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 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.
There was also evidence that in 2010 Ms Baird had noticed some awkwardness and weakness in her right hand, but there is no record that she mentioned this to her doctor at the time. The only evidence of pre-existing muscle problems was a report of her doctor on 19 September 2011 of ‘body aches’, but this may have related to her ‘flulike symptoms’ recorded in that visit. Ms Baird said it was around the end of 2011 when she began to experience pain, numbness and tingling sensation in her right wrist. This pain was worse in the mornings. She did not then experience having pins and needles in her hand, wrist or arm.
Between 19 March and 28 March 2012 (a Wednesday) Ms Baird was on an overseas holiday. She resumed work on Monday 2 April 2012 but left work after one hour as she said she was aching and finding it difficult to walk and hold things and she had a ‘rash all over’. She had attended the Goulburn Base Hospital over the previous weekend for her rash. She went to her doctor about her conditions on 3 April 2012. Dr Govindarao Kotha, a practitioner in the practice Ms Baird attends, recorded in his clinical notes:
… vague h/o [headache] body aches 2 days. Seen in GBH [Goulburn Base Hospital] – diagnosed as UTI [urinary tract infection] as UA [urine analysis] showed wbc [white blood cells] but does not have UTI sympts [symptoms]. Muscle aches all over body. Worse in hand and fingers and feet, worse in morning, but all day and worse with activity also no fever/unwell. No v & d’ [?]… ‘generally tender on muscle – mainly hand and feet’. Under ‘Reason for contact’ Dr Kotha noted ‘?viral myalgia’.
Dr Kotha certified her not fit for work for the week and prescribed non-steroidal anti-inflammatory medication. It was at this time that Ms Baird also began to experience pins and needles in her wrists.
Ms Baird returned to work on 10 April 2012 (9 April 2012 was Easter Monday) but continued to have difficulty lifting, driving and doing household tasks such as looking after her young son, dressing, using the hair dryer, opening bottles, and washing dishes, hanging out clothes, chopping meat and vegetables, shopping, ironing and typing. She experienced pain in her right wrist and had difficulty gripping with that hand. The right hand was numb and tingling and this effect was triggered by flexing her right wrist. She said that her partner helped with home maintenance tasks she could not manage and with grocery shopping and carrying heavy bags.
She consulted her normal treating practitioner, Dr Sangavai Sivacharan, on 10 April 2012, whose clinical notes state:
Went to hospital last week with muscle ache, joint pain. Had blood test … Still feeling the joint pain and muscle ache, lethargic. Hand examination – no obvious small joint deformity, no joint tenderness, no obvious swelling. CRP-5 [C-Reactive Protein] normal WCC [white cell count].
The Tribunal notes that the white cell count (WCC) refers to disease-fighting cells, any increase in which is indicative of infection. The CRP is a blood test screen for infection and a value up to 10 is normal. So CRP-5 would not have raised concerns.
On 18 April 2012, Ms Baird again visited Dr Sivacharan who discussed the results of the blood tests and noted that ‘Joints pain and swelling settled. Has pin and needle sensation and numbness in both middle finger at night. Impression – CTS [carpal tunnel syndrome’. Dr Sivacharan said she no longer had a viral illness and 18 April 2012 is taken as the date carpal tunnel syndrome was first diagnosed.
On 1 May 2012, Dr Sivacharan’s clinical notes state:
Carpal tunnel syndrome – using splint at night. On Nurofen with minimum effect. Affecting her typing at work. Able to do typing continuously for one hour. Needs a break after that. Unable to hold the cup with r/hand in the morning. Employer needs a letter from the doctor.
Dr Sivacharan recommended medical restrictions on Ms Baird’s keying duties and on managing customer service enquiries, given the intermittent keying role involved. On 2 May 2012 an initial needs assessment undertaken by the agency was completed and on 8 May an ergonomic workstation assessment for Ms Baird was finalised. The agency appointed a rehabilitation provider and a graduated return to work plan was concluded on 15 May 2012.
Following her return to work in mid-April 2012, Ms Baird’s hours did not reduce but her duties changed to reduce time spent typing and handwriting. In particular she was relieved of the booker role and was restricted to typing for no more than an hour at a time. Ms Baird had a course of physiotherapy in June/July 2012, and another suitable duties plan was entered into on 20 July 2012.
Ms Baird had a steroid injection on her right wrist on 11 May 2012, after which she experienced relief for a couple of months. However, even when the aches and pains she had initially experienced had disappeared Ms Baird still had problems with the pain, tingling, and pins and needles, particularly in her right wrist and she had decompression surgery in April 2013. She then returned to work on a graduated program for 5 hours a day 5 days a week. Ms Baird is currently working full-time hours and no longer has treatment for her wrist, but still wears a splint at night.
