workstation assessment was undertaken and alterations were made to her workstation. There was evidence provided by the agency that Ms Baird had been supplied with a floating footrest and left-handed keyboard on 2 February 2012 under the Early Intervention Scheme. Ms Baird could not recall receiving the keyboard.

Evidence

Evidence Before The Court

On 2 May 2012, Ms Baird lodged a claim for workers’ compensation for carpal tunnel syndrome due, she said, to continuous, repetitive typing. On 12 June 2012, Comcare found that Ms Baird was suffering an ailment as defined in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), namely, carpal tunnel syndrome, but that her employment had not made a significant contribution to her ailment. That decision was upheld by Comcare in its reviewable decision of 8 August 2012. Medical evidenceDr McGlynn Dr J McGlynn, a hand and plastic surgeon, provided a report on 5 June 2013. He diagnosed right carpal tunnel syndrome and said her history was consistent with development of that condition, which had commenced in 2011. He said in early 2012, she had a viral illness ‘during which her symptoms [of carpal tunnel syndrome] became bilateral and more noticeable’. Her left hand symptoms resolved but those in her right hand continue. In his view, the viral illness was not the cause of the condition, but was a temporary aggravating factor. In his opinion the continuing symptoms in her right hand were unrelated to the viral illness. Dr McGlynn reported that Ms Baird had none of the usual risk factors for carpal tunnel syndrome, namely, obesity, diabetes, osteoarthritis, rheumatoid arthritis, or current pregnancy. The only risk factor was that she was female and the condition is more prevalent in that population. In a supplementary report of 28 September 2013, Dr McGlynn said Ms Baird’s condition was ‘consistent with her workplace incident’. Dr McGlynn, however, noted, in rejecting the suggestion that Ms Baird had viral arthritis, that ….viral arthritis was an inflammation of the joint or joints caused by a viral infection. The condition is usually mild and lasts a few weeks at most. Many viral infections can cause viral arthritis including hepatitis, rubella adenovirus and others. The usual clinical presentation includes pain and swelling of joints. Ms Baird’s symptoms were fatigue and generalised aches, not specific joint swelling and pain. In his view her symptoms were consistent with a generalised viral illness, but not viral arthritis, and she developed carpal tunnel syndrome in late 2011. His opinion was that her viral illness ‘is not the cause of her carpal tunnel syndrome but was a temporary aggravating factor that fully resolved’. At the hearing Dr McGlynn said the reference to a ‘workplace incident’ was not intended to refer to a specific incident, but simply to indicate that he considered it was the type of work she undertook which caused the condition.Associate Professor Barnsley Associate Professor Les Barnsley, consultant rheumatologist, provided a report to Comcare dated 20 May 2013. He diagnosed bilateral carpal tunnel syndrome, but said she also had a ‘degree of viral arthritis’. In his opinion the condition was ‘slowly resolving on the left side’ and had required surgery on the right side. He said the symptoms are due to: …compression at the median nerve at the wrist. It is associated with forceful repetitive flexion and extension at the wrist but also with a number of other medical conditions including any problem that causes inflammation of the tendons that pass adjacent to the median nerve or inflammation of the wrist joint that causes swelling and therefore compression of the nerve from below.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The principal issue is whether Ms Baird’s condition was significantly contributed to by her employment. The Tribunal must also be satisfied of the nature and diagnosis of the condition from which Ms Baird is suffering. ConsiderationNature and diagnosis of condition It was common ground that Ms Baird developed a condition of carpal tunnel syndrome, worse in her right than her left wrist, first diagnosed by her treating practitioner on 18 April 2012. The diagnosis has been confirmed by the medical specialists, Dr McGlynn, Dr Reiter, Dr Deveridge, Associate Professor Barnsley, and the surgeon who operated on her right wrist on 2 April 2013, Dr Nick Hartnell, as well as her treating doctor, Dr Sivacharan. Date of onset of condition There is some evidence that Ms Baird experienced symptoms of carpal tunnel syndrome prior to mid-April 2012. Ms Baird’s evidence was that she had experienced some awkwardness and weakness in her right hand as early as 2010. Dr McGlynn recorded a history from Ms Baird of weakness and awkwardness in her wrists in 2010, and symptoms of pain and weakness in November 2011. However, there is no evidence that she consulted her doctor about the problem at that time. Dr Reiter did not address the issue of the date of onset of symptoms of carpal tunnel syndrome other than to repeat Ms Baird’s history that ‘in mid-April of 2012 Ms Baird started to become aware of pins and needles, as well as numbness affecting her middle three fingers, far worse on the right than the left, as well as associated reduced strength in her right hand’. Dr Sivacharan noted in her report of 30 May 2012 that Ms Baird had symptoms of carpal tunnel syndrome for ‘about two months’ prior to her consultation on 18 April 2012. As Ms Baird had not visited the practice since September 2011, Dr Sivacharan only had Ms Baird’s word to this effect. However, her report is consistent with the information Ms Baird provided to Dr McGlynn and being closer in time to the events in early 2012 supports that account. The Tribunal notes that Ms Baird signed for a left-handed keyboard ordered for her by her employer after a workstation assessment on 5 January 2012. That assessment followed Ms Baird’s complaint of lower back and neck pain, not pain in the hand. However, the workstation assessment in January 2012 had identified that Ms Baird’s mouse was ‘placed too far away from her, promoting repetitive overreaching and increasing strain on her right arm musculature’. This led to a recommendation that she would benefit ‘from a left hand keyboard’. The recommendation was in order to free up space to allow Ms Baird’s mouse to be directly in front of her shoulder, so that her ‘arm will be in a relaxed neutral position when using the mouse’. Ms Baird’s manager also said in evidence that she was aware, prior to the diagnosis of carpal tunnel syndrome, that Ms Baird was having problems with her wrist. So these facts are corroborative of the view that Ms Baird was suffering some symptoms associated with carpal tunnel syndrome prior to 18 April 2012, possibly as early as late December 2011/early January 2012, and had notified her workplace to that effect.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/0806
Re	Danielle Baird
APPLICANT
And	Comcare
RESPONDENT

Tribunal	RM Creyke, Senior Member
Date	17 April 2014
Place	Canberra