Ms Baird had undertaken a photography course at the TAFE leading to a Certificate IV in photography theory. During the course in 2011 and again in 2012 she had a short-term (one week) work experience placement. Since May 2012, she said she has worked occasionally on Saturday mornings as a photographer’s assistant. There was a suggestion that the hyperextension of the wrist when photographing might exacerbate the carpal tunnel syndrome. Ms Baird’s response was that she used a tripod to hold the camera and a remote to take photographs so any aggravation would be minimal.
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 evidence
Dr 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.
In his view, ‘the most likely sequence of events … is that [Ms Baird] had a systemic viral infection that caused a degree of arthritis (ie joint inflammation) and that was associated with the development of carpal tunnel syndrome’. As to the cause of her condition his report said:
I would have difficulty ascribing a meaningful contribution from work, given that she had four years of working without developing any such symptoms, that she had actually had a break from work rather than continuous work prior to the development of her symptoms and in any event, there is at best an uncertain relationship between typing and the development of carpal tunnel syndrome according to the published literature.
At the most he said the typing may have aggravated her symptomatology to a small extent. He considered the cause to be the viral infection and the accompanying musculoskeletal symptoms she suffered in March/April 2012.
In a supplementary report dated 18 October 2013, Associate Professor Barnsley said he maintained the views expressed in his earlier report and listed two publications on the topic which supported his argument. He disagreed with the opinion of Dr McGlynn in his September report that ‘Ms Baird’s viral symptoms were fatigue and generalised aches, not specific joint swelling or pain’. As he said ‘This is at odds with the contemporaneous notes of her local doctor from 10 April 2012 where it is stated unequivocally that she is still feeling the joint pain and muscle ache’. He concluded as a consequence that he disagreed with Dr McGlynn’s conclusions that Ms Baird did not have any evidence of viral arthritis.
Dr Deveridge
Dr Richard Deveridge, surgeon, reported on 28 November 2012. He diagnosed a ‘classic carpal tunnel syndrome’, with ‘significant median nerve compression persisting at the right wrist’. He noted Ms Baird ‘has been subjected to repetitive hand, wrist and forearm motion in the course of her employment for the last 7 years’. As a consequence he said: ‘I consider that the nature and conditions of her employment … are the main contributing factors to the current disability in both upper limbs, with the deemed date of injury being 18.4.2012. No significant pre-existence or predisposing conditions were identified’.
Dr Reiter
Dr Loretta Reiter, consultant rheumatologist, provided a Fitness for Duty Report, for Comcare on 29 June 2012. In her history she noted that Ms Baird, who had been an employee of the Department of Human Services for seven years, had become aware in April 2012 of pins and needles and numbness affecting her middle three fingers, worse on the right than the left, as well as associated reduced strength in her right hand. The symptoms would wake her at night, or would be present when she woke in the morning. She noted that on examination ‘she had no evidence of joint swelling or synovitis. She had a positive Tinel’s, Phalen’s and Dercan’s sign only on the right’. A positive result from these tests indicates carpal tunnel syndrome.
Dr Reiter’s opinion was that the blood tests ordered to check for underlying inflammatory arthritis and arthritis which can be associated with carpal tunnel syndrome indicated that these possibilities could both be discounted. As she said ‘blood tests did not show any evidence of underlying inflammatory arthritis or diabetes’. Dr Reiter noted ‘The viral illness that she had did not cause her carpal tunnel syndrome. If it had caused her carpal tunnel syndrome then her symptoms would have completely, spontaneously, resolved when her viral illness resolved’. She diagnosed carpal tunnel syndrome worse on the right than the left. Dr Reiter also noted that Ms Baird’s ‘ability to complete her pre-injury hours and duties is not impacted on or affected by her outside employment’.
Dr Reiter provided a supplementary report on 19 September 2012. The report noted that Ms Baird’s right carpal tunnel syndrome had returned in late July/early August 2012 with increasing pins and needles, as well as numbness and pain in a median nerve distribution in her right hand which wakes her at night and is present in the morning. The pain also occurred when Ms Baird was gripping the steering wheel when driving, and when typing at work and using the mouse. Her left carpal tunnel symptoms had improved significantly and she only had short episodes of pain once a week, usually at work, doing data entry. Dr Reiter noted Ms Baird was then working full time but on rotating duties with two hours typing interspersed with one hour of interviews, throughout the day. Dr Reiter confirmed that the repetitive typing and mouse work had caused the carpal tunnel syndrome.
A second report by Dr Reiter, also dated 19 September 2012, in substantially similar terms, was the only document provided under summons to the Tribunal. However, at the hearing Ms Baird provided a copy of both reports. The second report differed in that there was no explicit statement that her carpal tunnel syndrome was a work-related injury. At the hearing, Dr Reiter said she could only explain the differences between the two reports as due to one being an earlier draft. She maintained the view expressed orally to Ms Baird and in the first report that the carpal tunnel syndrome was work-related.
There is evidence from an email dated 21 September 2012 from the agency to MLCOA of a request, if possible, for Dr Reiter to remove from her initial report those portions relating to any connection between Ms Baird’s condition and employment as this information was not required for a fitness for duty assessment.
Dr Sivacharan
Dr Sivacharan provided a report to Comcare dated 30 May 2012. He said Ms Baird first consulted him about her condition on 18 April 2012, when she said she had been experiencing symptoms for about two months. His probable diagnosis was carpal tunnel syndrome. He had organised a steroid injection on 14 May 2012. He also noted she had no significant past medical conditions which could have aggravated her condition, but said that ‘Repetitive work with flexed wrist may [have] aggravated her condition’.
His clinical notes for 10 April 2012 recorded that Ms Baird had been to the Goulburn Base Hospital the previous week with ‘muscle ache, joint pain’ and that she was still feeling the joint pain and muscle ache, but there was ‘no joint tenderness’, and ‘no obvious swelling’ of her hand. By 18 April 2012 he recorded her ‘joint pain and swelling settled’ but she had ‘pin and needle sensation and numbness in both middle fingers at night’.
The medical practice also provided a number of medical certificates, including for workers compensation. A feature of these certificates was that in response to the section ‘How the injury occurred?’ the comment was ‘Not Known. But aggravated by typing at work’. The certificates also stated: ‘In my opinion, the worker’s employment is a substantial contributing factor to this injury’. At the same time, on 18 July 2012, a medical certificate by Dr Sivacharan stated he could not find a cause for her carpal tunnel syndrome and commented: ‘It could be idiopathic, Carpal Tunnel Syndrome is seen in many work situations requiring rapid finger and wrist motion. In [Ms Baird’s] case, there is a possibility that her work aggravated the condition’.
Other evidence
A letter from the agency to Comcare dated 4 April 2013 at the request of Comcare provided the following information:
·Ms Baird was required to complete on average three half day shifts performing CLO/reception duties per week. This would equate to 10-12 hours per week.
·On average Ms Baird was required to complete 25-27 hours of computer based work per week.
·The work required to be completed was not repetitive in nature nor did it require constant typing/processing work.
At the hearing Ms Marianne Lennard, Ms Baird’s manager, confirmed that Ms Baird would be required to do typing for about 50 per cent of the week. However, while on the initial phase of the graduated return to work program, she said Ms Baird was taken off booker duties which required more intense typing, and this reduced her time as a CLO since that involved intermittent typing. Ms Lennard also indicated she had acted promptly to provide restricted duties for Ms Baird following her reporting of her injuries in mid-April 2012. She also recalled organising a left-handed keyboard for Ms Baird early in 2012, prior to Ms Baird’s holiday in March.
Issues
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.
Consideration
Nature 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.
Ms Baird’s statement, dated 3 June 2013, also indicated her symptoms commenced in late 2011. In her evidence she said the pain and numbness were present during her holiday in Bali. When asked why she had not reported this to any medical practitioner until she saw Dr McGlynn, Ms Baird said she associated pins and needles with the onset of the carpal tunnel syndrome because it was not until she also had these symptoms after her viral illness that carpal tunnel syndrome had been diagnosed. Nor were the symptoms sufficiently bad to prevent her working. Ms Baird said she had not complained since she thought it was just something she needed, and was able, to manage. She also said she was not a person who complained.
The Tribunal notes there is evidence consistent with Ms Baird’s explanation that she did not complain of something to her doctor until it was serious. Ms Baird did not report her lower back and sore neck pain to her doctor, although she complained about them at work and a workstation assessment was performed. The lack of complaint to her doctor about those conditions, which were also not sufficiently serious to prevent her working, is consistent with her lack of complaint about the weakness, pain and numbness in her hands from the end of 2011.
Against this evidence the Tribunal notes that Ms Baird did not mention the pre-April 2012 symptoms to Dr Reiter in June 2012, nor to Associate Professor Barnsley in May 2013. By then she was aware that both pins and needles and weakness and pain in her hands were symptoms of carpal tunnel syndrome. That knowledge is evidenced by Ms Baird’s workers’ compensation claim, dated 2 May 2012, completed by her, which listed as the symptoms ‘pains in wrists, numbness in wrists, tinglyness in wrists, no strength in wrists’.
At the same time, Dr Reiter was providing a fitness for duty assessment, not a medico-legal assessment so her questions may not have elicited that information. Ms Baird’s level of communication with Associate Professor Barnsley may also have been affected because of some delay in getting to see the specialist due to his being held up with an earlier patient, and her father’s anxiety to get away from Sydney prior to the worst of the Sydney rush hour. Her father had driven Ms Baird to Sydney for the appointment. These factors may explain Ms Baird’s failure to mention these earlier symptoms to either specialist.
Accordingly, the Tribunal makes no findings as to Ms Baird’s credibility based on this inconsistency in the history she provided to different specialists. In any event any earlier date could not be a date of injury. The relevant provision of the Act relating to the date of onset of a condition deems the date of injury to be either the date the person ‘first sought medical treatment’ for the condition or the date the condition ‘first resulted in incapacity for work’.[1]
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) s 7(4).
Prior to April 2012, Ms Baird’s symptoms of carpal tunnel syndrome had not incapacitated her for work, nor, until 18 April 2012, had the condition been diagnosed by her doctor. Diagnosis had been delayed until the results of the blood tests ordered on 10 April 2012 eliminated other possibilities and that did not occur until the 18 April 2012. Accordingly, the deemed date of injury is 18 April 2012.
Diagnosis of other related conditions
Other issues are whether the condition from which she suffered in April 2012 was an unnamed virus, viral arthritis, or arthralgia/myalgia and whether the viral condition she suffered at that time was associated with her carpal tunnel syndrome.
Myalgia and arthralgia were described by Dr Reiter as ‘pain and soreness in muscles and joints …. often associated with a viral illness’. Associate Professor Barnsley said ‘arthalgia is pain perceived in the joint’. Dr Kotha’s clinical notes for 3 April 2012 recorded ‘vague h/o body aches 2 days’ and ‘muscle aches all over body’. Dr Sivacharan’s notes for 10 April 2012 were ‘1. Went to hospital last week with muscle ache, joint pain’ but by April 18 2012, his clinical notes record ‘Joints pain and swelling settled’.
The Tribunal is satisfied that Ms Baird had a viral illness of some variety causing her muscle ache and joint pain following her return from holidays in March 2012 but that the symptoms had gone by 18 April 2012. So Ms Baird was suffering from what may be called arthralgia or myalgia, or some other labelled viral illness, on her return from holidays, but it was of short-term duration.
There remains the issue of whether the condition was viral arthritis. Dr Reiter’s conclusion was that the blood tests showed no evidence of ‘inflammatory arthritis’, nor did Ms Baird have ‘joint swelling or synovitis’, symptoms of viral arthritis. Dr McGlynn denied that she had viral arthritis, since that condition involved ‘an inflammation of the joint or joints’ and Ms Baird’s symptoms were ‘fatigue and generalised aches, not specific joint swelling and pain’.
Associate Professor Barnsley said, however, that Ms Baird did have a ‘degree of viral arthritis’ since the contemporary clinical notes referred to ‘joint pain and muscle ache’. He also noted in evidence that:
… findings of swelling within the carpal tunnel itself are extremely difficult to ascertain and the absence of this in other parts of the joint …doesn’t exclude persistent [inflammation] in the carpal tunnel. He also noted ‘you can have synovitis in joints without that being clinically apparent’.
The best contemporary evidence from the general practice she attends as to symptoms in Ms Baird’s hands is equivocal. On 10 April 2012 Dr Sivacharan’s notes had said ‘no obvious small joint deformity, no joint tenderness, no obvious swelling’. However, on 18 April 2012 Dr Sivacharan had noted ‘joints pain and swelling settled’. So though there may not have been ‘obvious swelling’, he did concede she had pain and some level of swelling. On 3 April 2012 Dr Kotha had noted ‘muscle aches all over body’. There was no mention of swelling but his focus was on her rash and the fever, rather than focusing specifically on her hands and this may have limited his diagnosis.
There is some evidence against the predominant medical view that Ms Baird did not have inflammatory arthritis. That evidence was that the steroid injection provided some relief. That finding indicates there was at least pain and possibly some inflammation of the tendons that pass adjacent to the median nerve or of the right wrist joint which the steroid injection alleviated for a couple of months.
On balance, given some evidence of pain and swelling in the relevant area, and the indication that swelling is not always apparent in carpal tunnel syndrome cases, the Tribunal does not accept Dr McGlynn’s and Dr Reiter’s view and finds that Ms Baird had a degree of viral arthritis alongside her other viral condition. However, the symptoms of both settled within a fortnight. That leaves as an issue only the question of whether either condition led to, exacerbated or aggravated her carpal tunnel syndrome.
Is condition an ‘injury’ or a disease’?
Prior to consideration of the causation question, the Tribunal needs to establish whether the carpal tunnel syndrome is an ‘injury’ or a ‘disease’ for the purposes of the Act. Ms Baird had contended that her condition could be described as either an ‘injury’ or a ‘disease’ or an ‘aggravation’ of either an injury or a disease within the meaning of those terms as defined in sections 4(1), 5A and 5B of the Act. Comcare submitted that the condition was either a ‘disease’ or an ‘aggravation’ of a disease.
The distinction between an ‘injury’ and a ‘disease’ in the Act, is, broadly, that an injury is manifested by a sudden physiological change,[2] whereas a ‘disease’ covers all other forms of injury.[3]
[2] Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 335-336.
[3] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(1)(b).
Dr McGlynn said Ms Baird’s carpal tunnel syndrome was ‘best described as a gradual onset condition’, that is, an ailment other than an injury. Dr Reiter did not address this issue in her reports. She was not asked to do so since she was providing a Fitness for Duty assessment. Associate Professor Barnsley, however, did state in his report of 10 May 2013, that ‘it would not appear that there was any specific injury’, thus ruling out the physical injury option and by implication indicating he too would have found the condition to be a disease. Ms Baird provided no evidence of any sudden event or bodily change which led to the condition of her wrists.
The Tribunal finds, accordingly that Ms Baird’s ailment is not an injury simpliciter, given that it did not arise from some sudden physiological change. Hence is a disease. Whether it comes within the definition of ‘disease’ in the Act depends on whether the condition fulfils other criteria in the Act for being a ‘disease’, particularly whether employment contributed to her contraction of the condition to a significant degree. This second matter is dealt with later in these reasons.
The definition of ‘disease’ in the Act states: ‘Disease means: An ailment suffered by an employee; or (b) An aggravation of such an ailment’.[4] An ‘ailment’ is defined as meaning ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.[5]
[4] Act s 5B(1).
[5] Act s 4(1) – definition of ‘ailment’.
As the Tribunal has found:
The words ‘disorder, defect or morbid condition’ denote matters of some substantial departure from the normal structure and functioning of the human body or mind. The word ‘ailment’ may denote something less. The word ‘morbid’ is defined as: ‘1. suggesting an unhealthy mental state; unwholesomely gloomy, sensitive, extreme, etc. 2. Affected by, proceeding from, or characteristic of disease. 3. Pertaining to diseased parts: morbid anatomy.[6]
[6] Re Waller and Repatriation Commission (2003) AATA 430 at [77]-[78].
Ms Baird reported the condition to her general practice on 3 April 2012 as muscle ache and joint pain ‘worse in hand and fingers and feet, worse in morning’. The condition was sufficiently serious initially for her doctor to give her a certificate for a week’s leave, and subsequently to prescribe a cortisone injection, pain-relieving medication and a splint, and later a referral to a specialist followed by an operation. The condition also led her workplace, at the doctor’s recommendation, to implement a restricted duties regime for Ms Baird and, after the operation, to a graduated return to work program.
The Tribunal finds that Ms Baird’s right wrist at least exhibited a departure from its normal structure and functioning and was of sufficient seriousness to come within the expression a ‘disorder, defect or morbid condition’. The Tribunal notes that Dr Deveridge, in his report in November 2012, said the left wrist condition was dormant and that the other specialists did not find that the left wrist tested positive for carpal tunnel syndrome. The carpal tunnel syndrome restricted Ms Baird’s ability to type continuously and other activities of daily living, that is, it limited the normal functioning of her body. Accordingly, the condition was an ‘ailment’.
The condition was also of gradual development since the onset of symptoms may have occurred prior to April 2012, but had worsened after her viral illness, and continued to cause her discomfort after the various treatments including the operation. Accordingly, Ms Baird’s carpal tunnel syndrome is a ‘disease’ for the purposes of the Act, subject to there being the requisite connection with employment.
Cause of carpal tunnel syndrome
For the carpal tunnel syndrome to be a disease or an aggravation of a disease under the Act a link must be established with employment.[7] That causal link requires that the condition must have been ‘contributed to, to a significant degree, by the employee’s employment’.[8] A contribution to a significant degree ‘means a degree that it is substantially more than material’.[9]
[7] Act s 5B(1)(b).
[8] Act s 5B(1).
[9] Act s 5B(3).
‘Material’ had been determined to be more than de minimis, that is, ‘more than a mere contributing factor’,[10] and to be ‘an evaluative threshold below which a causal connection may be disregarded’.[11] The interpretation is best captured by the meaning in the Shorter Oxford English Dictionary as ‘in a material degree; substantially, considerably’.[12] That meaning was picked up in the amendments which led to section 5B(3) of the Act, namely, that the contribution must be ‘substantially more than material’.[13] As the discussion indicates, and the Tribunal accepts, the contribution must be one of substance and must be considerably more than de minimis, or a ‘mere contributing factor’.
[10] Comcare v Sahu-Khan (2007) 156 FCR 536.
[11] Id at [12].
[12] Id at [15]-[16].
[13] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(3).
Two issues must be considered: whether Ms Baird’s carpal tunnel syndrome was contributed to, to a substantial degree by her employment; and whether her carpal tunnel syndrome was aggravated, and that aggravation was contributed to, to a substantial degree by her employment.[14]
[14] Act s 5B(1).
Viral arthritis or other viral condition?
The first question is whether the carpal tunnel syndrome was due to the viral arthritis or the viral illness suffered by Ms Baird. There was no suggestion in submissions that any viral infection was work-related. The Tribunal has found that Ms Baird had a degree of viral arthritis associated with her viral illness in March/April 2012.
Associate Professor Barnsley said the viral infection caused viral arthritis, that is, a degree of joint inflammation, which was in turn associated with the carpal tunnel syndrome. In his view the carpal tunnel condition was principally due to the viral infection. Consequently his view was that employment had not caused the condition. In his view Ms Baird’s carpal tunnel syndrome was idiopathic, that is, of unknown cause.
Dr Reiter’s view was that Ms Baird did suffer from a viral illness when she returned from Bali, but in her view that did not cause the carpal tunnel syndrome. As to whether that viral illness was viral arthritis she said the absence of testing at the time meant she could not confirm the diagnosis. Her conclusion as to the absence of any connection between the viral condition and the carpal tunnel syndrome was based on her view that although the virus –
… may cause inflammation of the tendon sheath [tenosynovitis] … and that may cause symptoms at the time of the illness, … by definition a viral inflammatory arthritis is short-lived and therefore any carpal tunnel syndrome symptoms related to that resolve once the viral illness resolves.
As Ms Baird’s symptoms did not come to an end after her other aches and pains had disappeared, Dr Reiter’s view was that the carpal tunnel syndrome could not have been caused by any viral illness.
Dr McGlynn’s view was that the onset of carpal tunnel was in 2010, with symptoms arising in late 2011, that is, before the viral illness. In his view too, the viral illness was not the cause of the condition but was a temporary aggravating factor that fully resolved, and the continuing symptoms in her right hand were unrelated to the viral illness. In his view the viral illness aggravated the condition but was not the cause of its continuation.
Dr Sivacharan’s reports and his medical certificates did not associate Ms Baird’s viral conditions with her carpal tunnel syndrome. As he said in his medical certificates, the cause was unknown. In addition, he noted her viral symptoms had disappeared by mid-April 2012, while the carpal tunnel syndrome continued. In any event, it was his view that the condition could be idiopathic.
On balance, the predominant medical view, which the Tribunal accepts, is that the viral illness, however, described, was not the cause of the carpal tunnel syndrome, although it may have been associated with its onset. At the most the condition may have exacerbated the carpal tunnel syndrome..
Caused by employment
The next question is whether the carpal tunnel syndrome was caused by Ms Baird’s employment. Ms Baird said her symptoms are ‘worsened by constant handwriting and typing at work’.
Associate Professor Barnsley did not accept this possibility. He said it ‘was an important issue that the onset of the symptoms was after the development of the viral illness and before she returned to work’, and also that immediately prior to the development of the viral condition she had been on holidays for about a fortnight. As a consequence it was his view that the symptoms could not be work related. He was bolstered in that opinion by studies in which any association between keyboarding and carpal tunnel syndrome had been limited or not shown to exist.[15]
[15] Yves Roquelaure, 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; Isam Atroshi et al Carpal Tunnel Syndrome and Keyboard Use at Work: A Population-Based Study’ (2007) 56, No 11 Arthritis & Rheumatism, 3620-3625; Susan Burt et al ‘A prospective study of carpal tunnel syndrome: workplace and individual risk factors’ (2013) 70, No 8 Occupational & Environmental Medicine, 568-574.
Dr McGlynn’s evidence was that Ms Baird’s condition was ‘consistent with her workplace incident’. He also noted that apart from being female, Ms Baird did not exhibit any of the usual risk factors for carpal tunnel syndrome. He said in evidence that for the majority of patients he did not believe work contributed to the development of their carpal tunnel syndrome. However, he said ‘when I find evidence that anti-inflammatory injections at the site completely relieve the symptoms, then I start thinking about why they had the problem and how it could be related to work’.
He rejected the findings of the studies quoted by Associate Professor Barnsley on the basis that they were population studies, not looking at the individual. As he said:
tenosynovitis can be caused by … repetitive movement of tendons [such as] frequent, repetitive manual activity like typing … and office-related chores, [so] it’s possible that typing could be the cause of tenosynovitis – that’s causing the carpal tunnel syndrome.
Dr Reiter agreed with Dr McGlynn stating that there is a connection between workplaces and the work [Ms Baird] was doing and the carpal tunnel syndrome. That was supported, in her view, because rest improves the symptoms and for that reason Ms Baird had been advised to wear a splint at night. She also maintained at the hearing and in her report that in the absence of alternative possible causes, it was Ms Baird’s employment which was causal of her condition.
Associate Professor Barnsley agreed with the comment concerning rest but said treatment of symptoms of carpal tunnel syndrome was different from identifying the cause. In his view the fact that Ms Baird’s left wrist improved while her right wrist did not, even though she continued at work, suggested there was ‘at best an uncertain relationship between her work and her ongoing symptoms’. He agreed that Ms Baird’s circumstances did not raise any of the usual risk factors but said carpal tunnel syndrome was usually associated with forceful repetitive activity and this was not evident in Ms Baird’s case.
Dr Sivacharan’s view was that Ms Baird ‘had no significant past medical conditions which could have aggravated her condition’ and expressed the opinion that ‘Repetitive work with flexed wrist may [have] aggravated her condition’. In his medical certificates he said the cause of Ms Baird’s condition was unknown but it was ‘aggravated by typing at work’. Later he said ‘there is a possibility that her work aggravated the condition’. His certificates, however, asserted that Ms Baird’s employment ‘is a substantial contributing factor to this injury’.
Dr Deveridge said he had not identified any significant pre-existing or predisposing conditions in Ms Baird’s case. Nor had there been any alternative activities on the part of Ms Baird which could have led to the onset of symptoms. In his view ‘the nature and conditions of her employment … are the main contributing factors to the current disability in both upper limbs’.
The evidence at the hearing was that Ms Baird was involved in typing for about half of her working week. The earlier letter from the agency of 4 April 2013 suggested the proportion was higher at over 60 per cent. At the same time, that activity is intermittent as the roster provided by the employer, and the evidence, indicated. Ms Baird had been allocated to booker duties in late 2011 when the role was established. These involved often typing for four hours at a stretch. However, Ms Baird’s manager said that it was decided that four hours was too intensive and ‘within a month’ of its introduction, the booker duties were changed so no more than two hours of continuous typing was involved.
The Tribunal also notes, however, that Ms Baird was involved in training for three months from November 2011, some of which required her to travel throughout New South Wales. These facts indicate that the amount of typing Ms Baird was doing from November 2011 until January 2012 would have been lessened due to the time spent travelling or in training sessions. So the volume of repetitive typing undertaken by Ms Baird in the period leading up to March 2012 is likely to have been less than the 50 per cent on average estimated by her manager when she was full-time in the Goulburn office of the agency.
In summary, the contention by Ms Baird is that there is a connection between typing and carpal syndrome. Associate Professor Barnsley, supported by the population studies he provided, denied that repetitive typing can lead to carpal tunnel syndrome. Dr Reiter’s view, which the Tribunal prefers to that of Associate Professor Barnsley, was that at this stage, the literature is equivocal as to whether repetitive typing is a risk factor for carpal tunnel syndrome. Moreover, as Dr McGlyn said, and the Tribunal accepts, the development of symptoms must be considered in the context of the individual concerned.
In Ms Baird’s case there were no pre-existing medical conditions such as diabetes and obesity, which could have contributed to her condition. Nor was she a typical age for a woman to develop the condition. The suggestion that Ms Baird’s photography activities could have been causal of her condition was not pursued at the hearing. Consequently, the Tribunal finds that there is no evidence to support the possibility that activities outside Ms Baird’s employment were causal of her carpal tunnel syndrome.
At the same time, the Tribunal does not accept that employment contributed to Ms Baird’s condition to a significant degree. The condition was not diagnosed until April 2012 following a period of some three weeks between 19 March 2012 and 10 April 2012 when Ms Baird had not been at work. Ms Baird had worked at the agency for some five to six years prior to the onset of any symptoms, and in the months from November to January 2012, Ms Baird had interspersed her typing work with training, which had diminished the time she would have spent typing.
In November 2011, when Ms Baird was involved in the booker role typing 4 hours at a stretch, may have exacerbated her symptoms, coupled with the ergonomic issues affecting her right arm identified by the work station assessment. However, the Tribunal notes that Ms Baird’s symptoms of carpal tunnel syndrome were not then incapacitating. In addition, the workplace took steps to alleviate any ergonomic problems experienced by Ms Baird at her work station, and her supervisor implemented a restricted duties regime to limit the time Ms Baird spent doing any one activity, particularly typing.
There is also evidence that it was the viral illness, however described, that precipitated Ms Baird’s symptoms becoming of sufficient seriousness to prevent her working from 2 April 2012. There is no suggestion that the viral illness was work-related and to the extent that it was the viral illness which led to her condition becoming symptomatic, Ms Baird’s employment was not implicated. The conclusion is that on the facts the Tribunal can not be satisfied that it was the workplace which made a substantial contribution to her condition.
In addition, there is a significant difference of opinion as to causation from the medical specialists. Associate Professor Barnsley denied any connection. Dr McGlynn was only prepared to say that her condition ‘was consistent with’ it being employment-related. That careful choice of works does not meet the threshold of the contribution being significant. Dr Reiter’s support for the contribution was a default position. In the absence of any alternative explanation she said Ms Baird’s condition was due to her employment. Dr Deveridge, the surgeon who only saw Ms Baird briefly for the purposes of an operation, said it was the nature and conditions of employment which were the main cause of her condition. However, his contact with Ms Baird was limited and his finding can be discounted to that extent.
Dr Sivacharan who, as her doctor, had the most consistent contact with Ms Baird, was equivocal as to causation. He said the condition was of unknown origin but there was a ‘possibility’ that work aggravated, not caused, the condition and that ‘repetitive work with flexed wrist may [have] aggravated her condition’. Although his medical certificates also stated that employment was ‘a substantial contributing factor’ that statement is at odds with his other more tentative statements and this suggests the statement was made for the purposes of compensation rather than because he believed that Ms Baird’s employment had contributed to a significant degree. On balance, the medical evidence does not support a significant connection with employment.
In combination, these facts mean that the Tribunal is not satisfied that it was her employment which contributed to Ms Baird’s carpal tunnel syndrome to a significant degree. That leaves the issue of whether her employment aggravated her condition in such a manner as to mean that her employment made a contribution to the requisite degree.
Aggravation
Ms Baird has claimed that even if employment did not cause her condition, at the least it aggravated it. An ‘aggravation’ is defined to include ‘acceleration or recurrence’.[16] For a successful claim for aggravation of an ailment it must be established that the ailment was accelerated or made worse, not that it simply became worse.[17] In Ms Baird’s case, her condition which previously had not been diagnosed nor incapacitated her from work, was aggravated by the viral illness, however, described, in that it became worse, was symptomatic and incapacitated her from working and required medical treatment. So her condition was aggravated. Whether the condition was accelerated was not addressed in the evidence provided, but the Tribunal finds on the evidence that if there was an acceleration it was due to the viral condition, not employment.
[16] Act s 4(1).
[17] Ogden Industries Pty Ltd v Lucas (1976) 116 CLR 537 at 593 per Windeyer J.
During the hearing, Associate Professor Barnsley said ‘I think once she had established symptoms then any activity with her hands … might be expected to aggravate it’. Later, in response to the question, assuming Ms Baird had ‘duties of a typing nature [would] the use of hands and the wrist movement … have aggravated the carpal tunnel syndrome?’ his reply was: ‘I’d say it’s possible, yes’. However, he also said at the most typing may have aggravated her symptomatology to a small extent.
Dr McGlynn said ‘If you’ve got carpal tunnel syndrome regardless of cause … manual activity tends to worsen the symptoms’. However, he was only prepared to say that the onset of the symptomatic carpal tunnel syndrome was ‘consistent with her workplace incident’ and that the viral illness was at most a temporary aggravating factor. Similarly Dr Reiter said in relation to a question about whether there was a connection between workplaces and Ms Baird’s work and her carpal tunnel syndrome, ‘the short answer is yes … because there is evidence that rest can make a difference’.
In summary all three medical experts agreed that the activities Ms Baird was undertaking in the workplace could have aggravated her symptoms of her carpal tunnel syndrome. That is consistent with the fact that steps were taken by her workplace after Ms Baird complained to limit her typing duties and to intersperse them with other non-repetitive duties and this action seemed to assist her left wrist. However, these are events which followed the onset of the condition and its diagnosis in April 2012. The Tribunal’s task is to decide what led to that onset.
The findings earlier concerning the contribution generally of employment to the condition in the period leading to 18 April 2012 are also applicable to whether the condition was aggravated by work. The issue is whether employment aggravated the condition to a significant degree. The Tribunal finds on the evidence that it is not satisfied that the aggravation of Ms Baird’s condition was contributed to, to a significant degree, by her employment. Rather the evidence indicates that it was the viral illness, however described, that was the factor which triggered the deterioration of her carpal tunnel syndrome to the extent evidenced in this application. The Tribunal therefore is not satisfied that it was Ms Baird’s employment that accelerated or aggravated her condition to the significant extent required by the Act.
The decision under review is affirmed.
I certify that the preceding 98 (ninety eight) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member .........................[sgd]........................
Associate
17 April 2014
Date(s) of hearing 17 and 18 February 2014 Counsel for the Applicant John Wilson Advocate for the Applicant Elise Fry Solicitors for the Applicant Stacks Southern Lawyers Counsel for the Respondent Jane Godstchalk Advocate for the Respondent Elinore Gerritsen Solicitors for the Respondent Australian Government Solicitor
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